Top Trump Immigration Official May Not Have Been Legal Pick, Dems Say

TANGIER ISLAND, VA - DECEMBER 15:   on Monday, December 15, 2014 in Tangier, Va. (Photo by Jay Westcott/For The Washington Post)
TANGIER ISLAND, VA - DECEMBER 15: Ken Cuccinelli shares a laugh while on a boat on Monday, December 15, 2014 in Tangier, Va. (Photo by Jay Westcott/For The Washington Post via Getty Images)
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Several senior House Democrats want proof that the Trump administration’s top official on legal immigration and citizenship legally obtained his own title.

Ken Cuccinelli, an immigration hardliner and former Virginia attorney general, began as acting director of U.S. Citizenship and Immigration Services last week even though he’d never spent any time at the agency, nor even within the federal government more broadly.

According to the Democratic chairmen of the House Judiciary, Oversight and Homeland Security Committees — Reps. Jerry Nadler (D-NY), Elijah Cummings (D-MD) and Bennie Thompson (D-MS), respectively — that appointment might not have been legal.

“It appears the Administration was aware that Mr. Cuccinelli could not be appointed Acting Director of USCIS consistent with the Federal Vacancies Reform Act,” or FVRA, they wrote in a letter to Acting Homeland Security Secretary Kevin McAleenan. It appears, they wrote, “that Mr. Cuccinelli was appointed in a manner that circumvents” the FVRA.

As TPM reported last week, the FVRA governs the vacancy-filling process at the top of executive branch agencies. While other rules govern the process in more detail from agency-to-agency, the FVRA lists three categories of people who can become “acting,” or temporary, agency heads when vacancies occur: the “first assistant,” a Senate-confirmed person in the executive branch or another agency official who’s served 90 days in the year prior to the vacancy.

Cuccinelli fit none of those descriptions. But the current USCIS deputy director, Mark Koumans, was not asked to fill the vacancy in an acting capacity. Instead, USCIS’ parent agency, the Department of Homeland Security, appears to have created a new title — “principal deputy director” — for Cuccinelli to fill, which would then qualify him as the “first assistant” to take control of the agency.

The Democrats wrote Tuesday: “The creation of this new position appears to have had no purpose other than to facilitate the appointment of Mr. Cuccinelli over any of the individuals who were eligible under the law.”

The move is “particularly troubling,” they said, given that it came after several Senate Republicans made clear that they would not vote to confirm Cuccinelli, a far-right flame-thrower unpopular in some establishment Republican circles.

Trump “apparently changed his mind” about simply nominating Cuccinelli for Senate confirmation when he realized the opposition Cuccinelli faced, the Democrats wrote.

A DHS spokesperson declined TPM’s request for comment.

The Democrats asked DHS for records of communications about Cuccinelli’s appointment, records of legal considerations related to it, and records “referring or relating to the creation, scope, or duties” of the “principal deputy director” position.

Also on Tuesday, BuzzFeed News reporting provided a fresh example of why Trump’s crew of immigration hardliners want Cuccinelli in the role. The acting official fired off a letter earlier in the day urging USCIS staff to crack down on people seeking asylum at the border.

USCIS officers screen asylum seekers at the border for “credible fear” of persecution in their home countries, a fairly low legal bar. If asylum seekers meet that bar, they’re given a court date and begin the asylum process. Many fewer people than those that pass the initial screening are actually ultimately granted asylum, and the Trump administration has tried its hardest to keep people out of the country who might not ultimately earn the legal protection.

For example, the so-called “Remain In Mexico” program, technically called “Migrant Protection Protocols,” forces asylum seekers to remain in Mexico as their claims are processed. The policy recently expanded and faces a legal challenge.

Apparently, that’s not enough for Cuccinelli.

“Asylum officers, you took an oath to support and defend the Constitution of the United States. As a public servant your role as an asylum officer requires faithful application of the law,” he wrote in the letter, adding that USCIS “must, in full compliance with the law, make sure we are properly screening individuals who claim fear but nevertheless do not have a significant possibility of receiving a grant of asylum or another form of protection available under our nation’s laws.”

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