Ken Cuccinelli Former Virginia Attorney General Kenneth Cuccinelli outside the U.S. District Court for the District of Columbia in 2014. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Kenneth Cuccinelli, a former Virginia state attorney general widely known for his hard-line positions against immigration, was named Monday as the acting director of the U.S. Citizenship and Immigration Services.

Cuccinelli, who led the Virginia state attorney general’s office from 2010 to 2014, succeeds L. Francis Cissna, who resigned last month at the request of President Donald Trump. Cuccinelli’s possible appointment as the agency’s acting leader had surfaced in recent weeks in news reports.

He will serve under the leadership of Kevin McAleennan, the acting head of the U.S. Department of Homeland Security. McAleenan’s long career in the law has included stints in California at the Silicon Valley firm Gunderson, Dettmer, Stough, Villeneuve & Hachigian and at Sheppard, Mullin, Richter & Hampton.

Cuccinelli, a member of the Virginia bar, is a self-employed lawyer in the state. He was not reached for comment Monday.

“I am honored to be given the opportunity to lead U.S. Citizenship and Immigration Services at this critical time and serve alongside this agency’s dedicated workforce,” Cuccinelli said in a statement. Cuccinelli said the U.S. Citizenship and Immigration Services, or USCIS as the agency is commonly called, “has the extraordinary responsibility to administer and protect the integrity of our nation’s lawful immigration system.”

Law scholars on Monday were debating the statutory authority Trump used to appoint Cuccinelli as the acting director of USCIS.

“I could be missing something, but by what statutory authority did the President purport to appoint Cuccinelli as Acting Director of USCIS? He doesn’t meet any of the criteria under the Federal Vacancies Reform Act of 1998,” Stephen Vladeck, a professor at the University of Texas School of Law, said in a tweet.

The agency’s deputy director, Mark Koumans, who was appointed to that post in March, would have been in line to serve as the acting director. BuzzFeed News reported that Cuccinelli’s formal title will be “principal deputy director,” a move that puts him above Koumans.

According to a Politico report: “The Trump administration explored the possibility of creating a high-level position for Cuccinelli that would allow him to run the agency without dismissing USCIS deputy Mark Koumans, according to one current and one former DHS official familiar with the plan.”

Vladeck, writing at the Lawfare blog, said: “In other words, through nothing other than internal administrative reshuffling—creating a new position and deeming it the first assistant—the Trump administration was able to bootstrap Cuccinelli into the role of acting director, even though, until today, he had never held any position in the federal government.”

Trump has not announced a permanent nominee to lead USCIS. Any nominee would face Senate confirmation hearings. A spokesperson for the immigration agency declined to comment on the record about the authority by which the president appointed Cuccinelli as the acting director.

Cuccinelli has practiced law for nearly 25 years, USCIS said in a statement. He earned a law degree from the school that is now called Antonin Scalia Law School at George Mason University.

As Virginia attorney general, Cuccinelli unsuccessfully defended the state’s ban on same-sex marriage. Last year, Cuccinelli filed an amicus brief in the U.S. Supreme Court on behalf of the National Association of Legal Scholars, which backed a conservative law professor’s First Amendment claims. The justices declined to hear the case.

Cuccinelli contributed to U.S. Sen. Ted Cruz’s 2016 presidential campaign, according to election records.

Two Obama-era leaders of the USCIS have since taken positions in Big Law.

León Rodríguez, who served as the director of U.S. Citizenship and Immigration Services from 2014 to 2017, is now a partner at Seyfarth Shaw in Washington. Rodriguez is a founding member of the firm’s immigration and compliance specialty team, and he leads the firm’s health care regulatory and compliance affinity group. Alejandro Mayorkas, now a partner at Wilmer Cutler Pickering Hale and Dorr, ran the U.S. Citizenship and Immigration Services office from 2009 to 2013.

 

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