Inspector General Report: Investigation findings on USCIS Sec. Mayorkas

Introduction and Summary

We undertook this investigation after receiving allegations from career U.S. Citizenship and Immigration Services (USCIS) employees that Alejandro Mayorkas, then-Director of USCIS and current Deputy Secretary of the Department of Homeland Security (DHS), 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 Employment-Based Fifth Preference (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.

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 recollected, Mr. Mayorkas asserted that he intervened to improve the EB-5 process or to prevent error. As a result, he claimed that he took a hands-on approach when a case warranted his personal involvement. Mr. Mayorkas told us that his sole motivation for such involvement was to strengthen the integrity of the program; he said he had no interest in whether a particular application or petition was approved.

• 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 external stakeholders on specific matters outside the normal procedures, coupled with favorable action that deviated from the regulatory scheme designed to ensure fairness and evenhandedness in adjudicating benefits, created an appearance of favoritism and special access.

Employee Whistleblower Complaints and Other Sources of Information

We started this inquiry as a result of a whistleblower complaint in September, 2012. During the course of our work, we identified a significant number of DHS employees—more than15—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.1 

Being a whistleblower is seen to be hazardous in the Federal government, and a typical investigation would have one or perhaps two. 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 (AAO), 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.

Their allegations were unequivocal: Mr. Mayorkas gave special access and treatment to certain individuals and parties. They told us he created special processes and revised existing policies in the EB-5 program to accommodate specific parties. According to the employees, but for Mr. Mayorkas’ actions, the career staff would have decided these matters differently. Employees felt uncomfortable and pressured to comply with managers’ instructions that appeared to have come from Mr. Mayorkas or those working directly for him.

Again, these comments were not from one or even a couple of disgruntled employees with axes to grind; rather, these were individuals throughout the ranks of USCIS, in different locations, engaged in different functions, with different experience levels.

We looked to see whether the complaints stemmed from mere resentment about Mr. Mayorkas wanting to change how USCIS operated. As the Director, Mr. Mayorkas appeared to want to change the culture of USCIS. Employees told us that he exhorted individuals to “get to yes.” To accomplish this mission, he made a number of reassignments within the Senior Executive Service corps, including within the EB-5 program. He restructured the EB-5 program, including relocating the processing center from California to Washington, DC, and he instituted broad new rules that, in the minds of many career USCIS employees, eased the ability of foreign investors to receive residency status.

Each of these decisions was legitimately within his purview, and we take no position as to the wisdom of any of these actions. However, the complaints we heard were not simply policy-based disagreement over the direction Mr. Mayorkas was taking USCIS. Rather, they centered on his actions that appeared to give special access and special consideration to a small group of applicants and stakeholders.

During the course of our investigation, we conducted approximately 50 interviews, including taking sworn statements, collected more than one million official emails and related files (including the email files of Mr. Mayorkas and other senior Department leaders), and analyzed more than 40,000 telephone call records.2 

We made several attempts to interview key external EB-5 stakeholders, many of whom declined to speak with us. Upon completion of our witness interviews and document review, we interviewed Mr. Mayorkas to obtain his perspective on what we had found. After the interview, Mr. Mayorkas provided a 32-page written statement and supporting exhibits. Mr. Mayorkas’ written response is appended to this report. During our interview with Mr. Mayorkas, we learned of additional material he had left behind at USCIS headquarters; we also reviewed this material. We did all of this to gain a clearer and more accurate view of the events and circumstances central to this investigation.3

 

Appearance of Favoritism and Special Access

We found that employees’ belief that Mr. Mayorkas favored certain politically powerful EB-5 stakeholders was reasonable. In our view, Mr. Mayorkas created this perception:

Mr. Mayorkas was in contact, outside of the normal adjudication process, either directly or through senior DHS leadership, with a number of applicants and other stakeholders having business before USCIS. This method of communication violated established USCIS policy for handling inquiries into the program. We do not have direct evidence of what Mr. Mayorkas and these applicants and stakeholders discussed; some emails suggest that the conversations were quite substantive. 

In Mr. Mayorkas’ testimony for his confirmation as Deputy Secretary, and in his interview with us, he stated that he simply received information from a variety of stakeholders and then acted on it to improve the program. With few exceptions, the other parties to the conversations declined to speak with us.

• USCIS staff knew that Mr. Mayorkas was communicating with applicants and other stakeholders outside established USCIS policy; they also understood that these applicants were prominent or politically connected.

• After this communication, staff witnessed Mr. Mayorkas inserting himself in unprecedented ways into an adjudicative process governed by statute, regulation, and USCIS policy. As a result of his deviation from the normal process, applicants and stakeholders with whom he had just been in contact received a specific benefit. 

Many employees concluded, not unreasonably, that the pressure exerted on them was because the individuals involved were politically connected. 

As one employee told us:

In January 2013 we received expedite requests for both Gulf Coast Funds and Las Vegas Regional Centers. Both of these requests made their way to Director Mayorkas and a whole slew of top USCIS people were involved in making these expedites happen. What is concerning is that we are very inconsistent as just a few weeks later, in early February 2013, we received expedite requests from two additional Regional Centers, Grand Canyon and Florida Equity and Growth Fund. 

Upon receipt of these requests, [senior-level USCIS management] forwards the request to the California Service Center and simply asks the CSC to handle as they deem appropriate. 

Why was there no commentary on the validity of their request as was the case with Las Vegas?

Why did these not make their way to Director Mayorkas?

Why were we not as concerned with these requests as we were with Gulf Coast Funds and Las Vegas Regional Centers?

 

Extraordinary Focus on a Handful of Matters

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. The EB-5 program has hundreds of existing regional centers and, in the three years in question, received more than 700 applications for regional centers. Yet, Mr. Mayorkas largely focused on only a handful.

The EB-5 program itself was only a fraction of USCIS’ operations, comprising only a few thousand adjudications out of a typical annual total of more than five million. Notwithstanding his other duties, Mr. Mayorkas’ actions involving a handful of applicants—going so far, for example, as to offer to personally write a complex adjudicatory opinion—were seen by staff as evidence of special access and special favors. One senior-level manager told us that “the frequency of the interest shown by the Director's office in the AAO's EB-5 caseload escalated beyond any interest shown in other types of cases.”

Three Examples of Contact and Intervention

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 timelines for two of these matters in appendixes.

• LA Films Regional Center: Mr. Mayorkas ordered that a USCIS decision to deny a proposal to fund a series of Sony movie projects in Los Angeles

be reversed after he was in contact with politically prominent stakeholders associated with the venture. Mr. Mayorkas later created a “deference review board,” staffed with individuals he handpicked, to review a separate series of Time Warner movie projects. This board did not previously exist and was never used again after it voted to reverse the adjudicators’ proposed denials. Remarkably, there is no record of the proceedings of this board.

• Las Vegas Regional Center: At the request of Senate Majority Leader Harry Reid, Mr. Mayorkas intervened to allow expedited review of investor petitions involved in funding a Las Vegas hotel and casino, notwithstanding the career staff’s original decision not to do so. The career staff noted that the purported urgency was of the applicant’s own making and that the decision to expedite fell outside EB-5 program guidelines. Nevertheless, Mr. Mayorkas pressured staff to expedite the review. He also took the extraordinary step of requiring staff to brief Senator Reid’s staff on a weekly basis for several months.

• 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. It also lowered the morale of those involved.

1 We are obligated to protect whistleblowers from retaliation and have a duty under the Inspector General Act to not disclose the identity of an employee without his or her consent, unless we determine such disclosure is unavoidable. As a result, this report does not identify any employee witnesses.

2 We were unable to obtain records from Mr. Mayorkas’ office telephone, so we do not have records of calls he may have made from or received in his office because the telephone system at USCIS (private branch exchange) switches calls between users on local lines and allows all users to share a certain number of external phone lines.

3 Although we are confident in the fidelity of the data we did acquire, we often found that the “dataset” (i.e., email and like files associated with a user name) was incomplete for the time period requested or simply did not exist. We also identified similar problems with Mr. Mayorkas’ calendar. For example, employees provided copies of emails from Mr. Mayorkas that we did not find when we searched Mr. Mayorkas’ email dataset. Our investigation did not reveal that incomplete or missing datasets were the result of intentional efforts to delete them, but rather a combination of circumstances indicating a broader issue of data retention within the Department. For example, we encountered problems resulting from the migration between old and new email systems, significant limitations in searching and acquiring data from older tape backup systems, and inadequate component and departmental data retention policies (both past and present) or poorly enforced policies.