The Department of Homeland Security (DHS) Inspector General’s (IG) investigation into allegations by career US Citizenship and Immigration Services (USCIS) employees that former USCIS director and current DHS Deputy Secretary Alejandro Mayorkas exerted "improper influence in the normal processing and adjudication of applications and petitions in” the Employment-Based Fifth Preference (EB-5) program administered by USCIS were not without merit.
After analysis of roughly 50 interviews — including taking sworn statements — more than one million official emails and related files and more than 40,000 telephone call records, the IG said the whistleblowers’ belief that Mayorkas "favored certain politically powerful EB-5 stakeholders" was sound.
Established by Congress in 1990, the USCIS the EB-5 program is intended to stimulate the US economy through job creation and capital investment by foreign investors. Through the EB-5 program, foreign investors may obtain lawful, permanent residency in the United States for themselves, their spouses and their minor unmarried children by making a certain level of capital investment and associated job creation or preservation.
USCIS whistleblowers alleged Mayorkas exerted “influence” to give specific “individuals preference and access not available to others,” the IG said.
The IG initiated its “inquiry as a result of a whistleblower complaint in September, 2012. During the course of our work, we identified a significant number of DHS employees—more than 15—with varying levels of responsibility and authority, including some very senior managers at USCIS and USCIS’ Office of the Chief Counsel (OCC), who each had direct contact with Mr. Mayorkas and were in a position to witness the events.”
The IG’s report said, “Each conveyed the same factual scenario: certain applicants and stakeholders received preferential access to DHS leadership and preferential treatment in either the handling of their application or petition or regarding the merits of the application or petition. Other employees with whom we spoke did not have direct contact with Mr. Mayorkas, but witnessed significant deviations from the normal process for certain applicants. Many witnesses provided emails, written contemporaneously with the events, to support their allegations of special access and treatment.”
The scope of the IG’s investigation “was to determine whether Mr. Mayorkas engaged in conduct that would lead a reasonable person to believe that specific individuals or groups were given special access or consideration in the EB-5 program.”
“In our view,” the IG concluded, “Mr. Mayorkas created this perception.”
The IG stated that it found Mayorkas “was in contact, outside of the normal adjudication process, either directly or through senior DHS leadership, with a number of applicants and other stakeholders having business before USCIS,” and that this “method of communication violated established USCIS policy for handling inquiries into the program.”
While the IG conceded it does “not have direct evidence of what Mr. Mayorkas and these applicants and stakeholders discussed; some emails suggest that the conversations were quite substantive. In Mr. Mayorkas’ testimony for his confirmation as deputy secretary, and in his interview with [the IG], he stated that he simply received information from a variety of stakeholders and then acted on it to improve the program. With few exceptions, the other parties to the conversations declined to speak with us.”
“In three matters pending before USCIS,” the IG’s report stated, Mayorkas “communicated with stakeholders on substantive issues, outside of the normal adjudicatory process, and intervened with the career USCIS staff in ways that benefited the stakeholders. In each of these three instances, but for Mr. Mayorkas’ intervention, the matter would have been decided differently.”
The IG said it was “unable to determine Mr. Mayorkas’ motives for his actions,” and that “in each instance he recollected, Mr. Mayorkas asserted that he intervened to improve the EB-5 process or to prevent error. As a result, he claimed that he took a hands-on approach when a case warranted his personal involvement. Mr. Mayorkas told us that his sole motivation for such involvement was to strengthen the integrity of the program; he said he had no interest in whether a particular application or petition was approved.”
But, “Regardless of Mr. Mayorkas’ motives,” the IG’s report stated, “his intervention in these matters created significant resentment in USCIS,” and that, “This resentment was not isolated to career staff adjudicating within the EB-5 program, but extended to senior managers and attorneys responsible for the broader USCIS mission and programs.”
“The juxtaposition of Mr. Mayorkas’ communication with external stakeholders on specific matters outside the normal procedures, coupled with favorable action that deviated from the regulatory scheme designed to ensure fairness and evenhandedness in adjudicating benefits, created an appearance of favoritism and special access,” the IG concluded.
The IG said, “USCIS staff knew that Mr. Mayorkas was communicating with applicants and other stakeholders outside established USCIS policy; they also understood that these applicants were prominent or politically connected.”
Following “this communication, staff witnessed Mr. Mayorkas inserting himself in unprecedented ways into an adjudicative process governed by statute, regulation and USCIS policy. As a result of his deviation from the normal process, applicants and stakeholders with whom he had just been in contact received a specific benefit,” the IG report said.
Consequently, the IG said, “Many employees concluded, not unreasonably, that the pressure exerted on them was because the individuals involved were politically connected.”
The IG stated that USCIS personnel “consistently made allegations about the same three matters,” and that, “In each instance, Mr. Mayorkas was in contact with individuals perceived by career USCIS employees to be politically powerful and intervened in the adjudicative process in unprecedented ways to the stakeholders’ benefit.”
In the matter of the LA Films Regional Center, the IG stated “Mayorkas ordered that a USCIS decision to deny a proposal to fund a series of Sony movie projects in Los Angeles be reversed after he was in contact with politically prominent stakeholders associated with the venture.”
Mayorkas “later created a ‘deference review board,’ staffed with individuals he handpicked, to review a separate series of Time Warner movie projects,” the IG said, adding, “This board did not previously exist and was never used again after it voted to reverse the adjudicators’ proposed denials. Remarkably, there is no record of the proceedings of this board.”
In the case of the Las Vegas Regional Center, the IG said, “At the request of [then] Senate Majority Leader Harry Reid, Mr. Mayorkas intervened to allow expedited review of LA Films Regional Center. Mr. Mayorkas ordered that a USCIS decision to deny a proposal to fund a series of Sony movie projects in Los Angeles be reversed after he was in contact with politically prominent stakeholders associated with the venture. Mr. Mayorkas later created a ‘deference review board,’ staffed with individuals he handpicked, to review a separate series of Time Warner movie projects. This board did not previously exist and was never used again after it voted to reverse the adjudicators’ proposed denials. Remarkably, there is no record of the proceedings of this board.”
In the matter of the Las Vegas Regional Center, the IG stated that, “At the request of [then] Senate Majority Leader Harry Reid, Mr. Mayorkas intervened to allow expedited review of investor petitions involved in funding a Las Vegas hotel and casino, notwithstanding the career staff’s original decision not to do so. The career staff noted that the purported urgency was of the applicant’s own making and that the decision to expedite fell outside EB-5 program guidelines. Nevertheless, Mr. Mayorkas pressured staff to expedite the review. He also took the extraordinary step of requiring staff to brief Senator Reid’s staff on a weekly basis for several months.”
Finally, in the matter of the Gulf Coast Funds Management Regional Center, the IG report said Mayorkas “intervened in an administrative appeal related to the denial of a regional center’s application to receive EB-5 funding to manufacture electric cars through investments in a company in which Terry McAuliffe was the board chairman. This intervention was unprecedented and, because of the political prominence of the individuals involved, as well as USCIS’ traditional deference to its administrative appeals process, staffperceived it as politically motivated.”
McAuliffe was chairman of the Democratic National Committee from 2001 to 2005, co-chairman of President Bill Clinton’s 1996 re-election campaign and chairman of Hillary Clinton’s 2008 presidential campaign. Today, he’s the Virginia Governor.
In “a number” of other instances, though, the IG reported, Mr. Mayorkas declined to become involved in certain matters, stating that he did not think it would be appropriate for the director to do so.”
Continuing, the IG made particular note that, “The number and variety of witnesses is highly unusual. It is also quite unusual that a significant percentage of the witnesses we interviewed would talk to us only after being assured that their identities would remain confidential.”
The IG stated, “Their allegations were unequivocal: Mr. Mayorkas gave special access and treatment to certain individuals and parties. They told us he created special processes and revised existing policies in the EB-5 program to accommodate specific parties. According to the employees, but for Mr. Mayorkas’ actions, the career staff would have decided these matters differently. Employees felt uncomfortable and pressured to comply with managers’ instructions that appeared to have come from Mr. Mayorkas or those working directly for him.”
The IG stressed that “these comments were not from one or even a couple of disgruntled employees with axes to grind,” but rather they were made by “individuals throughout the ranks of USCIS, in different locations, engaged in different functions, with different experience levels.”
The IG stated, “We looked to see whether the complaints stemmed from mere resentment about Mr. Mayorkas wanting to change how USCIS operated. As the Director, Mr. Mayorkas appeared to want to change the culture of USCIS. Employees told us that he exhorted individuals to ‘get to yes.’ To accomplish this mission, he made a number of reassignments within the Senior Executive Service corps, including within the EB-5 program. He restructured the EB-5 program, including relocating the processing center from California to Washington, DC, and he instituted broad new rules that, in the minds of many career USCIS employees, eased the ability of foreign investors to receive residency status.”
While “each of these decisions was legitimately within his purview, and we take no position as to the wisdom of any of these actions,” the IG said, “the complaints we heard were not simply policy-based disagreement over the direction Mr. Mayorkas was taking USCIS. Rather, they centered on his actions that appeared to give special access and special consideration to a small group of applicants and stakeholders.”
Calling it an “extraordinary focus on a handful of matters,” the IG said “Mayorkas’ focus on a few applicants and stakeholders was particularly troubling to employees, given the massive scope of his responsibilities as director of USCIS. The EB-5 program has hundreds of existing regional centers and, in the three years in question, received more than 700 applications for regional centers. Yet, Mr. Mayorkas largely focused on only a handful.”
The IG pointed out that, “The EB-5 program itself was only a fraction of USCIS’ operations, comprising only a few thousand adjudications out of a typical annual total of more than five million. Notwithstanding his other duties, Mr. Mayorkas’ actions involving a handful of applicants—going so far, for example, as to offer to personally write a complex adjudicatory opinion—were seen by staff as evidence of special access and special favors. One senior-level manager told us that ‘the frequency of the interest shown by the director’s office in the AAO’s EB-5 caseload escalated beyond any interest shown in other types of cases.’”
Republicans and Democrats had differences of opinion regarding the IG’s report.
House Committee on the Judiciary Chairman Bob Goodlatte (R-Va.) said, “It’s extremely troubling that one of the top leaders at the Department of Homeland Security seems to have used his power to show favoritism to wealthy and politically-connected individuals. Our government is supposed to work for all of the American people, not just a select few. Such an abuse of authority is inexcusable and creates a crisis of confidence in Deputy Director Mayorkas’ ability to lead the department impartially.”
“President Obama should take the appropriate steps to hold him accountable for his actions,” Goodlatte said, noting, “The House Judiciary Committee, which oversees our nation’s immigration system, will continue its aggressive oversight of the department of Homeland Security, including further investigating this matter and keeping a watchful eye on all of its employees to ensure they do not abuse their authority.”
Rep. Bennie G. Thompson (D-Miss.), the ranking member of the House Committee on Homeland Security, said Tuesday that the IG’s report “provided no definitive determination of wrongdoing, and instead found that Deputy Secretary Mayorkas’ hands-on and reform-minded leadership style may have been misinterpreted by some at USCIS.”
“Though the EB-5 immigrant investor visa program represents a very small fraction of USCIS operations, its potential as a job-creator and visibility to leaders from across the political spectrum is undeniable,” Thompson said, stressing, “It seems apparent that Deputy Secretary Mayorkas gave the program attention and put reforms into place. This window into his leadership style is informative and revealing – it paints a picture of an advocate and manager who demanded reform and responsiveness from his agency. I look forward to hearing from the DHS Inspector General and the USCIS Ombudsman at our hearing on this matter.”
Sen. Tom Carper (D-Del.), ranking member of the Senate Committee on Homeland Security and Governmental Affairs, responded to the IG’s report, saying, “Ali Mayorkas is a dedicated, thoughtful and talented public servant. Before serving at DHS, he was an Assistant US Attorney and US Attorney for the Central District of California. Since his confirmation as Deputy Secretary of DHS 15 months ago, Ali Mayorkas has worked tirelessly to change the department for the better, and is known for rolling up his sleeves and working hard to get the job done. For example, he helped coordinate the response to several major cyber attacks, including the breach of the major contractor USIS and the spread of the Heartbleed computer virus. In addition, in the wake of a series of serious security lapses by the US Secret Service, he led an independent panel that issued far-reaching recommendations to build a better and stronger Secret Service."
Carper said, “A number of my colleagues, community leaders and other officials have lauded Mayorkas’ energetic and pragmatic approach to a challenging job. In its biennial High Risk List released this February, the Government Accountability Office commended Mayorkas, along with Secretary [Jeh] Johnson, saying that they ‘have continued to demonstrate exemplary commitment and support for addressing the department’s management challenges.’ He has also prioritized building relationships in order to help the department achieve its mission, including strengthening and deepening the department’s relationship with state and local law enforcement."
“That being said," Carper noted, " I take seriously the allegations raised regarding Mayorkas and the efforts of the Office of the Inspector General to investigate them."
“Throughout his career in public service, Mayorkas has earned the reputation as a change agent," Carper said. "As many of us know, change at any kind of organization isn’t always easy and can meet resistance. However, it’s important that leaders in the federal government embrace change if it’s in the best interest of the program’s goals, the agency and our nation. As director of US Citizenship and Immigration Services (USCIS), he was willing to make tough and sometimes unpopular – but necessary – decisions within his authorities in order to improve the complex EB-5 program, particularly its national security and fraud vulnerabilities, and to move his agency forward."
Continuing, Carper said, "I should note that many members of Congress and other stakeholders of both parties had called for these, and additional, changes. As a result of his efforts, the EB-5 program, though still not perfect, is much improved. Now it is ultimately up to Congress to fix the program’s problems for the long-term, including the recommendations then-Director Mayorkas made but Congress never enacted."
“I believe that government leaders have a responsibility to listen to the constituencies we represent and serve, whether we agree with them or not. At the same time, it’s imperative that any type of engagement is transparent, appropriate and inclusive, and that we always strive to apply the rules consistently and fairly," Carper said, adding, "It is concerning that the Inspector General found that a number of employees’ belief that then-director Mayorkas favored certain EB-5 stakeholders was reasonable. It is important to ensure that the appearance of special access is not created."
Carper said he trusts Johnson and Mayorkas "will review the Inspector General’s report carefully. I understand that Secretary Johnson has already assigned the General Counsel to establish a new policy to ensure that the EB-5 program is free from the appearance or reality of improper influence."
Carper said, "I will continue to be in contact with the department’s leadership about its progress.”