Ken Cuccinelli’s appointment as the acting director of US Citizenship and Immigration Services (USCIS) was ruled unlawful on Sunday by a federal judge for the United States District Court of Columbia.

Judge Randolph Moss cited the appointments clause in Article II of the Constitution in his opinion, stating that the clause requires that any principal member of the US be approved after receiving the “advice and consent of Congress.” Cuccinelli, on the other hand, was appointed through a quick restructuring of the directorial position and order of succession after Lee Francis Cissna resigned from the role in June 2019 at Donald Trump’s request. Following the resignation, then-Secretary of Homeland Security Kevin McAleenan appointed Cuccinelli to serve as Principal Deputy Director of USCIS after temporarily structuring the hierarchy of the agency to make this position next in line for director.

In fact, in accordance with the Federal Vacancies Reform Act of 1998, then Deputy Director Mark Koumans should have remained as acting director of the USCIS, a position he instead held for just over a week. McAleenan’s restructuring created the “Principal Deputy Director” position and appointed Cuccinelli to it, thus propelling him over Koumans in the line of succession. His appointment to acting director was meant to last until it was either revoked by McAleenan or a new director was officially appointed.

The lawsuit was brought by several immigrants challenging new directives put in place by Cuccinelli and his unlawful appointment to a position to order those directives. One such directive included drastically reducing the amount of time asylum seekers could have to prepare for their “credible fear” interviews, which are mainly used when immigrants are subject to expedited removal to determine if they have a sufficient fear of harm should they not be granted asylum.

Moss found it necessary to only decide on the issue of the lawfulness of Cuccinelli’s appointment, as this would determine whether he had sufficient authority to order any of his directives. At the center of determining this issue was in construing the Federal Vacancies Reform Act. Moss ruled that the Act requires the first assistant in place at the time of the vacancy should by the one to succeed. Cuccinelli did not serve in government prior to his appointment to his position, and so Moss determined that he could not satisfy the Act’s requirement of having served as a subordinate assistant prior to the vacancy.

Based on his ruling, Moss set aside the negative “credible fear” findings of the five asylum-seeking plaintiffs due to prejudicial error and ordered that Cuccinelli’s directives be suspended until proper measures for appointment are taken.