Notably, the acting head of ICE at the end of the Trump administration has not signed the new employment agreement, which came about during a period of bureaucratic turmoil. An acting director of ICE, Tony Pham, abruptly resigned in late December. He was succeeded by Jonathan Fahey, who resigned abruptly on January 13.
Mr. Fahey was replaced by Tae D. Johnson, who did not sign the agreement. Instead, Mr. Cuccinelli marked on the signature lines “for the desk” but untitled. Mr. Cuccinelli said it was appropriate for him to sign the agreement as acting deputy secretary, and he did so after seeking advice from the general counsel.
Before he resigned, Mr. Fahey resisted efforts to strengthen the ICE union for days and ultimately refused to sign the agreement, the senior internal security official who was aware of the matter said.
The Trump administration had tried in various ways to give Mr. Cuccinelli a senior leadership role in the Department of Homeland Security without being confirmed by the Senate, but the legal legitimacy of his appointment to various positions has been a recurring dispute.
In 2019, Mr. Trump sought to make Mr. Cuccinelli acting chief of the department’s Citizenship and Immigration Services. But in March 2020, a federal judge ruled his appointment unlawful, overturning the policies he had taken because he did not have the legal authority to be in the position. The Trump administration did not appeal that ruling.
The administration also attempted to make Mr. Cuccinelli number 2 in the department, earning him the title of senior civil servant who fulfilled the duties of deputy secretary. In August, the Government Accountability Office ruled that this nomination was also legally invalid, although it is not a court decision.
Mr. Cuccinelli has repeatedly put pressure on ICE’s leadership to take tougher policies. Shortly after joining Citizenship and Immigration Services, Mr. Cuccinelli urged the agency to add new restrictions to the student visa program, which falls under the authority of ICE and not the agency he would run at the time. His actions angered other department officials and prompted the intervention of Kevin K. McAleenan, a former acting Secretary of Homeland Security.