Since his arrival at the Department of Homeland Security, Ken Cuccinelli’s bold style and abundant press engagements have fueled both his status in the White House and rumors of higher ambition.
Now, with the resignation of acting Homeland Security Secretary Kevin McAleenan, speculation abounds that President Donald Trump would make the controversial immigration official the top official in the department.
Cuccinelli is acting director of US Citizenship and Immigration Services, an agency normally known for quietly administering and adjudicating immigration benefits but is now at the center of the Trump administration’s efforts to curtail illegal and legal immigration. And like the President, Cuccinelli, the former Virginia state attorney general, is an active tweeter who’s drawn attention for controversial statements such as reimagining the Emma Lazarus poem etched on the Statue of Liberty pedestal.
In his current role, “Ken Cuccinelli has the President’s ear,” said Sen. Mike Lee, R-Utah, who has known Cuccinelli for nearly a decade.
“He is very familiar with the President’s desired approach to this,” Lee said. “The bottom line is, he’s getting the job done.”
“I am an aggressive communicator of the President’s immigration policies — doing that is part of why he asked me to come on board,” Cuccinelli told CNN in an email.
In his current role, Cuccinelli has pressed forward with immigration policy changes — in some cases, surprising his own colleagues within the department.
“There’s been some bumps in the road,” a Homeland Security official told CNN.
For instance, this summer, Cuccinelli’s agency was at the center of controversy over a change that meant some people or families dealing with serious medical conditions would no longer be able to remain in the country. But Cuccinelli and USCIS were unprepared for the public outcry over the change, eliminating requests for “deferred action,” which became public when the agency sent letters to undocumented immigrants about the new policy.
As a result, there was “an immediate concern at DHS that something needed to be done to understand what was happening,” according to a source familiar with the situation, adding that there was a lack of coordination with the department.
Cuccinelli had decided that notifying the public about the change wasn’t necessary, according to a source familiar with the move. But the policy shift quickly leaked into public view, sparking outrage among advocates and leaving DHS scrambling to respond.
Cuccinelli himself was surprised by how the change was implemented within his own agency and hadn’t realized that his decision would result in field leadership sending out letters to individuals, according to a DHS official.
“Taking a policy principle that is consistent with White House direction and applying it without understanding the impact of how you’re applying it, is dangerous,” the official said.
Immigration and Customs Enforcement, another immigration agency under DHS, was also caught off guard by the decision. At the time, USCIS said it would defer discretion for deportation relief to ICE.
“USCIS’ decision to end non-military deferred action was a long and deliberative process that began in October 2017 with the input of Field Offices. The specific letters were just form letters modified for use for those who requested the non-military deferred action, and they were not reviewed by USCIS’ leadership prior to use,” an agency official said told CNN in response to this story.
Last week, House Oversight and Reform Committee Chairman Elijah Cummings announced plans to subpoena Cuccinelli and acting Immigration and Customs Enforcement Director Matt Albence over the changes to the deferment process.
A similar dynamic occurred with the rollout of the “public charge” rule, one of the administration’s long awaited key immigration measures that makes it more difficult for immigrants who rely on public assistance to obtain legal status.
Multiple federal judges blocked the regulation from taking effect, just days before it was set to be implemented.
“It wasn’t ready for prime time,” said the DHS official, pointing out that in addition to being halted by the courts, USCIS had to release a follow-up with a “number of corrections, double words and typos and misstatements.”
An aggressive defender of Trump
Cuccinelli appears on TV and at other public events, defending the President’s immigration agenda and often weighing in on issues outside the bounds of his own agency, which under previous administrations was considered the least controversial arm of immigration policy.
“There’s no question that Cuccinelli is being very aggressive, normally the USCIS director wouldn’t comment on [Immigration and Customs Enforcement] programs, like he has done on a pretty regular basis,” said a former Homeland Security official.
Multiple current and former officials, as well as immigration experts, have remarked that Cuccinelli steps outside his lane, talking about other agency’s policies and operations. It’s caused “mild frustration,” among some colleagues, said the former official.
Officials at ICE and Customs and Border Protection raised those concerns — that he was talking about other agency’s missions — directly to Cuccinelli, according to a DHS official.
These concerns were also raised with the White House, said another source familiar with the situation.
“Immigration crosses multiple DHS components, CBP and ICE in addition to other departments, and it is important that we all communicate on the issue as a whole and speak in one voice,” Cuccinelli told CNN. “I would also note that I have yet to encounter a journalist who restricts their questions to me to simply one area of the immigration subject.”
Cuccinelli joined the agency amid an unprecedented spike in families and children arriving at the US-Mexico border. This spring, arrests at the border were the highest in more than a decade. And the President, who campaigned on a promise to secure the border, wanted to make a change.
He acknowledges his discussions with Trump.
“I do speak to him, what I would call regularly,” Cuccinelli said at an event hosted by The Christian Science Monitor on Wednesday. “It goes in bursts, depending on what work we have to do at a given time, but yes.”
But he declined to comment about the secretary role.
Cuccinelli has caused difficulties for McAleenan, both by seemingly openly campaigning to replace him and by pushing rules that have seemed harsh to many in the public, sources told CNN surrounding the secretary’s departure.
DHS spokeswoman Heather Swift told CNN that Cuccinelli has been an “impactful messenger” for President’s immigration agenda and an effective communicator of McAleenan’s implementation of that agenda.
“With the Secretary frequently on international travel negotiating international asylum agreements on behalf of the Administration, he’s only available for a handful of media engagements each week, so we’ve looked to other senior officials to help fulfill reporters’ requests for interviews,” Swift said.
“You’ve seen Cuccinelli, [acting CBP Commissioner Mark] Morgan and Albence all take big roles in communicating the good work the Administration has been doing. The humanitarian crisis at the border was and continues to be a major priority of the administration, and the more experts we have available to speak with journalists the better,” Swift added, referring to the acting heads of Customs and Border Protection and ICE.
Discord at Homeland Security
Trump has said he will announce a replacement for McAleenan this week.
Transportation Security Administration Administrator David Pekoske, who has been filling the deputy secretary role at the department since April, is being looked at as an option to take over the top spot, according to a source familiar. Morgan has also been speculated as a possible replacement.
In order to be eligible to serve as acting secretary, one of three things would have to be true: Cuccinelli would have to be the “first assistant” to the secretary; he’d have to be confirmed by the Senate to some other position; or he’d have to have been a senior DHS official for at least 90 of the 365 days preceding the vacancy, according to Steve Vladeck, a professor at the University of Texas School of Law and CNN contributor.
Cuccinelli joined the department June 10, two months after Homeland Security Secretary Kirstjen Nielsen was ousted, leaving the top job open.
“The first possibility is precluded by statute (the Deputy DHS Secretary is the “first assistant,” and Cuccinelli isn’t that). He hasn’t been confirmed by the Senate, which knocks out the second possibility. And he wasn’t at DHS for any time before Secretary Nielsen resigned, let alone 90 of the 365 days preceding her departure. That ought to be the end of it,” said Vladeck.
Cuccinelli replaced L. Francis Cissna, who led the agency since October 2017. Cissna was seen by immigration advocates as the executor of a hardline policy agenda, but his disagreements with the White House over the speed of policy implementation eventually led to his departure.
“Cuccinelli doesn’t know the guts of what USCIS does in a granular way, but his approach to moving the bureaucracy, is as a kind of a bully pulpit. I don’t know if that’s more effective [than his predecessor] or not, but it seems to be working,” said Mark Krikorian, Executive Director at the Center for Immigration Studies, which advocates for more restrictive immigration policies.
According to an administration official, it was Cissna who laid the groundwork for a lot of the policies that have been rolled out since Cuccinelli took over, particularly the large regulatory changes, such as public charge.
“Initially [Cuccinelli] has been pushing out the door things that have been percolating since before he got there,” said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center.
In one of his first acts at the agency, Cuccinelli sent an email to asylum officers that appeared to press officers interviewing asylum seekers to be skeptical of migrant claims of fear of returning to the countries they fled. He wrote that legally USCIS must conduct interviews, but noted that many of the claims are “frivolous,” according to a source who received it.
“Morale has gone down hill since last June,” when Cuccinelli sent an email to asylum division employees “berating them for making too many positive Credible Fear determinations,” said Michael Knowles, spokesperson for the AFGE National CIS Council 119, which represents more than 13,000 USCIS employees.
“Since then, he has sent other communications to employees making them feel that he doubts their competence, loyalty and commitment to uphold the law,” Knowles added.
When asked about his relationship with asylum staff at the agency, Cuccinelli said, he visits with members of the asylum division in the course of his travels and is “working to build relationships within the asylum division,” as well as other parts of USCIS. The agency is also hiring more asylum officers and making operational changes to the division to “avoid burning out our workforce,” said Cuccinelli.