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Cuccinelli refuses to leave DHS after judge finds he was illegally appointed to his prior role there

Washington Examiner logo Washington Examiner 3/2/2020 Anna Giaritelli
Ken Cuccinelli wearing glasses and a suit and tie © Provided by Washington Examiner

Ken Cuccinelli said he will not leave his post as acting deputy secretary at the Department of Homeland Security following a federal judge's ruling that he was illegally appointed to lead a department agency, a position that helped qualify him for his current role.

"The succession for the deputy secretary of homeland security ties back to my official position as the principal deputy at USCIS [U.S. Citizenship and Immigration Services], there's not a problem with me at my current position," Cuccinelli said on Fox and Friends Monday after initially laughing at the news. "The only issue in the case is related to being the acting director at USCIS. And this ruling is really something of an outlier. This is a methodology that has been used in the past. It's been thought of as legal as — pretty broadly."

A federal district court judge in Washington, D.C., ruled that Cuccinelli, who was acting director of the 19,000-person USCIS from last June until January, did not meet the requirements in the Federal Vacancies Reform Act of 1998 to have the job. The judge's decision deemed Cuccinelli's policy changes invalid, teeing up new legal troubles for the Trump administration.

"You can expect to see those efficiently reissued ... and that's just as a precautionary measure as an appeal goes forward. It'll be business as usual until it's played all out," Cuccinelli said.

Video by Fox News

Cuccinelli, a 51-year-old former attorney general from Virginia, said the legal order cannot prevent him from amending, creating, or ending immigration-related policies in his role.

The Democracy Forward Foundation, a Washington-based legal services organization, created during Trump’s first year in office, sued with other groups in September over Cuccinelli-pushed policies the group argued made it more difficult or impossible for some asylum seekers to have claims heard at the southwest border.

Federal law experts told the Washington Examiner in October that they believed Cuccinelli's appointment to USCIS was illegitimate and, if successfully challenged, would mean the immigration policy changes he put into place would become defunct, including the public charge rule that barred immigrants who have used government financial assistance.

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