[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
LEADERSHIP CHALLENGES AT THE DEPARTMENT
OF HOMELAND SECURITY
=======================================================================
HEARINGS
BEFORE THE
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 26, 2015 and APRIL 30, 2015
__________
Serial No. 114-13
__________
Printed for the use of the Committee on Homeland Security
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COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Candice S. Miller, Michigan, Vice James R. Langevin, Rhode Island
Chair Brian Higgins, New York
Jeff Duncan, South Carolina Cedric L. Richmond, Louisiana
Tom Marino, Pennsylvania William R. Keating, Massachusetts
Patrick Meehan, Pennsylvania* Donald M. Payne, Jr., New Jersey
Lou Barletta, Pennsylvania Filemon Vela, Texas
Scott Perry, Pennsylvania Bonnie Watson Coleman, New Jersey
Curt Clawson, Florida Kathleen M. Rice, New York
John Katko, New York Norma J. Torres, California
Will Hurd, Texas
Earl L. ``Buddy'' Carter, Georgia
Mark Walker, North Carolina
Barry Loudermilk, Georgia
Martha McSally, Arizona
John Ratcliffe, Texas
Brendan P. Shields, Staff Director
Joan V. O'Hara, General Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
On April 14, 2015, Mr. Patrick Meehan of Pennsylvania was elected
to the Committee pursuant to H. Res. 199.
C O N T E N T S
----------
Page
MARCH 26, 2015
Statements
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
Oral Statement................................................. 1
Prepared Statement............................................. 5
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 6
Prepared Statement............................................. 8
The Honorable Sheila Jackson Lee, a Representative in Congress
From the State of Texas:
Prepared Statement............................................. 9
Witnesses
Mr. John Roth, Inspector General, U.S. Department of Homeland
Security:
Oral Statement................................................. 11
Prepared Statement............................................. 12
Ms. Maria M. Odom, Ombudsman, U.S. Citizenship and Immigration
Services, U.S. Department of Homeland Security................. 14
Appendix
Questions From Chairman Michael T. McCaul for Maria M. Odom...... 37
APRIL 30, 2015
Statements
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
Oral Statement................................................. 39
Prepared Statement............................................. 41
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Oral Statement................................................. 44
Prepared Statement............................................. 46
Witness
Hon. Alejandro Mayorkas, Deputy Secretary, U.S. Department of
Homeland Security:
Oral Statement................................................. 51
Prepared Statement............................................. 53
For the Record
The Honorable Michael T. McCaul, a Representative in Congress
From the State of Texas, and Chairman, Committee on Homeland
Security:
USCIS Policy Memorandum........................................ 55
LEADERSHIP CHALLENGES AT THE DEPARTMENT OF HOMELAND SECURITY:
ALLEGATIONS OF IMPROPER INFLUENCE REGARDING SPECIAL VISAS
----------
Thursday, March 26, 2015
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 9:23 a.m., in Room
311, Cannon House Office Building, Hon. Michael T. McCaul
[Chairman of the committee] presiding.
Present: Representatives McCaul, Miller, Duncan, Barletta,
Perry, Clawson, Katko, Hurd, Carter, Walker, Loudermilk,
McSally, Ratcliffe, Thompson, Vela, Watson Coleman, Rice, and
Torres.
Chairman McCaul. The Committee on Homeland Security will
come to order. The purpose of this hearing is to receive
testimony regarding the Inspector General's investigation into
leadership decisions involving the Immigrant Investor program,
known as EB-5 program.
I now recognize myself for an opening statement.
As public servants, trust, integrity, and honesty means
everything. As Members of Congress, we must have the trust of
our constituents and carry out our jobs without the perception
of impropriety.
Without these qualities, we cannot be seen as effective
leaders. Simply put, a public office is a public trust.
The same holds true for all public servants, including the
top leadership at the Department of Homeland Security.
In an April 2010 memo to USCIS employees, then-Director
Mayorkas stated, ``Each USCIS employee has the duty to act
impartially in the performance of his or her official duties.
Any occurrence of actual or perceived preferential treatment,
like treating similarly-situated applicants differently, can
call into question our ability to implement our Nation's
immigration laws fairly, honestly, and properly.'' That is in
his words.
I am extremely troubled by the findings of the DHS
Inspector General's report on the EB-5 program. The alleged
exertion of undue influence and special processes established
by Deputy Secretary Mayorkas during his tenure as director of
USCIS that resulted in benefits for politically connected and
powerful individuals is extremely concerning.
The list of individuals involved in the allegations raised
in the report reads like an A-list of political powerhouses: Ed
Rendell, former Democratic Governor of Pennsylvania, former
chair of the Democratic National Committee, and long-time
Clinton advocate; Terry McAuliffe, current Democratic Governor
of Virginia, former chair of the Democratic National Committee,
co-chairman of President Bill Clinton's 1996 re-election
campaign, and chairman of Hillary Clinton's 2008 Presidential
campaign; Anthony Rodham, younger brother of Hillary Clinton;
and Harry Reid, Senate Minority Leader.
The findings show that Mr. Mayorkas' intervention in three
specific examples involving the individuals I just mentioned
gave the appearance that he played favorites with these
Democratic political operatives capable of opening doors in
Washington.
Specifically, according to the Inspector General's report:
Mr. Mayorkas intervened in an administrative appeal related to
an application to receive EB-5 funding to manufacture electric
cars through investments in a company at the behest of Terry
McAuliffe, a former board chairman, and Anthony Rodham, who was
listed as the CEO of Gulf Coast, an entity that managed related
investments.
Mr. Mayorkas intervened in a case involving a Las Vegas
hotel that was of interest to Senator Reid. He also took the
extraordinary step of requiring staff to brief Senator Reid's
staff on a weekly basis for several months.
Mr. Mayorkas intervened in the L.A. Films Regional Center
cases by ordering that a USCIS decision to deny a proposal to
fund a series of movie projects in Los Angeles be reversed
after he was in contact with Ed Rendell.
Mr. Mayorkas overruled career staff in numerous instances
and, according to the report, ``communicated with stakeholders
on substantive issues'' and influenced the outcome of the
cases.
Although there are a lot of details and technical specifics
in this report, I am troubled by many aspects that allegedly
occurred under the watch and with the direct intervention of
Mr. Mayorkas. As I read the report I was struck by four main
themes.
Here are some quotes from the Inspector General's Report,
and they appear on the monitor. No. 1, special access: ``Their
allegations were unequivocal: Mr. Mayorkas gave special access
and treatment to certain individuals and parties.''
Furthermore, the report states that ``Mr. Mayorkas'
communication with external stakeholders on specific matters
outside the normal procedures created an appearance of
favoritism and special access.''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
No. 2, political favoritism: ``We received complaints from
USCIS employees that the application for a politically
connected regional center, Gulf Coast Funds Management,
received extraordinary treatment as a result of Mr. Mayorkas'
intervention.'' Additionally, ``USCIS staff understood that
these applicants were prominent or politically connected.''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
No. 3, created or went around established process and
career staff decisions: ``Mr. Mayorkas was in contact, outside
of the normal adjudication process, either directly or through
senior DHS leadership, with a number of stakeholders having
business before USCIS. According to the employees, but for Mr.
Mayorkas' actions, the staff would have decided these matters
differently.''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
No. 4, misplaced priorities: ``Mr. Mayorkas' focus on a few
applicants and stakeholders was particularly troubling to
employees given the massive scope of his responsibilities as
director of USCIS.''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
As a former Federal prosecutor in the public integrity
section in main Justice, I appreciate the thorough review that
was conducted by the DHS Inspector General in this case.
Mr. Roth, I want to thank you for your work on this report.
I was struck by the sheer number and variety of the
whistleblowers who contributed to this report. More than 15 DHS
employees stepped forward. I can't think of any report in the
past that has had that many.
They varied in responsibility and authority and included
very senior managers who were in a position to witness the
events in Washington, and experts who handle this program in
the field. This really drove home the gravity of their
allegations.
In addition, I know your office conducted more than 50
interviews, reviewed more than 40,000 phone records, and
obtained more than 1 million documents and e-mails.
As the committee continues its rigorous oversight of the
Department, we must review these findings to determine if
Congressional action is needed to ensure proper systems are
placed to effectively manage the EB-5 program. We also need to
ensure the program strikes a balance between National security
and commerce.
Today, as the Chairman of the Committee on Homeland
Security, I want to listen to the facts and the findings of
your report and determine if further oversight by this
committee is warranted. In fairness, I also look forward to
hearing from Mr. Mayorkas and hearing his side of this story in
the near future.
[The statement of Chairman McCaul follows:]
Statement of Chairman Michael T. McCaul
March 26, 2015
As public servants, trust, integrity, and honesty mean everything.
As Members of Congress, we must have the trust of our constituents and
carry out our jobs without the perception of impropriety.
Without these qualities, we cannot be seen as effective leaders,
simply put, a public office is a public trust. The same holds true for
all public servants including the top leadership at the Department of
Homeland Security.
In an April 2010 memo to USCIS employees, then-Director Mayorkas
stated, ``Each USCIS employee has the duty to act impartially in the
performance of his or her official duties. Any occurrence of actual or
perceived preferential treatment, like treating similarly-situated
applicants differently, can call into question our ability to implement
our Nation's immigration laws fairly, honestly, and properly,'' and
that is in his words.
I am extremely troubled by the findings of the DHS Inspector
General's Report on the EB-5 program. The alleged exertion of undue
influence and special processes established by Deputy Secretary
Alejandro Mayorkas during his tenure as director of USCIS that resulted
in benefits for politically-connected and powerful individuals is
extremely concerning.
The list of individuals involved in the allegations raised in the
report reads like an A-list political powerhouses:
Ed Rendell.--Former Democratic Governor of Pennsylvania, former
chair of the Democratic National Committee and long-time
Clinton advocate;
Terry McAuliffe.--Current Democratic Governor of Virginia, former
chair of the Democratic National Committee (after Ed Rendell),
co-chairman of President Bill Clinton's 1996 re-election
campaign, and chairman of Hillary Clinton's 2008 Presidential
campaign;
Anthony Rodham.--Younger brother of Hillary Clinton; and
Harry Reid.--Senate Minority Leader.
The findings show that Mr. Mayorkas' intervention in three specific
examples, involving the individuals I just mentioned gave the
appearance that he played favorites with these Democratic political
operatives capable of opening doors in Washington. Specifically,
according to the Inspector General's report:
(1) Mr. Mayorkas intervened in an administrative appeal related to
an application to receive EB-5 funding to manufacture electric
cars through investments in a company at the behest of Terry
McAuliffe, a former board chairman, and Anthony Rodham, who was
listed as the CEO of Gulf Coast, an entity that managed related
investments.
(2) Mr. Mayorkas intervened in a case involving a Las Vegas hotel
that was of interest to Senator Reid. He also took the
extraordinary step of requiring staff to brief Senator Reid's
staff on a weekly basis for several months.
(3) Mr. Mayorkas intervened in the L.A. Films Regional Center cases
by ordering that a USCIS decision to deny a proposal to fund a
series of movie projects in Los Angeles be reversed after he
was in contact with Ed Rendell.
Mr. Mayorkas overruled career staff in numerous instances and
according to the report, ``communicated with stakeholders on
substantive issues'' and influenced the outcome of the cases.
Although there are a lot of details and technical specifics in this
report, I am troubled by many aspects that allegedly occurred under the
watch, and with the direct intervention of Mr. Mayorkas.
As I read the report, I was struck by four main themes. Here are
some quotes from the Inspector General's report:
(1) Special Access.--``Their allegations were unequivocal: Mr.
Mayorkas gave special access and treatment to certain
individuals and parties.''
Furthermore, the report states that `` . . . Mr. Mayorkas'
communication with external stakeholders on specific matters
outside the normal procedures created an appearance of
favoritism and special access.''
(2) Political Favoritism.--``We received complaints from USCIS
employees that the application for a politically connected
regional center, Gulf Coast Funds Management, received
extraordinary treatment as a result of Mr. Mayorkas'
intervention.'' Additionally, ``USCIS staff . . . understood
that these applicants were prominent or politically
connected.''
(3) Created or Went Around the Established Process and Career Staff
Decisions.--``Mr. Mayorkas was in contact, outside of the
normal adjudication process, either directly or through senior
DHS leadership, with a number of stakeholders having business
before USCIS . . . According to the employees, but for
Mayorkas' actions, the staff would have decided these matters
differently.''
(4) Misplaced Priorities.--``Mr. Mayorkas' focus on a few
applicants and stakeholders was particularly troubling to
employees given the massive scope of his responsibilities as
Director of USCIS.''
As a formal Federal prosecutor in the public integrity section for
the Department of Justice, I appreciate the thorough review conducted
by the DHS Inspector General.
Mr. Roth, thank you for your work on this report. I was struck by
the sheer number and variety of the whistleblowers who contributed to
this report. More than 15 DHS employees stepped forward. I can't think
of any report in the past that has had as many. They varied in
responsibility and authority and included ``very senior managers'' who
were in a position to witness the events in Washington, DC and experts
who handle this program in the field. This really drove home the
gravity of their allegations. In addition, I know your office conducted
more than 50 interviews, reviewed more than 40,000 phone records and
obtained more than 1 million documents and emails.
As the committee continues its rigorous oversight of the
Department, we must review these findings to determine if Congressional
action is needed to ensure proper systems are place to effectively
manage the EB-5 program. We also need to ensure that the program
strikes a balance between National security and commerce.
Today, as Chairman of the Committee on Homeland Security, I want to
listen to the facts and findings of your report and determine if
further oversight by my committee is warranted. I also look forward to
hearing from Mr. Mayorkas and hearing his side of the story in the near
future.
Chairman McCaul. With that, I recognize the Ranking Member.
Mr. Thompson. Thank you very much, and I want to thank you
for holding today's hearing.
I also thank both Inspector General Roth and Ms. Odom for
appearing today.
The degree of independence that you both have strengthens
your ability to be an advocate for the public interest. Last
Thursday this hearing was officially noticed as ``Leadership
Challenges at the Department of Homeland Security.'' The
Department of Homeland Security certainly has several
leadership challenges that I want to discuss.
For instance, I still want to know why, despite the United
States Secret Service's Protective Mission Panel
recommendation, the Secret Service still has not brought
someone from outside the agency into its leadership. However, I
see from press releases the title now includes ``Allegations of
Improper Influence Regarding Special Visas.''
On Tuesday the Inspector General publicly released the
results of an investigation into employee complaints about
management of the Investor Visa program managed by the United
States Citizenship and Immigration Services, better known as
the EB-5 program. The report centers around Deputy Secretary
Mayorkas' efforts when he was director of USCIS. For the
purposes of background, the EB-5 program accounts for less than
1 percent of all visas issued by USCIS. Nonetheless, the EB-5
program potential as a job creator gives its visibility to
Congressional leaders from across the political spectrum.
On average, USCIS is contacted over 1,500 times per year
about specific cases. I am sure that those communications did
not come from just one office or one party.
Yet for years the EB-5 program, like many USCIS programs,
has well-documented management issues and challenges that
demand action. In the absence of Congressional action to
address the wide range of woes this program faced, Mr.
Mayorkas, while the director of USCIS, took on those
challenges.
I have read the Inspector General's report, find it
instructive insofar as it is a window into Deputy Secretary
Mayorkas' leadership style. The picture that emerges in this
report is of an activist manager who demanded reform and
responsiveness from his agency.
It seems that at times, Mayorkas' style made employees feel
uncomfortable. This is unfortunate, and I am sure that Mr.
Mayorkas, if he were here today, would express regret about
that.
I commend Inspector General Roth for taking a hard look at
the charges leveled by those whistleblowers. I hope that the
Inspector General will come to take such action when
whistleblowers are involved.
However, I regret, Mr. Chairman, that the headlines and
news accounts about these reports are not in line with the
Inspector General's actual findings. Mr. Chairman, a man's
reputation is at stake. Before we jump to conclusions and join
the bandwagon of media reports, we must be responsible.
For the record, the Inspector General did not find that
Deputy Secretary Mayorkas broke any laws. Instead, the
Inspector General acknowledges that Deputy Secretary Mayorkas
and the USCIS personnel recognized the risks to the program if
benefits were granted without transparency and were not
adjudicated according to statute, regulations, and existing
policy.
In fact, the report explicitly states that the decisions
made by Mr. Mayorkas were legitimately within his purview, and
despite news accounts of political favoritism, the Inspector
General also did not find that a single adjudication in
question was improperly decided.
The report did, however, find a wide range of resentment
within the component. Unfortunately, resentment toward
management and low morale is not an anomaly at DHS.
Consequently, Mr. Chairman, it is a fair question to ask if
the hands-on, reform-minded leadership style that Deputy
Secretary Mayorkas seems to have exhibited here is what DHS
needs to address its long-standing management and operational
challenges. It is also fair, as Secretary Johnson has
indicated, to look into the protocols of the program and see
what changes can be implemented, including changes in the law
that Congress could enact.
Mr. Chairman, I want to remind you that just 2 days ago in
this hearing room former Speaker Gingrich urged us as Members
of Congress to stop being obstructionists and work together,
especially in the interest of security.
What is unreasonable, Mr. Chairman, is to degrade deputy
secretaries' integrity and reputation. I hope that it is not
what we are here to do.
I hope that today we can receive testimony and gain more
insight to both the program and Inspector General's findings. I
also hope that at a future hearing we can have the deputy
secretary testify on the reforms he made at USCIS and the
changes he is making at the Department of Homeland Security,
and how we can truly address the leadership challenges at DHS.
I yield back, Mr. Chairman.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
March 26, 2015
Last Thursday, this hearing was officially noticed as ``Leadership
Challenges at the Department of Homeland Security''. The Department of
Homeland Security certainly has several leadership challenges that I
want to discuss.
For instance, I still want to know why, despite the United States
Secret Service's Protective Missions Panel's recommendations, the
Secret Service still has not brought someone from outside the agency
into its leadership. However, I see from press releases, the title now
includes allegations of improper influence regarding special visas.
On Tuesday, the Inspector General publicly released the results of
an investigation into employee complaints about management of the
investor visa program managed by the United States Citizenship and
Immigration Services, better known as the ``EB-5 program.'' The report
centers around Deputy Secretary Alejandro Mayorkas' efforts when he was
the director of USCIS. For the purposes of background, the EB-5 program
accounts for less than 1 percent of all visas issued by USCIS.
Nonetheless, the EB-5 program's potential as a job-creator gives it
visibility to Congressional leaders from across the political spectrum.
On average, USCIS is contacted over 1,500 times per year about specific
cases. I am sure that those communications did not come from just one
office or one party.
Yet, for years, the EB-5 program, like many USCIS programs, had
well-documented management issues and challenges that demanded action.
In the absence of Congressional action to address the wide range of
woes this program faced, Mr. Mayorkas, while the director of USCIS,
took on those challenges. I have read the Inspector General's report
and find it instructive insofar as it is a window into Deputy Secretary
Mayorkas' leadership style.
The picture that emerges in this report is of an activist manager
who demanded reform and responsiveness from his agency. It seems that,
at times, Mayorkas' style made employees feel uncomfortable. That is
unfortunate and I am sure that Mr. Mayorkas, if he was here today would
express regret about that.
I commend Inspector General Roth for taking a hard look at the
charges leveled by these whistleblowers. I hope that the Inspector
General will continue to take such action when whistleblowers are
involved.
However, I regret that the headlines and news accounts about this
report are not in line with the Inspector General's actual findings.
Mr. Chairman, a man's reputation is at stake. Before we jump to
conclusions and join the bandwagon of media reports, we must be
responsible. For the record, the Inspector General did not find that
Deputy Secretary Mayorkas broke any laws. Instead, the Inspector
General acknowledges that Deputy Secretary Mayorkas and the USCIS
personnel recognized the risks to the program if benefits were granted
without transparency and were not adjudicated according to statute,
regulations, and existing policy.
In fact, the report explicitly states that the decisions made by
Mr. Mayorkas were ``legitimately within his purview.'' And despite news
accounts of political favoritism, the Inspector General also did not
find that a single adjudication in question was improperly decided. The
report did, however, find a wide range of resentment within the
component. Unfortunately, resentment towards management and low morale
is not an anomaly at DHS.
Consequently, Mr. Chairman, it is a fair question to ask if the
hands-on, reform-minded leadership style that Deputy Secretary Mayorkas
seems to have exhibited here is what DHS needs to address its long-
standing management and operational challenges. It is also fair, as
Secretary Johnson has indicated, to look into the protocols of the
program and see what changes can be implemented, including changes in
the law that Congress could enact.
Mr. Chairman, I want to remind you that just 2 days ago, in this
hearing room, Former House Speaker Gingrich urged us, as, Members of
Congress, to stop being obstructionists and work together, especially
in the interest of security.
What is unreasonable is to degrade deputy secretary's integrity and
reputation. I hope that is not what we are here to do. I hope that
today we can receive testimony and gain more insight to both the
program and the Inspector General's findings.
I also hope that at a future hearing we can have the deputy
secretary testify on the reforms he made at USCIS and the changes he is
making at the Department of Homeland Security and how we can truly
address the leadership challenges at DHS.
Chairman McCaul. I appreciate the Ranking Member's
comments. I do agree with you that a man's reputation is at
stake here, and I take that responsibility very seriously.
I do believe that Mr. Mayorkas should have the opportunity,
the accused, to come before this committee and tell his side of
this story. I am simply interested in the facts and the
evidence as they present themselves, which is why we have the
Inspector General here today with his report.
Other Members are reminded that statements may be submitted
for the record.
[The statement of Hon. Jackson Lee follows:]
Statement of Honorable Sheila Jackson Lee
March 26, 2015
I thank Chairman McCaul and Ranking Member Thompson for holding
this morning's hearing on ``Leadership Challenges at the Department of
Homeland Security.''
I welcome and thank today's witnesses: Mr. John Roth, the Inspector
General for the Department of Homeland Security; and Ms. Maria M. Odom,
Citizenship and Immigration Services ombudsman with the Department of
Homeland Security.
The subject of today's hearing is an Inspector General Report of
the Department of Homeland Security (DHS) regarding allegations by
employees against former USCIS director, and now DHS deputy secretary,
Alejandro N. Mayorkas regarding three separate Employment-Based Fifth
Preference (EB-5) applications that:
Found no wrong-doing.
Found no unlawful act committed for an unlawful purpose.
Found no lawful act for an unlawful purpose.
There were three unusual acts but none were determined to be
unlawful by the Inspector General.
As the director of an adjudicatory agency, Mr. Mayorkas' delegation
of authority to subordinates to conduct work on the behalf of the
director was normal and reasonable.
However, the director's delegation of responsibility to perform
work on his behalf did not and does not mean the delegation divested
him of his ultimate authority to render the final decision of the
agency.
The director's signature must be affixed to each final decision--
and the director retains the power and authority under the letter of
the law to accept or reject, in whole or in part, the preliminary
recommendations of his subordinates.
Two major requirements of administrative decision making are that
the director not personally benefits from the decisions reached and
that the decisions are not arbitrary or capricious.
We are here today to review the publication of an Inspector General
Report that was not referred to the Department of Justice.
The scope of Office of Inspector General's investigation was
limited to determining whether Director 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.
The OIG report focused on whether Director Mayorkas intervened in
the adjudicative process to the benefit of stakeholders regarding three
EB-5 applications--L.A. Films Regional Center, Las Vegas Regional
Center, and Gulf Coast Funds Management Regional Center.
The OIG found that Director Mayorkas and the personnel of the USCIS
recognized the risks to the EB-5 program if benefits were granted
without transparency and were not adjudicated according to statute,
regulations, and existing USCIS policy governing EB-5 matters.
The USCIS established processes to ensure all communications with
stakeholders were properly documented and to ensure the process for
deciding on petitions and applications closely followed statute,
regulations, and established policy.
The Inspector General found a number of instances in which Director
Mayorkas declined to become involved in certain matters, stating that
he did not think it would be appropriate for the director to do so.
It is important to note that Alejandro N. Mayorkas has been in
public service for nearly 17 years--12 of which as a Federal prosecutor
in the U.S. Attorney's Office for the Central District of California,
including almost 3 years as the United States Attorney.
Upon taking his position as director of USCIS he ordered a top-down
review of the agency.
In Director Mayorkas words, the review found an agency ``filled
with dedicated public servants but one that faced significant
challenges executing its mission.''
The report identified the following challenges:
(1) Prioritizing case processing time goals in tension with the
critical needs of National security and program integrity;
(2) Inconsistent adjudication policies and the inconsistent
application of adjudication policies; and
(3) A fundamental misalignment of the agency's organizational
structure.
Director Mayorkas focused his efforts on addressing these
challenges by making National security and fraud detection the primary
goal of the agency.
To this end, Director Mayorkas established several directorates and
offices which included:
(1) Fraud Detection and National Security Directorate;
(2) Service Center Operations Directorate;
(3) Field Operations Directorate;
(4) Office of Performance and Quality;
(5) Management Directorate; and
(6) Office of Public Engagement.
In 2010, the first full year that Director Mayorkas was in the
position the USCIS received 1,953 applications; the agency approved
1,369, and denied 165.
In 2013, when he was confirmed as Deputy Secretary of Homeland
Security, USCIS received 6,346 applications; approved 3,699; and 943
applications were denied.
I would offer to my colleagues that an act is not unlawful or
improper just because it may be unusual.
As Members of this body we often act consistent with the vote
recommendations of our respective leadership on matters that come
before the House, but we are not bound by those recommendations.
We, as Members might usually vote as recommended because we agree
with the positions recommended; but should we disagree it is neither
appropriate nor reasonable to question the integrity of the Member who
has done nothing more than exercised the ultimate authority that he or
she alone possesses.
I thank today's witnesses and look forward to their testimony.
Thank you.
Chairman McCaul. I would like to introduce our panel today.
First, the Honorable John Roth assumed the post of
Inspector General for the Department of Homeland Security in
March of 2014. Previously, he served as director of the Office
of Criminal Investigations at the Food and Drug Administration
as an assistant U.S. attorney for the Eastern District of
Michigan.
Second, we have Ms. Maria Odom, who was appointed as
ombudsman of the Citizenship and Immigration Services in
September 2012. Prior to her current position, she was
executive director of the Catholic Legal Immigration Network
and served in the Department of Justice.
I want to thank you all for being here today.
Chairman now recognizes Mr. Roth for his testimony.
STATEMENT OF JOHN ROTH, INSPECTOR GENERAL, U.S. DEPARTMENT OF
HOMELAND SECURITY
Mr. Roth. Thank you.
Chairman McCaul, Ranking Member Thompson, and Members of
the committee, thank you for your invitation to testify today
regarding our investigation into the complaints made against
Alejandro Mayorkas regarding his management of the EB-5 program
when he was director of USCIS. As you know, we recently issued
a written report of the results of our investigation, and my
testimony here today will summarize what we found.
As a result of our inquiry, we found that USCIS personnel,
including Mr. Mayorkas, recognized the risks to the EB-5
program if benefits were granted without transparency and were
not adjudicated according to statute, regulations, and existing
policy. We found a number of instances in which 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.
In three matters pending before USCIS, however, Mr.
Mayorkas communicated with stakeholders on substantive issues
outside the normal adjudication process and intervened with
career staff in ways that benefited those stakeholders. In each
of these three instances, but for Mr. Mayorkas' intervention,
the matter would have been decided differently.
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 was
approved or denied.
Regardless of Mr. Mayorkas' motives, his intervention in
these matters created significant resentment within USCIS. This
resentment was not isolated to career staff 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
outside stakeholders on specific matters outside the normal
procedures, coupled with favorable action that deviated from
the regulatory scheme that was designed to ensure fairness and
evenhandedness, created an appearance among staff of favoritism
and special access.
During the course of our work, we identified a significant
number of DHS employees--more than 15--with varying levels of
responsibility and authority, who each had direct contact with
Mr. Mayorkas and were in a position to witness the events in
question. The number and variety of witnesses was, in our
experience, highly unusual.
Each conveyed the same factual scenario: Certain applicants
and stakeholders received preferential access to DHS leadership
and preferential treatment in the manner in which their
application or petition was handled.
USCIS personnel consistently made allegations about the
same three matters, and the first instance involved the L.A.
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 hand-picked, 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.
The second instance involved the Las Vegas Regional Center.
At the request of a U.S. Senator, Mr. Mayorkas intervened to
allow expedited review of investor petitions involving the
funding of a Las Vegas hotel and casino, notwithstanding the
career staff's original decision not to do so.
The third instance we found involved the Gulf Coast Funds
Management Regional Center. Mr. 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 associated with
politically prominent individuals. This intervention was
unprecedented and, because of the political prominence of the
individuals involved as well as USCIS' traditional deference to
the administrative appeals process, the staff perceived that as
politically motivated.
Mr. Mayorkas' actions in these matters created a perception
within the EB-5 program that certain individuals have special
access and would receive special consideration.
This concludes my testimony. I am happy to answer any
questions the panel--the committee may have.
[The prepared statement of Mr. Roth follows:]
Prepared Statement of John Roth
March 26, 2015
Chairman McCaul, Ranking Member Thompson, and Members of the
Committee, thank you for your invitation to testify today regarding our
investigation into the complaints made against Alejandro Mayorkas
regarding his management of the Employment-Based Fifth Preference (EB-
5) program when he was director of U.S. Citizen and Immigration
Services (USCIS). As you know, we recently issued a written report of
the results of our investigation, and my testimony here today will
summarize what we found.
We undertook this investigation after receiving allegations from
career USCIS employees that Alejandro Mayorkas, then-director of USCIS
and current deputy secretary of the Department of Homeland Security,
was exerting improper influence in the normal processing and
adjudication of applications and petitions in a program administered by
USCIS. Specifically, we were told that Mr. Mayorkas was in contact,
outside the normal adjudication process, with specific applicants and
other stakeholders in the EB-5 program, which gives residency
preference to aliens who agree to invest in the U.S. economy to create
jobs for U.S. citizens. We were also told he was exerting influence to
give these individuals preference and access not available to others.
The scope of our 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.
what we found
As a result of our inquiry, we found:
USCIS personnel, including Mr. Mayorkas, recognized the
risks to the EB-5 program if benefits were granted without
transparency and were not adjudicated according to statute,
regulations, and existing USCIS policy governing EB-5 matters.
USCIS therefore took pains to ensure all communications with
stakeholders were properly documented and to ensure the process
for deciding on petitions and applications closely followed
statute, regulations, and established policy. Indeed, USCIS was
obligated by law to follow the procedures set forth in the
regulations. We found a number of instances in which 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.
In three matters pending before USCIS, however, Mr. 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.
We were unable to determine Mr. Mayorkas' motives for his
actions. In each instance he remembered, 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.
Regardless of Mr. Mayorkas' motives, his intervention in
these matters created significant resentment in USCIS. 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
outside 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.
our witnesses
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. 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 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. Being a whistleblower is seen to
be hazardous in the Federal Government, and a typical investigation
would have 1 or perhaps 2. That so many individuals were willing to
step forward and tell us what happened is evidence of deep resentment
about Mr. Mayorkas' actions related to the EB-5 program. These
employees worked in both USCIS headquarters and the California Service
Center. Headquarters staff worked in Service Center Operations (the
unit that supervised the California Service Center), the Administrative
Appeals Office, the EB-5 program office, in USCIS leadership offices,
and in OCC. The employees include current and retired career and non-
career members of the Senior Executive Service, attorneys, all levels
of supervisors, immigration officers, and those involved in fraud
detection and National security.
We will protect the confidentiality of these courageous employees,
who are protected from retaliation by the Whistleblower Protection Act
and whose identities are protected under the provisions of the
Inspector General Act. We hope that their actions will set an example
for all potential whistleblowers that look to the Office of Inspector
General to give them a voice.
three examples
USCIS personnel consistently made allegations about the same three
matters. 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. We describe these three instances in more detail
in the body of this report. To help understand the facts, we have also
included time lines for two of these matters in appendixes.
L.A. 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 hand-picked, 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.
Las Vegas Regional Center.--At the request of a U.S.
Senator, 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.
Gulf Coast Funds Management Regional Center.--Mr. 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, staff
perceived it as politically motivated.
Mr. Mayorkas' actions in these matters created a perception within
the EB-5 program that certain individuals had special access and would
receive special consideration.
This concludes my testimony, I am happy to answer any questions you
may have.
Chairman McCaul. Thank the witness.
Chairman now recognizes Ms. Odom for her testimony.
STATEMENT OF MARIA M. ODOM, OMBUDSMAN, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Odom. Mr. Chairman, Ranking Member Thompson, and
Members of the committee, thank you for the opportunity to
testify today.
I have the privilege of serving as the Citizenship and
Immigration Services ombudsman, an independent headquarters
office in the Department of Homeland Security. I also serve as
chair of the Department's Blue Campaign, our unified effort to
combat human trafficking.
I would like to take this opportunity to thank many of you
who are actively working in addressing the important issue of
human trafficking.
The ombudsman's statutory mission under the Homeland
Security Act is to assist individuals and employers with
problems with U.S. Citizenship and Immigration Services. We do
this in two ways: We provide case assistance to applicants who
are navigating their way through the legal immigration process,
and we review systemic issues and make recommendations to
USCIS.
In establishing our office, Congress recognized that from
time to time immigration cases are not properly handled, and
thus the need for an office that serves the public and seeks to
resolve problems. But this is first and foremost USCIS'
responsibility. We are an office of last resort for those who
have been unable to resolve their case problems directly with
the agency.
It is important to note that our casework informs our
policy work, and the same is very true for USCIS. Issues
revealed in individual cases aided the agency to develop or
revisit broad matters of policy and practice.
Cases, each one representing an individual, a family, an
employer, are the lifeblood of our immigration system. In 2015
we are on pace at our office to receive and work to resolve
over 7,300 cases.
The EB-5 Immigrant Investor program, created by Congress in
1990, as many of you know, stimulates the U.S. economy through
job creation and capital investment by foreign investors.
Applicants must invest at least $500,000 in an American
business that will create or work to preserve at least 10
domestic jobs and comply with a host of other requirements.
The EB-5 program has presented, however, USCIS with
significant challenges over the years due to many variables,
including the complexity of projects and the financial
arrangements with investors. My office, prior to my arrival in
2012 and during my tenure, has worked to resolve requests for
case assistance from EB-5 regional centers and prospective
investors as well as on systemic issues, including lengthy
processing time, gaps in policy, lack of deference to prior
USCIS decisions, and lack of communications with USCIS' EB-5
customers.
In March 2009 our office issued four more recommendations
on the EB-5 program, some of which were reiterated in the
Inspector General's 2013 EB-5 report. Additionally, we have
written about issues in the EB-5 program in each of the
ombudsman's office's last five annual reports to Congress. We
continue to work to resolve individual case inquiries made to
our office.
When Mr. Mayorkas came to USCIS, the EB-5 program was
seriously deficient in numerous ways. Under his leadership,
USCIS finally issued much-needed guidance, hired new
adjudicators and economists to improve their capacity to
resolve these complex cases, dedicated National security
officers to the EB-5 program, and finally, restarted
stakeholder engagement on these important issues.
During his tenure at USCIS, I found the director to be
knowledgeable and to be a very involved leader. Under his
leadership, public engagement became fundamental to the way
USCIS conducts its work and develops new policy and
initiatives. This was and still--and is still good for the
agency and for the public.
Mr. Mayorkas also focused on improving customer service and
the quality of USCIS' adjudications. At the head of an
adjudicatory agency, I find that his responsibility in
reviewing these cases fell squarely with his job as the
director of this agency. Part of his job was to decide whether
cases were decided correctly and whether errors occurred.
As we experience in the ombudsman's office, problem cases
are brought to our attention by a variety of sources, including
Members of Congress on both sides of the aisle. While some
cases, like those in the EB-5 program, involve financially
powerful interests, others involve the most vulnerable
immigrants in our community. In fact, I have seen Director
Mayorkas' direct engagement with a wide range of stakeholders,
including those serving victims of crimes of violence and human
trafficking.
In my experience working with Mr. Mayorkas, though we did
not always agree, I always found his approach to be thoughtful
and grounded on fact and the law. His engagement as well as our
engagement with EB-5 stakeholders was responsive in great part
to the rising number of desperate pleas by frustrated
investors, regional center representatives, elected officials,
and other individuals involved in these often large-scale,
high-impact projects facing lengthy processing delays.
Though the Immigrant Investor program is still not without
challenges, I believe the new office has shown signs of being a
more transparent and rejuvenated investment and job creation
program with a great focus on customer service and also
integrity. While adjudication delays continue in the product
line of the--in the EB-5 product line, the number of requests
that we are seeing in our office for intervention on EB-5 cases
has gone down dramatically in the last 2 years.
I thank you for the opportunity to testify today, and I
look forward to answering any questions you may have.
Chairman McCaul. Thank you, Ms. Odom.
The Chairman now recognizes himself for questions.
Let me first say that we are very fortunate on this
committee to have former Federal prosecutors--Mr. Katko, Mr.
Ratcliffe, Kathleen Rice. I am not interested in being
sensational. I have no interest in inflammatory remarks.
I am simply interested in getting to the truth. I am
interested in the facts and in the evidence, and that is the
way I conducted myself when I was a Federal prosecutor in the
public integrity section in Washington.
But I want to begin with you, Mr. Inspector General. Now, I
want to talk to you about the findings in your report, and I
think it is important that Mr. Mayorkas be able to respond to
these, as well.
But I am deeply concerned, and I want to go case by case.
In the L.A. Films case: In your opinion, sir, did Mr. Mayorkas
provide special access and favoritism to former Pennsylvania
Governor and chair of the Democratic National Committee, Ed
Rendell, by intervening in this case?
Mr. Roth. What we found, Congressman, is that we had
received a number of complaints about the L.A. Films case and
Mr. Mayorkas' approach to it. What we found, as you can see on
page 17 of our report, is that the senior EB-5 officials were
poised to deny the L.A. Films Sony proposal. Mr. Mayorkas had
been informed of that in July 2011.
What we found was that there was a telephone call on July
15 from Mr. Mayorkas, or between Mr. Mayorkas and former
Governor Rendell. Almost immediately after that, within an hour
of that phone call, Mr. Mayorkas directed his staff to reverse
the denials that had been issued and stop issuing denials.
We are unable to understand what other intervening events
would have occurred between the time he knew of and at least
tacitly approved of the denials in that case other than the
phone call with Mr. Rendell.
Chairman McCaul. I believe on page 3 of your report you
said Mr. Mayorkas gave special access and treatment to certain
individuals and parties. Is that correct?
Mr. Roth. That is correct.
Chairman McCaul. According to your report, you said but for
Mr. Mayorkas' actions, the career staff would have decided this
case differently. Is that correct?
Mr. Roth. That is correct. There were two different
adjudications in the L.A. Films case. One involved Sony and one
involved Time Warner, each of which were headed towards
denials. After the intervention, that is the communication
between Mr. Mayorkas and Mr. Rendell, those decisions were
changed in different ways.
Chairman McCaul. You know, Mr. Mayorkas had a policy that
he sent to all of his employees in this memo. In your opinion,
sir, based on your investigation, did Mr. Mayorkas--did his
actions violate the USCIS policy on preferential treatment?
Mr. Roth. As we note in page 13 of our report, he did issue
this memo. One of the memos said you should not meet with
certain stakeholders at the exclusion of others, and also that
the appearance of that kind of thing is highly damaging to
USCIS.
In our judgment, we believe that these contacts between Mr.
Rendell and Mr. Mayorkas violated that. There was a second
policy that was issued within USCIS that said that any
communications between stakeholders on matters that were to be
adjudicated within USCIS had to be recorded within official
agency files. Because we found no record of the communication
between Mr. Mayorkas and Mr. Rendell, we believe that that
policy was not followed.
Chairman McCaul. In the Las Vegas hotel case, in your
opinion, sir, did Mr. Mayorkas take extraordinary actions
regarding Senator Harry Reid's request to expedite this case?
Mr. Roth. We found in that case that there were several
highly unusual things that occurred as a result of the
intervention, one of which was the sort-of moving ahead,
expediting the decision, which basically means that you cut in
front of the line to be able to get your thing adjudicated. So
we found that unusual because that had rarely been done.
There had been a policy, although no one knew what the
policy was. Many of the staff objected to sort-of the ad hoc
nature of this kind of a decision because they believed that it
would create suspicion or an appearance that someone was
getting special favoritism.
Chairman McCaul. Did the USCIS career staff believe that
this would set a precedent for expediting future cases?
Mr. Roth. One of their concerns was that the reason that
they wanted to expedite it--SLS wanted to expedite the
processing was because they had not arranged their investors in
a timely fashion and they were going to lose their financing if
they didn't get this approved. It was really on SLS to have
done that before they applied.
So that case was within normal processing times. The staff
did not see any reason why they should get special treatment.
They also worried because the EB-5 sort-of pool of individuals
who were skilled at getting these done was very small, that
people would figure out that this is a way to game the system.
As it turns out, after SLS had received this expedite,
other regional centers did complain about the fact that SLS was
able to get expedited treatment.
Chairman McCaul. Then finally, again, did Mr. Mayorkas'
actions go against his own policy on preferential treatment?
Mr. Roth. We believe that there was the appearance that
there was favoritism as a result of this action, yes.
Chairman McCaul. In the Gulf Coast case, sir, did Mr.
Mayorkas provide special access and favoritism to current
Virginia Governor and former chair of the Democratic National
Committee, Terry McAuliffe, by intervening in this case?
Mr. Roth. What we found in that case, Congressman, is that
there was an appeal of a denial of the Gulf Coast application
for the EB-5 program. Mr. Mayorkas intervened in a way that he
had never done before by asking to see the draft opinion, by
commenting on the draft opinion, and having influence into how
that draft opinion ultimately was decided.
In our judgment, that created--and this occurred after a
number of contacts between counsel for Gulf Coast and Mr.
Mayorkas directly--in our opinion, that created an appearance
of special access.
Chairman McCaul. It has been reported that the Gulf Coast
EB-5 case involved visa applications for Chinese investors to
manufacture electric cars. What was Hillary Clinton's brother,
Anthony Rodham's, role in this specific case?
Mr. Roth. Mr. Rodham was an officer within the Gulf Coast
Regional Center.
Chairman McCaul. Sir, did--in your opinion, did USCIS
career staff perceive that Mr. Mayorkas' actions were
politically motivated?
Mr. Roth. Yes. The career staff perceived that there was a
political component to Mr. Mayorkas' intervention in this.
Chairman McCaul. According to your report, but for Mr.
Mayorkas' actions, the career staff would have decided this
case differently. Is that correct?
Mr. Roth. That is correct. As I indicated, there had been a
draft decision that would have denied specific applications on
specific bases. Mr. Mayorkas' intervention resulted in that
draft decision being modified substantially, and though--
although it was ultimately denied, it was denied on different
grounds that left the door open for a subsequent application,
which was, in fact, approved.
Chairman McCaul. Then finally, did--again, did this go
against the policy of USCIS?
Mr. Roth. The policy against creating an appearance of
special access and favoritism, yes.
Chairman McCaul. Based on your investigation, did the DHS
whistleblowers believe that Mr. Mayorkas' actions favored the
politically connected and his decisions were politically
motivated?
Mr. Roth. Yes.
Chairman McCaul. Finally, did former Secretary Napolitano's
office--specifically her chief of staff--play a role in
directing Deputy Secretary Mayorkas to get involved in these
individual EB-5 cases?
Mr. Roth. As we set forth in the report, there was a number
of communications between some of these investors and either
the chief of staff for the Secretary or an individual who was
the assistant secretary for commercial affairs, who then sort-
of intervened with Mr. Mayorkas.
Chairman McCaul. My time has expired. I have been informed
that we have a vote on the floor with about 4 minutes left. We
will adjourn and reconvene after the vote.
[Recess.]
Chairman McCaul. The Committee on Homeland Security is
reconvening.
The Chairman now recognizes the Ranking Member.
Mr. Thompson. Thank you, Mr. Chairman.
Inspector General Roth, did Secretary Mayorkas cause any
decision to be made in your report that is not in accordance
with the law?
Mr. Roth. We did not make that conclusion one way or the
other. We had evidence that the staff who was responsible for
executing the EB-5 program certainly thought that some of those
decisions were incorrect.
Mr. Thompson. Well, you say the staff thought, but you have
issued a report, and I am saying is there anything in the
report that would lead you to believe that Mr. Mayorkas did
something wrong?
Mr. Roth. With regard to the actual substance of the
decisions, or on an ethical basis?
Mr. Thompson. Well, did he break the law?
Mr. Roth. We looked at a couple things, whether or not he
violated USCIS policy that he established, and we concluded
that he had. We also looked at the Standards of Ethical
Conducts for Employees of the Executive Branch, which governs
all sort of Executive employees. One of the issues is--or one
of the commands is that employees shall act impartially and not
give preferential treatment to a private organization or
individual.
Mr. Thompson. I understand the policy and all that, but,
you know, this man has a substantial career, and one that I
think should go and give him a little more deference to whether
he did something right or wrong. I am a little concerned that
you issued a negative report, but when I asked you did he break
the law or do anything wrong, you can't say just, ``Yes, he
broke the law.''
Mr. Roth. He violated an ethical canon, Congressman, which
was creating a--he needed to avoid any actions creating the
appearance that he was violating an ethical standard. Whether
the particular circumstances creating that appearance have been
violated shall be determined from the perspective of a
reasonable person with knowledge of all the relevant facts.
So what we concluded here, Congressman, is that we are
unable to determine Mr. Mayorkas' motive for intervening in the
way he did, but the manner in which he did----
Mr. Thompson. Excuse me. You know, how in the world are you
going to determine motive if you are going to be objective?
That is all right, sir. I mean, I am a little concerned
that you went a long way to say that he didn't do anything
wrong. If he did, I want to know.
I think every Member of this committee would want to know
if he did something wrong or if he did something that wasn't in
accordance to the law--not policy, the law.
You know, all of us are Members of Congress, and we contact
agencies on behalf of our constituents all the time. It is just
part of what we do. So I see you described how various
Democratic public officials contacted USCIS. Are you aware of
any Republican officials who contacted USCIS on any of these
projects?
Mr. Roth. No. Certainly not--we did not receive any
complaints from employees with regard to special access or
other extraordinary measures that were taken----
Mr. Thompson. So in your review----
Mr. Roth [continuing]. Those projects.
Mr. Thompson [continuing]. You saw no communication from
any Republican Member of Congress or any Republican elected
official or official of the Republican Party?
Mr. Roth. No. That is not what I am saying, Congressman.
What I am saying----
Mr. Thompson. Well, that is what I am saying. I am saying
if you found that, did you put it in your report?
Mr. Roth. The CIS program is enormous. It has got 19,000
employees. It makes 5 million--has 5 million petitions before
it every year.
What we did in our investigation was take a look at the
complaints that we were receiving from employees with regard to
special access and then determine whether or not those
complaints had any merit to them. That was the extent of our
investigation.
Mr. Thompson. I understand.
Mr. Roth. We did not review the program in its entirety.
Mr. Thompson. Well, I am not asking you to review the
program. But in your review, I would think if you had run
across a Senator's letter or a Representative's letter on these
particular projects, you would have included them in your
report.
Mr. Roth. As I said, again, what we did was investigate the
complaints we had received from the whistleblowers to determine
whether they had merit. In the course of that, basically every
allegation that we found we tried to run to ground.
I don't have any recollection of an allegation of
impropriety or special access other than these three.
Mr. Thompson. Mr. Roth, I am not asking about allegations.
I am saying as you looked into the whistleblower complaints,
did you come across any communication from a Republican
Senator, a Republican elected official, or an official of the
Republican or Democratic Party that you didn't include in your
report?
Mr. Roth. I mean, there were thousands of routine contacts
between Members of Congress. But as I sit here today I could
not tell you specifically what----
Mr. Thompson. Well, I understand. But you have come down
and you have listed certain Democrats, and I am just saying
from a factual standpoint and objectivity, the perception,
based on this report, is only Democrats advocate for this
program.
I want you to say whether or not you came across any
information on the program--this Gulf Coast project, whether
there were any Republican officials involved in advocating for
this project. I think you know there are.
Mr. Roth. Right. I can guarantee there were thousands of
Congressional contacts on the EB.
Mr. Thompson. I am not looking for 1,000. I am just looking
on this particular project----
Mr. Roth. Right.
Mr. Thompson [continuing]. That you talked about.
Mr. Roth. Sure.
Mr. Thompson. I don't want to become argumentative, but I
think if your report is going to really have credence and not
impugn the integrity of Mr. Mayorkas, when I ask you a
question, all you have to do is say, ``Look, in our review we
saw letters from Senators, we saw e-mails from
Representatives,'' and that is all you have to say.
I would hope that in your review you did see that. But if
your reports say, ``We only saw Democrats and I stand on
that,'' then I would say your report is incomplete.
Thank you. I yield back.
Chairman McCaul. Chairman now recognizes Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman. Appreciate that today.
Thank you guys for coming out today. We are glad to have
you in this situation for sharing what you found and what you
have seen.
One of the things I want to go back to is on Deputy
Secretary Mayorkas, specifically the involvement EB-5
applications that were concluded his interventions on technical
adjudicative matters were corrosive and destabilizing in
nature. I believe that was the ``corrosive and destabilizing.''
During the investigation, did any USCIS employees indicate
that any other director ever had such involvement in cases?
Mr. Roth. What we found, for example, in the Gulf Coast
matter, when we talked to the individuals in the administrative
appeals office, that office is charged by regulation with
deciding whether the original adjudication was correct and in
compliance with the law or not. Historically, there has been a
deference to the administrative appeals office. We asked the
specific question whether Mr. Mayorkas before the Gulf Coast,
or any other director, had ever sort-of asked to see an review
and weigh in on an appeal decision, and the answer was no.
Mr. Walker. Were you privy to any other discussions as far
as now-Governor Terry McAuliffe, who is the current Governor of
Virginia--were there any other discussions that you were
informed of or knew about with the Gulf Coast situation?
Mr. Roth. What we found was there was one face-to-face
meeting between Mr. Mayorkas and Mr. McAuliffe, and then there
were several telephone calls. We attempted, in determining
exactly the extent of the calls, to put them in the appendix so
there was a time line with every contact we were able to find
between any of the individuals involved in these regional
centers and Mr. Mayorkas.
Mr. Walker. Deputy Secretary Mayorkas--did he acknowledge
that he had this discussion? Did he share the--I guess the
basic content of his conversation?
Mr. Roth. Mr. Mayorkas' statement was that he was ordered
by the Secretary to go and meet with Mr. McAuliffe. He
consulted with counsel before he did so. Counsel said that in a
perfect world it would be good not to do this, but understood
the circumstances and advised Mr. Mayorkas to be in listen-only
mode. Mr. Mayorkas then met with Mr. McAuliffe. He came back.
He wrote an e-mail essentially contemporaneously with the
meeting, said he was in listen-only mode and made no promises.
When we interviewed Mr. Mayorkas he was consistent in that
statement.
Mr. Walker. So he has said basically that he basically
didn't have any input in it, it was listen-only. That is on
record?
Mr. Roth. That is correct.
Mr. Walker. Okay. Is there any other time that we can go
back from a chronological standpoint to find out any place
where he did have input?
Let me ask another question to follow up on that that can
expound a little bit more. His posture--has he been willing to
share and talk through some of this or have you had to come in
from different ways to get some of the information? I would
like to know his relationship to you and how forthright he has
been in some of this discussion.
Mr. Roth. We interviewed Mr. Mayorkas as we would in any
sort of normal case like this. It was an extended interview
with two of our agents that lasted about a day. He was
completely forthcoming.
We gave him the opportunity to make a written statement. He
had a lengthy written statement, which is attached as our
appendix.
In the course of our investigation, of course, we tried to
do an e-mail poll of Mr. Mayorkas' Government e-mail accounts.
What we found there was, although through no fault of Mr.
Mayorkas, that the e-mail records within DHS are less than
complete, so we aren't confident that we have every contact or
every record regarding this.
But I would say that he was cooperative with our
investigation.
Mr. Walker. In this particular agency, and as your
experience here in the District of Columbia, when it comes to
whistleblowers is this an abnormal amount that you have seen
when it comes to this agency compared to other ones?
Mr. Roth. This is. I mean, typically in a case we might
have one or two or even three different whistleblowers. Many
times you can sort of suss out what those individuals' motives
are because perhaps they were demoted or some other sort of
personal issue that happens. Not in every case, but certainly
that is something that we look at.
What was unusual in this case was sort-of both the breadth
of the whistleblowers--so we had individuals within the
California service center who had personal dealings with Mr.
Mayorkas, the headquarters unit that sort-of supervised the
California service center, the EB-5 program office, office of
counsel, and even in the leadership office within USCIS we
found individuals.
Mr. Walker. Thank you, Mr. Roth.
Mr. Chairman, I yield back.
Chairman McCaul. Chairman now recognizes Mrs. Watson
Coleman.
Mrs. Watson Coleman. Thank you very much, Mr. Chairman.
Thank you both for being here today.
I would like to speak to you first, Mr. Roth, regarding
your report. On page 1 of the report you write: In each of
these three instances that we have been discussing today, but
for Mr. Mayorkas' intervention, the matter would have been
decided differently.
But that doesn't necessarily mean the ultimate resolution
of the case was decided wrongly. Indeed, your report explicitly
states that all the key decisions made by Mr. Mayorkas were
legitimately within his purview. You took no position as to the
wisdom of any of these decisions--these actions.
Would you agree that it is reasonable for the agency
leadership to take action when necessary to ensure fair and
consistent administration of a program?
Mr. Roth. Absolutely. That is well within the director's
prerogative to do so.
To clarify what we said in the report was that it was
within his prerogative to make these large, policy-based
decisions as to the direction of the agency. The reason that we
said that was to ensure--and this is certainly a question that
we asked ourselves, was this a mere disagreement as to the
direction of the USCIS and the EB-5 program? If there was a
resentment with regard to that, of course that is entirely Mr.
Mayorkas' call.
But what we did find was with regard to the specific
decisions that we are talking about here, there was significant
resentment and significant disagreement within USCIS as to the
ultimate decision.
Mrs. Watson Coleman. That is why there is a chain of
command and why certain decision levels are vested in certain
positions as opposed to lower-ranking individuals. I mean, so,
I mean, that can be a given. That can be a finding that there
was, indeed, resentment.
But there doesn't seem to be any finding of anything else
that gives us particular pause here, because referring to these
EB-5 cases that are the focus of your report, again on page 1
your write, ``In each of these instances, but for Mayorkas'
intervention, the matter would have been decided differently.''
However, I can't find further support for this assertion
elsewhere in the report.
In fact, the only other time that I see that this is spoken
to about this issue is on page 3 where it says only that
according to the employees who complained to you, but for
Mayorkas' action the career staff would have decided these
matters differently. That is a very different assertion.
In the first instance you write that but for his actions
the case would in fact have been decided differently, but later
you write only that certain employees believed that but for his
actions the cases would have been decided differently. Is it
fair to say that the report concluded that certain employees
believed Mr. Mayorkas' involvement in these three cases changed
the outcome of the cases but that the report, in fact, did not
conclude or establish that Mr. Mayorkas' involvement in fact
changed the outcome of the cases?
Mr. Roth. What we found in each of these three instances--
and this was not simply us talking to individuals, but we found
documented evidence with regard to that. So, for example, in--
--
Mrs. Watson Coleman. With regard to what?
Mr. Roth. With regard to the fact that the staff was going
in a certain direction. So, for example, in the L.A. Films
case, there were denials--draft denials already there. Mr.
Mayorkas, in fact, had approved those draft denials, and then
there was a call between Mr. Mayorkas and Mr. Rendell, and then
Mr. Mayorkas ordered the reversal of that. So that is in the
L.A. Films case.
Mrs. Watson Coleman. Well, that in and of itself may not
mean anything more than additional information upon which to
make a decision was being offered at that time. That doesn't
suggest that anything illegitimate took place.
Mr. Roth. We asked Mr. Mayorkas about his contact with Mr.
Rendell. He has no recollection of that. He asserts that Mr.
Rendell's contact had nothing to do with his decision to
reverse it, but he could not articulate the basis by which he
decided to have those cases reversed.
Mrs. Watson Coleman. But do you have proof that there was
indeed contact directly between Mr. Mayorkas and Mr. Rendell?
Mr. Roth. Yes.
Mrs. Watson Coleman. What is that?
Mr. Roth. Telephone records and a calendar appointment.
Mrs. Watson Coleman. Mr. Mayorkas' calendar?
Mr. Roth. Correct.
Mrs. Watson Coleman. Well, first of all, what--I believe
that Ms. Odom made some references--and correct me if I am
wrong--that during this time that Mr. Mayorkas was in charge of
the division that it had some administrative and organizational
deficiencies and that he was sort of hands-on in trying to get
some consistency and organization to this organization. This is
part of a department that seems to be under fire all the time
for its leadership and for the fact that it became a department
of various divisions that had no relationship before and that
there might already be this morale situation and resentment
that existed.
So would it be unusual for someone at that juncture in
their operation to sort-of be more hands-on in cases that--in
some cases versus other cases? Is there any reason to believe
that there is anything other than that with regard to Mr.
Mayorkas?
Ms. Odom.
Ms. Odom. Thank you, Congresswoman. Thank you for your
question.
We have to go back to what was happening with the EB-5
program in 2011, 2012, 2013--a program that was suffering from
a lot of problems, including inconsistencies in the quality of
these complex adjudications; problems in long delays, many of
which were caused by lengthy National security checks and other
background checks which were necessary, as well as gaps in
policy that created a host of problems for a program that, one,
is complex, has to deal with large projects and large
investments, as you have heard.
This was a priority for the director. He was working to
revamp, to reform this program. There was active engagement
with stakeholders not just pertaining to these three cases.
Our office, our ombudsman's office, saw a rise in the
number of inquiries to our office, a need for increased
engagement. In fact, we hosted a stakeholder engagement in
March 2013 to go through some of the problems that were being
reported.
All of that coupled by a dysfunctional e-mail system that
was created to answer inquiries regarding the EB-5 program. At
the point I assumed office in 2012, even the ombudsman's office
was experiencing challenges in receiving responses through the
EB-5 e-mail system. So if that was the process that was set up
to address stakeholder concerns and specific case inquiries, it
was very broken.
Coupled with other issues that the director tried to
address through the new policy guidance that he issued in 2013,
and finally, a very severe backlog with the administrative
appeals office that is the internal appellate body within
USCIS, that caused great frustration among the stakeholders in
the EB-5 area.
Mrs. Watson Coleman. Thank you.
If I might, one last question? One eeny-weeny-teeny-dweeny
little bit question? This is for the Inspector General.
Beyond the three complaints that were alleged by the 15
employees, have you done any other investigations of
applications and the processes that have been used, and have
you found any irregularities that you needed to bring to our
attention in conjunction with our hearing?
Thank you.
Thank you, Mr. Chairman.
Chairman McCaul. Chairman now recognizes Mr. Katko.
Mrs. Watson Coleman. Pretty please answer the question?
Chairman McCaul. Oh, I apologize.
Yes, please answer the question.
Mr. Roth. In the 3 years that we looked at, there were
approximately 700 different applications to regional centers,
so what our investigation did was functionally pull all the e-
mails related to the EB-5 program. The e-mails that we found
largely centered on these three cases. Where we found other e-
mails, we tried to chase them down and see if there were any
irregularities; we did not find any irregularities that would
give us any pause.
Mrs. Watson Coleman. Thank you very much.
Thank you, Mr. Chairman.
Chairman McCaul. Chairman now recognizes Mr. Katko.
Mr. Katko. Thank you, Mr. Chairman.
At the outset I want to note, Mr. Roth, I have been working
with you on my Transportation Security Subcommittee, and I have
been very appreciative of your command of the facts and the
thoroughness with which you do your reports, so thank you very
much.
Ms. Odom, it is nice to meet you, as well.
Ms. Odom, just a quick question--and I am sorry, I have
been in and out, so in case I missed it--are you familiar with
the general facts of the Inspector General's report?
Ms. Odom. I had the opportunity to read it when it was
released.
Mr. Katko. Are there any facts in that report that he
raises that give you pause for concern about Mr. Mayorkas'
conduct?
Ms. Odom. Of course, I am reading the report in the context
of the--how the audit was framed. I was not part of, you know,
selecting the witnesses that came forward and that spoke to the
Inspector General.
I think that what I read in the report was consistent with
what was happening in the stakeholder community in the EB-5
program around the years in question, and I also--what I read
is also consistent with the management style that I saw from
Director Mayorkas when we worked together to resolve problems
at USCIS.
Mr. Katko. So your answer is that you don't have any pause
for concern about Mr. Mayorkas' conduct, assuming the facts, as
stated in the report, are true?
Ms. Odom. I can't comment on whether or not the report that
Inspector General Roth issued is reasonable or whether it
contains facts that are true or not, but I can conclude that it
was consistent with our--the department's engagement in the EB-
5 area.
What I saw was someone who was actively involved in
reforming and transforming the EB-5 program, something we have
reported on in our annual report--issues as well as progress.
In the way he handled those inquiries, which were coming from
many different directions, not just in the EB-5 program, but
stakeholders have taken every opportunity to reach out to
leadership at DHS pertaining to a host of immigration issues.
Mr. Katko. Yes or no, did you have any problems with any of
the--anything stated in the report regarding Mr. Mayorkas'
conduct?
Ms. Odom. I do not have any problems that I can highlight
to you today.
Mr. Katko. Okay. Thank you.
Now, Mr. Roth, a question for you if I may, sir. I want to
kind of set up a time line if I can. Could you tell me the
conduct that you have raised in this report--could you tell me
when the first act was and when the last act was?
Mr. Roth. Sure. The first act, I think, is in approximately
July 2011, and then the last act would be sometime late spring
2013. To be precise on this, we have a time line of all the
contacts that we were able to discover, and if you excuse my
fumbling I will find it.
So Gulf Coast filed its first application in July 2008, but
really the thing didn't get started until about July 2010, and
then there are contacts starting in July 2010. With regard to
L.A. Films, the original application was in 2008, but again,
things did not truly start to heat up until September 2010 and
then into 2011.
Mr. Katko. Okay. So basically the general time frame of the
alleged allegations--I mean, of the facts you point to for Mr.
Mayorkas is July 2011 to late spring of 2013.
Mr. Roth. That is correct.
Mr. Katko. Okay. When did you start your investigation?
Mr. Roth. I know that we received complaints about this but
did not truly start the investigation. I am going to have to
get back to you on the specific date on which we started the
investigation.
Mr. Katko. A general----
Mr. Roth. Say again?
Mr. Katko. General start date, approximate----
Mr. Roth. It would have been in, obviously, 2013. But
again, I apologize for not having that exact date.
Mr. Katko. It is all right. Now, the next question I have
for you is do you know when Mr. Mayorkas was nominated to his
current position at DHS?
Mr. Roth. I do not.
Mr. Katko. Okay.
Do you know, Ms. Odom?
Ms. Odom. It was either June or July 2013, if I recall
correctly.
Mr. Katko. Okay. So June or July 2013. So the alleged
conduct here took place until late spring 2013, and shortly
thereafter Mr. Mayorkas was nominated for DHS.
Ms. Odom. It was in the summer, yes, Congressman.
Mr. Katko. Okay. Do you know when he--do you know who was
behind that nomination, who made the nomination?
Ms. Odom. No, sir.
Mr. Katko. Okay. Do you know when the hearings took place
regarding his nomination?
Ms. Odom. It was right around the same time, sir. If I
recall correctly, it would have been right close to the time
that he was nominated.
Mr. Katko. So I believe there was one in July 2013, and I
believe the second hearing was in December 2013. Is that your
general recollection?
Ms. Odom. That is about right.
Mr. Katko. Okay. He was confirmed soon thereafter.
Okay. Now, Ms. Odom, you are familiar with the structure at
Homeland Security, correct?
Ms. Odom. Correct.
Mr. Katko. All right. Is it fair to say that going from the
position Mr. Mayorkas had with your office to the No. 2
position at DHS was a ascension, if you will? It was a bigger
job?
Ms. Odom. Well, certainly a promotion. I do not work for
USCIS, but I--it is definitely a position of higher rank in the
Department.
Mr. Katko. Okay. Thank you.
I yield my time.
Chairman McCaul. Chairman now recognizes Miss Rice.
Miss Rice. Thank you, Mr. Chairman.
So, Mr. Roth, I just want to go through the specifics of
how the decisions would have been--how they were changed and
how outside the normal--I mean, out of all of the cases that
you have looked at were there ever decisions that were changed
with or without the involvement of someone at Mr. Mayorkas'
level?
Mr. Roth. What we found, for example--and I will start with
the L.A. Films Three, which was the Sony project. What we found
was that, you know, we have an e-mail at a specific time, which
is on page 17--July 7. There is an e-mail that basically
reflects the fact that Mr. Mayorkas had approved the denial of
these Sony things.
Miss Rice. What was the basis of the denial?
Mr. Roth. The basis of the denial was the lack of--the
largest issue was the fact that there was not a what was called
a commitment letter. In other words, Sony had the option to
take this
EB-5 money, but they didn't have the requirement to take the
money. So in other words, they weren't bound to take the money.
Why that is important in the EB-5 program is these
investors invest this money into this regional center, they get
a temporary green card for 2 years. At the end of 2 years they
have to prove that jobs, in fact, were created.
What they had seen before--for example, we talk about this
Lions Gate Entertainment that was L.A. Films One. There was
this non-commitment letter, so these folks got a temporary
green card, but then Lions Gate never used the money because
they were not contractually obligated to use the money.
Therefore, these investors--these alien investors--were
rejected for permanent residency as a result of that.
So there had been a decision relatively early on that this
was not an appropriate investment vehicle because of the
contingent nature of a non-commitment letter.
Miss Rice. So what changed? Then Mayorkas' decision allowed
them what?
Mr. Roth. So, as I said, in July 7 there was the decision
to issue the denials, largely based on the sort-of this non-
commitment letter, but there were a few other issues with
regard to job creation. Were these jobs temporary jobs,
seasonal jobs, permanent jobs? Did they actually create jobs or
were these jobs that had been creative absent the EB-5 program?
But then again, there was a call on July 15, so, you know,
7 days later, 6 days later, and then within an hour of that
call--we don't know the contents of that call; Mr. Mayorkas
can't remember what was in the call----
Miss Rice. It was between him and----
Mr. Roth. Mr. Rendell.
Miss Rice. Right.
Mr. Roth. Then it was--and remember, some of these denials
had already gone out by this time. There was an instruction
from Mr. Mayorkas, ``Pull back those denials and stop issuing
other denials.''
So that would be--and this is true in other cases where
there were--for example, in the Gulf Coast there was a
preliminary opinion, a draft opinion that would have been
issued but for Mr. Mayorkas taking the unusual step of
intervening and wanting to review the opinion.
Miss Rice. These are the only three cases that Mr. Mayorkas
intervened in out of the 700 that you looked at?
Mr. Roth. These are the ones that we found. Again, what we
did to--you know, it is an enormous program, right? I mean,
there are 700 regional centers. We did not look at every 700
regional center.
What we did was we followed sort-of the logical
investigative steps you would think we would do, which is we
talked to individuals, but we also did an e-mail poll and
examined all the e-mails with, you know, those kinds of search
terms you would expect to see used: EB-5, regional center,
those kinds of things. Largely, these are the only ones we
found that were noteworthy.
I will say----
Miss Rice. But there could be other ones.
Mr. Roth. I will say that he was a very hands-on manager,
and there is nothing wrong with being a hands-on manager. I am
a very hands-on manager. You can't----
Miss Rice. I can tell.
Mr. Roth. Good. You couldn't handle these stacks without
it.
The problem is the juxtapositioning of contacts that the
staff may or may not be aware of----
Miss Rice. Oh, believe me, I hear you.
Mr. Roth [continuing]. Immediate----
Miss Rice. I hear it.
Mr. Roth. So it is not the fact that he is a hands-on
manager. I applaud that.
Miss Rice. But we have made it clear that he hasn't done
anything to break the law. It is just a question of setting up
parameters of when someone in this position would get involved
in cases, and was that done on a specific basis.
In the L.A. Films case, Mr. Roth, did you find any
indication that a former Congressman by the name of Dan Lungren
had weighed in on this decision at all? Who happens to be a
Republican, I might add.
Mr. Roth. I don't know, and I will find out for you.
Miss Rice. If you could. I want to just move on because my
time is almost done.
On the Las Vegas case, did you have any indication or did
you see any indication that a Republican Senator by the name of
Senator Heller, from Nevada, weighed in on the Las Vegas case
at all?
Mr. Roth. Again, on that one I will have to get back to
you. I don't have a recollection of that but----
Miss Rice. Okay.
Mr. Roth [continuing]. We can certainly find out----
Miss Rice. No, I appreciate if you would do that because
actually that would, I think, change the whole tenor of what we
are talking about here, and it becomes not a political decision
that Mr. Mayorkas might have made, but one that--where he was
attending to requests by Members of Congress across the--a
broad political spectrum. Would you agree?
Mr. Roth. Correct. This is certainly not, from my point of
view, something about party affiliation. This is what the
staff's reaction was as a result of this conduct and whether
that reaction was a reasonable reaction. That is what the
ethical standards say.
I completely understand and completely agree if people have
a different judgment as to what was reasonable for Mr. Mayorkas
to do.
Miss Rice. I agree with you, and I think that, you know, as
you said, you cannot get into Mr. Mayorkas' head and figure out
what motivated him to do what he did. So, too, is it almost
impossible to get into the heads of the employees and
understand what their motive was to complain about this
situation.
But I thank you very much, Mr. Roth.
I yield back my time, Mr. Chairman.
Chairman McCaul. Chairman recognizes Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Mr. Chairman. Thank you, Mr.
Chairman.
As the Chairman noted previously, I am one of the former
Federal prosecutors that serves on this committee, and from
that perspective I would like to make sure, Inspector General
Roth, that I understand the summary of your investigation. So
you conducted 50 interviews?
Mr. Roth. In excess of 50 employee interviews.
Mr. Ratcliffe. Okay. That included at least 15 USCIS
employees, including senior managers?
Mr. Roth. The 15 employees I refer to are the ones who had
first-hand contact with Mr. Mayorkas that had concerns as to
improper access.
Mr. Ratcliffe. Okay. Your investigation included a review
of more than 40,000 telephone calls?
Mr. Roth. Telephone records, yes.
Mr. Ratcliffe. Records. I am sorry. Telephone records.
In aggregate, more than 1 million e-mails and other
documents?
Mr. Roth. Correct. We polled 1 million e-mails; that didn't
mean we read a million e-mails, but we did searches off that
poll.
Mr. Ratcliffe. All right. What length of time did this
investigation occur over?
Mr. Roth. Several years.
Mr. Ratcliffe. All right. Well, it certainly seems, from my
perspective, very thorough and consistent with your training as
a former assistant U.S. attorney, so I commend you on that.
So let me talk about some of the conclusions that come out
of your investigation. You have had a number of questions about
whether or not Deputy Secretary Mayorkas violated the law. Talk
a little bit so I want to make sure everyone is very clear
about what the charge was with respect to your investigation.
Was it to adjudicate guilt or innocence?
Mr. Roth. It was not. It was to find facts and compare what
we found against both USCIS policy as well as the ethical
standards by which we are bound.
Mr. Ratcliffe. All right, so investigate and find facts,
make certain conclusions as to where they may go, but
ultimately guilt or innocence would be decided by another trier
of fact if the facts would allow that.
Mr. Roth. Correct. Our job on any misconduct investigation
is to write a report and then give it to the individual who is
responsible for that employee.
Mr. Ratcliffe. Okay. So with respect to the conclusions of
your investigation, your investigation found that Deputy
Secretary Mayorkas pressured USCIS employees to depart from
USCIS policies and procedures, correct?
Mr. Roth. Yes.
Mr. Ratcliffe. Okay. Did I hear your testimony earlier
today to also depart from statutes and regulations that pertain
to the
EB-5 program?
Mr. Roth. It was internal USCIS policies.
Mr. Ratcliffe. Okay. But all of these pertaining to the
management of EB-5 visa program?
Mr. Roth. That is what we looked at, yes.
Mr. Ratcliffe. All right. This happened on at least three
occasions?
Mr. Roth. Correct.
Mr. Ratcliffe. All right. In each of those three occasions
these extraordinary departures benefited prominent Democratic
Republicans, including former Democratic Governors and
employees of Bill and Hillary Clinton, including Hillary
Clinton's own brother, correct?
Mr. Roth. My conclusion is that the staff perceived that
the influence was a result of politically connected people. I
don't think there was a lot of conversation about sort-of party
affiliation.
Mr. Ratcliffe. Okay. But in each of these three your
investigation included--and I--the words that you used earlier,
``but for'' these extraordinary departures and Deputy Secretary
Mayorkas' intervention, the result in each of these EB-5
matters would have been different.
Mr. Roth. That is correct.
Mr. Ratcliffe. All right. You detailed earlier some of the
ways in which the staff felt pressured?
Mr. Roth. Yes.
Mr. Ratcliffe. All right. How has this affected the morale?
Mr. Roth. Our perception is that the morale was lowered as
a result. At least the people who were affected, their morale
was lowered.
Mr. Ratcliffe. All right. Well, you know, as a former
prosecutor I know that there are two sides to any set of facts,
but I also want to commend you again, Inspector General. I
think you put together a very thorough investigation. I think
it shows compelling, if not overwhelming, evidence, and so I
thank you for that.
I thank Ombudsman Odom for being here. I wish I had more
time for questions.
Mr. Chairman, I thank you for calling this hearing and for
your willingness to bring us back so that we all may have the
opportunity to question Deputy Secretary Mayorkas. I yield
back.
Chairman McCaul. Thank the gentleman.
Chairman recognizes Ms. McSally.
Ms. McSally. Thank you, Mr. Chairman.
I thank you for your testimony today.
I join some of my colleagues in certainly being concerned,
based on the thoroughness and the conclusions of your report,
that there have not been any consequences towards the
impropriety, and in fact, a promotion to the individual
involved. So I think we do need some follow-up on that.
I want to ask a specific question about the deference
review board that you mentioned in your report. My
understanding is Mr. Mayorkas created this specifically to help
petition for L.A. Films.
Was there any precedent for the creation of a board like
this, and were the policies for the board ever formally
established, approved, or documented?
Mr. Roth. No. There was basically an announcement by Mr.
Mayorkas via e-mail that he was concerned about inconsistent
applications. He sent out an e-mail that basically said,
effective immediately, we are going to have this--he didn't
call it a deference review board, but he called it, I believe,
a review board.
There was great pressure to do this immediately. No
policies had been set up. Office of Chief Counsel had some
concerns as to how this fit with the regulatory scheme and
whether there were going to be violations of the Administrative
Procedures Act and the like.
All that is set forth basically on page 25 and 26 of my
report.
Ms. McSally. Okay. But none of the policies of this quote-
unquote board were ever written down, codified, or ever used
again, right?
Mr. Roth. Correct.
Ms. McSally. Okay. What was the career staff's impression
of this board?
Mr. Roth. There was a meeting on January 30 in which this
was discussed between Mr. Mayorkas and the career staff, and
that is on page 26. One of the participants of the meeting said
the meeting left a clear impression that the director and his
chief of staff wanted to accommodate L.A. Films and Tom
Rosenfeld, was the president of the L.A.--the regional center.
There was a--to some of the staff--a very disturbing
incident that occurred at the conclusion of that meeting, which
was as they were leaving they overheard the fact that there was
a telephone call from Tom Rosenfeld, so this was an affected
party who was part of this. One of the individuals who
understood what was going on said that the appearance of
impropriety was overwhelming, that that official ultimately
reported the appearance concern to his supervisor, who in turn
talked to an ethics official within USCIS.
I think it is a matter--to protect this individual's job
they sort-of did it in a hypothetical fashion, ``assuming this
happened,'' but didn't mention Mr. Mayorkas. The conclusion of
the ethics official within CIS was that this ought to be
reported to either the Office of Inspector General or the
Office of Special Counsel.
Ms. McSally. Okay. Thank you.
Moving on to a different topic, in response to the
allegations of Deputy Secretary Mayorkas improperly pressuring
USCIS employees to expedite the SLS hotel and casino case in
Las Vegas, he cited a Department of Commerce letter that stated
the application was eligible for expedited processing, and on
closer examination the Commerce employee who wrote the letter,
Steve Olson, was a former employee of Mr. Mayorkas. It has also
been alleged that Mr. Mayorkas actually requested that this
letter be written.
In your investigation, did you find any evidence to support
this allegation? Are writing letters of this kind something
that falls within the description of Mr. Olson's job?
Mr. Roth. We did not--our examination is, of course, only
of DHS employees and not, for example, Department of Commerce
individuals. Certainly the staff's reaction to this--and this
was something that we obviously focused on--was that they
believed and couldn't understand how it was that Mr. Olson even
knew about the project and how it was to--you know, who to
write the letter to.
You know, one of the individuals sort-of was opining that,
you know, ``I don't recall seeing these folks opine before and
I wonder how they even know who to send this to. I fear we are
entering a whole new phase of yuck.''
Ms. McSally. Okay, great. Thank you. In your opinion, would
the letter have reached the same conclusion if it were written
by somebody without connections to USCIS leadership?
Mr. Roth. I can't determine that.
Ms. McSally. Okay. Thank you.
Just one final question on the status of the
whistleblowers. You know, these people have come forward and
provided this information. Clearly a large number concerned
about impropriety.
I mean, what is their professional status? Are they all
still there? Have any been promoted? I mean, we are just always
concerned about protecting whistleblowers, especially when the
perpetrator is still within the Department.
Mr. Roth. You know, we are always worried about that. We
have, you know, obviously, very strong whistleblower protection
laws.
We advertise to the entire DHS population about sort-of
their rights under that. In fact, within the first couple
months that I started this job I was able to send an e-mail to
all 225,000 employees within DHS.
I am confident that if there is any sort-of attempt at
retaliation that we will hear about it and we will investigate.
Ms. McSally. Are they still all employed by USCIS, to your
knowledge?
Mr. Roth. I don't have the answer----
Ms. McSally. Okay.
Mr. Roth [continuing]. To that question off-hand.
Ms. McSally. If we could just follow up if they are still
in USCIS or even in DHS, just what is their status. Thank you.
Appreciate it.
Thank you, Mr. Chairman. Yield back.
Chairman McCaul. The Chairman recognizes Mr. Perry.
Mr. Perry. Thank you, Mr. Chairman.
Thank you for your testimony this morning.
I would like to move directly to the Gulf Coast Funds
Management Regional Center. What I understand is this that Gulf
Coast petition to invest in GreenTech Automotive--and according
to what I have here, whose chairman at the time was Terry
McAuliffe, the current Governor of Virginia. It says further
that it is clear that Mr. Mayorkas was put under intense
pressure by McAuliffe, who, according to Mayorkas, left him a
voicemail led--laced with expletives at high volume.
When the terminology ``put under intense pressure,'' I am
certain that--or I am relatively confident that Mr. Mayorkas
can withstand a verbal dressing down, but can you characterize
what you think would have led to the intense pressure? Was it
just the volume or the expletives, or was there potentially
something more and what might that be?
Mr. Roth. I think you are reading from Mr. Mayorkas'
written statement. We did not make that characterization of
intense pressure.
Mr. Perry. He did.
Mr. Roth. I can't really sort of opine or comment----
Mr. Perry. He provided no further details about what that
intense pressure would be?
Mr. Roth. No.
Mr. Perry. Whose job would it be to go out and go back to
him and find out exactly what that pressure is? We are talking
about, obviously, taxpayer money here and the misdirection of
that, and so I think it would be important for us to know if
there is undue pressure being placed on individuals within the
administration, how that is happening, and who is perpetrating
that.
Would that not be your job? Or whose job would that be?
Mr. Roth. We are responsible for looking at the conduct of
U.S.--of DHS employees, not sort-of external parties. You know,
we get external inquiries all the time.
Mr. Perry. Okay.
Mr. Roth. We do with those what we do with them, but we are
obviously always obligated to follow the law and the ethics.
Mr. Perry. Does it appear that there was criminal activity
here at all to you? Are you familiar? Would you know if it was?
Who would determine that?
Mr. Roth. We do not believe that there was criminal
activity involved. We had early on consulted with the
Department of Justice public integrity section. I am a
prosecutor of 25 years' duration. We have not seen any kind of
action that we believe violates criminal law.
Mr. Perry. Let me ask you if you know, regarding this undue
or this intense pressure, what would cross the line? What would
lead you to believe that something that, you know, would be of
criminal intent or action would cross the line regarding the
malfeasance or alleged or potential malfeasance?
Mr. Roth. I can't tell you exactly what it would take to
reach that.
Mr. Perry. Okay.
Mr. Roth. That simply is not something we looked at.
Obviously if it were bribery then that would be a separate
crime, and there is a whole series of things.
But as far as intense pressure, yelling at someone or
something like that, as far as I can conceive, that is not--
and, you know, that is one of the things that we have to be--I
want to make sure that people understand is that we aren't
looking at sort-of the outside folks, the owners of the
regional centers, their conduct. We are only looking at what
occurred within DHS.
Mr. Perry. No, I understand. But my concern is that while
you are--doing your job very well, that maybe it falls outside
your purview if that is indeed the case, and that some of these
folks that may have engaged in undue pressure which leads to
malfeasance and potentially fraud, that they are left to walk
away without that--you know, the public knowing that, and so--
but we can explore that later.
Let me move on to another instance here regarding the--
these two separate movie projects with Sony and Time Warner,
where it says after an engagement with Tom Rosenfeld with CanAm
Productions, and former Governor Rendell, where I guess the--
Mr. Mayorkas was told that--the projects need to be approved.
What do you suspect--what changed the trajectory, I mean if
that is the case? Did you get any indication of that?
Mr. Roth. Well, as I indicated, there were two different
sort-of L.A. Films projects--L.A. Films Three and L.A. Films
Four, for our purposes. There was contact between Mr. Rendell
and Mr. Mayorkas on each of those.
As I said, there was a track to deny the L.A. Films Three
petitions that was essentially reversed.
Mr. Perry. So they are on-track to be denied, and then
after a phone call then things reverse--things are reversed.
Obviously find that suspicious. Is that a fair
characterization?
Mr. Roth. I think it was troubling both to the employees,
who didn't understand how it was----
Mr. Perry. What in that phone call would have made the
difference? Is it information that would have made the
difference, or was it--or do you suspect it was pressure? Did--
was pressure alluded to?
Mr. Roth. We have no information one way or the other.
Mr. Perry. Okay. My time is expired.
Thank you, Mr. Chairman.
Chairman McCaul. Thank the gentleman.
Seeing no further Members to ask questions, I want to thank
the witnesses for your valuable testimony, Mr. Roth, your
extensive investigation. We look forward to hearing from Mr.
Mayorkas and his response to these allegations.
The hearing record will be open for 10 days. Witnesses may
have additional questions in writing.
Without objection, the committee now stands adjourned.
[Whereupon, at 11:11 a.m., the committee was adjourned.]
A P P E N D I X
----------
Questions From Chairman Michael T. McCaul for Maria M. Odom
Question 1a. In the March 24, 2015 OIG report regarding the
investigation of the management of USCIS's EB-5 program, it is noted
that during the ``Gulf Coast Case,'' your office was contacted on 12/
05/2012 and 12/14/2012, and on 1/10/2013 you met with Mr. Mayorkas.
Please describe your involvement in this case.
Answer. In 2012, Gulf Coast Funds Management, Ltd. (Gulf Coast)
contacted the Office of the Citizenship and Immigration Services
Ombudsman (Ombudsman's Office) with regard to 21 petitions with which
it had experienced delays and other administrative difficulties. These
petitions included Forms I-924, Application for Regional Center Under
the Immigrant Investor Pilot Program, Forms I-829, Petition by
Entrepreneur to Remove Conditions, and Forms I-526, Petition by Alien
Entrepreneur.
The Ombudsman's Office correspondence with Gulf Coast was handled,
according to established protocols, by CISOMB managers and Immigration
Law Analysts involved in processing employment-related requests for
case assistance. All of the correspondence was routine; it included:
Discussions regarding the consent forms necessary to evaluate and
process Gulf Coast's requests for assistance; the information necessary
to obtain case updates from USCIS; and verification of legal
representation in order to allow communication with the attorneys
representing parties in these matters.
The specific issue raised by Gulf Coast in some of these matters--
delays in the adjudication of immigration benefits applications--is one
of the most common reasons individuals and employers request assistance
from the Ombudsman's Office. Gulf Coast did not request any unusual or
extraordinary forms of assistance or relief; it asked only that the
adjudication of its Forms I-924, I-829, and I-526 be completed in a
timely fashion. The Ombudsman's Office did not take action on Gulf
Coast matters that were within USCIS's posted processing times.
Communications pertaining to these matters were made using channels
available to the public when seeking Ombudsman's Office case
assistance.
I did not meet with Mr. Mayorkas on January 10, 2013. On January 9,
2013, my leadership team and I met with Mr. Mayorkas and the USCIS
leadership team, pursuant to Homeland Security Act section 452(d).\1\
We discussed a variety of issues including systemic problems in the EB-
5 program. We did not discuss any individual EB-5 case matters.
---------------------------------------------------------------------------
\1\ Section 452(d) of the Homeland Security Act of 2002 states, in
relevant part, ``The Ombudsman . . . shall meet regularly with the
Director of the Bureau of Citizenship and Immigration Services to
identify serious service problems and to present recommendations for
such administrative action as may be appropriate to resolve problems
encountered by individuals and employers.''
---------------------------------------------------------------------------
Question 1b. In your opinion, in reviewing the case documents, did
you believe the case warranted special attention from headquarters and
from the Director?
Answer. I believed at the time that processing delays and gaps in
policy in the EB-5 program specifically warranted attention from USCIS
Headquarters and Mr. Mayorkas. Some of the Gulf Coast cases were among
those experiencing adjudication delays.
Question 1c. Did you monitor the case until the fourth amendment
was approved on 2/12/2014?
Answer. No. All Gulf Coast requests for case assistance were closed
by the Ombudsman's Office by early May 2013.
Question 1d. During the adjudication process of any other cases,
did you personally meet with Director Mayorkas, or any other USCIS
Director, to discuss the proceedings of the case?
Answer. No. I did not personally meet with Mr. Mayorkas, or any
other USCIS Director, to discuss the Gulf Coast case matters.
Question 2a. Please list all recourse steps (petitions for help)
available for investors during the EB-5 application and adjudication
process.
At what point during this process (adjudication) are each specific
avenue for recourse available for use?
Answer. EB-5 applicants and petitioners are able to request
information about their specific cases at various points during the EB-
5 adjudication process.
EB-5 petitioners and applicants may seek information through a
variety of ways, including:
Inquiring through the Immigrant Investor Program Office
mailbox at USCIS.ImmigrantInvestorProgram@uscis.dhs.gov;
Participating in and keeping abreast of information provided
through USCIS' National stakeholder engagements and USCIS
social media outlets;
Corresponding through USCIS' public mailbox for general
questions at Public.Engagement@uscis.dhs.gov;
Working with their Congressional representatives and/or the
DHS CIS Ombudsman;
Accessing case status information by using USCIS' on-line
customer service tools, such as E-Request, Change of Address,
and MyUSCIS at https://egov.uscis.gov/casestatus/landing.do;
Contacting the USCIS National Customer Service Center (1-
800-375-5283, TDD for the Hearing Impaired 1-800-767-1833) for
24-hour telephone assistance.
After a decision has been rendered, if it is a denial, an applicant
or petitioner can file a motion to reopen or reconsider to request that
the original decision be reviewed. Additionally, if the applicant or
petitioner would like to request that the case be reviewed de novo by
the Administrative Appeals Office, information about how to appeal an
adverse decision is contained in the relevant written notice of
decision sent to the applicant or petitioner. More information on
appeals and motions can be found at http://www.uscis.gov/forms/
questions-and-answers-appeals-and-motions.
The USCIS website (www.uscis.gov) also provides valuable
information such as executive summaries, evidentiary tips, leadership
remarks, public notices, lists of approved and terminated regional
centers, policy memos, EB-5 precedent decisions, and links to other
resources, such as websites for the Securities and Exchange Commission
and the Internal Revenue Service.
Finally, petitioners and applicants may request an expedited review
of their case if they believe the case fits within the USCIS expedite
criteria, found at www.uscis.gov /forms/expedite-criteria.
Question 2b. Are the various recourse steps easily accessible to
investors?
Anwer. The Ombudsman's Office believes that the USCIS customer
service avenues are easily accessible for EB-5 petitioners and
applicants. However, during the 2012 and 2013 time period, responses to
customer service inquiries often were delayed or conveyed limited
information.
ALLEGATIONS OF SPECIAL ACCESS AND POLITICAL INFLUENCE AT THE DEPARTMENT
OF HOMELAND SECURITY
----------
Thursday, April 30, 2015
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 10:12 a.m., in Room
311, Cannon House Office Building, Hon. Michael T. McCaul
[Chairman of the committee] presiding.
Present: Representatives McCaul, Perry, Clawson, Katko,
Carter, Walker, Loudermilk, Thompson, Jackson Lee, Keating,
Watson Coleman, Rice, and Torres.
Chairman McCaul. The Committee on Homeland Security will
come to order.
The purpose of this hearing is to receive testimony
regarding the Immigrant Investor Program, known as the EB-5
program.
I now recognize myself for an opening statement.
On March 24, the Department of Homeland Security Inspector
General released a report detailing allegations against Deputy
Secretary Mayorkas that relate to his time as director of USCIS
and his oversight of the EB-5 program.
The IG's office conducted more than 50 interviews, reviewed
more than 40,000 phone records, and obtained more than 1
million documents and emails. This investigation was
unprecedented in that there were more than a dozen
whistleblowers that came forward to the Inspector General's
office.
The findings were troubling, as the IG made some very
serious charges against Mr. Mayorkas. Chief among them were
that he used his position to influence outcomes in select cases
for the benefit of politically connected and powerful
individuals.
In general, these allegations fall into four categories:
Special access. Their allegations were unequivocal. Mr.
Mayorkas gave special access and treatment to certain
individuals and parties.
Political favoritism. ``We received complaints from USCIS
employees that the application for a politically connected
regional center, Gulf Coast Funds Management, received
extraordinary treatment as a result of Mr. Mayorkas'
intervention.'' Additionally, USCIS staff understood that these
applicants were prominent or politically connected.
Created or went around established process and career staff
decisions. Mr. Mayorkas was in contact outside of the normal
adjudication process, either directly or through senior DHS
leadership, with a number of stakeholders having business
before USCIS. According to the employees, but for Mr. Mayorkas'
actions, the staff would have decided these matters
differently.
Misplaced priorities. Mr. Mayorkas' focus on a few
applicants and stakeholders was particularly troubling to
employees given the massive scope of his responsibilities as
director of USCIS.
Two days after the release of the report, this committee
held a hearing and heard testimony directly from DHS IG John
Roth. From the report and again in his testimony before us, the
IG found that Mr. Mayorkas appeared to play favorites with
Democratic political operatives and insert himself improperly
in ways that influenced the outcome of cases.
These are very serious allegations and ones that, if true,
should not be ignored. Although the IG did not allege that
these acts were criminal in nature, they without a doubt raise
questions about the deputy secretary's judgment.
This was not the first time that the Inspector General's
office reviewed allegations of impropriety at USCIS. In a
separate report, the IG found that, in late 2009, the former
USCIS chief counsel also placed pressure on career staff to
reverse the outcome for a petition filed by a university that
the chief counsel was connected to.
Therefore, in April 2010 and in response to that, Mr.
Mayorkas himself put out a policy memo to USCIS employees that
stated, ``Each USCIS employee has the duty to act impartially
in the performance of his or her official duties. Any
occurrence of actual or perceived preferential treatment,
treating similarly situated applicants differently, can call
into question our ability to implement our Nation's immigration
laws fairly, honestly, and properly.''
In examining the IG's findings, it seems that Mr. Mayorkas
has repeatedly violated his own policy through his actions
regarding certain EB-5 cases as the director.
As Chairman of this committee, as a former Federal
prosecutor in the Public Integrity Section of the Department of
Justice, I take the oversight responsibilities of this
committee under the Constitution very seriously. After looking
at the IG's report and hearing the IG's testimony last month, I
felt obligated to examine the accusations made in this report
in greater detail.
Our committee staff has analyzed over 500 pages of
documents from the IG and DHS. The committee expects to receive
additional documentation from the Department in the coming
days. But since our first hearing and after reviewing the
report and associated documents, I have more questions.
For instance, did Mr. Mayorkas knowingly or unknowingly
violate USCIS policy to grant special access and treatment to
applicants who are prominent and politically connected and
overrule the USCIS career staff decisions in these cases?
Second, does the lack of judgment shown by Mr. Mayorkas in
the IG's report raise doubts about his ability to fulfill the
responsibilities of deputy secretary? Specifically, DHS's
morale is ranked the lowest of any large Federal agency. Mr.
Mayorkas is charged with fixing this morale problem, yet the
morale of certain USCIS staff deteriorated under his watch.
Third, why has Mr. Mayorkas not been held accountable for
his actions? According to the 2010 policy that Mr. Mayorkas
signed, ``Failure to adhere to the standards or guidance set
forth in this memorandum may subject the employee to
disciplinary penalties, up to and including removal from
employment.'' Political appointees at DHS should not be immune
from accountability when warranted.
We, as the people's representatives, deserve to hear the
truth in these cases. However, there is no place for presumed
guilt before innocence, and Mr. Mayorkas is allowed the
opportunity here today to explain and defend his actions as
alleged in the IG report. At the conclusion of our hearing on
March 26, I stated that I looked forward to giving Mr. Mayorkas
the opportunity to respond today.
Today is that opportunity, sir.
At the heart of this case really is the issue of trust and
credibility. In order for Government to function, our leaders
must have the trust of the American people and those who work
for them. We can never forget that public office is a public
trust.
With that, I look forward to hearing from Mr. Mayorkas.
[The statement of Chairman McCaul follows:]
Statement of Chairman Michael T. McCaul
April 30, 2015
On March 24, the Department of Homeland Security Inspector General
released a report detailing allegations against Deputy Secretary
Mayorkas that related to his time as director of USCIS and his
oversight of the EB-5 program.
The IG's office conducted more than 50 interviews, reviewed more
than 40,000 phone records, and obtained more than 1 million documents
and emails. This investigation was unprecedented in that there were
more than a dozen whistleblowers that came forward to the Inspector
General's office. The findings are troubling as the IG made some very
serious charges against Mr. Mayorkas.
Chief among them was he used his position to influence outcomes in
select cases for the benefit of politically-connected and powerful
individuals.
In general, these allegations fall into four categories:
Special Access.--``Their allegations were unequivocal: Mr. Mayorkas
gave special access and treatment to certain individuals and
parties.''
Political Favoritism.--``We received complaints from USCIS
employees that the application for a politically-connected
regional center, Gulf Coast Funds Management, received
extraordinary treatment as a result of Mr. Mayorkas's
intervention.'' Additionally, ``USCIS staff . . . understood
that these applicants were prominent or politically
connected.''
Created or went around the established process and career staff
decisions.--``Mr. Mayorkas was in contact, outside of the
normal adjudication process, either directly or through senior
DHS leadership, with a number of stakeholders having business
before USCIS . . . According to the employees, but for
Mayorkas's actions, the staff would have decided these matters
differently.''
Misplaced Priorities.--``Mr. Mayorkas's focus on a few applicants
and stakeholders was particularly troubling to employees given
the massive scope of his responsibilities as Director of
USCIS.''
Two days after the release of the report, this committee held a
hearing and heard testimony directly from DHS IG John Roth.
From the report and again in his testimony before us, the IG found,
Mr. Mayorkas appeared to play favorites with Democratic political
operatives and inserted himself improperly in ways that influenced the
outcome of cases.
These are very serious allegations and ones that, if true, should
not be ignored. Although the IG did not allege that these acts were
criminal in nature, they without a doubt raise questions about the
deputy secretary's judgement.
This was not the first time that the Inspector General's office
reviewed allegations of impropriety at USCIS. In a separate report, the
IG found that in late 2009 the former USCIS chief counsel also placed
pressure on career staff to reverse the outcome for a petition filed by
a university that the chief counsel was connected to. In April of 2010,
Mr. Mayorkas himself put out a policy memo to USCIS employees that
stated:
``Each USCIS employee has the duty to act impartially in the
performance of his or her official duties. Any occurrence of actual or
perceived preferential treatment, treating similarly situated
applicants differently, can call into question our ability to implement
our Nation's immigration laws fairly, honestly, and properly.''
In examining the IG's findings, it seems that Mr. Mayorkas
repeatedly violated his own policy through his actions regarding
certain EB-5 cases as USCIS director.
As Chairman of the committee and a former Federal prosecutor in the
Public Integrity Section of the Department of Justice, I take the
oversight responsibilities of this committee very seriously.
After looking at the IG's report and hearing the IG's testimony
last month, I felt obligated to examine the accusations made in the
report in greater detail. Committee staff has analyzed over 500 pages
of documents from the IG and DHS. The committee expects to receive
additional documentation from the Department in the coming days.
Since our first hearing, and after reviewing the report and
associated documents, I have more questions:
1. Did Mr. Mayorkas knowingly or unknowingly violate USCIS policy
to grant special access and treatment to applicants who were
prominent and politically connected and overrule USCIS career
staff decisions in these cases?
2. Does the lack of judgement shown by Mr. Mayorkas in the IG
report raise doubts about his ability to fulfill the
responsibilities of deputy secretary? Specifically, DHS's
morale is ranked the lowest of any large Federal agency. Mr.
Mayorkas is charged with fixing this morale problem yet the
morale of certain USCIS staff deteriorated under his watch.
3. Why has Mr. Mayorkas not been held accountable for his actions?
According to the 2010 policy that Mr. Mayorkas signed,
``failure to adhere to the standards or the guidance set forth
in this memorandum may subject the employee to disciplinary
penalties up to and including removal from employment.''
Political appointees at DHS should not be immune from
accountability when warranted.
We, as the people's representatives, deserve to hear the truth in
these cases. However, there is no place for presumed guilt before
innocence. Mr. Mayorkas is allowed the opportunity to explain and
defend his actions as alleged in the IG Report. At the conclusion of
our hearing on March 26, I stated that I looked forward to giving Mr.
Mayorkas the opportunity to respond--today is that opportunity.
At the heart of this case is the issue of trust and credibility. In
order for Government to function our leaders must have the trust of the
American people and those who work for them.
We can never forget that public office is a public trust. With
that, I look forward to hearing from Mr. Mayorkas.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman McCaul. With that, I recognize the Ranking Member
of the committee, Mr. Thompson.
Mr. Thompson. Thank you, Mr. Chairman.
I would like to thank Deputy Secretary Mayorkas for
appearing today.
Last month, the Department of Homeland Security's Office of
Inspector General released the results of an investigation into
the employee complaints about the management of the investor
visa program. This program, better known as the EB-5 program,
accounts for less than 1 percent of all visas issued by the
United States Citizenship and Immigration Services. However,
given the program's potential as a job-creator, it has great
visibility to Congressional leaders from across the political
spectrum.
I do not take issue with the Inspector General's decision
to limit his review to questions regarding Deputy Secretary
Mayorkas' involvement in the three EB-5 applications at issue.
However, I am disappointed that, after expending months of
resources to investigate these cases, the Inspector General
produced an incomplete report. It only addressed the
allegations made by USCIS personnel about contact with
prominent Democratic figures, thereby giving the false
impression that there were no Republican inquiries or outreach
on these three cases.
At the time that Inspector General Roth testified, I was
skeptical that Deputy Secretary Mayorkas only heard from
Democrats on these cases, given the potential economic benefit
of the EB-5 program. When I asked the Inspector General about
other outreach on these three cases, the Inspector General was
nonresponsive.
Subsequently, through further engagement with the
Department, I have learned that prominent Republicans contacted
Deputy Secretary Mayorkas and asked him to give his personal
attention to these three cases. Given that this review has
implications for Deputy Secretary Mayorkas' reputation, it was
incumbent on the Inspector General to present a complete
picture of Mr. Mayorkas' contacts and involvement in these
cases.
More broadly, I have learned that, while serving as USCIS
Director, Deputy Secretary Mayorkas was regularly contacted on
EB-5 cases and other visa matters, but not only by Democrats,
but also Republicans, including Members of this committee.
Not only am I disappointed about the incompleteness of the
Inspector General's review, I find it appalling that the
Inspector General would not provide testimony to lay to rest
questions of actual wrong-doing or impropriety, despite the
fact that the report did not find the deputy secretary's
involvement was inappropriate.
As I stated last month, the picture that emerged from the
Inspector General's report was that of an activist manager that
demanded reform and responsiveness from his agency. If we want
to have a comprehensive examination of Deputy Secretary
Mayorkas' leadership style, we should look at his actions as a
whole, including in his current capacity as deputy secretary.
Under Deputy Secretary Mayorkas' leadership, the Department
has made great strides in some areas and remains stagnant in
others. There have been progress on key areas identified on the
Government Accountability Office's high-risk list, and, as a
result of these efforts, GAO recently acknowledged improvement,
stating that DHS has demonstrated exemplary commitment and
support for addressing the Department's management challenges.
The deputy secretary is also working closely with the
Secret Service Director on reform efforts. There is quite a bit
of work to be done to improve the agency's performance and
address long-standing cultural issues. Equitable treatment of
Secret Service personnel is still an issue.
There is also the matter of a racial discrimination class
action lawsuit that has dragged on for 15 years. Also, we have
not seen many of the recommendations issued by the Department's
independent panel implemented, including bringing someone from
outside the agency into its leadership.
These outstanding issues undermine morale and performance
within this vital agency and certainly demand timely and
thoughtful attention.
More broadly, DHS has well-documented morale challenges of
its own. According to the 2014 Best Places to Work in the
Federal Government, the Department comes in last, with dismal
scores in the areas of support for diversity, fairness, and
effective leadership.
The Department has spent millions of dollars on studying
the workforce, but a plan that yields results has yet to be
implemented. I would like to hear from the Deputy Secretary
Mayorkas on how, through his leadership, substantial
improvements can be achieved at the Department.
Mr. Chairman, while I understand that much of today's
discussion is looking backwards, I hope that we will seize this
opportunity and also look ahead. Deputy Secretary Mayorkas is
the highest-ranking DHS official to appear before this
committee this Congress. We should seize this opportunity to
have a meaningful discussion about DHS and how it is addressing
its operational, administrative, and mission challenges.
This committee works well when we can work in a bipartisan
manner to achieve the shared goals of advancing the Department
of Homeland Security.
With that, Mr. Chairman, I yield back.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
April 30, 2015
Last month, the Department of Homeland Security's Office of
Inspector General released the results of an investigation into
employee complaints about the management of the investor visa program.
This program, better known as the EB-5 program, accounts for less than
1 percent of all visas issued by the United States Citizenship and
Immigration Services; however, given the program's potential as a ``job
creator,'' it has great visibility to Congressional leaders from across
the political spectrum.
I do not take issue with the Inspector General's decision to limit
his review to questions regarding Deputy Secretary Mayorkas'
involvement in the three EB-5 applications at issue. However, I am
disappointed that, after expending months of resources to investigate
these cases, the Inspector General produced an incomplete review. It
only addressed the allegations made by USCIS personnel about contact
with prominent Democratic figures, thereby giving the false impression
that there were no Republican inquiries or outreach on these three
cases.
At the time that Inspector General Roth testified, I was skeptical
that Deputy Secretary Mayorkas only heard from Democrats on these
cases, given the potential economic benefits of the EB-5 program. When
I asked the Inspector General about other outreach on these three
cases, the Inspector General was non-responsive. Subsequently, through
further engagement with the Department, I learned that prominent
Republicans contacted Deputy Secretary Mayorkas and asked him to give
his personal attention to these three cases.
Given that this review has implications for Deputy Secretary
Mayorkas' reputation, it was incumbent on the Inspector General to
present a complete picture of Mr. Mayorkas' contacts and involvement in
these cases. More broadly, I have learned that while serving as USCIS
director, Deputy Secretary Mayorkas was regularly contacted on EB-5
cases and other visa matters by not only Democrats, but also,
Republicans, including Members of this committee.
Not only am I disappointed about the incompleteness of the
Inspector General's review, I find it appalling that the Inspector
General would not provide testimony to lay to rest questions of actual
wrong-doing or impropriety, despite the fact that the report did not
find that the deputy secretary's involvement was inappropriate.
As I stated last month, the picture that emerged from the Inspector
General's report was that of an ``activist manager'' that demanded
reform and responsiveness from his agency. If we want to have a
comprehensive examination of Deputy Secretary Mayorkas' leadership
style, we should look at his actions as a whole, including in his
current capacity, as deputy secretary. Under Deputy Secretary Mayorkas'
leadership, the Department has made great strides in some areas and
remains stagnant in others. There has been progress on key areas
identified on the Government Accountability Office's ``High-Risk'' list
and, as a result of these efforts, GAO recently acknowledged
improvement, stating that DHS has demonstrated ``exemplary commitment
and support for addressing the Department's management challenges.''
The deputy secretary is also working closely with the Secret
Service director on reform efforts. There is quite a bit of work to be
done to improve the agency's performance and address long-standing
cultural issues. Equitable treatment of Secret Service personnel is
still an issue. There is also the matter of a racial discrimination
class action lawsuit that has dragged on for 15 years.
Also, we have not seen many of the recommendations issued by
Department's independent panel implemented, including bringing someone
from outside the agency into its leadership. These outstanding issues
undermine morale and performance within this vital agency and certainly
demand timely and thoughtful attention. More broadly, DHS has well-
documented morale challenges of its own.
According to the 2014 Best Places to Work in the Federal
Government, the Department comes in last with dismal scores in the
areas of support for diversity, fairness, and effective leadership. The
Department has spent millions of dollars on studying the workforce, but
a plan that yields results has yet to be implemented.
I would like to hear from Deputy Secretary Mayorkas on how, through
his leadership, substantial improvements can be achieved at the
Department. Mr. Chairman, while I understand that much of today's
discussion is looking backwards, I hope that you will seize this
opportunity to also look ahead. Deputy Secretary Mayorkas is the
highest-ranking DHS official to appear before the Committee this
Congress. We should seize this opportunity to have a meaningful
discussion about DHS and how it is addressing its operational,
administrative, and mission challenges. This committee works well when
we can work in a bipartisan manner to achieve the shared goal of
advancing the Department of Homeland Security.
Chairman McCaul. I thank the Ranking Member.
Let me make it clear: I did not create or generate the
Inspector General's report, but it has been completed. I have a
role under the Constitution to provide oversight responsibility
in this matter, and that is what we are doing here today.
We have heard, Mr. Mayorkas, from the Inspector General,
and now today is your opportunity for us to hear your side of
the story. With that, I want to thank you for being here.
Given the nature of this case today, I would like to swear
in the witness.
If you would please now stand and raise your right hand.
[Witness sworn.]
Chairman McCaul. Let the record reflect that the witness
has taken the oath.
Mrs. Watson Coleman. Mr. Chairman.
Chairman McCaul. Mrs. Watson Coleman is recognized.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
I just want it stated for the record that I really don't
understand the necessity of swearing in the deputy secretary,
when we had the Inspector General, who generated this--the
reason for our being here in the first place, and we never once
asked him to be sworn in.
I just find that it is unusual and unnecessary, given this
high appointed official who has such tremendous credentials on
his behalf. I just want it stated for the record.
Thank you.
Chairman McCaul. I appreciate the gentlelady's point of
order, I suppose.
Let me say, the committee and House rules provide for the
swearing of any witness that the Chairman deem appropriate. I
think, given the serious allegations generated by the Inspector
General's report, that warrants the swearing in of this witness
in particular. I, again, am giving the witness an opportunity
to explain----
Mrs. Watson Coleman. Yeah.
Chairman McCaul [continuing]. His side of the story.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
But may I just say that the reason that we are here is we
are relying so heavily--or you are relying so heavily on the
limited and very myopic findings of the Inspector General. His
report has caused tremendous consternation here and, I am sure,
in the Department. Yet we didn't feel the need--or you didn't
feel the need to swear him in.
I just wanted to state that for the record, that I think
that this is an unusual situation.
Thank you for your----
Chairman McCaul. Well, the gentlelady's point is well-
taken, but the fact of the matter is that this is the witness
today that is responding to these serious accusations. I think
they are very serious. I think when we talk about potential
breach of ethics and integrity policy that could have an impact
on our Nation's security, as it impacts the entry of foreign
nationals into the United States, madam, that this morning's
swearing in is perfectly appropriate.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
Chairman McCaul. I want to say that it is important this
committee exercise its oversight responsibilities and let the
witness know how serious these accusations are by the Inspector
General.
Therefore, I think it is entirely appropriate--not only is
it appropriate, it is deemed under the House of
Representatives' rules in this Congress and this committee's
rules to have a swearing-in process, unless the gentlelady
would prefer that this committee not exercise its oversight
responsibilities under the rules of the United States House of
Representatives and this committee.
Mrs. Watson Coleman. Thank you, Mr. Chairman. I appreciate
your consideration of my concerns. I most assuredly want us to
exercise our responsibilities under the Constitution and under
the organization of this committee, to exercise our oversight
rights.
I do believe, however, I look for fairness and justice and
equality as we undertake those important decisions and issues.
But I thank you for your consideration. You are always----
Chairman McCaul. As I have stated----
Mrs. Watson Coleman [continuing]. Very generous with me.
Thank you.
Chairman McCaul. If the gentlewoman would yield. I have
stated the purpose of this hearing is to hear Mr. Mayorkas'
side of the story.
I think, given the serious allegations and nature of
misconduct, at the highest levels of the Department, involving
foreign nationals, that the swearing in of this witness is
entirely appropriate, and it is the responsibility of this
committee to do so.
As we go forward with our investigations on this committee
into foreign fighters and the home-grown violent extremists,
those investigations may require the swearing in of witnesses,
as well.
Most other committees, madam, actually swear in their
witnesses. I don't see any reason why this committee, the
Homeland Security Committee, should abdicate its responsibility
and not swear in witnesses, to basically just give an oath to
say, ``Tell the truth.''
Mrs. Watson Coleman. It is inappropriate for me to engage
in this discussion with you in this manner, so I shall yield
any further discussion.
Chairman McCaul. Unless the----
Mrs. Watson Coleman. I just am interested in----
Chairman McCaul. Unless the madam would prefer that this
committee not to swear in witnesses.
Mrs. Watson Coleman. I am just interested in consistency.
That is it. Thank you.
Chairman McCaul. I think telling the truth is the No. 1
goal that this committee should have for witnesses that appear
before this committee.
Mr. Thompson. Mr. Chairman, I don't think there is any
reason for you to be concerned about Ms. Watson Coleman's
drawing the distinction between an assertion that the Inspector
General made from an incomplete report--and now we bring the
No. 2 person in the Department, we swear him in, and that
obviously is a rule, but she was just saying that, in her view,
it was inconsistent. It has nothing to do with terrorists or
foreign fighters. She only spoke to the procedure of swearing
in the witness.
Obviously, we can do a lot of other things, but I think she
is within her right, as a Member of this committee, to voice
her concern and her observation. It is not taking issue that
you, as Chairman, can't do it, but she is just saying that it
is inconsistent. I think Ms. Watson Coleman, as a Member of the
committee, is within her right to do so.
Chairman McCaul. You know, I--most likely, we will have the
Inspector General back. You know, I think this committee
actually should exercise its right under the rules to have
witnesses being sworn in before-hand. This committee has not
done that, and I think it should. I think that is a
responsibility.
Mr. Perry. Mr. Chairman.
Chairman McCaul. I yield to Mr. Perry.
Mr. Perry. Just a point of clarification for me and maybe
anybody else. Is it common practice in hearings, in courts, to
swear in the prosecutor or swear in the judge? The Inspector
General is not the person under scrutiny here; the Inspector
General is the one that offered the report. We are trying to
get to the facts.
It seems to me it would be inappropriate to swear in the
Inspector General in this case and juxtapose that with this
witness. As a layman, it just doesn't seem like that has been
the normal course of events in any other similar circumstances,
notwithstanding.
So I just want to make that point from my view.
Chairman McCaul. I think the gentlemen raises a very good
point, and it is--the allegations are there in the Inspector
General's report. The witness is here to respond to those
allegations. All I am trying to do, by ensuring the swearing in
of the witnesses, is that he is telling the truth in response
to the allegations made against him.
Mr. Thompson. I don't think it is in the witness' best
interest not to tell the truth. I think that the point that is
being made is--I don't have any doubt that our witness, if
asked a question, will answer it. I think you elevate this
situation by swearing in.
Sure, the rules provide for it, but we had, at the
Inspector General's own admission, a report that was
incomplete. That report, it makes serious allegations, but it
was an incomplete report. You bring someone before the
committee to respond to an incomplete report.
Chairman McCaul. This is an extraordinary case. We do not
swear in witnesses. If the Ranking Member wants to do that in
every hearing, I would be happy to do so.
This presents a very extraordinary case of the No. 2 man in
the Department of Homeland Security under allegations that are
very, very serious. We haven't had a case like this in quite
some time before this committee in our oversight
responsibilities. Therefore, I thought it was appropriate in
this case to have him sworn in, because of the allegations
being so serious.
We can attack the IG's report or deal with it as it is. The
fact of the matter is the IG's report has raised serious
accusations about Mr. Mayorkas' ethical policy and his
potential violations thereof. Therefore, because of the
extraordinary nature of this hearing and the issues at hand, as
I stated at the beginning, I believe that swearing the witness
in was entirely appropriate in this case.
I don't think the American people would think it was not. I
think the American people expect this from our Government
officials at the highest levels, to be sworn in to tell the
truth, the whole truth, and nothing but the truth. I actually
believe Mr. Mayorkas himself agrees with that assertion, and I
believe that he will tell the truth at this hearing today.
Mr. Thompson. Well, let me just, for the record, indicate
that, under title 18, it is illegal to lie or make
misrepresentation to Congress, whether you are sworn in or not.
So Mr. Mayorkas is a witness, and, as I said, I have not
known witnesses to come before this committee and do anything
but tell the truth in their opinion. So he has operated for a
long time in a professional capacity, and I am convinced that
he understands it.
But I look forward to his sworn testimony.
Chairman McCaul. The gentlemen is correct that, under the
Federal law, it is a crime to lie to Congress. No one knows
that better than a public integrity prosecutor in Washington,
myself.
But the formality of this practice, as done by most other
committees--and this one has an investigative role--I think we
have not done it enough. The formality of this practice reminds
all of us, both committee Members and our distinguished
witnesses, of the importance of the testimony that is being
offered here today.
Without further discussion, the Chairman now recognizes
Deputy Secretary Mayorkas to testify.
STATEMENT OF ALEJANDRO MAYORKAS, DEPUTY SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Mayorkas. Thank you.
Chairman McCaul, Ranking Member Thompson, distinguished
Members of the Homeland Security Committee, thank you for
providing me with the opportunity to address you today and to
answer questions you might have. I have looked forward to this
opportunity.
The work of U.S. Citizenship and Immigration Services, or
USCIS, is casework. The agency's primary responsibility is to
decide immigration cases according to the law in a way that
safeguards our Nation's security and the integrity of our
immigration system. The agency decides millions of cases each
year.
We are fortunate to have a great workforce at USCIS--
dedicated and hard-working public servants. After I became the
director and led a top-to-bottom review of the agency, I
learned that the agency did not always provide its workforce
with the support and resources it needed to meet its
obligations to the American public.
Among the most significant challenges were gaps and
inconsistencies in the critical legal and policy guidance that
governed adjudicators in their review of cases. The
consequences were serious. The agency was too often misapplying
the law and issuing unsound policies.
The USCIS is an adjudicative body, and I learned of these
legal and policy challenges when individual cases were brought
to my attention. The cases--cases involving the rich and the
poor alike, business and cultural interests, as well as
profound humanitarian concerns--came to me from a variety of
sources, including agency employees who brought cases to me for
resolution, media reports, Members of Congress, other
Government officials, and members of the public.
The extent of my involvement depended on the nature and
complexity of the issues presented and what was necessary to
resolve them. I became involved in many cases of all types
throughout my tenure because it was ultimately my
responsibility, as the Director, to ensure cases were decided
correctly under the law. Congress is only too familiar with the
severe consequences to an applicant when a case is wrongly
decided.
The legal and policy challenges we face were greatest in
the EB-5 program, the most complex program USCIS administers.
EB-5 cases require complicated business and economic analysis,
such as whether the required amount of investment capital is at
risk and whether the econometric models used to predict future
job creation are reasonable. Unlike traditional immigration
adjudications that involve an application that is several pages
in length, EB-5 cases require different stages of agency review
and often involve thousands of pages of legal and business
documents.
The EB-5 program was underdeveloped when I arrived at USCIS
in August 2009. At that time, the program only had
approximately nine adjudicators. The agency did not provide
them with the needed economic, business, or corporate law
expertise to support them. Applicants did not have to file a
form, as required in other visa categories, but instead would
submit an informal letter.
The agency's National security and anti-fraud screening
needed to be strengthened. There was no comprehensive EB-5
policy document but, rather, a series of memos issued over the
years that I learned through my review of EB-5 cases had failed
to address many critical issues that apply to our everyday
work. As a result, we were administering the EB-5 program
poorly, and that was the view from every quarter.
At the very same time, the public's interest in and use of
the program was growing dramatically. In the challenging
economy at that time, when it was difficult to obtain
commercial loans domestically, more business developers were
turning to the EB-5 program for foreign financing. Because EB-5
developments can lead to the significant infusion of money and
new jobs into a community, the public was interested in the
outcome of these cases.
The growing importance of the program in communities
suffering high employment, combined with USCIS's poor
administration of the program, led to rising complaints, which
I took seriously.
Congress appealed to me repeatedly to fix our
administration of the program and to fix errors in specific
cases. Members of Congress from both sides directed to USCIS
more than 1,500 EB-5 case inquiries per year, dwarfing the
number of communications about any other program the USCIS
administered.
As the individual ultimately responsible for USCIS's
administration of the program, I became increasingly involved
in resolving the EB-5 legal and policy issues that we as an
agency confronted. The issues often came to me through cases,
the very work for which the agency is responsible.
I became involved in many EB-5 cases, three of which became
the focus of the Office of Inspector General. I became involved
in the very same way that I became involved in other cases--at
the behest of my own employees, Members of Congress, Government
officials, and other stakeholders.
As to the three cases, the Office of Inspector General
found that, through my involvement, I allowed some agency
colleagues to develop the perception that I was favoring
individuals with an interest in these cases. I thought I had
taken steps to guard against this very possibility. Even an
appearance of impropriety is not acceptable to me.
Yet, as I have reflected on this important matter, I
understand that these colleagues would not necessarily have
known what I did do to adhere to applicable guidelines in these
three cases, nor would they necessarily have been aware of my
involvement in many other cases, many of which were responsive
to concerns and inquiries of Members of Congress from both
parties. This context would better have guarded against the
possibility of such perception.
I support and embrace Secretary Johnson's protocols
developed to more ably ensure that employees understand the
involvement of their supervisors in specific cases. The
protocols will benefit future agency directors who become
involved and provide guidance in certain cases. I regret the
perception my own involvement created.
In the three cases at issue, cases that were the subject of
bipartisan support, I did what I did in the many other cases
that were brought to my attention: I did my job and fulfilled
my responsibility. I did not let errors go unchecked but,
instead, helped ensure that those cases were decided
correctly--nothing more and nothing less.
I sought the advice of colleagues, including agency
counsel; took steps I thought would guard against the chance of
misperception; raised concerns of fraud or National security;
and followed the facts and applied the law. I became involved
in more cases, EB-5 and other types, than I can count.
All applicants are entitled to and deserve the fair and
correct application of the law. In the cases in which I became
involved, whether it was the case of the Guatemalan orphan
seeking to be united with her adoptive American family, the
pregnant mother seeking urgent humanitarian parole to escape a
forced abortion in China, the performing arts group lending
cultural influences and seeking a performing arts visa, or the
EB-5 petitioner forming a business enterprise, this basic
principle was my guide and my responsibility to fulfill.
Thank you for the opportunity to appear before you.
[The prepared statement of Mr. Mayorkas follows:]
Prepared Statement of Alejandro Mayorkas
April 30, 2015
Chairman McCaul, Ranking Member Thompson, distinguished Members of
the Homeland Security Committee, I look forward to the opportunity to
address you and to answer questions you might have.
The work of U.S. Citizenship and Immigration Services, or USCIS, is
casework. The agency's primary responsibility is to decide immigration
cases according to the law, in a way that safeguards our Nation's
security and the integrity of our immigration system. The agency
decides millions of cases each year.
We are fortunate to have a great work force at USCIS, dedicated and
hard-working public servants. After I became the director and led a
top-to-bottom review of the agency, I learned that the agency did not
always provide its work force with the support and resources it needed
to meet its obligations to the American public. Among the most
significant challenges were gaps and inconsistencies in the critical
legal and policy guidance that governed adjudicators in their review of
cases.
The consequences were serious; the agency was too often misapplying
the law and issuing unsound policies. USCIS is an adjudicative body and
I learned of these legal and policy challenges when individual cases
were brought to my attention. The cases--cases involving the rich and
the poor alike, business and cultural interests as well as profound
humanitarian concerns--came to me from a variety of sources, including
agency employees who brought cases to me for resolution, media reports,
Members of Congress, other Government officials, and members of the
public. The extent of my involvement depended on the nature and
complexity of the issues presented and what was necessary to resolve
them. I became involved in many cases, of all types, throughout my
tenure because it was ultimately my responsibility as the director to
ensure cases were decided correctly under the law. Congress is only too
familiar with the severe consequences to an applicant when a case is
wrongly decided.
The legal and policy challenges we faced were greatest in the EB-5
program, the most complex program USCIS administers. EB-5 cases require
complicated business and economic analysis, such as whether the
required amount of investment capital is at risk and whether the
econometric models used to predict future job creation are reasonable.
Unlike traditional immigration adjudications that involve an
application that is several pages in length, EB-5 cases require
different stages of agency review and often involve thousands of pages
of legal and business documents.
The EB-5 program was under-developed when I arrived at USCIS in
August 2009. At that time, the program only had approximately nine
adjudicators. The agency did not provide them with the needed economic,
business, or corporate law expertise to support them. Applicants did
not have to file a form as required in other visa categories but
instead would submit an informal letter. The agency's National security
and anti-fraud screening needed to be strengthened. There was no
comprehensive EB-5 policy document, but rather a series of memos issued
over the years that I learned, through my review of EB-5 cases, had
failed to address many critical issues that applied to our everyday
work. As a result, we were administering the EB-5 program poorly and
that was the view from every quarter.
At the very same time, the public's interest in and use of the
program was growing dramatically. In the challenging economy at that
time, when it was difficult to obtain commercial loans domestically,
more business developers were turning to the EB-5 program for foreign
financing. Because EB-5 developments can lead to the significant
infusion of money and new jobs into a community, the public was
interested in the outcome of these cases. The growing importance of the
program in communities suffering high unemployment, combined with
USCIS's poor administration of the program, led to rising complaints,
which I took seriously. Congress appealed to me repeatedly to fix our
administration of the program and to fix errors in specific cases.
Members of Congress from both parties directed to USCIS more than 1,500
EB-5 case inquiries per year, dwarfing the number of communications
about any other program USCIS administered.
As the individual ultimately responsible for USCIS's administration
of the program, I became increasingly involved in resolving the EB-5
legal and policy issues that we as an agency confronted. The issues
often came to me through cases, the very work for which the agency is
responsible. I became involved in many EB-5 cases--three of which
became the focus of the Office of Inspector General--and I became
involved in the very same way that I became involved in other cases; at
the behest of my own employees, Members of Congress, Government
officials, and other stakeholders.
As to the three cases, the Office of Inspector General found that
through my involvement I allowed some agency colleagues to develop the
perception that I was favoring individuals with an interest in the
cases. I thought I had taken steps to guard against this very
possibility; even an appearance of impropriety is not acceptable to me.
Yet, as I have reflected on this important matter, I understand that
these colleagues would not necessarily have known what I did do to
adhere to applicable guidelines in these three cases, nor would they
necessarily have been aware of my involvement in many other cases, many
which were responsive to concerns and inquiries of Members of Congress
from both parties. This context would better have guarded against the
possibility of such perception. I support and embrace Secretary
Johnson's protocols developed to more ably ensure that employees
understand the involvement of their supervisors in specific cases. The
protocols will benefit future agency directors who become involved and
provide guidance in certain cases. I regret the perception my own
involvement created.
In the three cases at issue--cases that were the subject of
bipartisan support--I did what I did in the many other cases that were
brought to my attention; I did my job and fulfilled my responsibility.
I did not let errors go unchecked, but instead helped ensure that those
cases were decided correctly, nothing more and nothing less. I sought
the advice of colleagues, including agency counsel, took steps I
thought would guard against the chance of misperception, raised
concerns of fraud or National security, and followed the facts and
applied the law.
I became involved in more cases--EB-5 and other types--than I can
count. All applicants are entitled to and deserve the fair and correct
application of the law. In the cases in which I became involved--
whether it was the case of the Guatemalan orphan seeking to be united
with her adoptive American family, the pregnant mother seeking urgent
humanitarian parole to escape a forced abortion in China, the
performing arts group blending cultural influences and seeking a
performing arts visa, or the EB-5 petitioner forming a business
enterprise--this basic principle was my guide and my responsibility to
fulfill.
Thank you for the opportunity to appear before you.
Chairman McCaul. I thank the Deputy Secretary.
I now recognize myself for 5 minutes.
Let me just say first, again, I did not create this report,
had nothing to do with it. It raises serious allegations. You,
I know, sir, of all people, know that I have an oversight
responsibility under the Constitution.
I want to go through some of the issues that have been
raised by the report to give you the opportunity to respond to
that.
First, I know in April 2010 you issued an ethics policy to
all of your employees.
I would like the clerk to provide the policy memorandum to
the witness.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman McCaul. I just want to ask you first: Why did you
issue this ethics policy, and what was the purpose behind it?
Mr. Mayorkas. Mr. Chairman, I issued this ethics policy
because the principles articulated in this policy are very
important and are applicable to everyone in the agency.
You correctly noted that public confidence in the decision
making of a Government agency is critical to the public
interest and to our responsibility as Government officials. In
the service of that principle, I issued this important ethics
memorandum.
Chairman McCaul. I think it is a good memorandum. I know
you, coming from the Justice Department, like myself--you say
the purpose is to prevent situations that could be or appear to
be preferential treatment.
What are the penalties outlined in this policy if an
employee fails to meet the standards set forth?
Mr. Mayorkas. Mr. Chairman, the penalties depend upon the
facts of a particular case. The memorandum does spell out that
the penalties can cover a wide range of possibilities, anywhere
from a counseling to a termination, depending upon what
principle is specifically violated and the facts of that
violation.
Chairman McCaul. So it is a disciplinary--penalties up to
and including removal from employment is what is stated in the
memo.
More than 15 civil servants, career employees, came forward
in your matter regarding your actions in the three EB-5 cases.
According to the IG, ``Their allegations were unequivocal,''
giving special access and treatment to certain individuals and
parties. I would like to ask you about these three cases
specifically.
First, in the L.A. Films case, according to the IG's
report, within an hour of speaking to Ed Rendell, former
Governor and chair of the Democratic National Committee, you
directed USCIS staff to stop processing the denials of EB-5
visa petitions that you had already signed off on.
Is that true?
Mr. Mayorkas. Mr. Chairman, I don't remember the chronology
of communications in that particular case.
I think there's a very important principle at stake,
though, and that is the following: That if a concern with
respect to our adherence of the law is raised, it is our
obligation to address that concern and have confidence that the
ultimate decision that we are making in a case adheres to the
law and the facts in every case.
Chairman McCaul. I appreciate----
Mr. Mayorkas [continuing]. That is what I did in that case.
Chairman McCaul. On page 18, that is exactly what the IG's
report says. They stopped processing the denials that you had
already signed off on.
I mean, I guess you can't answer that question? I am just
going from the IG's report.
Mr. Mayorkas. Mr. Chairman, I am not questioning the facts
that the Inspector General lays out at that particular point in
the report. What I am sharing with you is that I don't recall
the chronology of communications in that case.
But the principle is vitally important, that when we issue
an adjudication in a case, it is our obligation to adjudicate
the case in adherence of the law based on the facts in that
particular case.
Chairman McCaul. I respect that.
According to the report, you also directed the staff to
create one-time review board that resulted in approval of 249
petitions that, in the opinion of the career staff, would have
otherwise been denied.
Do you know if that is true?
Mr. Mayorkas. That is not precisely true, if I may. If I
can please share----
Chairman McCaul. Very succinctly. I have very limited time.
Mr. Mayorkas. Yes, Mr. Chairman.
In 2011, amidst many complaints with respect to our poor
administration of the EB-5 case, we developed a series of
reforms, proposals that we would flush out subsequently. One of
those reforms that we discussed in the agency and announced
publically and to which the public responded was the creation
of a decision board in EB-5 cases to address complex issues
that were unresolved between the agency and the parties----
Chairman McCaul. I appreciate it, but, if I could say, the
board was only used once, in this specific case. It creates the
appearance that you may have created a special process to
accommodate special parties, which, I argue, were in violation
of your own policy.
If I could go to the Las Vegas hotel case, according to the
IG's report, not me, you directed your employees to provide
Senator Reid's staff with weekly briefings. Is this correct?
Mr. Mayorkas. I don't recall doing so.
Chairman McCaul. That is on page 36 of the IG report.
Is it standard practice to provide weekly updates to the
status of EB-5 visa applications to outside parties?
Mr. Mayorkas. Mr. Chairman, we prided ourselves on our
responsiveness to Congress. How frequently our Office of
Legislative Affairs responded to the enumerable questions and
inquiries and concerns from Members of Congress I could not
speak to. I know that the dialogue between our agency and
Members of Congress from both parties was constant and
consistent throughout our administration of the EB-5 program,
and for reasons that were quite understandable, quite frankly.
Chairman McCaul. Well, I mean, in all three of these, you
have been unable to confirm or deny the specific allegations
set forth in the IG's report. I believe that it seems clear
that your actions to address Senator Reid's request to expedite
this case, provide his staff with weekly updates, if true--and
I understand the IG is making the accusation and you are
denying it, or you are saying you don't remember--that would,
in my judgment, create a perception of preferential treatment
in violation of your own policy, your ethical policy that you
set forth, sir.
Let me move to the last one, because my time is limited,
the Gulf Coast case. According to the IG's report, not my
words, following communications with current Virginia Governor
and former chair of the Democratic National Committee Terry
McAuliffe, you subsequently intervened in the decision on the
Gulf Coast appeal, even saying to career staff that you would
rewrite the decision yourself.
That is set forth in the IG's report. Can you respond to
that? This is your day to respond to these accusations, sir.
Mr. Mayorkas. Thank you very much, Mr. Chairman, for that
opportunity.
I was asked by the then-Secretary's office to look into
this EB-5 case because it was the subject of considerable
concern not only by stakeholders outside of the Government but
by Members of Congress of both parties as well. It was at that
direction that I looked into the case and learned that there
were serious legal issues at play in that case, legal issues
the seriousness of which my own colleagues recognized.
Chairman McCaul. You know, I was a prosecutor in the
campaign finance reform where the Chinese Government influenced
an election, and I have to tell you, I am going to pursue this
investigation into the EB-5 applicants and what was behind with
respect to some of these foreign nationals. There may be
nothing there, but I think it warrants a further look.
In conclusion, I would just like to say your 2010 ethics
policy--again, you state in your policy, ``Often, the
appearance of preferential treatment can be as damaging to our
agency's reputation as actual preferential treatment.
Therefore, an employee should avoid matters, cases, or
applications if his or her participation may cause a reasonable
person to question the employee's impartiality.''
Sir, I believe, in my judgment, reviewing this matter and
the responses you have given today, not really being able to
respond specifically, that your actions in these cases create,
at least at a minimum, the perception of special access and
political favoritism.
In my judgment, I think you also violated your own ethics
policy. You know, at the end of the day, you know, you and I
are both career employees. Now you are a political appointee,
but political appointees should be held to the same ethical
standards, I believe, as rank-and-file members at the
Department.
With that, the Chairman now recognizes the Ranking Member.
Mr. Thompson. Thank you very much, Mr. Chairman.
Deputy Secretary Mayorkas, the Inspector General was before
us several weeks ago. I asked some questions about the normal
process by which he reviewed this EB-5 program.
All of us are Members of Congress. Our constituents ask us
all the time to contact this agency on our behalf, do what you
can. For the most part, we do. It is not unusual for a Member
of Congress to contact a Federal agency about a constituent's
interest in a program.
Now, EB-5 is a job-creator. That was one of the reasons it
was put together. But I am going specifically to the three EB-5
cases mentioned in the Inspector General's report.
The Gulf Coast case, the Inspector General talked about
contacts from Democrats. Are you aware of any contact from
Republicans in this same case?
Mr. Mayorkas. Yes, Congressman, I am. That EB-5 case was
the subject of bipartisan support, and we received
communications from Members of Congress of both parties.
I think, if I may articulate a very important principle
here, that the individual who brings an issue to our attention
does not decide the disposition of that issue. The disposition
of the issue is neutral to the messenger but loyal,
scrupulously loyal, to the law and the facts in the case.
Mr. Thompson. Thank you.
Now, you know, this is only not to impune any of the
individuals, but my former Governor, Haley Barbour, is known.
He headed the Republican National Committee, a very active
person in the community, and somebody who is interested in
jobs.
I am told that he contacted your office on behalf of Gulf
Coast. Is that correct?
Mr. Mayorkas. Yes, Congressman.
Mr. Thompson. Well, and I just want people to understand
that the perception is that here you have a Republican Governor
contacting a Democratic administration on behalf of a job
creator, but an IG report gives you the impression that only
Democrats contacted the agency.
Now, I understand that both my Senators, Wicker and
Cochran, contacted your office on behalf of this very same
project. Am I correct?
Mr. Mayorkas. I believe that's correct.
Mr. Thompson. Former Member of this committee, who just
left 2 weeks ago, Representative Palazzo, contacted your office
on behalf of this very same project. Am I correct?
Mr. Mayorkas. I believe so.
Mr. Thompson. Well, and the point I am trying to make is we
get an Inspector General's report that would lead you to
believe that only Democrats contacted on behalf of this job
creation program.
Let's go to the L.A. Films program. A former Member of this
committee--I am told that a former Member of this committee
contacted you, a Republican, contacted you on behalf of this
program. Are you aware of that?
Mr. Mayorkas. I don't recall. I know that that case was the
subject of communications from both parties of Congress----
Mr. Thompson. Okay.
Mr. Mayorkas [continuing]. Congressman.
Mr. Thompson. The SLS program, are you aware of bipartisan
contact in support of this program?
Mr. Mayorkas. I am.
Mr. Thompson. So it is safe to assume that the three cases
presented to us by the IG did not include any Republican
Members' support for those projects, as you saw them?
Mr. Mayorkas. As best I can recall the report, that is
correct.
Mr. Thompson. Well, I asked the IG in this hearing, and he
did not answer the question.
But I am just trying to say, again, the report was
incomplete. Gentlemen, ladies, we all get asked by our
constituents all the time to support various projects.
Deputy secretary, there has been some question about a
deference review board that you allegedly created to review the
L.A. Films case. Are you aware of that?
Mr. Mayorkas. Yes, but that was not created for that case.
That was created for all cases.
The concept of the decision board was generated in 2011. I
discussed with career employees the application of that
decision board to the issue of deference, which was of
tremendous concern in the community in the EB-5 program. I
discussed its application with a number of career employees in
2012 and on-going.
Mr. Thompson. So it was not limited to that one case.
Mr. Mayorkas. The decision board, or deference board, as it
was termed subsequently, was a reform that was applicable to
the EB-5 program writ large. It was needed, and especially with
respect to the issue of deference, which caused so much
consternation in the community.
When USCIS would make a decision, investors would invest,
capital would be infused, business projects would begin. Then
the agency would change its interpretation, reverse course, and
projects would collapse, and jobs would be lost.
Mr. Thompson. Thank you.
My last question, Mr. Mayorkas, goes to this: Was it
unusual for you, as the director of the agency, to refer items
to counsel for their review and opinion?
Mr. Mayorkas. I did that, Congressman, with some frequency
depending on the issue.
Mr. Thompson. With respect to the EB-5 cases with the
outside stakeholders, you sought advice of counsel in these
cases.
Mr. Mayorkas. I did. Quite frequently, we would discuss the
legal issues and other issues involved in these cases.
Mr. Thompson. Thank you. I yield back.
Chairman McCaul. The Chairman now recognizes the gentleman
from New York, Mr. Katko.
Mr. Katko. Mr. Mayorkas, thank you for appearing before us
today.
Again, to reiterate the Chairman's comments, we didn't
write this report, and we are duty-bound, since the report
exists, to follow up on it. So I am going to ask you a series
of questions, and if you could keep the answers as brief as
possible, I would appreciate it, unless I ask for some
explanation.
With respect to the L.A. Film Regional Center issue, did
you, in fact, speak to Governor Rendell about that issue?
Mr. Mayorkas. I believe I did. In a conference call, I
believe I did, to the best of my recollection.
Mr. Katko. To the best of your recollection, do you recall
what was said during that conference?
Mr. Mayorkas. I apologize. I'm sorry?
Mr. Katko. Do you recall what was said during that
discussion?
Mr. Mayorkas. I do not.
Mr. Katko. But you do recall, to the best of your
recollection, that you spoke to him about this issue.
Mr. Mayorkas. I know I spoke with him about an EB-5 case,
and I believe it involved the L.A. Films case. I'm not certain,
Congressman.
Mr. Katko. Now, the deference review board that was
referenced as part of the L.A. Film Center Regional issue, did
that, in fact, exist after this, after the L.A. Film Regional
Center issue?
Mr. Mayorkas. I learned from the Inspector General's report
that it was not convened since the L.A. Films case. My hope is
that, No. 1, the agency was not issuing incorrect decisions
subsequently----
Mr. Katko. I understand that. I am sorry to cut you off. I
just want to know if, in fact, the board was ever used, and
your answer is it was not?
Mr. Mayorkas. Based on my reading of the Inspector
General's report, it appears that it was not.
Mr. Katko. Well, you were working there.
Mr. Mayorkas. I left sometime after, and so I did not keep
track of the conduct of the deference review board, especially
because of the changes that I made in our administration of the
program----
Mr. Katko. Okay.
Mr. Mayorkas [continuing]. The new leadership that I
brought, the new office that I created, and the new processes
that we put in place.
Mr. Katko. Thank you.
Now, with respect to this deference review board, was it
ever used before the L.A. Films Regional Center case?
Mr. Mayorkas. To the best of my recollection, Congressman,
we discussed using it in 2012 with respect to another EB-5
case, and we decided that a different process could be used to
resolve the very same issue of deference in that EB-5 case.
That was an EB-5 case in which I became----
Mr. Katko. I am sorry to cut you off again.
Mr. Mayorkas. I'm sorry.
Mr. Katko. It just requires a yes-or-no answer. Was it used
before the L.A. Films case or not?
Mr. Mayorkas. To the best of my knowledge, no.
Mr. Katko. Okay. It wasn't used since?
Mr. Mayorkas. To the best of my knowledge, no.
Mr. Katko. Thank you.
Okay. Now, with respect to the Las Vegas Regional Center
issue, do you recall specifically speaking with Senator Reid
about this?
Mr. Mayorkas. I do.
Mr. Katko. Okay. Also, with respect to this, do you ever
remember speaking with Steve Olson, the executive director of
SelectUSA?
Mr. Mayorkas. I do not remember speaking with him about the
case. That doesn't mean I did or did not. I just don't recall.
Mr. Katko. Now, with respect to the Gulf Coast case that
was mentioned in the report, do you recall having contacts
directly with Governor McAuliffe?
Mr. Mayorkas. I do.
Mr. Katko. Okay. How many such contacts did you have with
him about this case?
Mr. Mayorkas. I remember, to the best of my recollection,
less than a handful. To the best of my recollection now, as I
sit here, Congressman, I remember a meeting I attended at which
Mr. McAuliffe was present, in the Department of Homeland
Security headquarters, at the direction of the then-Secretary's
office. I remember him calling to complain over the ensuing
couple years, I believe, a few times.
Mr. Katko. All right. The general discussions were about
Gulf Coast and trying to get that approved; is that correct?
Mr. Mayorkas. They were Mr. McAuliffe complaining about our
adjudication in the cases.
Mr. Katko. All right. Thank you.
Now, you mentioned during your opening statement and I
think in your testimony, as well, that you got involved to
ensure, ``that cases were decided correctly.'' Do you recall
saying that?
Mr. Mayorkas. Absolutely.
Mr. Katko. Okay. Now, weren't there procedures in place to
handle these cases at your agency?
Mr. Mayorkas. There were, but there were times when cases
were brought to my attention by my own employees to resolve
complex legal or policy issues. That was with respect to the
EB-5 cases and many other cases outside of the EB-5 program.
Mr. Katko. With respect to the EB-5 cases, though, I just
want to make sure I am clear--and you can tell me ``yes''' or
``no''--were there established procedures for handling EB-5
cases?
Mr. Mayorkas. Yes.
Mr. Katko. Were those EB-5 cases procedures, did they
contemplate interjection by the head of the agency like you
did?
Mr. Mayorkas. I believe that they contemplated
supervisorial review. So, when supervisorial review was
warranted, supervisors engaged.
Mr. Katko. But----
Mr. Mayorkas. I viewed myself as the ultimate supervisor
responsible for the agency's fair and correct administration of
the law.
Mr. Katko. So, in your mind, it was appropriate for you to
interject yourself into the process as you saw fit?
Mr. Mayorkas. It was my responsibility to ensure that we
were adhering to the law, Congressman, and if that warranted my
involvement in a case, then I became involved. I was a very
hands-on leader and, I believe, for the benefit of the agency
and all of its workforce.
Mr. Katko. Now, I want you to--it is hard to do, I know,
and I have to do this once in a while in my 10 years as
prosecutor--to take a step back and look at it from a layman's
perspective.
Now, if you look at it from a layman's perspective, you
have instances in which individuals are trying to influence the
EB-5 process for their own benefit. You are taking their input
and then, in turn, interjecting yourself into those cases and
trying to effect the outcome of those cases to the benefit of
the individuals who ask for your support.
It is fair to say, from a layman's perspective, that may
give you a perception of something less than impartiality.
Isn't that fair to say?
Mr. Mayorkas. Congressman, if I may, I would not
characterize it that way. Because what you said is that I would
interject myself to drive to a decision that would benefit
those individuals, and that is not true.
What I did do was get involved in cases to ensure that we
were adhering to the law, whether that led to a denial of a
case or the approval of a case.
Mr. Katko. Well, it is fair to say, if these allegations
are true, you were interjecting yourself into these cases in an
attempt to influence the outcome.
I point specifically to the allegation that you wanted a
case file, in the McAuliffe instance, because you wanted to
rewrite the decision yourself. Is that fair to say?
Mr. Mayorkas. No, Congressman. Respectfully, that is not
accurate.
I interjected myself, to use your terminology, in many,
many cases in the agency----
Mr. Katko. I am not talking about other cases. I am----
Mr. Mayorkas. I understand.
Mr. Katko [continuing]. Talking about this case.
Mr. Mayorkas. I sat around the table and discussed the
legal issues that were involved in the GreenTech case that our
own agency designated as complex, that our own agency referred
to its own appellate review office because of the complexity of
the issues.
When we resolved a particular issue, I offered to write the
legal analysis, just as I had offered to attend in person a
settlement conference in a particular case because I thought I
could add value to the correct disposition of the case; just as
I offered--and the Chairman will appreciate this--just as I
offered to try a case that involved National security interests
because our agency felt that we were compelled to grant
citizenship to an individual who I believe did not deserve
citizenship and actually posed a danger to our community, and I
offered to try that case myself, for the benefit of the agency,
for the benefit of the interests that our agency was the
guardian of.
Mr. Katko. Okay.
If the Chairman would indulge me just one moment? Thank
you.
I guess I am getting at the point that the perception, even
if there was no wrong-doing here, the perception is that people
are calling, at least in the Gulf Coast case, for example,
someone who has a very strong interest in seeing it come out a
certain way, certain actions were taken by you.
Looking back on it, wouldn't it be fair to say that--you
said yourself that you, quote, regret the perceptions caused by
your actions. Now, isn't it fair to say that that perception is
part of the problem and kind of flies in the face of your
ethical guidelines, the perception is almost as bad as doing
something wrong?
In looking back on it, wouldn't you say that, at a minimum,
it was probably not a good idea to have such access from the
outside and just deal the cases based on the facts?
Mr. Mayorkas. If I can, Congressman--and, Mr. Chairman, if
I could also have your indulgence, because this is a very
important point, and it speaks to the value and importance of
the Inspector General's report, which I have tremendous respect
for.
I took actions in these cases to guard against a perception
issue. I was aware of it. I consulted with counsel; I consulted
with my colleagues.
I have thought a great deal about this issue because, as
the Chairman noted, the ethics and integrity memorandum that I
issued is extremely important, and the principles articulated
therein are extremely important and principles to which I have
adhered throughout my 18 years of Government service--12 as a
Federal prosecutor and 4 as the director of U.S. Citizenship
and Immigration Services and approaching 2 as a deputy
secretary of Homeland Security.
I have thought a great deal about the report. I have
thought a great deal about the allegations. I have reviewed the
report and the allegations with great care and reflected upon
them and reflected upon my activities and the concerns
expressed by my colleagues at U.S. Citizenship and Immigration
Services.
I do regret the perceptions that my activities created, and
I take responsibility for those perceptions. I've thought
about, what else could I have done to better guard against
those perceptions?
That is one reason why I value so much the report that the
Inspector General prepared and, importantly and critically, why
I have endorsed and embraced the protocols that Secretary
Johnson directed and that the Office of the General Counsel for
the Department of Homeland Security have promulgated. Those
protocols would have better equipped me to guard against the
perception of some employees, who did not necessarily have
complete context with respect to my involvement in these three
cases nor my involvement in so many other cases.
I appreciate the opportunity to address your important
questions.
Chairman McCaul. The gentlemen's time has expired.
Mr. Katko. Thank you very much.
Chairman McCaul. The gentlelady, Ms. Watson Coleman, is
recognized.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
Mr. Mayorkas, I have a lot of questions, so I, too, would
like to have expedient answers.
You started in 2009 in this program over the EB-5 program,
right?
Mr. Mayorkas. Yes. I became the director in August 2009.
Mrs. Watson Coleman. When did you leave?
Mr. Mayorkas. I left in December 2013.
Mrs. Watson Coleman. When were these three cases, in
particular, the subject of consideration and, supposedly, your
involvement?
Mr. Mayorkas. Two-thousand-eleven on. I can't--I apologize,
I can't provide a more discrete time frame.
Mrs. Watson Coleman. Do you know when the Inspector General
started his investigation?
Mr. Mayorkas. I don't. I believe it was in 2012 or 2013.
Mrs. Watson Coleman. Some of this happened while you were
there, and some of this happened while you were gone?
Mr. Mayorkas. I learned of the Inspector General's
investigation in July 2013.
Mrs. Watson Coleman. During his investigation, how many
times did he interview you?
Mr. Mayorkas. I was interviewed once.
Mrs. Watson Coleman. During that interview, did he raise
the issues that preferential treatment and preferential access
was alleged and that decisions based upon that access on your
part was alleged with regard to these three cases?
Mr. Mayorkas. Yes, that subject was raised in the
interview. I should say that the Inspector General himself did
not interview me, but investigators did.
Mrs. Watson Coleman. Did the investigators tell you the
individuals that you supposedly gave access to?
Mr. Mayorkas. I believe the allegation was that I gave
access to some individuals with interest in the outcome of the
cases.
Mrs. Watson Coleman. But did they identify them for you?
Mr. Mayorkas. I don't recall, but----
Mrs. Watson Coleman. My question is going to be--my
question is basically this: The Inspector General only reported
to us that there was access by people who are of one political
persuasion. The information that we have been briefed on
consistently is that there was bipartisan interest in each of
these instances.
So I want to know at what time did you ever inform the
Inspector General that, in addition to the people that he was
concerned about, or his office, that there were equally as many
other either nonpartisan or partisan individuals from either
side of the aisle who expressed consistent interest in the
outcome of these cases.
Mr. Mayorkas. I believe I informed the Inspector General's
office that these cases were the subject of bipartisan support.
I don't believe I identified particular individuals.
I did articulate the overarching and critical principle
that our obligation is to decide a case not by who is
interested in it but by the law and the facts in the particular
case.
Mrs. Watson Coleman. Thank you.
One of the things that I heard you say or I read was that
perhaps individuals who had made these allegations who were
lower in the hierarchy did not know what was going on because
you were discussing these issues with counsel and with members
above you in the hierarchy.
So they didn't know that you were, in fact, checking with
legal counsel and others as you were proceeding to work your
way through these particular issues, as you might on other
issues too. Is that correct?
Mr. Mayorkas. I think there were individuals with whom I
worked at all levels of the agency with whom I interacted about
these cases. But I--I have thought a lot about this. But
perhaps I could have done a better job of providing full
context for those with whom I worked, and maybe that would have
better guarded against the perceptions.
Mrs. Watson Coleman. Well, are those the ones that are
below you in the system, that were below you in the
organizational chart?
Mr. Mayorkas. Well, I was----
Mrs. Watson Coleman. In other words, you would be
communicating down to them that which you were doing on behalf
of these cases or in the interest of resolving these issues?
Mr. Mayorkas. Those were individuals who reported to me,
either directly or through chains.
Mrs. Watson Coleman. So you did have interaction with
people you were seeking counsel from at the counsel level or at
your level or above----
Mr. Mayorkas. Oh, yes.
Mrs. Watson Coleman [continuing]. On these issues?
Mr. Mayorkas. With respect to my involvement in these
cases, I was very open with my colleagues.
Mrs. Watson Coleman. On the three cases that have been a
part of this discussion--and the only discussion we have had--
two of them had an outcome which was not favorable to the
individuals who were seeking the applications; is that right?
Mr. Mayorkas. I know that, in the GreenTech case, after my
involvement concluded--because, once the complex legal issues
were addressed, I withdrew from involvement in the case, my
involvement was no longer warranted--I know that complaints
regarding the case continued for quite some time.
In the SLS case, my involvement was very discrete with
respect to whether we were applying our expedite criteria
correctly. I concurred, in that case, with the career
employee----
Mrs. Watson Coleman. Right.
Mr. Mayorkas [continuing]. Who led the EB-5 program office
at that time.
Mrs. Watson Coleman. Right.
Mr. Mayorkas. Then with L.A. Films, I was not involved in
the decision of the--what has been termed the ``deference
board.'' I was not involved in its decision making.
Mrs. Watson Coleman. So, in your opinion, why are these
three issues before you, these allegations raised by these
employees that were beneath you? Was there something going on
in your agency?
Mr. Mayorkas. Well, I will say this, if I may, and then I'd
like to answer your question directly.
I was very active----
Chairman McCaul. I would just like to state, we are about a
minute, 30 overtime. So, if you could, you know----
Mrs. Watson Coleman. Excuse me. With all due respect, Mr.
Chairman----
Chairman McCaul. Yeah.
Mrs. Watson Coleman [continuing]. We just had a 11\1/2\-
minute interaction between----
Chairman McCaul. Yeah. Just----
Mrs. Watson Coleman [continuing]. My esteemed colleague Mr.
Katko and Mr. Mayorkas.
Chairman McCaul. That is fine. I gave the witness a very
long opportunity for a very long time to respond, to his
benefit. I----
Mrs. Watson Coleman. I can wait for another round.
Chairman McCaul. To deference to all the other Members
here, I am going to have to keep a little more discipline.
But go ahead. Ask your----
Mrs. Watson Coleman. Thank you.
Chairman McCaul [continuing]. Last question.
Mrs. Watson Coleman. You know what? I will come back for a
second time, because there are only two of us here. But I just
ask for consistency.
Chairman McCaul. I am not going to allow 10 minutes for
every Member. I----
Mrs. Watson Coleman. Well, how we pick and choose----
Chairman McCaul. The last one, the response from the
witness was a little bit on the long side, and I allowed that
to go forward.
Mrs. Watson Coleman. Okay.
Chairman McCaul. But I am----
Mrs. Watson Coleman. Thank you, Mr. Chairman.
Chairman McCaul [continuing]. Going to have to maintain
some discipline, as Chairman of this committee.
Your last question?
Mr. Thompson. But I----
Mrs. Watson Coleman. Thank you----
Mr. Thompson. Excuse me.
Chairman McCaul. Last question.
Mr. Thompson. Mr. Chairman, I think what the gentlelady is
asking for is a balance. At no point did anybody get the time
called on them. The gentlelady was only a minute over. All we
had to do----
Chairman McCaul. We will have a balance, and it will be
more disciplined moving forward in this hearing, or we will not
be done by the time votes occur.
But, having said that, the gentlelady will please ask your
last question.
Mrs. Watson Coleman. I believe that Mr. Mayorkas was in the
process of answering a question, Mr. Chairman.
Chairman McCaul. Sure.
Mr. Mayorkas. If I may, I'll answer it very briefly by
saying this: It is my responsibility to ensure that my
employees understand my actions as a leader of the agency. It
is my responsibility to ensure that they understand entirely
and completely the reasons for my involvement and the
consequences of my involvement.
Mrs. Watson Coleman. Thank----
Mr. Mayorkas. At this time, I was making extraordinary
changes in the EB-5 program and our administration of it.
Mrs. Watson Coleman. Thank you very much.
Mr. Chairman----
Chairman McCaul. Yes?
Mrs. Watson Coleman [continuing]. I don't know if we were
planning to come back afterwards. I mean, I have a series of
questions. But I tell you, I also have a series of questions
that I would like to bring before the Inspector General as to
why we were only given a little bit of information regarding
these three issues in particular and why it was all associated
with some sort of partisan--so I don't know what your plans
are, but I don't think we are done here.
I thank Mr. Mayorkas.
I really wanted to talk to you about all the improvements
that you have made to the management of this office and the
Department in general and how we should be applauding that
instead of, sort-of, excoriating you, but maybe next time.
Thank you very much, Mr. Chairman.
Chairman McCaul. Thank you.
Let me just say I am very lenient with time normally as a
Chairman, but I am trying to keep this within some bounds of
reason. I will let Members go over the 5 minutes, but within
bounds of reason, on both sides of the aisle.
With that, now the Chairman recognizes Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman.
If I may take just a point of privilege here, the Chairman
did not interrupt the Member but I think was directed to Mr.
Mayorkas.
The 2009 EB adjudication policy contains a section
entitled, and I quote: ``Communication with EB-5 External
Stakeholders.''
The section of the policy states, ``Where oral
communication takes place between USCIS staff and external
stakeholders regarding specific EB-5 cases, the conversation
must be recorded, or detailed minutes of the session must be
taken and included in the record of proceeding. The EB-5
program maintains an email account for external stakeholders to
use when seeking general EB-5 program information, inquiring
about the status of pending cases, or requesting to expedite of
a pending EB-5 case.''
The policy continues with this: ``USCIS personnel are
instructed to direct all case-specific and general EB-5-related
communications with external stakeholders through this email
account or through other established communications channels,
such as the National Customer Service Center or the USCIS
Office of Public Engagement.''
So, during your tenure as director, would you be considered
USCIS personnel? As such, the clause in this policy that I just
read, would it be applicable to you, yes or no?
Mr. Mayorkas. Yes, I was a USCIS personnel. Those
guidelines would apply to me. However, they should not be at
the detriment of ensuring that we get to the right result in a
case. So I would become involved in a case if my involvement
was warranted to adhere to the law that Congress passed.
Mr. Walker. So are you saying that you unilaterally made
that decision, whether you should, kind-of, abide by the
policy? Is that my understanding, or are you saying something
different here?
Mr. Mayorkas. I'm saying something different, Congressman,
if I may. I apologize if I was unclear.
I was a consultative leader. So, when I engaged in a
particular case, sometimes at the behest of my employees,
sometimes because a concern or inquiry was raised by a Member
of Congress, sometimes because of a stakeholder, I did not do
so in the dark of night but did that openly, in collaboration
with my colleagues, to ensure that we were resolving legal and
policy issues correctly and bringing force to the laws that
Congress passed in the EB-5 program.
Mr. Walker. Fair enough.
Okay. You also had contact over email, telephone, and in
person with EB-5 external stakeholders, including but not
limited to Ed Rendell, Tom Rosenfeld, Terry McAuliffe, and
Anthony Rodham, where the status of pending cases were
discussed. Is that correct?
Mr. Mayorkas. Yes.
Mr. Walker. Okay. These email communications occurred
through your USCIS email and not the established EB-5 email,
National Customer Service, or other established communication
channels. Is that correct?
Mr. Mayorkas. They were with me through email on occasion,
and then I would share the emails with my colleagues for the
recordkeeping to which you refer.
Mr. Walker. How would you go about sharing those emails
with your colleagues?
Mr. Mayorkas. So, for example, in the GreenTech case, when
my involvement was needed to address the issues with which the
agency was grappling, I would forward my emails to counsel, and
I----
Mr. Walker. Mr. Mayorkas, would you say that was in line
with the policy, the EB-5 policy, or not?
Mr. Mayorkas. I'd have to take a look at that policy, but
it was in line with our ultimate obligation to adhere to the
law.
I became involved when my involvement was necessary, when
the complexity of the legal or policy issues warranted it. When
my involvement was not necessary, I did not engage. In fact, if
one takes a look at the chronology of these cases, one will see
that I was involved when the issues warranted and when the
issues were resolved I withdrew from my involvement.
Mr. Walker. Okay.
I have a couple more I want to squeeze in here. But there
seems to be a pattern here, as far as kind-of overriding the
policy, when, in your interpretation, you felt like the overall
law was more important.
My question is: Your telephone calls and in-person meetings
were not recorded and/or detailed minutes were not taken and
submitted into the record of proceeding; true or false?
Mr. Mayorkas. I couldn't speak to that. I certainly
communicated--if I may, Congressman, I communicated the fact of
communications with my colleagues. How those were recorded I'm
not certain.
But I will say this. This is very important----
Mr. Walker. Let me pause before you just move on there,
because, at this point, I have counted about 14 or 15 times
where you have said, ``I believe so, but I'm not certain,''
``to the best of my recollection,'' and then on to something
else.
So let me go back to the question: Did you follow in line
with the policy? Do you need to reread the policy? Or, in your
interpretation that you are testifying, that you felt that
there was a larger scope to go by instead of the policy itself?
Mr. Mayorkas. Congressman, I sought each and every day----
Mr. Walker. That is my last question. After he responds, I
will yield back.
Please go ahead.
Mr. Mayorkas. Thank you, Congressman.
I sought each and every day to adhere to the highest legal
and ethical legal standards that guide a public servant. The
protocols that Secretary Johnson directed and that the Office
of General Counsel promulgated will bring improvements to the
very issue about which you inquire.
Mr. Walker. Thank you, Mr. Mayorkas.
Mr. Mayorkas. Thank you.
Mr. Walker. Mr. Chairman, I yield back.
Chairman McCaul. I thank the Member.
The Chairman now recognizes Miss Kathleen Rice from New
York.
Miss Rice. Thank you, Mr. Chairman.
Mr. Mayorkas. you have made reference to, in your testimony
and in your written statement, that you support and embrace
Secretary Johnson's protocols that were developed to more ably
ensure that employees understand the involvement of their
supervisors in specific cases.
Forgive me if I missed this, but did you tell us what those
protocol changes were?
Mr. Mayorkas. No, I haven't. I believe they were issued
formally this past Monday.
The Office of General Counsel set forth protocols that
speak to a clearance process before certain leaders become
involved in particular cases that define very generally the
circumstances in which that involvement is warranted or, I
should say, optimal. They speak--to Congressman Walker's issue
in question--they speak to the recording of the involvement, so
there's clarity and understanding by all employees with respect
to the reasons for and the fact of that involvement.
I clearly would have benefited from those protocols.
Miss Rice. What about whether or not, in order to address
Mr. Katko's line of questioning about perception, are you or
someone in your position--you are not there anymore--but in
charge of CIS, are they able to accept phone calls from elected
officials?
Mr. Mayorkas. Under the protocol, I would--I believe so,
and I believe the protocol speaks to that and the fact that
those communications should be recorded.
Miss Rice. Okay. So, you know----
Mr. Mayorkas. By ``recorded,'' I mean memorialized, not
necessarily audibly recorded.
Miss Rice. I will agree with Mr. Katko that very often
perception becomes reality. Perception is an issue that we all
have to deal with.
You have gone through and been questioned very much about,
you know, the actions that you took and the perceptions that
they actually gave other people, whether accurate or not.
But I think the more relevant question, Mr. Chairman, that
we to ask on this committee is--and maybe we do this in a
closed session--do those phone calls that all of us make to
various Federal agencies inquiring about specific issues, is
that a negative perception right there, and should we not do
that?
Or can we figure out a way that we can serve our
constituents--because that is what these phone calls do--in a
nonpartisan way--because Republicans and Democrats both do it--
and do it in a way that makes sure that the perception is not
misconstrued and there is a transparency?
So I just throw that out there, and I thank you for your
consideration, Mr. Chairman. Thank you.
Mr. Mayorkas. Thank you.
Chairman McCaul. The Chairman now recognizes Mr. Perry.
Mr. Perry. Thank you, Mr. Chairman.
Mr. Mayorkas, good morning.
Americans pride themselves on a transparent Government
where any person from any background has an equal chance of
success, where a person's success or failure is blind to
privilege or association and that success is solely based upon
merit as it relates to a set of objective criteria established
for the express purpose of ensuring fairness, while denying
individuals in positions of power and influence the latitude to
use their position to unethically benefit for themselves or for
those whom with they wish to curry favor.
Based on that premise, under what circumstances do you
consider preferential treatment by a Government official
acceptable?
Mr. Mayorkas. Congressman, if I may, the principle which
you espoused is----
Mr. Perry. That is mine. Okay. Use your own.
Mr. Mayorkas. No, no, no.
Mr. Perry. Just use your own then. Under what premise,
under what circumstances is preferential treatment by a
Government official acceptable?
Mr. Mayorkas. I embrace your articulation of that
principle----
Mr. Perry. Okay. So there aren't any. There is no time.
Mr. Mayorkas. Preferential treatment is not acceptable.
Mr. Perry. Okay. Thank you.
With that understanding--with the understanding that you
worked throughout your tenure to revise the EB-5 visa
adjudicative process, and, as a former United States attorney,
is it accurate to state that you were aware that the
adjudicative process was governed by statute, regulation, and
USCIS policy?
Mr. Mayorkas. Absolutely so.
Mr. Perry. Okay. So that is a ``yes.''
Is it also accurate that you violated established USCIS
policy for handling inquiries into the program?
Mr. Mayorkas. I do not believe I did, Congressman. I am----
Mr. Perry. Okay. Well, I am just--so you are saying that
the office of OIG is wrong. That is okay if you are saying
that, but----
Mr. Mayorkas. No, I am not. This is very--this is very
important because the Office of Inspector General is one that I
have profound respect for, and I understand its importance.
The Office of Inspector General found that employees----
Mr. Perry. I am talking about what you did, sir.
Mr. Mayorkas [continuing]. Had a--yes--had a perception
that I granted preferential treatment to individuals with an
interest in these cases. I am responsible for the perception
that my employees have of the work that I do.
Mr. Perry. Okay.
Mr. Mayorkas. I bear that responsibility. I regret the
perceptions that my work created.
Mr. Perry. Okay. So it is their perception----
Mr. Mayorkas. However----
Mr. Perry [continuing]. But you disagree that you violated
the policy. That is fine. You can.
Do you consider the EB-5 visa valuable? You know what the
value is of the EB--what is the cost, generally speaking,
within the parameters of the program?
Mr. Mayorkas. When you're asking what does it cost, the
fee?
Mr. Perry. Five hundred thousand dollars to $1 million,
right?
Mr. Mayorkas. Oh, I'm sorry. To obtain----
Mr. Perry. Yeah.
Mr. Mayorkas [continuing]. To obtain a visa----
Mr. Perry. That is what kind of money we are talking about
here, right?
Mr. Mayorkas. We are talking about a million dollars unless
the investment is in an area of high unemployment or rural
area--$500,000.
Mr. Perry. Right. So we are talking, to me, significant
money. I don't know about anybody else, but----
Mr. Mayorkas. Yes.
Mr. Perry. So, as of July 15--and I don't mean to rush,
but----
Mr. Mayorkas. That's okay.
Mr. Perry [continuing]. I only have so much time.
As of July 15, 2011, did you have a previously existing
relationship with former DNC Chairman and PA Governor Ed
Rendell?
Mr. Mayorkas. Before when? I'm sorry.
Mr. Perry. July 15, 2011.
Mr. Mayorkas. Not to my recollection.
Mr. Perry. Okay. So the answer is ``no'' there.
Is it true that, as of July 13, 2011, USCIS adjudicators
were going to deny EB-5 visa applications for a firm known as
L.A. Films?
Mr. Mayorkas. I believe, from my reading of the Inspector
General's report, that is the case.
Mr. Perry. Okay. So you believe so.
Is it also true that, on July 15, 2 days later, getting a
phone call from somebody that you did not know--probably knew
of him--you received a call from former Pennsylvania Governor
Ed Rendell, and, within an hour of this call, you directed your
staff to reopen the denied application for L.A. Films. True or
false?
Mr. Mayorkas. If I may, I want to clarify something in your
question----
Mr. Perry. Sure.
Mr. Mayorkas [continuing]. Congressman. Because I believe
that Governor Rendell reached out to me about an EB-5 case
earlier. As I mentioned, and I believe it was in response to
the Chairman's query, perhaps another Member of this committee,
I don't remember the chronology----
Mr. Perry. Well, I have the----
Mr. Mayorkas [continuing]. Of L.A. Films----
Mr. Perry [continuing]. Chronology from the Inspector
General report. You just told me you didn't have a previous
relationship with the Governor. Now you told me that he reached
out to you previously, so that is a little cloudy for me.
I guess, finally--so you are telling us it is a coincidence
that former DNC Chairman and PA Governor Ed Rendell was a paid
consultant representing L.A. Films and he just happened to call
you 2 days after it was known the L.A. Films EB-5 request was
going to be denied and that, within hours of receiving the
Governor's call, you, Mr. Mayorkas, directed your staff to
reopen the denied application for L.A. Films. Is that a
coincidence?
Mr. Mayorkas. I would respectfully take issue, Congressman,
with your characterization of the question.
Mr. Perry. I understand it. You are an attorney, right? It
doesn't seem like you came very prepared for the meeting,
knowing that it was coming.
One final question, Mr. Chairman.
What is DHS's policy for employee use of personal emails in
the context of--on April 7, 2015, this year, I sent a letter to
the Secretary requesting to see a copy of your email usage
policy. Why has it taken so long to--I know you can't answer
that question.
What was the policy for the employee use of personal
emails? Do you know?
Mr. Mayorkas. To the best of my knowledge, official
business is to be conducted on official Government email.
I will follow up with your question, Congressman, with
respect to your request for a copy of our email usage policy.
Mr. Perry. Thank you.
Mr. Chairman, I yield.
Chairman McCaul. The Chairman recognizes Mr. Loudermilk
from Georgia.
Mr. Loudermilk. Thank you, Mr. Chairman.
Mr. Mayorkas, thank you for being here today.
As subcommittee Chairman on another committee on oversight,
it is amazing how, I guess, being in the committee room with
oversight causes selective memory with some people. So I am
understanding the process a little bit more of asking multiple
questions over and over. I appreciate you being here and
willing to share with us what you recall.
First, I want to ask you about the deference review board.
When you established that, did they already have--when they
first met, were there policies and procedures in place when
they convened their first meeting?
Mr. Mayorkas. Congressman, the board was first considered
and formulated in concept about 2 years earlier, in 2011. It
was discussed when first published as a proposal and evolved
since then.
The board convened in the L.A. Films case, and I am not
aware of what procedures it did or did not have in place at
that time.
Mr. Loudermilk. Well, according to the IG's report, it
indicates that they had no policies and procedures in place
when they first convened.
Now, how many times did the DRB convene?
Mr. Mayorkas. My understanding, from the report,
Congressman, is that it convened once.
Mr. Loudermilk. It was only regarding the L.A. Films case?
Mr. Mayorkas. That is correct.
My hope is two-fold: One, that with the issuance of a
governing EB-5 policy memorandum approximately 2 months after
the board convened that gave better guidance to our
adjudicators, we were no longer making decisions that we deemed
to be incorrect and had to reverse, at the great expense and
consternation of stakeholders as well as Members of Congress;
and that we were adhering to our deference policy with greater
orthodoxy than had previously been the case. Because the
concern was that we were failing to honor our own substantive
EB-5 policies.
Mr. Loudermilk. So the DRB was formulated as an appeals
board for someone who was denied. It was used once. Then it was
disbanded because now you had a policy and a way that an appeal
could be done. Is that correct?
Mr. Mayorkas. Congressman, I would say that the decision
board was contemplated as an issue resolution board when a
case, an EB-5 case, reached a certain point.
Mr. Loudermilk. So, once the DRB was disbanded, what was
the process when someone was denied their application? What was
the appeal process then?
Mr. Mayorkas. I don't know that the DRB, by its acronym,
was ever disbanded or just not utilized. But if an issue was
not resolved yet, the USCIS adjudicators could, for example,
pose inquiries to the party in interest, they could request
evidence, and there could be a line of communication of written
questions and written responses, usually fact-based, trying to
obtain evidence that addressed one of the elements of the
particular visa category at issue.
The decision board was contemplated in 2011 to bring
greater efficiency to that process so that the party in
interest could convene with the appropriate USCIS
representatives to seek to resolve the legal or policy or
factual issues that had not yet been resolved.
Mr. Loudermilk. So, based on what you are telling me in the
OIG report, the DRB met one time, they heard an appeal, and
they overturned it. It was disbanded.
How many denials since then have been appealed and then
approved?
Mr. Mayorkas. How many denials of EB-5 cases or----
Mr. Loudermilk. EB-5 cases. Because my concern with this
program is that--and it looks like staff has done a pretty good
job with this, but my concern is, this is an avenue that could
be abused for someone who has money to buy citizenship in the
United States.
Mr. Mayorkas. Congressman, if I can, two things.
No. 1, the program contemplates not only the investment of
capital but, importantly, the investment of capital that leads
to the creation of a certain number of jobs for U.S. workers,
No. 1.
No. 2, and what I think you might be hinting at, which is a
subject that Mr. Chairman referenced, is a concern of an avenue
for people to come into the United States and the importance of
ensuring that our National security interests are well-
protected in this program. I actually made significant reforms
in our administration of the EB-5 program to bring that
National security vetting rigor to the program. I brought in
our Fraud Detection and National Security Directorate to get
involved in and engaged with the EB-5 cases.
I should say also, if I may, Congressman, that it was I who
created the Fraud Detection and National Security Directorate
to bring greater fraud detection and National security rigor to
all of our adjudications across the agency.
Mr. Loudermilk. If I may, Mr. Chairman, one more question.
Regarding Gulf Coast, Mr. McAuliffe had contacted you
beginning in 2008, and, from questions we have had, that
continued on 'til 2011. I assume that, although Mr. McAuliffe
had several roles during that time period--CEO of GreenTech
Automotive; he was also a chairman of Hillary Clinton's
Presidential campaign and chair of the DNC in various times
there--I assume that the contact he made was regarding CEO of
GreenTech Automotive.
Now, during that time period, when we read the IG's report,
Gulf Coast was denied, I guess, investment for GreenTech for
three different reasons. All of them, when you read those
reasons, was to prevent against someone just being able to buy
citizenship into the United States. One was investment funds
would not be at risk. The investor did not have a managerial
role in the regional center, and the proposal did not encompass
a single contiguous region.
But with several emails and phone calls with Mr. McAuliffe,
it seems that you decided then to engage and, according to the
IG's report, said you were willing to rewrite the decision.
Mr. Mayorkas. If I may, Congressman, first, just a point of
clarification. The time frame was not 2008 to 2011. I became
the director of the agency in August 2009. I think it was well
subsequent to that.
These very legal issues that were involved in the GreenTech
case our own agency certified for internal administrative
appellate review because of their complexity. My involvement
was to ensure that we were resolving those issues in adherence
to the laws that Congress passed and the regulations that we as
an agency promulgated in the service of those laws.
Mr. Loudermilk. But isn't that what the DRB would have done
had it stayed in place, to avoid your direct involvement?
Mr. Mayorkas. I don't recall the timing of the DRB, but we
did not launch the DRB, to the best of my recollection,
Congressman, at the time that these legal issues rose to my
attention. I would have to look at the timing, but we were not
ready for the decision review board at that time. Whether we
had published the concept of it by that time, I just don't--I
don't recall.
Mr. Loudermilk. Okay.
Mr. Mayorkas. I will say this, that the resolution of those
three issues was reached in adherence to the law. The issue of
``at risk'' and the correct reading of ``in the matter of
Izummi'' was decided correctly.
Mr. Loudermilk. So you are inferring that the staff did not
correctly interpret the law, but, once your engagement came in,
then there was a correct interpretation of the law.
Mr. Mayorkas. I think that our collaborative review of
these issues led to the correct result in these cases, because
I did not decide them alone.
Mr. Loudermilk. So does the law need to be clarified?
Because it sounds like the law must be pretty subjective then.
Mr. Mayorkas. I think that, at that time, the agency, and
as I referenced in my opening statement, the agency did not
have adequate guidance to its adjudicators, and we fixed that.
Two months after the deference review board met, approximately
2 months after, we promulgated for the first time a
comprehensive policy memorandum that better guided adjudicators
in the administration of this program.
Mr. Loudermilk. Thank you, sir.
Yield back, Mr. Chairman.
Chairman McCaul. The Chairman now recognizes Ms. Sheila
Jackson Lee.
Ms. Jackson Lee. I thank the Chairman and the Ranking
Member.
Mr. Deputy Secretary, thank you very much.
As I indicated, I had to step away. We were in the
Judiciary Committee marking up the USA FREEDOM Act, an
opportunity to protect the civil liberties and the privacy
rights of Americans while we protect domestic security--another
aspect of responsibility that I know that you take very dear,
as the deputy secretary for Homeland Security.
Let me just indicate that I missed the discussion on the
swearing in or not swearing in. I draw support for my
colleagues who raise the point, and I support them, that,
although you willingly were sworn in, I do think it is
appropriate that, if the answerer of the report is sworn in,
then the presenter of the report should be, as well, with no,
in any way, denigrating of the Inspector General.
So I thank you for your presence here.
I want to quickly go through some points, first, to
acknowledge that you came to the deputy secretary's
responsibility to improve a lot of infrastructure aspects of
one of the largest departments in this Government, Department
of Homeland Security.
Many of us on this committee were there when this
Department and this committee ultimately was founded, if you
will, after the Select Committee on Homeland Security. We are
well aware of the monumental responsibilities of security and
many other very important duties that this agency has,
including the oversight of the Secret Service and our border
security.
So I believe that this is a matter that we should put to
rest so you can get back to the office and do the work that
adheres to the securing of this Nation.
But what I would say--and you can listen as I say it. My
understanding is that the IG's report found no wrong-doing,
found no unlawful act committed for an unlawful purpose, and
found no lawful act for an unlawful purpose.
My understanding is that there was nothing attributed to
you that you did unlawfully. Is that accurate?
Mr. Mayorkas. I believe the Inspector General did not make
a finding that I violated any laws. I do believe the Inspector
General found that I did not adhere----
Ms. Jackson Lee. I will get to that. I will let you answer
that in a moment. I just want to answer the unlawful at this
point. Is that what the--to your understanding, that the
Inspector General found, that you did not do anything unlawful?
Mr. Mayorkas. That is my understanding.
Ms. Jackson Lee. That is my understanding, so I will not
ask you to do yourself in. I will indicate that that is my
understanding of the beginning parts of the report.
The report found that there were three unusual acts, but
none were determined to be unlawful. So we will get to, in
quotes, the ``unusual acts.''
But I think you answered the question, as I was listening
to the inquiry made by my colleague, that there are
adjudicators and decision makers on the EB-5, and then you
ultimately sign off on their work that is done. Am I clear on
that?
Mr. Mayorkas. Congresswoman, I don't sign off on their
work. What I meant to articulate, if I did not do so clearly,
is that I, as the leader of the agency, bear ultimate
responsibility for the correctness of our decisions, our
administration of the law.
Ms. Jackson Lee. So they do the work. There is not a
signature that you have on it, but you are taking
responsibility for making sure that whatever comes out of the
Department of Homeland Security that may have been under your
jurisdiction as director or now the deputy secretary is
accurate. Is that what you are saying?
Mr. Mayorkas. Yes.
Ms. Jackson Lee. We thank you for that.
But there was work done by other persons on the EB-5
applications; is that correct?
Mr. Mayorkas. Yes.
Ms. Jackson Lee. You are now saying that that work is now
being directed with better criteria and guidelines that can be
checked and double-checked by others to make sure that the work
is correct.
Mr. Mayorkas. I think we made a tremendous number of
improvements, very significant improvements, to the
administration of the program and better equipped our personnel
to administer that program in adherence to the law,
Congresswoman.
Ms. Jackson Lee. When the Inspector General said ``unusual
acts,'' that played into--or did it play into, in your
interpretation, as poor guidelines or structure for the EB-5?
Mr. Mayorkas. Congresswoman, I did--my involvement in these
cases was as my involvement in many, many other cases, whether
EB-5 or otherwise. When a case presented issues that warranted
my involvement, I became involved. My own employees brought
cases to me because of the issues involved. Members of Congress
brought cases to my attention. Stakeholders brought cases to my
attention. I learned from the media of certain cases. If the
issue warranted my involvement, I engaged, and if the issue
didn't, I did not.
I think that is evidenced by the chronology of my actions
in these very cases that were the subject of the Inspector
General's review. When an issue, for example, in the GreenTech
case warranted my involvement, I worked with my colleagues to
resolve the issue. When the case no longer warranted my
involvement, I withdrew.
Ms. Jackson Lee. So let me, if I can interpret what you are
saying, you have a commitment to this country, and you have a
commitment to the better workings of the U.S. Department of
Homeland Security, is that correct, to make this department an
effective department?
Mr. Mayorkas. I do.
Ms. Jackson Lee. So your intervention came about through
newspapers, stakeholders, or other to make the Department
better and to be a problem solver where it was brought to your
attention. Would you interpret your intervention or your work
in that category?
Mr. Mayorkas. Absolutely so, Congresswoman. I would say I
also have an additional calling, and that is an abiding duty to
the law.
Ms. Jackson Lee. Let me just be very clear. I am a strong
supporter of EB-5 for the poor and minority communities across
America. I would really hope that, as the Department looks to
that process, that those communities may be the ultimate
benefactors in many instances and that there are structures in
place. But I would tell you, if there is anyone that I believe
that can put those structures in place, it would be you and
Secretary Johnson, because I do have a sense that you both want
to be problem solvers.
So here is my question: Would you comment on the value of
investment in some of these poor communities where jobs can be
created?
No. 2, in any of the decisions that you have been noted
for, cited for, if you will, did you have any personal stake,
was there any self-interest, and did you benefit financially
from any involvement of any of those particular incidents?
Mr. Mayorkas. Congresswoman, I did not have any personal
interest or benefit in any way from the disposition of any case
pending before U.S. Citizenship and Immigration Services. The
dramatic increase in interest in the EB-5 cases during my
tenure was a reflection of the great interest in seeing an
infusion of capital in the creation of jobs in communities that
were suffering high unemployment at the time.
Ms. Jackson Lee. I think the final point of my inquiry--and
I thank the Chairman and the Ranking Member for their
indulgence--is, first, to get on the record that EB-5, done
right, can infuse economic opportunity and jobs to struggling
communities across America.
So let me ask you this question, as you are the deputy
secretary: Are those some of the elements that you look at in
directing, or the procedures of your now persons that do the
initial review or decision making, have those kinds of
framework in their mind, in their eyesight, of creation of jobs
and helping underserved communities across America?
Mr. Mayorkas. Those are some of the specified elements of
an EB-5 adjudication, that a certain amount of capital must be
invested. If it is an area of high unemployment--and that is
defined specifically--then that impacts the amount of
investment capital that must be made.
Also, there are--one of the elements is the likely--I hope
I have my legal terminology correct--but the creation of jobs
in the United States. For the amount of capital, 10 jobs must
be created or are reasonably likely to be created.
Ms. Jackson Lee. Well, I will work with you to increase
that number. But I would just end on the note of saying, Mr.
Deputy Secretary, you did not benefit from any of these
decisions personally?
Mr. Mayorkas. I did not.
Ms. Jackson Lee. Let me thank you for your service. I think
that we have gotten a thorough review of your service, your
commitment to this country, and the fact that we are better off
that you are serving Department of Homeland Security, but, more
importantly, that EB-5 will be what it should be, which is an
investment in the American people and job creation where it is
needed.
With that, Mr. Chairman, I yield back.
Chairman McCaul. I thank the gentlelady.
The Chairman recognizes the Ranking Member for purposes of
entering a document into the record.
Mr. Thompson. Thank you, Mr. Chairman.
For purposes of entering into the record, I have a
statement from the International Brotherhood of Teamsters.
Chairman McCaul. Without objection, that is so ordered.*
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* The information was not submitted at the time of publication.
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Let me close, sir, by saying thank you for coming here
today to give your side of the story.
Oh, I am sorry. Mrs. Torres just arrived.
You are recognized.
Mrs. Torres. I apologize, Mr. Chairman, for the late
arrival. We were marking up another bill.
Chairman McCaul. Understood.
Mrs. Torres. Deputy Secretary Mayorkas, thank you so much
for being here. I know that this was not, you know, quite an
easy task for you today.
I am new to the committee and new to this issue, and I
really would like for you to outline the steps that you took as
the director of the U.S. Citizenship and Immigration Services
and now as deputy secretary to improve the transparency of the
EB-5 program.
Mr. Mayorkas. Thank you very much, Congresswoman.
I made a number of reforms to the EB-5 program,
culminating, I think, in the ultimate public development and
publication of a governing policy memorandum that set forth
clear resolutions to issues in the EB-5 program with which the
agency was grappling for quite a number of years.
I created a new EB-5 program office and created a Senior
Executive Service leadership position for that office. We
created it in Washington, DC, in part because of the amount of
interchange that we had with other Government agencies and
stakeholders here in our Nation's capital. We selected an
individual in the new leadership position that came from a
financial regulatory background.
We strengthened fraud detection in National security
protocols and safeguards to the program. There were a series of
reforms that we made to the program to address the loud chorus
of concerns and complaints that we received not only from
Members of Congress from both parties but especially from the
public at large.
Mrs. Torres. Moving forward--you have already identified
some changes--what else would you say that you and the
Department can work on, lessons learned? How can we improve
transparency?
Mr. Mayorkas. Two things come immediately to mind.
One, to which I referred earlier in my testimony,
Congresswoman, one is the very important protocols with respect
to leadership involvement in certain cases that were
promulgated this past Monday at the direction of the Secretary
of Homeland Security, Jeh Johnson. They were promulgated by the
Office of General Counsel. I think that will bring greater
transparency to leadership involvement in particular cases.
We also welcome the opportunity, as Secretary Johnson wrote
earlier this week, we welcome the opportunity to provide
technical advice to Members of Congress as they review the EB-5
program as it approaches its sunset period of time. There are
programmatic changes that can buttress the National security
and anti-fraud regime that is currently in place.
Mrs. Torres. Thank you so much.
Thank you for your patience.
Chairman McCaul. The Chairman recognizes--it is a closing
statement, but it may be a question, so I am going to open it
up to one last round of questions, and then we will close.
Sir, I had some interest--in the case of the Gulf Coast
case, with the DNC former chair, Terry McAuliffe, it involved
EB-5 visas for Chinese foreign nationals. Do you know who these
foreign nationals are?
Mr. Mayorkas. I do not.
Chairman McCaul. Okay. Yet you did intervene in this case
and said that you would rewrite the decision yourself.
Mr. Mayorkas. What I did do, Mr. Chairman, is I offered to
write a legal analysis of one of the issues that we resolved
around the table. It was the matter of whether the requisite
amount of investment capital was at risk. That is my best
recollection of that discussion. I certainly----
Chairman McCaul. Which is the standard, is it at risk or
not. Correct. I understand that standard.
Were these Chinese foreign nationals properly vetted for
National security reasons?
Mr. Mayorkas. I would hope so. It is our responsibility, of
course, to ensure that individuals who are granted visas do not
pose a National security risk to our Nation. One of the
critical improvements that I made, Mr. Chairman, to our
administration of the EB-5 program was to bring our fraud
detection and National security expertise to bear in the
vetting of EB-5 petitioners.
Chairman McCaul. I commend you for that. But do you know if
in this case they were vetted for National security reasons?
Mr. Mayorkas. I had no involvement, to the best of my
recollection, in----
Chairman McCaul. Would you have intervened in a case like
this and rewritten the decision if you knew there was any
National security concern?
Mr. Mayorkas. Mr. Chairman, let me say two things.
No. 1, I was brought--I became involved in a case to
address discrete issues, No. 1, and not all of the issues
involved in a case. But I was involved----
Chairman McCaul. This does draw an issue and a concern----
Mr. Mayorkas. If I may, Mr. Chairman----
Chairman McCaul [continuing]. If the Department was
properly vetting these applicants.
Mr. Mayorkas. If I may, Mr. Chairman, because this is very
important, and it goes to a number of the issues.
I read a report that raised concerns of National security
or fraud in this case, and I referred this case immediately,
myself, to our Fraud Detection and National Security
Directorate.
When an issue arose in the GreenTech case--and I believe it
was subsequent to our resolution of the at-risk management and
contiguity issues involved in the case. I learned of a concern.
I believe it was a public concern, not one that percolated
within our own agency. I brought in our fraud detection and
National security personnel to look at it.
Chairman McCaul. In this case?
Mr. Mayorkas. In this case.
Chairman McCaul. Okay. I am glad to hear that. At first,
you said ``I hope so,'' but now you have a more definitive
response to that.
I would like to know--because I don't know who they are. I
would like for the Department to produce to me the names of
these individuals who applied and their background and the
National security vetting of these individuals. Of course, I
make that request, if you will agree to that.
Mr. Mayorkas. Of course.
Chairman McCaul. Okay.
Last, just, you know--and Ms. Sheila Jackson Lee asked you
questions earlier, previously, and you said, we are always
focused on the fact there should be no communication that
provides an avenue for undue influence on the adjudication, and
it should be independent, based on the laws and the facts,
which you stated previously.
I think the only issue is, you know, if you create a
policy, which you did, I think you need to follow it. Maybe, if
you don't follow it, then create a new policy. But when you say
that there shouldn't be preferential treatment as the policy
and yet you make--I mean, it is one thing, as Miss Rice points
out, Members of Congress do contact all the time, and we just
ask, you know, that you take a look at the case.
These cases are a little different from that. These cases,
you set up a separate board to deal specifically with 249
petitions. In another case, you overrule cases you have already
approved, and in one case deciding to rewrite the decision
yourself. It seems to me that is more than just a phone call
from a Member, which Miss Rice points out we are entitled to
do, and you are entitled to act upon that. In these cases, you
really went out of your way, in very much an exception to the
rule, that has the appearance, as you stated in your opening
statement, of preferential treatment.
You know, you say that is the purpose. Then, of course, you
do have penalties here even if the appearance is violated, that
there should be disciplinary penalties, including removal from
office. What do you think is appropriate in your case?
Mr. Mayorkas. Mr. Chairman, I was involved in these cases
as I was involved in many, many cases, both in the EB-5 program
and outside the EB-5 program. The level of my involvement
depended on the need for my involvement to help resolve
difficult issues. My level of involvement in these cases is
mirrored in other cases, as well. It wasn't a question of who
brought the case to my attention but, rather, what the case
needed to resolve it in adherence to the law and the policy.
Chairman McCaul. All right. Just so I am clear, because I
want you on the record: In your opinion, you did not violate
your own ethics policy.
Mr. Mayorkas. If I may, Mr. Chairman, the Inspector General
found that, by virtue of my involvement in these three cases,
employees perceived that I exercised undue influence in these
cases.
I thought I had taken steps to guard against that. I bear
responsibility for the perception of my employees. That is my
responsibility, and I acknowledge that.
I have profound respect for the Office of Inspector General
and this investigation and throughout their work.
Chairman McCaul. Then we appreciate your honesty and
candor. Do you believe that there should be any disciplinary
action in your case?
Mr. Mayorkas. Mr. Chairman, Secretary Johnson has spoken
with me about this case--about this matter, I should say. He
has spoken with me, and we discussed not only my involvement in
this case, but we discussed lessons learned. We also discussed
the protocols that at the time he directed and has since
promulgated, which I support and embrace.
Chairman McCaul. I thank the witness for your candor, as
always, and honesty.
Chairman recognizes the Ranking Member.
Mr. Thompson. Thank you very much.
Deputy Secretary, the EB-5 program, can you, for the
committee, indicate whether or not--those individuals who
invest in the programs, can you describe the vetting of that
investor for the committee?
Mr. Mayorkas. There are two issues, as best as I recall,
Congressman, that are at issue. One is the need to ensure that
the funds that are invested are from a lawful source. Then
there is the vetting of the individual, him- or herself, to
determine whether they--to ensure that they do not pose a
National security risk or otherwise pose a public safety danger
such that their admission to the United States should be
denied.
More specific than that, I cannot at this moment
articulate.
Mr. Thompson. So, during your tenure at the Department,
were you involved in either of those two processes within the
EB-5 program?
Mr. Mayorkas. I did not conduct the vetting or the forensic
work myself.
Mr. Thompson. Is it commonplace for Members of Congress to
contact USCIS on behalf of the EB-5 program?
Mr. Mayorkas. Congressman, as I mentioned, we receive more
than 1,500 communications from Members of Congress per year
about the EB-5 program. The number of communications we
received from Congress about this program dwarfed the number of
communications we received about any other program we
administered.
Mr. Thompson. Is it not uncommon for Governors or other
interested individuals to contact USCIS on behalf of the EB-5
program?
Mr. Mayorkas. The EB-5 program was the subject of
communications from all corners and all quarters by virtue of
two distinct forces at play: No. 1, the increasing importance
of the program because of the challenges our economy faced at
that time; and, No. 2, the poor administration of the program
by our agency, which I should underscore was not the fault of
our adjudicators but, rather, the fault of the institution in
not providing those adjudicators, who are tremendously hard-
working and dedicated and talented public servants, not
providing them with the support they needed. These are very
complicated legal, business, economic cases.
Mr. Thompson. That contact, either by Members of Congress
or Governors or other State and local officials, has been by
both Democrats and Republicans?
Mr. Mayorkas. Yes, sir.
Mr. Thompson. So did you or have your staff felt that this
kind of contact should not take place?
Mr. Mayorkas. We were proud of our responsiveness to
Members of Congress. It is our responsibility.
Mr. Thompson. So, if anybody contacted you on behalf of the
EB-5 program under your direction, you did not feel that that
contact was improper or would have changed your decision making
on that particular project.
Mr. Mayorkas. The fact of the contact would not influence
our decision making. The question is: What would the law
require based on the facts at issue in the particular case?
Mr. Thompson. I yield back, Mr. Chairman.
Chairman McCaul. Let me thank the witness for being here
today.
Oh, Ms. Torres, do you have an additional question? I
apologize.
Okay. You do not. Okay. Thank you.
I want to thank the witness for being here today.
Members of the committee may have some additional questions
for the witness, and we will ask you to respond to these in
writing.
Pursuant to the committee rule 7(c), the hearing record
will be open for 10 days.
Without objection, the committee stands adjourned.
[Whereupon, at 12:16 p.m., the committee was adjourned.]
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