Tom Carper, U.S. Senator for Delaware

“Mr. President – I rise today to speak again in strong support of the nomination of Alejandro Mayorkas to serve as the Deputy Secretary of the Department of Homeland Security. I spoke yesterday about Director Mayorkas’ impeccable credentials and experience that have prepared him for this important position. My colleague from Louisiana, Senator Landrieu, did the same. Today, I’d like to address some of the concerns about Director Mayorkas that have been raised by my friends on the other side of the aisle and set the record straight.

“Now, I understand that some of our Republican colleagues believe that we cannot move forward with consideration of Director Mayorkas’ nomination until the OIG finishes its investigation begun in September 2012 into his management of the complex EB-5 investor visa program.

“Respectfully, I disagree. We have waited long enough. Let me explain why.

“As I’ve said before, the Department of Homeland Security has been without a Deputy Secretary since April—eight full months. And six months have passed since Director Mayorkas was nominated. Just three days before his confirmation hearing in July, information about the OIG investigation was leaked to Congress and the media in a highly irregular manner.

“The information that was leaked indicated that in September 2012, the OIG had received allegations about conflicts of interest, misuse of position, and an appearance of impropriety by Director Mayorkas and other agency officials. We also now know that the OIG did not actually begin investigating these allegations for almost a year after receiving them.

“Importantly, the OIG confirmed that this was not in any way a criminal investigation.

“Let me say that again because some of my friends on the other side of the aisle seem to be confused about this: the OIG confirmed in July and reconfirmed in December that this is not, and never has been, a criminal investigation.

“To my amazement, Director Mayorkas has never been contacted by, nor interviewed by, the OIG about this investigation. No phone call. No letter. No email. Nothing. He only learned of it after its existence had been leaked to Congress in July just days before his committee hearing. Even then, he ably and vigorously disputed the allegations in his interviews with Committee Members and staff, as well as at his confirmation hearing in July.

“Unfortunately, rather than question the nominee about this matter and give him a chance to refute these anonymous allegations, Republican members of our Committee boycotted his confirmation hearing and have refused to meet with Director Mayorkas to give him an opportunity to respond to these allegations from people whose names and faces we don’t even know.

“Senator Grassley said this week that Director Mayorkas has been given a chance to defend himself and has “utterly failed” to reply to his letters. On the contrary – Director Mayorkas did in fact respond to Senator Grassley’s letters this past August 20th. In fact, he would have gladly spoken with Senator Grassley – or any other Senator – about these allegations face to face.

“I am perplexed that an even better option, speaking to Director Mayorkas himself, was not taken advantage of by Senator Grassley. In fact, I offered to fly to Iowa with Director Mayorkas in August to meet with Senator Grassley—but Senator Grassley declined.

“So I think the record shows that Director Mayorkas has been eager to meet with Senators to answer their questions, but our colleagues across the aisle have been unwilling to give him what seems to me should be a common courtesy.

“Getting back to the OIG investigation, of course in a perfect world I would prefer it be completed before moving forward – and at one point I thought it might be.

“First let me make clear to all that there is nothing improper about the Chairman of a Committee to ask for an update on the status of a pending investigation.

“Accordingly, in July I inquired about the status of this investigation and was told that it would be completed in October. In October, I inquired again about the status and was told it would be completed in December.

“On December 2nd, a bipartisan group of Committee staff participated in a telephone call with the head of investigations at the OIG to receive a status update. They were told it would likely take two or three more months to complete the investigation. In fact, every time we have spoken with the OIG, we are told they are just two or three months away from completing this investigation. I respect that the OIG must do its job, but we must do ours as well, and we cannot wait another two months every other month, especially for a position as critical as this one.

“During this call with bipartisan Committee staff, the OIG confirmed that, to date, they have found no evidence of criminal wrongdoing by anybody at DHS, including Director Mayorkas. That’s right. No evidence. None. Nada.

“Given that the investigation appears to be months away from conclusion and that its completion date has already slipped several times -- and given the confirmation by the OIG that there is no evidence of criminal wrongdoing -- it is time to move forward.

“The allegations that have made been made public cluster around Director Mayorkas’ administration of the EB-5 visa program. It is an extremely complicated program that provides foreign investors an opportunity to immigrate to the United States in exchange for significant investments in job-creating enterprises here.

“The Department of Homeland Security OIG just completed an audit of the program, as a matter of fact. But I will get to that a bit later.

“The primary complaint about Director Mayorkas concerns an EB-5 related application by the Gulf Coast Funds Management regional center which has ties to Virginia Governor-elect Terry McAuliffe.

“Anonymous sources have reportedly alleged that Director Mayorkas improperly intervened to help change a draft legal decision so that it would come out in favor of Terry McAuliffe’s former company, Greentech Automotive.

“First of all, I think it is important that everybody understands up front that Greentech did not get what they wanted. I say again, the final decision in this case DID NOT come out in Greentech’s favor.

“Second, it is important to note that the author of the Greentech decision -- the former head of the Administrative Appeals Office at US Citizenship and Immigration Services, Mr. Perry Rhew told my staff just last week that he strongly disputed the allegation that Director Mayorkas had inappropriately influenced this decision.  

“Many of the other allegations that have been made public about Director Mayorkas’ management of the EB-5 program contend that applications appear to have been processed without sufficient regard to security concerns.

“However, in reviewing the leaked emails that were attached to these accusations, Director Mayorkas actually says the exact opposite.

“I found this disconnect between the allegations and the emails presented as evidence so striking that I am going to read exactly what Director Mayorkas said in his email to subordinates on January 30 this year concerning an application for a Regional Center in Las Vegas: “we will take the time needed to resolve the security issue and we will not act until we have achieved resolution. I agree that we need to run enhanced security and integrity checks.”

“This email directly refutes the claim that Director Mayorkas was pushing to expedite applications despite the security concerns raised by his subordinates.

“In another email attached to one of the letters making accusations against Director Mayorkas, Director Mayorkas forwards a question about Mr. McAuliffe’s company to subordinates and notes “I want to make sure that we are providing customer service consistent with our standards, but that we are not providing any preferential treatment.”

“Are these the actions of someone who is trying to exert improper influence or subvert security checks? I think any fair minded person would agree that the answer is NO!

“Even our Committee’s Ranking Member, and my friend, Dr. Coburn indicated that the allegations against Mr. Mayorkas, although serious, are most likely not grounded in reality. I don’t want to mince his words, so I will quote him directly. In reference to the allegations against Mr. Mayorkas, Dr. Coburn said at a Committee meeting, “I doubt they are true, but we do not have the facts.”

“I agree with Dr. Coburn. We don’t have any facts pointing to any sort of wrong doing by Director Mayorkas at all. None of the anonymous sources or so-call whistleblowers have presented information to the Majority regarding their concerns, something that is unprecedented in these types of circumstances for our Committee.

“On the one hand, we have over 30 people – from both sides of the aisle -- who are well know and hugely respected citizens have gone on the record with glowing support for Director Mayorkas. On the other hand, not one person—not one—has stepped forward publicly opposing Director Mayorkas.

“Some of the people who have written in strong support of Director Mayorkas include the last Deputy Secretary Jane Holl Lute, the last Senate confirmed IG, Richard Skinner, and the three most senior border security officials in the George W. Bush Administration, Robert Bonner, Ralph Basham and Jason Ayhern.

“The fact of the matter is that Director Mayorkas has been proactively addressing national security and fraud concerns in the EB-5 program for years. Soon after being confirmed, Director Mayorkas took a number of administrative and operational steps to address national security concerns. Where he lacked the administrative authority to improve the EB-5 program, he repeatedly appealed to Congress for the legislative authority that he needed.

“Unfortunately, Congress dealt Director Mayorkas and his entire agency a bad hand when we reauthorized the EB-5 program in 2012. We failed to give the agency any of the legal authorities that Director Mayorkas and his team at USCIS had specifically requested in order to enable them to address the national security and fraud vulnerabilities that it could not address on its own.  

Earlier this year, during the Judiciary Committee debate on S. 744, the immigration reform bill, Senator Leahy introduced an amendment that made virtually all of the national security fixes that Director Mayorkas had requested.

“While the comprehensive immigration reform bill passed the Senate with strong bipartisan support, it is unfortunately stalled in the House.

“Fortunately, Senate Judiciary Committee chairman Pat Leahy is working on a stand-alone bill to address these national security and fraud concerns. I would urge all of my colleagues concerned about security issues in the program to join me as a cosponsor of that bill.

“It strikes me as grossly unfair to punish Director Mayorkas for the inability of Congress to address the vulnerabilities in the EB-5 program that Director Mayorkas and his team brought to our attention and asked us to fix. In essence, those of us in Congress failed to do our job, yet Director Mayorkas is taking the fall for our failure. How is that fair? It isn’t!

“I mentioned previously that the OIG completed an EB-5 audit and although that report has not yet been publically released, some of my colleagues have been discussing the OIG’s findings earlier today. In light of that, I think this is a good time to get some facts straight—because this audit remarkably misses some key facts.

“First of all, the report says the EB-5 program is vulnerable to fraud and national security risks, and that the legislation that created the program makes it difficult to fully address these risks. That is something that has been well known by Congress and the Administration long before this report and long before Director Mayorkas took over US Citizenship and Immigration Services in August of 2009. The emails I just discussed demonstrate that Director Mayorkas did not take national security and fraud matters lightly.

“Despite the widespread knowledge about the national security and fraud vulnerabilities in the EB-5 program – and all visa programs for that matter -- USCIS did not, and does not still, have the authorities that it asked Congress for in order to adequately police Regional Centers and the EB-5 program. I find it incredible that the OIG Audit report makes no mention of Director Mayorkas’ efforts to get Congress to pass legislation since June 2012.

“In the absence of being granted those authorities by us – Congress – Director Mayorkas took it upon himself to implement other reforms. Again, many of these reforms took place before, or during, this audit—and yet, incredibly, they are not even mentioned in the report.

“One of his first actions as Director was to elevate the Fraud Detection and National Security office to a Directorate, reporting directly to him. This ensured that national security professionals had a seat at the management table, and a voice in all major decisions.

“He expanded reporting requirements and security checks for Regional Centers, which led USCIS to increase the number of national security investigations in the EB-5 program by more than 50 percent in the past four years.

“He increased EB-5 staffing from nine people in 2009 to more than 80 today, and hired senior economists and national security officers to work side by side with immigration specialists.

“And, he proactively engaged other agencies, such as the Securities and Exchange Commission, the FBI, and the Treasury Department to help police the program. In fact, Senator Grassley himself noted this week that Director Mayorkas convened a National Security Staff working group to examine the program last year.

“These are not the actions taken by someone who does not care about national security.

“The audit report says that the EB-5 adjudication process is ambiguous. USCIS recognized there was a need for a consolidated adjudication manual, and published one in May 2013 -- one more fact that is not even mentioned in the audit report.

“The audit report says that the program is fraught with the perception of outside influence. There is no denying the fact that this program gets a lot of attention -- including from Congress. In fact, USCIS receives 1,500 queries about the EB-5 program each year from Congress—1,500! In fact almost half of my Senate colleagues on both sides of the aisle have inquired about EB-5 cases since 2009. That is just an enormous amount of interest from Congress in this program.

“But let me be clear. The fact that this program garners a lot of attention and that Members of Congress and other high level elected officials from both parties inquire frequently about the status and prospects of pending applications does not mean that USCIS adjudicators are swayed by the attention. Perception is not always reality.

“Contrary to what some have suggested or assumed, the OIG reported that all of the files they reviewed in their audit – including the ones associated with Terry McAuliffe’s company – appeared to support the final decision.

“Let me say that again—the OIG audit concluded that the evidence it reviewed in these cases supported the final decision.

“Based on the evidence that we have before us, it is clear that Director Mayorkas has taken strong steps to improve the EB-5 program. These are the actions of a dedicated, thoughtful, and committed public servant. They are the actions of a leader who is willing to make tough – but necessary – decisions in order to shake things up and improve a program. That is exactly the kind of leadership we need at DHS and across the federal government.

“I also believe that we need leaders who are committed to doing what they believe in their hearts is the right thing to do. At his confirmation hearing in July, I specifically asked Director Mayorkas about the allegations raised by some of these anonymous sources. Director Mayorkas testified before this Committee—under oath—that he has never put his finger on the scales of justice. I have seen no evidence since then that would lead me to question his veracity.

“I do not believe that we can let rumors spread by anonymous sources rule the day.

“Some of our colleagues have been very critical of DHS’ shortcomings and are quick to point out its failures.

“However, one of the major reasons the Department fails to live up to expectations more than they – and the rest of us – would like is because their top leadership ranks have been riddled with vacancies for much of this year. And, the same is true of too many other federal agencies!

“Again, it’s just not fair to criticize the agency on the one hand, and yet seem content, on the other to leave them without any Senate-confirmed leadership for months on end. We can’t have it both ways. It’s time to stop playing political games. It’s time to vote to confirm Ali Mayorkas for the Deputy Secretary position at DHS.”