Mayorkas Hearing Testimony Subject of Detailed Analysis by Grassley

By David North on August 6, 2013

How much attention did USCIS Director Alejandro Mayorkas pay to EB-5 applications filed on behalf of Terry McAuliffe's electric car company, GreenTech?

The question — involving two Democrats seeking promotion (McAuliffe is the candidate for governor of Virginia in the fall election) — may be crucial to their careers, Mayorkas' probably more than McAuliffe's. Senator Chuck Grassley (R-Iowa) weighed in last week with what one observer called a "devastating" 97-page analysis of Mayorkas' role in the EB-5 (immigrant investor) case.

Alejandro Mayorkas

At his previously described Senate confirmation hearing regarding his nomination to be deputy secretary of the Department of Homeland Security, Mayorkas played down the extent of his involvement in the case.

Let's pick up the story from the second page of the Grassley letter to Mayorkas:

Several documents call into question some of the statements you made regarding preferential treatment in your testimony at last Thursday's hearing. For example, you were asked in the hearing about communications with Terry McAuliffe with respect to Gulf Coast Funds Management. You testified: "I was asked to attend a meeting with Mr. McAuliffe so that I could hear in person his complaints . . . two years ago . . . . I heard those complaints, and that was the extent of the interaction. . . . I moved on with my work."

Contrary to the impression left by your answer, documents indicate that both before and after that meeting, you actually engaged in nearly a dozen contacts with Gulf Coast Funds Management between 2010 and 2013, including direct communications with Gulf Coast's attorneys. That one meeting with Mr. McAuliffe was clearly not the extent of your interaction on that matter.

Last Thursday you testified: "I have never ever in my career exercised undue influence to influence the outcome of a case." However, one of your senior career employees wrote in response to a question from the press office about whether Greentech had received special treatment: "We absolutely gave special treatment to Green Tech at the directive of D1. D1 was working directly with the R[egional] C[enter]'s atty . . . . Additionally, I would call a wholesale rewrite of the AAO's decision by the front office special treatment." D1 is an apparent reference to you." [Emphasis in the Grassley letter; footnotes omitted.]

The next 10 pages of the senator's letter, and many of the 87 pages of attachments, based largely on e-mails from within USCIS, cite chapter and verse about other Mayorkas contacts with the case, and specific decisions made in favor of Greentech, including the unusual re-writing (and reversing) of a draft opinion submitted to Mayorkas by the quasi-independent Administrative Appeals Office (AAO), the in-house appeals agency within USCIS.

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Gulf Coast Funds Management, a USCIS-licensed regional center, is an entity that sought EB-5 funds from investors for GreenTech. It is managed by Anthony Rodham, a brother to former Secretary of State Hillary Clinton. The EB-5 program, run by USCIS, grants green cards to families of investors who invest $500,000 in USCIS-approved investment vehicles.

So far I have not seen any reply from Mayorkas or his allies, but a close reading of the Grassley document certainly seems to support the senator's charges that Mayokas intervened in this EB-5 case, and that he did not tell the truth about the extent of it.

There are two elements in this dispute: the charge that the director over-rode his staff on a case involving a well-connected friend of the administration and the separate charge that he did not tell the truth about it.

The first of these charges, while unattractive, is not unusual in any administration; the other is considerably more damning and more dangerous. Senators can get quite annoyed if they think that they have been lied to.

Three thoughts:

  1. There is someone either within USCIS, or recently retired from there, who has both a lot of courage and a prodigious collection of emails on the case.

  2. It is likely that the Republicans will, if Mayorkas does not withdraw his name, block his nomination to the deputy secretaryship; they have moved in this direction on a number of other Obama nominations, rarely with as much evidence as there is in this instance. They can do so by threatening a filibuster.

  3. Would a non-confirmation by the Senate to the deputy secretaryship suggest that Mayorkas may have to leave his current post? Maybe. I am sure that there are other precedents for this situation, but the only one I recall came during the Johnson Administration.

LBJ talked my former boss, Arthur Goldberg, into resigning from the Supreme Court to be the U.S. ambassador to the UN, so that he could appoint LBJ's old friend, Abe Fortas, to the bench. Fortas was duly confirmed by the Senate. A couple of years later, in 1968, LBJ nominated Fortas to be Chief Justice, a move requiring yet another confirmation. For a variety of reasons, including an ethics question, the Senate did not confirm. Fortas stayed on the bench for another year until yet another ethics problem caused him to retire.

That precedent would suggest that Mayorkas could stay at USCIS, even if not confirmed by the Senate for the DHS post. We will see.