Case: L.M.-M. v. Cuccinelli

On September 6, 2019, a legal services provider and seven individuals detained at the South Texas Family Residential Center in Dilley, Texas, filed this lawsuit in the U.S. District Court for the District of Columbia against U.S. Citizenship & Immigration Services (USCIS) and the Department of Homeland Security (DHS). The individual plaintiffs, along with the Refugee & Immigrant Center for Education & Legal Services (RAICES), challenged new directives that the government issued at two detention centers in Texas, which effectively gave asylum seekers just twenty-four hours to prepare for their credible fear interviews (“the Directives”). Represented by Democracy Forward Foundation, RAICES, and Catholic Legal Immigration Network (CLINIC), the plaintiffs alleged that the Directives violated the First Amendment, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), the Administrative Procedure Act (APA), the Rehabilitation Act, the Federal Vacancies Reform Act, and the Appointments Clause. The plaintiffs sought declaratory and injunctive relief, and the case was assigned to Judge Randolph D. Moss.

In their complaint, the plaintiffs argued that the combination of three new USCIS directives resulted in an unlawful infringement on the right to seek asylum in the U.S. Specifically, the Directives reduced the time given to asylum seekers to consult with third parties prior to their credible fear interviews, mandated that requests for extensions be denied absent the most extraordinary circumstances, and eliminated a legal orientation program for asylum seekers at the Dilley facility. The plaintiffs made the following legal claims in their complaint:

(1) that by impeding asylum seekers’ ability to consult with persons of their choosing and preventing them from fully and effectively participating in the credible fear interview process, the Directives violate IIRIRA;

(2) the Directives are arbitrary and capricious and an abuse of discretion under the APA as they were motivated by racial animus and the defendants failed to provide an adequate justification for changing policy;

(3) the Directives violate the APA because they were issued absent notice and comment; (4) the Directives violate the Rehabilitation Act, because they unlawfully discriminate against the individual plaintiffs (who have disabilities under the Act) by failing to provide them with a reasonable accommodation and/or excluding them from the asylum process altogether;

(5) the Directives violate the First Amendment because they unduly impede communication and association between the individual plaintiffs and their counsel, as well as between RAICES and its clients; and

(6) the Directives were issued in violation of the Federal Vacancies Reform Act and the Appointments Clause, because Mr. Cuccinelli’s service as Acting Director of USCIS is not in accordance with the Act, nor was he nominated by the President and confirmed by the Senate.

On March 1, 2020, the district court granted in part and denied in part the summary judgment motions of both the plaintiffs and defendants. L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 7 (D.D.C. 2020). First, Judge Moss concluded that the court had jurisdiction only over the plaintiffs’ challenges to the directives reducing consultation time and prohibiting extensions. Next, he found that Mr. Cuccinelli was not lawfully appointed to serve as Acting Director of USCIS, thereby requiring that those two directives be set aside. He also set aside the individual plaintiffs’ negative credible-fear determinations and removal orders and remanded to USCIS for further proceedings. Judge Moss did not reach the plaintiffs’ other legal challenges.

Following the court's March 1 order, the parties disagreed over whether partial final judgment was proper. On April 16, 2020, the court granted partial judgment as to plaintiffs' individual Federal Vacancies Reform Act claims against their wishes. 2020 WL 1905063. Judge Moss considered plaintiffs' concern that USCIS might ratify or to reissue the directives dismissed by the court, but disagreed that this hypothetical possibility justified delaying partial final judgment. Instead, the court concluded that such action on USCIS's behalf would be cause for a new claim.

Defendants appealed Judge Moss's March 1 order to the DC Circuit Court of Appeal. But they voluntarily withdrew their appeal on August 19, 2020. 2020 WL 5358686.

On August 18, 2021, the court dismissed plaintiffs' remaining claims upon the parties' suggestion in their joint status report. They agreed that the remaining claims were moot in light of the Court’s April 16, 2020 Order, and dismissal without prejudice was proper for lack of subject-matter jurisdiction.