[Congressional Record (Bound Edition), Volume 159 (2013), Part 13]
[Senate]
[Pages 19264-19266]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          MAYORKAS NOMINATION

  Mr. GRASSLEY. Madam President, soon we will be voting on the 
nomination of Mr. Mayorkas for Deputy Secretary of the Department of 
Homeland Security. I have concerns about the nomination. First, I will 
discuss how Mr. Mayorkas has carried out the President's directive 
giving legal status to thousands of individuals who are in the United 
States unlawfully.
  In 2012, Mr. Mayorkas was charged with implementing this President's 
directive known as DACA--DACA--Deferred Action for Childhood Arrivals. 
I have always questioned whether the President's directive is legal. 
The administration never responded to our requests for their legal 
basis or opinions. This administration has not been transparent about 
who is getting deferred action, how they are processing them, and 
whether those who have been denied have been processed for removal.
  They may call this program Deferred Action for Childhood Arrivals, 
but it clearly benefits older adults, and possibly people who 
intentionally broke our laws. The agency didn't deny any single 
applicant until after the 2012 election. We still don't know how many 
people were actually denied. We do know, however, that people were 
approved despite shoddy evidence, such as an Xbox receipt and Facebook 
posting. They always seem to find a way to get approval.
  All denials for DACA have to be run through Washington. Adjudicators 
on the line were given clear instruction they were not allowed to deny 
any applicant. Whistleblowers tell me that Mr. Mayorkas himself had to 
approve all denials.
  Think about that. No denials were allowed unless the head of the 
agency personally approved the denial. What kind of message does that 
send to civil servants, the career employees trying to do their job 
under the law as the law requires, and to be very impartial. The boss 
has his thumb on the scales. That isn't the rule of law.
  Mr. Mayorka's message to adjudicators seems to have been that they 
had better get to yes or he would personally get involved. This ``get 
to yes'' philosophy came up time and again with agency whistleblowers. 
The Office of Inspector General looked into the situation and the 
inspector general confirmed what employers had said. A quarter of 
Immigration Service Officers interviewed felt pressured to approve 
questionable applicants, and 90 percent felt they didn't have 
sufficient time to complete the interviews of those who seek benefits. 
The report of the Office of Inspector General clearly showed the agency 
had been pervaded by this ``get to yes'' culture.
  Unfortunately, that culture hasn't changed under Mr. Mayorkas's 
leadership. In fact, based on concerns I heard from whistleblowers who 
contacted my offices in mid-July of this year, it seems to have even 
gotten worse. These whistleblowers were aware that Mr. Mayorkas had 
been nominated to this Homeland Security position by late June. They 
were also aware that since the fall of 2012, Mr. Mayorkas had been the 
subject of an Office of Inspector General investigation into 
allegations of ethical or criminal misconduct.
  When Mr. Mayorkas's nomination hearing was scheduled, the 
whistleblowers were very surprised. They wondered why a hearing would 
proceed while the investigation was still open and pending, and then 
contacted my office to make sure Congress was told about the 
investigation. The existence of this investigation was news to me at 
that time. However, I didn't sit on the Committee on Homeland Security 
and Governmental Affairs. So my staff contacted the staff of the 
ranking member of that committee, Senator Coburn. His staff was also 
unaware the nominee was under investigation by the Inspector General.
  It is extremely troubling that a hearing was scheduled to proceed 
without the ranking member of the committee knowing about the pending 
investigation of the nominee within the executive branch. Both my staff 
and the staff of Ranking Member Coburn contacted the inspector 
general's office. We told his office about the whistleblower 
allegations and asked for confirmation as to whether there was an open 
inquiry.
  This type of procedural information is routinely disclosed by an 
inspector general's office to Congress, and rightly so. Further, we 
asked for an explanation of why that information would be withheld 
while the committee was considering the nomination.
  Understand, the Senate has a constitutional function of providing 
advice and consent on these nominations. In order to do our duty, every 
Senator who is asked to vote on that nominee needs to have all the 
relevant information about that nominee, and particularly when there is 
a pending investigation.
  To its credit, the Office of Inspector General answered our questions 
and confirmed there was indeed an open criminal investigation. Their 
written description stated that the inquiry involves ``alleged 
conflicts of interest, misuse of position, mismanagement of the EB-5 
program, and an appearance of impropriety by Mayorkas and other . . . 
management officials.''
  How was it possible that this information was withheld from staff for 
the ranking member of the committee considering that nomination? If not 
for the whistleblowers who came forward, would we have known of the 
investigation?
  When a nominee is under investigation, the Senate has no business 
approving that nominee until the facts are in. Historically, committees 
have followed this precedent. As ranking member Coburn explained last 
week,

[[Page 19265]]

both the President and the Vice President supported this precedent when 
they were in the Senate.
  In July 2005, one ambassadorial nominee owned a company under 
investigation. Then-Senator Biden spoke out and supported delaying the 
vote on that nomination because of the investigation. Eventually, the 
nominee's company agreed to settle the investigation against it. Then-
Senator Obama's spokesman issued a statement saying that due to the 
fact that a settlement was reached, Senator Obama would not seek to 
block the nomination.
  Like then-Senators Obama and Biden, I believe the Senate should wait 
for investigations to conclude or, if the executive branch is taking 
too long, then Congress should do its own fact-finding. But forcing 
Senators to vote in ignorance is not a legitimate option. In fact, it 
is irresponsible.
  Voting to approve a nominee who is under investigation without 
waiting for the facts is incredibly risky. What if the investigation 
determines allegations are true? By rushing to approve the nominee, 
this body would have failed one of our key functions under the 
Constitution.
  I pointed this out when the Senate was considering the nomination of 
B. Todd Jones to become permanent head of the Bureau of Alcohol, 
Tobacco, Firearms and Explosives. Mr. Jones was the subject of an 
Office of Special Counsel investigation due to allegations he 
retaliated against a whistleblower in the U.S. Attorney's office in 
Minnesota.
  As Mr. Jones' nomination progressed through the Senate, the Justice 
Department and the whistleblower agreed to try mediation. The majority 
tried to claim the special counsel's case was, therefore, closed. 
However, I did state on the floor the special counsel's investigation 
would continue if mediation failed.
  Nevertheless, despite the open special counsel investigation, we 
voted on July 31 to confirm Mr. Jones. In early September, the 
whistleblower's mediation with the Justice Department did, indeed, 
fail.
  The special counsel has resumed its investigation of Mr. Jones, just 
as the special counsel had told the Senate that it would. So the 
retaliation complaint against Mr. Jones is still pending this very day. 
We don't know what the outcome will be because we did not take time to 
gather the facts, as Senators should. If we are unwilling to wait for 
an executive branch inquiry, then we should further gather the facts 
ourselves.
  Last week, Ranking Member Coburn asked Chairman Levin of the 
Permanent Subcommittee on Investigations whether that committee would 
consider interviewing witnesses in the controversy involving Mr. 
Mayorkas. While he declined, Chairman Levin rightly noted if the 
subcommittee were going to launch such an investigation, the vote on 
Mr. Mayorkas would need to be delayed. I completely agree. This vote 
should not take place until someone has been able to gather testimony 
and draw conclusions about these allegations.
  Whistleblowers have provided my office with very troubling evidence 
regarding the substance of some of the allegations. Much of the 
evidence involves the EB-5 regional center program, which Mayorkas is 
responsible for managing. The evidence appears to support allegations 
Mr. Mayorkas and his leadership team at Citizenship and Immigration 
Services are susceptible to political pressure and favoritism. Our 
immigration system should be governed by equal application of the law, 
not by who has the best political connections to the director of the 
agency.
  I have given Mayorkas a chance to defend himself and explain the 
evidence, which seems compelling. Back in July and August I wrote 
several letters to Mr. Mayorkas outlining whistleblower allegations and 
attaching some of the documents the whistleblowers provided. I asked 
how he accounted for this evidence, but he has utterly failed to reply 
to my letters.
  It has been 4 or 5 months since I sent Mr. Mayorkas these letters. 
Just like his personal oversight of DACA, these documents show Mr. 
Mayorkas being much more directly involved in individual EB-5 cases 
than he has led my staff or the Homeland Security and Governmental 
Affairs Committee to believe. They appear to show him intervening in 
EB-5 decisions involving Gulf Coast Funds Management, an organization 
run by nobody other than Hillary Clinton's brother Anthony Rodham.
  This decision benefited GreenTech Automotive, a company run by Terry 
McAuliffe which was receiving funding from Gulf Coast Funds Management.
  This evidence about political influence and intervention is 
particularly troubling because of Mr. Mayorkas' prior history. In 2001 
Mr. Mayorkas had a role in a group of pardons and commutations issued 
by President Clinton in the closing days of the second term. A 2002 
House report found that then-U.S. Attorney Mayorkas inappropriately 
sought to influence a decision regarding whether drug trafficker Carlos 
Vignali's prison sentence should be commuted.
  However, my concerns about the investigation pending against Mr. 
Mayorkas are about more than just improper political influence. Under 
his leadership over the last few years, the EB-5 Program has grown far 
beyond its original intent, which I supported. It is intended to be an 
avenue for foreign investors to participate in new commercial 
enterprises which actually create jobs in this country in exchange for 
a U.S. visa. The program was created as a pilot, allowing regional 
centers to pool funds from investors to create new businesses and jobs. 
In the process, the centers had to prove they were creating the jobs 
they promised to create.
  Skeptics questioned whether the program truly creates jobs. 
Whistleblowers have expressed concerns that foreign investors are not 
being vetted carefully enough. They say Mr. Mayorkas is more interested 
in approving applications quickly than making security checks more 
robust.
  Given what we know about these security concerns inside the agency, 
Congress needs to reexamine this program. It should serve its purpose 
without compromising our national security.
  Mr. Mayorkas claims he has changed the program since learning of 
fraud and security concerns. The only tangible change we have seen is 
that additional economists have been hired and adjudicators from 
California were moved here to Washington, DC. Yet moving the EB-5 
process to Washington increased Mr. Mayorkas' control over the program, 
just as he has in the DACA Program.
  Whistleblowers have provided me with emails from Mr. Mayorkas saying 
that he wants to keep fraud and national security concerns about 
GreenTech or the SLS Hotel in Las Vegas ``close hold.'' As I said 
earlier, the rule of law isn't possible when the boss has his thumbs on 
the scales.
  Further, the regional center program has serious national security 
risks that the Director hasn't addressed. He convened a working group 
with national security advisers but no formal product was finalized. 
The interagency collaborations seemed to fizzle. Whistleblowers say the 
working group was mere window dressing.
  In the agency, employees received EB-5 applications from individuals 
with derogatory information about them in classified government files, 
but they were given little or no guidance about how to make sure that 
such were denied. Instead, they were pressured to approve applications 
as quickly as possible.
  Simply put, the integrity of our immigration system is in question as 
long as the program continues without needed reforms which could be 
done this very day.
  On May 15, 2012, Chairman Leahy and I wrote to Mr. Mayorkas regarding 
the program and expressed our concerns about the potential for abuse of 
the program. We asked for his commitment to administratively reform two 
aspects of the program. He responded that he was interested in the 
reforms. Yet it has been a long 19 months and he has taken no action.
  Mr. Mayorkas says he is concerned with fraud and abuse of the 
program, but actions speak louder than words.

[[Page 19266]]

Despite my recent letters with questions about fraud and security 
concerns, not to mention political influence, Mr. Mayorkas is either 
completely unwilling or unable to respond to the allegations.
  I sat down with Chairman Carper on August 1, and he agreed that I 
deserved answers to my questions from the nominee. Now he has pressed 
forward without getting answers. I am truly surprised that this 
majority is not interested in getting to the bottom of these 
allegations--in other words, something that is under investigation--the 
same way that Senator Biden and Senator Obama demanded that we do 
during a previous Presidency.
  If this body is unwilling to await the end of an investigation or if 
we aren't willing to conduct our own inquiry, one day this whole 
nomination will come back to bite us. As I said when B. Todd Jones was 
confirmed, eventually a situation will embarrass the Senate and damage 
the reputation of the Federal Government.
  If this majority is determined to ignore ongoing investigations and 
at the same time ram through nominees, the American people should hold 
the Senate accountable for not doing its constitutional job--in fact, 
refusing to do its constitutional job.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.

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