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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, June 13, 2019

High Turnover Roils Trump’s Immigration-Policy Ranks

By Louise Radnofsky

WASHINGTON—President Trump has made immigration his top policy priority, yet he is relying on an increasingly transient cast of characters to carry out his plans.

In the past two months, almost every top job on immigration policy has turned over once—and in some cases, twice—with the administration at times employing creative maneuvers to get officials in place. The personnel changes have occurred against a backdrop of especially dramatic action, including high-stakes negotiation with Mexico over a surge of Central American families seeking asylum at the southern border that deployed the threat of escalating tariffs as leverage.

Both the turnover and the talks with Mexico, administration officials have indicated, reflect the importance of immigration to the president and the mounting frustration within the White House over enacting an ambitious agenda in the face of almost-certain blockades from some federal courts and few prospects of legislative movement in Congress.

The White House didn’t respond to a request for comment. Within the White House, Mr. Trump’s two leading aides on immigration, Stephen Miller and Jared Kushner, have been with him since he began his presidency.

On Tuesday, asked why he didn’t have a nominee for Homeland Security secretary, Mr. Trump praised the value of his acting head, Kevin McAleenan. He indicated that he saw flexibility as a virtue and didn’t believe Mr. McAleenan was hampered by lacking a confirmed title.

“We have ‘acting,’ ” he said. “We’ll make a determination. But I think Kevin is doing a very good job.”

But the approach to filling the ranks of official positions has tested the limits of longstanding Washington practices, including the Federal Vacancies Reform Act, which dictates the order of succession in agencies and usually ensures the Senate has a chance to vet top officials, some federal-government management experts say.

“Here and in other places they appear to be doing an end-run around the Senate’s advice and consent responsibility for senior executive officials,” said Max Stier, head of the Partnership for Public Service, a nonpartisan group. “What we are seeing is a system that has been challenged in ways that suggest it needs to be updated.” The group estimates that 59% of key leadership jobs at the Department of Homeland Security currently don’t have Senate-confirmed people in those roles.

On Monday, Mr. Trump announced that U.S. Citizenship and Immigration Services, the main rulemaking agency on immigration within the Department of Homeland Security, would be headed by conservative politician Ken Cuccinelli on an acting basis. Mr. Cuccinelli is the agency’s third leader in 10 days, after the resignation of L. Francis Cissna became effective June 1. Mr. Cissna was immediately succeeded by Deputy Director Mark Koumans, who had been on the deputy job since May 13.

Making Mr. Cuccinelli acting director required a complex series of steps because the former Virginia attorney general-turned activist had never been Senate-confirmed to any federal position. The agency was able to comply with vacancy rules by creating a new position for Mr. Cuccinelli—principal deputy director—which outranked Mr. Koumans and made Mr. Cuccinelli eligible to take over on an acting basis, according to multiple descriptions from officials and external experts.

The maneuvering is unlikely to end there. Senate Republicans, led by Majority Leader Mitch McConnell of Kentucky, have made clear their distaste for Mr. Cuccinelli and are unlikely to support him for confirmation, in part because of his open backing of conservative challengers against GOP incumbents.

“The appointment as acting director of USCIS requires no Senate confirmation,” a USCIS representative said. “Mr. Cuccinelli’s appointment is in accordance with the Federal Vacancies Reform Act. It is up to the president to nominate, or not, for a permanent appointment and that would require Senate confirmation.”

As acting director, Mr. Cuccinelli can serve in the role for 210 days—until January 2020. If someone else is nominated, Mr. Cuccinelli may be able to serve longer, because a nomination stops the clock, said Mr. Stier, of the Partnership for Public Service.

A senior administration official signaled weeks ago that Mr. Cissna’s departure was coming, telling reporters that Mr. Trump and top aides had concluded that some of the rise in migrants with children stemmed from what they see as specific administrative failures on the part of USCIS.

The senior administration official said DHS leaders’ support for the president’s immigration agenda wasn’t necessarily in question, nor were their credentials. Instead, the White House had concluded that they had been unable to clear obstacles fast enough.

Mr. Cissna contradicted that perspective publicly in his farewell message to staff, in which he defended his efforts as moving “carefully and purposefully.”

Similar scrambled lines of succession have been playing out across DHS since early April, when Homeland Security Secretary Kirstjen Nielsen resigned; the White House pulled the nomination of Immigration and Customs Enforcement acting director Ron Vitiello, prompting his resignation; and Mr. McAleenan, the Customs and Border Protection commissioner at the time, was sent to head the agency in Ms. Nielsen’s place.

Making way for Mr. McAleenan required the resignation of a higher-ranking official within DHS, the undersecretary for Management, Claire Grady. Mr. McAleenan designated his chief operating officer at CBP, John Sanders, to fill the commissioner role on an acting basis.

Regarding the Immigration and Customs Enforcement vacancy, the president said in a tweet May 5 that he would be tapping Mark Morgan, a former FBI agent who briefly served as Border Patrol chief at the end of the Obama administration, to head ICE. Mr. Morgan had made a series of Fox News appearances and a fiery performance before Republicans on the Senate Homeland Security and Governmental Affairs Committee, during which he expressed support for Mr. Trump’s agenda.

After Mr. Vitiello’s last day, the position of acting director actually went to Matthew Albence, the acting deputy director. Then, on May 29, Mr. McAleenan—the acting Homeland Security chief—said in a note to staff that Mr. Morgan would be formally starting as acting director of ICE.

Mr. Morgan, too, had been maneuvered into place by first being appointed a principal deputy director—an extra position that did not require confirmation—which then allowed him to leapfrog Mr. Albence in the line of succession. Mr. Trump has not signaled if he plans to officially nominate him.

For more information, go to: http://www.beverlyhillsimmigrationlaw.com/

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