In an extraordinary end run around the law, the Trump administration created a new office for Ken Cuccinelli in order to install him as the acting head of U.S. Citizenship and Immigration Services. In May 2019, former USCIS Director Lee Francis Cissna resigned, leaving Mark Koumans, the Deputy Director, as the highest ranking official at USCIS. Under the Federal Vacancies Reform Act, the person serving as “first assistant”—here, Deputy Director Mark Koumans—generally assumes the role of acting head of an agency until someone is nominated and confirmed by the Senate for the role. But after Senate Majority Leader Mitch McConnell vowed to block Cuccinelli’s confirmation for any position, the Trump administration took the extraordinary step of creating a new office of Principal Deputy Director, designating its occupant “first assistant,” and installing Cuccinelli in that position.

Since his unlawful appointment, Cuccinelli has illegally used his authority to implement policies that hurt immigrants and those seeking refuge in America. On his watch, USCIS has reduced the amount of time applicants have to prepare for their asylum interviews, pressured USCIS line officers to apply a harsher standard when screening asylum claims, and moved closer to penalizing immigrants who make use of certain health, education, and nutritional benefit programs.

Cuccinelli is also known for his use of anti-immigrant rhetoric. He’s compared immigrants to rats, saying that D.C.’s policy to prevent animal control from killing rodents is “worse than our immigration policy.”

Attorney General Bill Barr and the U.S. Attorney for DC can act to seek removal of unlawfully appointed officers, so we and Asian Americans Advancing Justice – LA, Asian Counseling and Referral Services, Capital Area Immigrants’ Rights Coalition , Muslim Advocates, the National Immigration Law Center, and The Refugee and Immigrant Center for Education and Legal Services demanded they take steps to remove Ken Cuccinelli from his role. Cuccinelli’s unlawful appointment as Acting Director and Principal Deputy Director of USCIS calls into question the validity of any action he directs. As long as he remains in office, there will be profound uncertainty around the nation’s immigration policies.

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