Grassley rips DHS nominee Mayorkas, E-5 visa program

12/20/2013

WASHINGTON, D.C. – As Democrats in the filibuster-free U.S. Senate fill key administration vacancies, U.S. Sen. Charles Grassley assailed a Department of Homeland Security nominee for playing a key role in aiding Terry McAuliffe’s electric-car company raise funds through a visa-investor program.

“Whistleblowers have provided my office with very troubling evidence. Much of the evidence involves the EB-5 regional center program, which (U.S. Citizenship and Immigration Services Director Alejandro) Mayorkas is responsible for managing,” charged Grassley, the top Republican on the House Judiciary Committee, which oversees immigration issues.

“The evidence appears to support allegations that Mr. Mayorkas and his leadership team at Citizenship and Immigration Services are susceptible to political pressure and favoritism,” the Iowa Republican said.

Grassley said documents “appear to show (Mayorkas) intervening in an EB-5 decision involving Gulf Coast Funds Management, an organization run by Hillary Clinton’s brother, Anthony Rodham.”

“This decision benefited GreenTech Automotive, a company run by Terry McAuliffe that was receiving funding from Gulf Coast Funds Management,” the senator said.

McAuliffe is governor-elect of Virginia, assuming office in January. Mayorkas’ nomination to become deputy secretary of DHS awaits Senate approval.

Excerpts of Grassley’s floor speech follow:

“I have major concerns with Mr. Mayorkas’ nomination.

“First, I want to 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.  I have always questioned whether the president’s directive is legal.  The administration never responded to our request for their legal basis and 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 a 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 X-Box receipt and Facebook postings.

“They always seem to find a way to get an approval.

“And all denials for ‘DACA’ have to be run through Washington.  Adjudicators on the line were given clear instructions that they were not allowed to deny.  Whistleblowers said that Mr. Mayorkas himself had to approve all denials.

“Think about that.

“No denial was allowed unless the head of the agency personally approved it.  What kind of message does that send to the career employees trying to do their jobs impartially?  The boss has his thumb on the scale.

“That isn’t the rule of law.

“Mr. Mayorkas’s message to adjudicators seems to have been that they had better ‘get to a yes’ or he’d 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 confirmed what whistleblowers had said.

“A quarter of immigration service officers interviewed felt pressure to approve questionable applications.  Ninety percent felt they didn’t have sufficient time to complete interviews of those who seek benefits.

“The Office of Inspector General report clearly showed that the agency had been pervaded by the ‘Get to Yes’ culture.

“Unfortunately, that culture hadn’t changed under Mr. Mayorkas’ leadership.

“In fact, based on concerns I heard from whistleblowers who contacted my office in mid-July of this year, it seems to have gotten worse.

“These whistleblowers were aware that Mr. Mayorkas had been nominated to this Homeland Security position in late June.  They were also aware that since the fall of 2012, Mr. Mayorkas had been a subject of an Office of Inspector General investigation into allegations of ethical or criminal misconduct.

“When Mr. Mayorkas’ nomination hearing was scheduled, the whistleblowers were surprised.  They wondered why a hearing would proceed while the investigation was still open and pending, and contacted my office to make sure Congress was told about the investigation.

“The existence of an investigation was news to me.  However, I don’t sit on the Committee on Homeland Security and Governmental Affairs.  So, my staff contacted the staff of the ranking (Republican) member of that Committee, Dr. (Tom) Coburn.  His staff was also unaware that 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 a pending investigation of the nominee within the executive branch.

“Both my staff and Ranking Member Coburn’s staff 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.

“The Senate has a constitutional function of providing advice and consent on 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, such as a pending investigation.

“To its credit, the Office of the 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 the nomination?

“If not for the whistleblowers, would we have known?

“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, 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 (Joe) Biden spoke out in support of delaying voting on the nomination because of the investigations.  Eventually the nominee’s company agreed to settle the investigations against it.  Then-Senator (Barack) 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 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.

“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 that the allegations are true?  Then by rushing to approve the nominee, this body would have failed in 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 the permanent head the Bureau of Alcohol, Tobacco, Firearms and Explosives.  Mr. Jones was the subject of an Office of Special Counsel investigation due to allegations that he retaliated against a whistleblower in the U.S. Attorney’s office in Minnesota.

“As Mr. Jones’s nomination progressed in the Senate, the Justice Department and the whistleblower agreed to try mediation.  The majority tried to claim that the Special Counsel’s case was therefore closed.  However, as I stated on this floor, the Special Counsel’s investigation would continue if the 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 today.  We don’t know what the outcome will be because we did not take the time to gather the facts as senators should.

“If we are unwilling to wait for an Executive Branch inquiry, then we should gather the facts ourselves.

“Last week, Ranking Member Coburn asked Chairman (Carl) Levin if the Permanent Subcommittee on Investigations would consider interviewing witnesses in the controversy involving Mr. Mayorkas.  While he declined, Chairman Levin rightly noted that 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 the 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 Mr. Mayorkas is responsible for managing.  The evidence appears to support allegations that 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 Mr. 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 whistleblowers’ allegations and attaching some of the documents they provided.  I asked how he accounted for this evidence.  But, he has utterly failed to reply to my letters.

“It’s been four or five 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 had led my staff or the Homeland Security Committee to believe.  They appear to show him intervening in an EB-5 decision involving Gulf Coast Funds Management, an organization run by Hillary Clinton’s brother, Anthony Rodham.  This decision benefited GreenTech Automotive, a company run by Terry McAuliffe that was receiving funding from Gulf Coast Funds Management.

“This evidence about political influence and intervention is particularly troubling because of Mr. Mayorkas’s prior history.  In 2001 Mr. Mayorkas had a role in the group of pardons and commutations issued by President Clinton at the end of his 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 that create jobs in the United States 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.  In the process, the centers had to prove they were creating U.S. jobs.

“Skeptics question if 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 now about these security concerns inside the agency, Congress needs to re-examine the program.  It should serve its purpose without compromising national security.

“Mr. Mayorkas claims that he has changed the program since learning of the fraud and security concerns.  The only tangible change we have seen is that additional economists have been hired and adjudicators from California were moved to Washington, D.C.  Yet moving the EB-5 process to Washington increased Mr. Mayorkas’s 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 thumb on the scale.

“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 inter-agency collaborations seemed to fizzle.  Whistleblowers say the whole 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 today.

“On May 15, 2012, Chairman (Patrick) 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 19 months and he has taken no action.

“Mr. Mayorkas says he’s concerned with fraud and abuse in the program, but actions speak louder than words.  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 Aug. 1, and he agreed that I deserve answers to my questions from the nominee.  But, 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.

“If this body is unwilling to await until the end of an investigation or conduct its own inquiry, one day it will come back to bite us.

“As I said when B. Todd Jones was confirmed, eventually one of these situations will embarrass the Senate and damage the reputation of the federal government.

“If this majority is determined to ignore ongoing investigations and ram through nominees, the American people should hold the Senate accountable for refusing to do its constitutional job.”

USCIS spokesman Chris Bentley referred Watchdog’s request for comment to DHS spokesman Peter Boogaard, who did not respond.

Full text of Grassley’s speech is here.

Kenric Ward is a national correspondent for Watchdog.org and chief of its Virginia Bureau. Contact him at kenric@watchdogvirginia.org or at (571) 319-9824. @Kenricward. This story originally appeared on Watchdog.org.