Cuccinelli, the Immigration Hawk After Trump's Own Heart
There was no child separation for the little family that washed up last month. The Salvadoran father and his young daughter drowned together, trying to sneak into the United States, dying arm-in-arm, face down in a watery, weed-littered grave along the muddy Rio Grande.
Oscar Alberto Martinez and 23-month-old Angie Valeria Martinez will soon travel home in separate caskets, but not before creating collective outrage on both sides of the river that marks the southern U.S. border.
Ken Cuccinelli, a Catholic father of seven, feels the heartbreak. No parent could not.
Ken Cuccinelli, also the new acting director of U.S. Citizenship and Immigration Services, blames the deceased dad for the death of the little girl.
“Let's be very clear, adults are responsible for their decisions, and that father is responsible for his decision,” he says matter-of-factly. “I will not absolve an adult from his own decisions. The decisions he made, if they happened in this country, would be child neglect.”
Cuccinelli won't stop there. “Let’s be clear also,” he says, “about why he came to that point.” The continuing migration crisis, and the dead girl by extension, are a product of “pull factors,” the result of a refusal to offer fixes to an asylum system that even President Obama demanded.
“Congress,” Cuccinelli concludes, “has to own the continuing inaction on many of those loopholes.”
Does that include the last Congress, the one that was controlled for two years by Speaker Paul Ryan in the House and Majority Leader Mitch McConnell in the Senate? An engineer by training and an attorney by temperament, the former Virginia state attorney general doesn’t hesitate in responding: “Yes.”
If the nation’s politicos thought Cuccinelli would self-moderate in his new role, they were wrong. Unvarnished and very much unafraid of political correctness, the conservative sojourner -- a Tea Party insurgent who came into the Trump-era screaming (literally) -- is still the same guy. He’s just as hardnosed and just as righteously certain of his convictions as ever.
Only the job has changed.
“I was so used to fighting ‘the man,’ and then I became ‘the man,’” Cuccinelli says, reflecting on his transition from conservative agitator to state attorney general, upon which “everybody was suing me.” He is still in the process of settling in at his new office when he sits for an interview with RealClearPolitics amid the binders and the stacks of legal papers and the moving boxes. The new acting immigration chief hasn’t even unpacked any personal effects other than a single wedding photo pinned to a corkboard behind his desk, and yet “here I am in that role again,” he says, “being sued like crazy.”
In this man, the one who made a career railing against the Republican establishment and for a time rallying against the Trump campaign, the president has found an immigration hawk after his own heart.
Cuccinelli joined the administration in June after a bloodletting at the Department of Homeland Security. Leadership there had been dawdling and tougher regulations were languishing, making the president that much angrier as illegal border crossing and asylum applications were surging. “The biggest bottleneck by far,” a senior administration official complained to reporters two months earlier, “is at USCIS, where there have been shockingly little affirmative regulations.”
Out went the old guard. In came Cuccinelli, and while staff shake-ups are a normal part of life in the era of Trump, this one was remarkable. The new head of USCIS remembers the first time he spoke to this president. They were in the Oval Office. Trump was yelling.
The vice president had invited Cuccinelli and some others to the White House in March 2017 to discuss GOP plans to repeal Obamacare. As the first attorney general to challenge the law in court, Cuccinelli offered his advice to the young administration, and afterward, Mike Pence wondered whether Cuccinelli and the other visitors would like to pay the new president a quick visit.
“So, we sort of troop over from the EOB,” Cuccinelli recalls, and gather in “a little receiving line by the desk to shake hands and say hello.” When Trump got to him, “you could see it register in his face,” Cuccinelli says. “He realized whose hand he was shaking.” And in his telling, Trump vise-gripped him and started yelling, “It’s you!”
Did Trump recognize him? Yes. The president bellowed something about Cuccinelli working for Sen. Ted Cruz during the primary, something along the lines of “we would win all these states, and then you take all my delegates!”
Was Trump angry at him? Not at all. In fact, the president wanted to know why Cuccinelli was only visiting instead of working in the White House. “Why,” he asked, “aren’t you here?”
A coy Cuccinelli didn’t really answer the question. He didn’t say, for instance, that with Reince Priebus as chief of staff, the likelihood of him getting an administration job was as likely as “a snowball fight in hell.” Maybe Cuccinelli didn’t say anything because everyone, except the president apparently, knew exactly why he was only visiting.
It was Cuccinelli, after all, who led a revolt on the floor of the 2016 Republican National Convention in Cleveland. Some saw it as a coup attempt. He says it was misinterpreted in the media. Either way, C-SPAN captured video of Cuccinelli screaming and throwing his credentials down in disgust when GOP brass thwarted his attempt to secure a rule vote that could have more than complicated the Trump nomination.
"If you won’t obey your own rules, there’s no reason to think you’ll obey any others," Cuccinelli said on MSNBC afterward. "Here we’ve got the RNC trampling their own grassroots delegates, and for most of us here, this was about getting good grassroots rules and getting a voice in the vote."
He insisted during a CNN interview that the failed movement was not NeverTrump. “Well,” Cuccinelli said on air, “I will support the Republican nominee.”
An aide convinced him to pick up his credentials at the convention, possibly saving his career by preserving his chance to punch his ticket into the administration. And less than a year later, the former state attorney general was doing something somewhat counter to his tough-on-crime, no-nonsense law-and-order reputation. Cuccinelli was helping to lead the charge for criminal justice reform, working with the White House and lobbying conservatives on Capitol Hill to come around on the war on crime.
A paradox from the national perspective, those who know him say it was more of the same for Cuccinelli. “People perceive Cuccinelli as a hard-right figure on a number of issues,” Mark Rozell, a George Mason University political scientist, told the Washington Post. “They don’t tend to see him as having a soft side.”
It was 2011, and the occasion for that quote was the successful exoneration of a man named Thomas Haynesworth. He had been wrongfully convicted of rape and spent 27 years locked away in prison. As Virginia attorney general, Cuccinelli personally argued his case in court. He cleared Haynesworth’s name. Then, he hired him as a law clerk.
‘Privileges, Not Rights’
This experience, coupled with a desire “to hold government accountable for its actions and spending,” made Cuccinelli an ideal, if a bit unusual, advocate for sentencing reform. It also brought him into direct contact with a senior White House adviser, specifically Trump’s son-in-law.
An administration official confirmed that through his work on the justice reform issue Cuccinelli became a favorite of Jared Kushner. He also became a favorite of another senior policy adviser, Stephen Miller. All was forgiven -- or at least the RNC episode was forgotten -- and Cuccinelli the anti-establishment insurgent made his way into the administration.
And in many ways, he is a perfect fit. There is little ideological daylight between him and the president. The new acting director of USCIS, the agency that administers all naturalization and lawful immigration, has adopted an unmistakably America First approach.
“The entire immigration system exists for the benefit of Americans,” Cuccinelli says, offering a 30,000-foot overview of his guiding philosophy. It isn’t the other way around, he insists. It isn’t immigration services for the altruistic benefit of immigrants.
“We are a 96-plus percent fee-funded agency. That means that the immigrant community we serve, they fund the work we do. Congress decided that. They decided that the American people should not fund the privileges they offer.”
On that last point, Cuccinelli is particularly passionate. The same day that the administration issued new rules, denying all asylum applications from immigrants who failed to apply for protection in at least one of the countries they passed through on their way to the southern border, drawing an immediate legal challenge from the ACLU, he reiterates that his agency offers “privileges, not rights.”
Barely a month on the job, Cuccinelli tries emphasizing to his employees, and the lawmakers offering oversight, that USCIS is “a vetting agency, not a benefits agency.”
His boss likes to say that if Democrats would come to the table in good faith, the whole crisis at the border could be wrapped up in about 15 minutes, an hour tops. There are a couple of loopholes in the law, Trump recently told ABC’s George Stephanopoulos, and if “you solve those loopholes, you no longer have a problem at the border. They should want to do it.”
The U.S. Border Patrol apprehended 132,887 people trying to cross illegally in May, and another 95,500 in June. Cuccinelli is of the opinion that those numbers would plummet if Congress would just do its job. Motioning toward Capitol Hill, he says the requisite legislation would “fit on one piece of paper.”
If he were writing the bill, Cuccinelli would close the so-called Flores loophole, which makes it impossible to detain family units, forcing the government to either separate children from their parents in detention facilities or let them go all together. He says it “turns children into tickets.”
After that one, Cuccinelli would get to work mending what he calls “the human trafficking loophole,” which doesn’t allow unaccompanied minors from non-contiguous countries to be returned home immediately.
On these points, he doesn’t understand the hold-up. “I mean, those aren't even just coming from President Trump. He's carrying forward the same positions that President Obama had in these two areas.”
A third is more controversial: Cuccinelli wants to make it harder for an immigrant to claim asylum under the “credible fear” standard. Too many immigrants cross the border, lie about fleeing violence, and go free. According to USCIS numbers, 77% of applicants meet the standard during an initial interview but only 15% of those are granted asylum by an immigration judge in the end.
When Cuccinelli first started his job, he sent an email to asylum officers urging them to root out border-crossers making “fraudulent” claims and taking advantage of international benevolence for economic opportunity.
The email sparked outrage among career USCIS officials, but Cuccinelli insists that he wasn’t impugning the motives of his employees. They aren't misapplying the law. Instead, the real culprit, he says again, is Congress, and the real problem is lawmakers’ continued failure to act.
“People think they can get into our country illegally, and there are simple fixes for some of these problems, and Congress refuses to even adopt the simple ones,” Cuccinelli says. “Maybe we have a longer debate about the more complicated ones, what you called comprehensive immigration reform. Okay, but let's at least to do the simple ones together, quickly.”
Listening in on the rhetoric from the House of Representatives, Cuccinelli admits that the “vitriolic opposition” has gotten worse. Think, for instance, Rep. Alexandria Ocasio-Cortez calling detention centers “concentration camps.” All the same, Cuccinelli is not a fatalist when it comes to Congress. He points to the $4.6 billion emergency aid bill that passed in June.
“In one month, we're virtually, entirely -- with the exception of maybe 20 or 30 kids -- down to the three-day limit where we try to get kids out of immigration detention facilities and into children's facilities,” he says.
An Easy Target
Cuccinelli sees more solutions, more money and more legislation to improve conditions for adults, just like what was done for kids. And on this front, he is ready to work with Congress. Whether or not Congress is ready to work with him is entirely different.
All three DHS agencies that deal with immigration (USCIS, Customs and Border Protection, and Immigration and Customs Enforcement) are led by acting directors — chiefs appointed by the president but not confirmed by the Senate. Congress is in no hurry to confirm any of them, and that includes Cuccinelli.
The qualities that endear him to the president are the same ones that enrage Democrats. Three days after Pence visited a detention center where nearly 400 men were crowded into a holding pen, Cuccinelli describes their conditions as “perfectly humane.”
And the day after Trump tweeted that Minnesota Rep. Ilhan Omar should “go back” to Somalia, Cuccinelli insists the motives of the president are above board. Is the president of the United States a racist? “No way,” Cuccinelli replies. “Simple answer.”
This is not a response that will help him on Capitol Hill, where he has enemies on the left and the right. His preferred policies make him an easy target for Senate Democrats, especially among those trying out for president.
“Ken Cuccinelli has advocated for ending birthright citizenship, compared immigrants to rats, and suggested that immigrants seeking asylum can instead simply ‘go home,’” California Sen. Kamala Harris told RCP, pointing to an interview that the then-Virginia attorney general gave to WMAL in 2012.
“His views are abhorrent, and he is unfit for any position overseeing our immigration system.”
A USCIS official dismissed that criticism as a “bad faith accusation” coming from a politician without “any policy solutions to bring to the table.” His old boss reacted similarly when he heard the quote from Harris.
“Nobody should be surprised to see Democratic senators who are running for president playing politics as we watch the 2020 Democratic primary,” Cruz told RCP. “The entire field is falling all over themselves to gallop to the left.”
Their opposition is symptomatic of a party that “is defined more than anything else by rage and hatred for President Trump,” Cruz said, arguing that after the first presidential debate of the Democratic primary, every candidate “explicitly and emphatically supports open borders.”
Few Republicans would disagree. It is practically the key platform plank of the Trump campaign. All the same, the biggest obstacle to confirming Cuccinelli comes from Republicans, not Democrats, and lingering bitterness over his past willingness to cross the majority leader.
Mitch McConnell’s office did not respond to RCP requests for comment, but the Cuccinelli transgressions are well known. A pre-Trump populist, he became persona non grata the moment he took the helm of the Senate Conservative Fund in 2014, a political action committee designed to elect conservative senators and harass the Republican establishment from the right flank.
Many of its primary targets are the moderates who would decide the fate of a Cuccinelli nomination, and their ranks include McConnell himself. Before Cuccinelli came aboard, SCF backed Matt Bevin in a primary contest against the Kentucky Republican. Though McConnell won handily, he has never forgotten, and he went out of his way to let the White House now that there was a clear “lack of enthusiasm” for the immigration hawk.
“He’s made a career attacking other Republicans and frankly attacking President Trump,” Texas Sen. John Cornyn told reporters when Cuccinelli was briefly floated to be the next DHS chief. “I doubt he will have the support to be confirmed.”
A blunter and more self-deprecating Senate aide joked to RCP that Cuccinelli had a better chance “at being the next Bachelor” than of being anything other than acting director.
None of this is lost on Cuccinelli who isn’t holding his breath for confirmation: “I can’t say that I have an expectation.”
When pushed on the question, he adds, “ I hope that the people on Capitol Hill of both sides of the aisle will judge what I do here on the quality of my work.”
From outside agitator to administration immigration hawk, not much has changed in Cuccinelli aside from the fact that, in his words, he isn’t fighting the man anymore; now he is the man. And naysayers be damned: “Whatever other feelings they may have, I'll stand by and have always been willing to stand by the quality of my own performance.”
One metric will be naturalization numbers. More than 750,000 immigrants took the Oath of Citizenship in 2018, a five-year high mark that Cuccinelli notes with considerable pride. It’s also a number Cuccinelli expects to surpass in 2019. Just three weeks on the job, he oversaw 110 naturalization ceremonies, making 7,500 new citizens the week of Independence Day.
He traveled to New York two days before the Fourth of July to administer the oath himself for the first time. At the foot of One World Trade Center, at the 9/11 Memorial, he welcomed the newest ones, telling them to continue making contributions to their new country (“contributions as unique as each of you”), thanking two of them for their service in the U.S military, and urging each “to reflect on the rights and responsibilities that come with U.S. citizenship.”
“On behalf of the men and women of USCIS,” Cuccinelli concluded, “it is my honor to be the first to address you as, My fellow Americans.”