Trump’s Hardline Immigration Chief Was Unlawfully Appointed, Advocates Say

“What they’ve done here is given the president unlimited power to install whoever he wants in a position. He knew Cuccinelli couldn’t be confirmed through the Senate.”

Immigration advocacy groups are challenging the legitimacy of Ken Cuccinelli’s appointment as acting director of US Citizenship and Immigration Services, calling on the Department of Justice to force the former Virginia attorney general to prove he is legally eligible to serve in the role.

In a letter sent to Attorney General William Barr on Monday, the advocates claim that Cuccinelli’s appointment violated a federal law governing which officials can be picked to lead agencies on an acting or interim basis.

The letter, written by Democracy Forward, calls on Barr to force Cuccinelli, an immigration hardliner, to prove his legal basis for the position. The letter was signed by seven immigrant advocacy groups, including RAICES and the National Immigration Law Center.

Cuccinelli has made use of his short time leading the agency, pushing policies that cut back the time immigrants have to consult with attorneys before their initial asylum interviews and imploring asylum officers to be stricter in the interviews.

He has maintained an active Twitter feed where he has attacked the asylum officers’ union for criticizing a policy that forces immigrants to remain in Mexico, advertised his TV appearances, and shown continuous support for immigration policies pushed by the president, including a ban on asylum for those who reached the border through Mexico.

As a Virginia lawmaker in 2008, Cuccinelli sponsored a resolution calling for a rewrite of the Constitution to deny citizenship to Americans who were born to immigrants who crossed the border without authorization. Now, as director of USCIS, he is leading the agency in charge of assessing naturalization applications and administering the process, which includes interviews and oaths.

Cuccinelli was selected as acting director by President Trump in early June, after being hired to a position that did not appear to exist before his arrival. The advocates believe his appointment violated the Federal Vacancies Reform Act.

The 1998 statute allows the president to select certain senior officials to fill Cabinet and agency positions. At USCIS, Cuccinelli’s official title as of Monday is principal deputy director. Under the statute, the only way for Cuccinelli to have become eligible to be selected to lead the agency in an interim fashion was to be deemed a “first assistant.”

“Trump did an end run around the statute,” said John Lewis, counsel at Democracy Forward. “We say this is unlawful per the statute. What they’ve done here is given the president unlimited power to install whoever he wants in a position. He knew Cuccinelli couldn’t be confirmed through the Senate.”

The group argues that the statute requires that Cuccinelli must have been in the “first assistant” role prior to being appointed. Steve Vladeck, a professor at the University of Texas School of Law, said any challenge to his appointment will “likely to rise or fall on that issue.”

Anne Joseph O’Connell, a professor at Stanford Law School, said the appointment clearly violated the spirit of the act. “Here is a situation where you had a first assistant [prior to the vacancy],” she said. “And even if you did not have a first assistant, there were many others who could step in under the Act: the President could have chosen any Senate-confirmed official or a senior worker at DHS who had served at least 90 days prior to the vacancy.”

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