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Unconfirmed by Senate, Cuccinelli sees power, influence grow on immigration

The Hill logo The Hill 9/1/2019 Brett Samuels
Ken Cuccinelli wearing a suit and tie in front of a building: Unconfirmed by Senate, Cuccinelli sees power, influence grow on immigration © Getty Images Unconfirmed by Senate, Cuccinelli sees power, influence grow on immigration

Ken Cuccinelli is wielding immense power as the acting director of U.S. Citizenship and Immigration Services (USCIS), where he has rolled out multiple significant and controversial policies in recent weeks.

In nearly three months on the job, Cuccinelli - who was not confirmed for the position by the Senate - has emerged as the point person for President Trump's immigration agenda.

He's been at the forefront of a wave of initiatives to restrict legal immigration and limit access to government benefits for certain groups, while cracking down on illegal immigration.

"I think that's what the White House wanted, and he's been pretty active in that regard," said Mark Krikorian, executive director of the Center for Immigration Studies, which favors stricter immigration laws.

"Even though he's not border czar in an operational sense, he nonetheless seems to be taking on the role of the administration's public face for immigration issues."

The former Virginia attorney general is a controversial figure and likely would have trouble being confirmed if his nomination was sent to the Senate. The fact that he is wielding such power is causing consternation among critics of Trump's immigration policies.

"He's not confirmed because he cannot get confirmed because people wouldn't vote for him, and that's a real concern," said Kerri Talbot, the director of federal advocacy for The Immigration Hub, which advocates for more liberal policies.

"He's very much just focused on amplifying Trump's message... and that's just not the mission of USCIS," Talbot added.

USCIS rolled out three high profile policies in August, each of which clamped down on certain benefits for those born abroad and sparked controversy.

Without much fanfare, USCIS ended its deferred action program that prevented immigrants from being deported while they or their relatives received critical medical treatment. The agency said it receives about 1,000 deferred action requests per year.

The administration announced in mid-August its public charge rule, which will make it more difficult for an immigrant to obtain a green card if they rely on social safety net programs. Cuccinelli caused an uproar when he reworded the poem inscribed on the Statue of Liberty to defend the move.

USCIS last week caused widespread confusion and panic when it announced changes to how Americans stationed overseas can transmit citizenship to their children.

While the move will ultimately affect a few dozen people per year, the initial announcement was unclear and raised concerns it was making it more difficult for kids of military families to become citizens.

"[Cuccinelli] is essentially functioning like a typical appointee that's been confirmed by the Senate in that role would, pushing forward a very aggressive policy agenda," said Ur Jaddou, former chief counsel to USCIS during the Obama administration.

Cuccinelli's position is one that typically comes with anonymity, but he has been a prominent figure since taking the job.

He announced the administration's public charge rule and took questions from the White House briefing room, something a press secretary hasn't done in nearly six months.

His official Twitter account is sprinkled with photos and videos from his visits to ICE and CBP facilities in Texas, and he's done interviews with CNN, NPR and PBS Newshour to defend the administration's policies and advocate for congressional action to pass stricter immigration laws.

The blitz of public appearances illustrates the extent to which Cuccinelli has gone beyond the typical bounds of his own agency in an effort to satisfy President Trump, who is known to put an emphasis on loyalty and media optics.

At a panel discussion in Texas earlier this month, Cuccinelli described his job as "not just working the immigration issue but also communicating on it."

"President Trump... has made it very clear to those of us in the administration that we should use every legal tool at our disposal, and we are doing that," he said.

USCIS did not respond to multiple requests for comment about Cuccinelli's role in the administration.

Trump has been eager to further crack down on immigration, something he's made a cornerstone of his administration and that he may view as advantageous in his reelection bid despite polling that shows it's a divisive issue among voters.

The Washington Post last week reported that Trump is clamoring for the completion of his long-desired border wall by November 2020, and that he told aides he would pardon them if they needed to break the law to finish the project more quickly.

The report alarmed critics of Cuccinelli, who without Senate confirmation is largely accountable only to Trump.

Cuccinelli has a background as an attorney and spent most of his political career in Virginia. He previously served in the state senate and spent four years as attorney general. In the latter role, he authorized state law enforcement to check the immigration status of any individual they stopped.

Trump appointed Cuccinelli to lead USCIS in June despite his lack of experience overseeing federal immigration law, particularly as it related to the agency's role in adjudicating benefits and supervising legal immigration.

Still, his hardline views tracked with Trump's, and he was brought into the fold during an agency-wide overhaul of DHS engineered by top White House aide Stephen Miller, who reportedly grew frustrated with the pace of implementing policies to curb migration and limit asylum and refugee claims.

"They were looking for more, and that's what they found I think in this individual," Jaddou said of Cuccinelli. "He seems to be pushing the envelope quite a bit, even more than I thought was already beyond the pale."

Cuccinelli's predecessor, Lee Francis Cissna, was a career official and respected by outside immigration groups and lawmakers on Capitol Hill. Sen. Chuck Grassley (R-Iowa) was among those who urged the White House not to oust Cissna amid a broader shake-up of DHS.

But those seeking stronger immigration laws inside and outside the White House have been pleased with how Cuccinelli's tenure has gone thus far, even as they noted some of his policy moves were likely in the works before his arrival.

"A lot of people were willing to wait and see, and so far he's delivering," Krikorian said.

Top Democrats, immigrant advocacy groups and government watchdogs have raised concerns about the legitimacy of Cuccinelli's appointment.

House Committee Chairmen Elijah Cummings (D-Md.), Jerrold Nadler (D-N.Y.) and Bennie Thompson (D-Miss.) wrote to acting DHS Secretary Kevin McAleenan in June questioning whether Cuccinelli's appointment circumvented the Federal Vacancies Reform Act given he had not been Senate confirmed to any other position in the administration.

The chances of Cuccinelli winning confirmation at any point are remote. Senate Republicans threw cold water on his potential nomination first when he was floated for the top DHS job and again when he was appointed to the USCIS position.

Cuccinelli targeted McConnell and other establishment Republicans as leader of the Senate Conservatives Fund. He opposed Trump's nomination in 2016, though the two men appeared to have moved on.

The White House did not respond to multiple requests for comment about whether Trump is happy with Cuccinelli's performance and whether he's considering nominating him to a position in the administration full-time.

Trump indicated Friday that he's in no rush to make any big changes.

"I think acting is great. As far as I'm concerned, acting to me is good," he told reporters. "And if I like the people I make them permanent. Acting gives you great flexibility that you don't have with permanent."

Some watching the rolling changes at DHS have speculated that McAleenan is unlikely to get nominated to lead the department full-time, and that Cuccinelli may be next in line, albeit still on a temporary basis.

"I still think he's sort of waiting in the wings if they determine they don't want to have McAleenan anymore," Talbot said.

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