Ken Cuccinelli emailed his staff at U.S. Citizenship and Immigration Services last month to say goodbye.
“Dear Colleagues,” Cuccinelli, the agency’s acting director, wrote in mid-November, according to a copy of the email. “Soon, I will begin serving as the acting deputy secretary of Homeland Security. During this transition, Deputy Director Mark Koumans’s will serve as your acting director.”
Government officials quickly removed Cuccinelli from at least one federal lawsuit against the citizenship agency and replaced his signature with Koumans’ on the formal naturalization certificates handed to new citizens after their swearing-in ceremonies. Cuccinelli deactivated his “USCISCuccinelli” Twitter handle and switched to “HomelandKen.”
Then Cuccinelli quietly returned to the citizenship agency, and nobody will say why.
“No one knows who is in charge, even the people that work there,” said Jessica Marsden, an attorney for Protect Democracy, a Washington-based legal nonprofit. Project Democracy filed a lawsuit on behalf of the city of Seattle and other nonprofits challenging, among other things, the legality of Cuccinelli’s appointment. “Who is calling the shots? It’s a mystery to us.”
It turns out that Cuccinelli, a former Virginia attorney general, is holding down both jobs – he is the acting deputy secretary of DHS and the acting director of USCIS, a subordinate agency within the department, according to spokesmen for both agencies. President Donald Trump has not nominated Cuccinelli for Senate confirmation at either position, and such a move is unlikely, given that Senate Majority Leader Mitch McConnell, R-Ky., has said he would not support Cuccinelli’s confirmation.
Cuccinelli was a cheerful but combative figure at the staid citizenship agency, which processes applications for citizenship and green cards. The Trump administration has been seeking to move the immigration hard-liner up within DHS amid his staunch support for restrictionist policies. He declined an interview through a spokesman this week.
“Ken Cuccinelli is the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security,” said USCIS spokesman Daniel Hetlage. “He still retains his title as Acting Director of U.S. Citizenship and Immigration Services.”
DHS spokesman Max Bluestein emailed a similar statement and said Cuccinelli is working out of Homeland Security’s headquarters. Cuccinelli has tweeted photos from his new digs, including one of deer at sunrise roaming the DHS campus he calls “St. E’s,” referring to the St. Elizabeths psychiatric hospital that once occupied the property.
The switcheroo has confused staff at both agencies, as well as lawyers, applicants and journalists who cover them.
“Who’s in charge at USCIS?” Politico wrote late last month.
USCIS’s website says Cuccinelli is the agency’s acting director. DHS’s site says his position at the department is “vacant,” yet that he is filling it.
Assistant Attorney General Joseph Hunt wrote in court papers that he removed Cuccinelli from a federal lawsuit against the citizenship agency on Nov. 19, two days after Cuccinelli started his new job at DHS. Six days later, Hunt filed a “notice of correction.”
“Subsequent to filing the Notice, undersigned counsel were advised that, at the time the Notice was filed . . . he continued to hold the title of Acting Director, USCIS,” Hunt wrote.
Hunt did not say who advised him of that information, and a Justice Department spokesman declined to comment.
Adding to the confusion, officials quietly restored Cuccinelli’s signature to the naturalization certificates on Sunday, according to an email sent to the agency’s staff last week and obtained by The Washington Post. Certificates with Koumans’ signature are still valid, Hetlage said.
Cuccinelli was first appointed to USCIS in June after Trump pushed out several top officials as part of an effort to go in a “tougher” direction with the nation’s approach to immigration. Some experts believe Cuccinelli was put into the USCIS role solely so he could later ascend to a top position within DHS, and Democratic lawmakers and at least two federal lawsuits – one filed in Washington and another in San Francisco – are challenging the legality of Cuccinelli’s USCIS appointment. They argue that DHS created a new position for him at the top of the citizenship agency in violation of federal law and the Constitution.
Stanford law professor Anne Joseph O’Connell said Friday that she suspects government lawyers instructed Cuccinelli to retain his title at USCIS to avoid constitutional challenges to his DHS appointment, since the Constitution’s Appointments Clause dictates that only a federal officer should be able to take such a high-level position.
Once at USCIS, Cuccinelli issued a string of new policies and rules that make it more difficult to claim asylum, apply for green cards, and obtain fee waivers for citizenship applications.
Those who are challenging the appropriateness of his appointment argue that Cuccinelli’s tough new immigration policies are invalid.
At a hearing Monday in San Franciso federal court regarding one of the lawsuits challenging Cuccinelli’s appointment, Judge Maxine Chesney said that “it didn’t look like he was appointed in conformity with the law.”
Chesney, a Clinton appointee, has not yet ruled on Cuccinelli’s USCIS appointment.
U.S. District Judge Randolph Moss, an Obama appointee, also expressed skepticism about Cuccinelli’s appointment at USCIS earlier this month, according to Courthouse News.
The Justice Department has denied that Cuccinelli’s appointment violates federal law, according to court records.
Trump wanted to nominate Cuccinelli to be the DHS secretary in October, after then acting secretary Kevin McAleenan announced his resignation. Cuccinelli had to settle for the No. 2 spot after Senate Republicans signaled that they would not confirm him because of past political disputes.
Chad Wolf, a former top policy official, was sworn in as the new acting Homeland Security secretary last month, the fifth person to hold the job in the past three years.