[Senate Hearing 113-404]
[From the U.S. Government Publishing Office]
S. Hrg. 113-404
NOMINATION OF HON. ALEJANDRO N. MAYORKAS
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOMINATION OF HON. ALEJANDRO N. MAYORKAS TO BE DEPUTY SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
__________
JULY 25, 2013
Available via the World Wide Web: http://www.fdsys.gov/
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
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20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEITKAMP, North Dakota JEFF CHIESA, New Jersey
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Stephen R. Vina, Deputy Chief Counsel for Homeland Security
Deirdre G. Armstrong, Professional Staff Member
Keith B. Ashdown, Minority Staff Director
Christopher J. Barkley, Minority Deputy Staff Director
Daniel P. Lips, Minority Director of Homeland Security
Laura W. Kilbride, Chief Clerk
Lauren M. Corcoran, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Landrieu............................................. 4
Senator Carper............................................... 5
Senator Heitkamp............................................. 11
Senator McCaskill............................................ 13
Senator Tester............................................... 20
Prepared statements:
Senator Carper............................................... 31
Senator Landrieu............................................. 35
Senator Coburn............................................... 36
WITNESSES
Thursday, July 25, 2013
Hon. Dianne Feinstein, A United States Senator from the State of
California
Testimony.................................................... 1
Prepared statement........................................... 38
Hon. Alejandro N. Mayorkas, to be Deputy Secretary, U.S.
Department of Homeland Security
Testimony.................................................... 9
Prepared statement........................................... 41
Letter from the Office of Government Ethics.................. 44
Biographical and financial information....................... 47
Responses to pre-hearing questions........................... 70
Responses to post-hearing questions.......................... 143
Letters submitted by Senator Carper.......................... 181
Letters of support........................................... 185
NOMINATION OF
HON. ALEJANDRO N. MAYORKAS
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THURSDAY, JULY 25, 2013
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 11:03 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Thomas R.
Carper, Chairman of the Committee, presiding.
Present: Senators Carper, Landrieu, McCaskill, Tester, and
Heitkamp.
Chairman Carper. Good morning, everyone. Welcome to this
hearing. Welcome, Secretary Mayorkas. Bienvenido. Welcome to
Senator Feinstein and certainly welcome to our colleagues on
the Committee, especially Senator Landrieu, who has agreed to
say a few words about you before we get started.
Senator Feinstein and Senator Landrieu are leaders on the
Appropriations Committee. They have a markup literally going on
right now. I am just very grateful for your willingness to come
here and to introduce Director Mayorkas, and I am just going to
yield directly to you, Senator Feinstein, for whatever you
would like to say. We are just grateful that you could come.
Thank you.
STATEMENT OF HON. DIANNE FEINSTEIN,\1\ A UNITED STATES SENATOR
FROM THE STATE OF CALIFORNIA
Senator Feinstein. Well, thank you very much, Mr. Chairman,
and I appreciate the courtesy, so thank you.
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\1\ The prepared statement of Ms. Feinstein appears in the Appendix
on page 38.
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It is a pleasure for me to introduce President Obama's
nominee for Deputy Secretary of the Department of Homeland
Security (DHS), Alejandro Mayorkas.
I have known Ali for many years and am proud to have
recommended him to President Clinton for the position of United
States Attorney for the Central District of California as well
as to President Obama for his current position as Director of
U.S. Citizenship and Immigration Services (USCIS).
The role of Deputy Secretary within the Department of
Homeland Security is really an important one. The Deputy
Secretary is charged with overseeing the agency's efforts to
counter terrorism and enhance the security and management of
our borders while facilitating trade and travel and enforcing
our immigration laws.
Additionally, this Deputy Secretary assists in the
safeguarding and security of cyberspace and provides support
for national and economic security in times of disaster in
coordination with Federal, State, local, international, and
private sector partners.
Mr. Mayorkas I believe is well qualified for this position.
He brings to this office a diverse background and set of
experiences in both the private and public sectors.
Born in Havana, Cuba, Mr. Mayorkas earned his Bachelor of
Arts (B.A.) with distinction from the University of California,
Berkeley, in 1981. He earned his law degree from Loyola Law
School in 1985.
Those who have enjoyed the opportunity to work with him
regard him as being highly intelligent, thoughtful, kind,
compassionate, and dedicated to doing the ``right thing.''
From 1989 to 1998, he served as an Assistant U.S. Attorney
for the Central District of California where he prosecuted a
wide array of Federal crimes, specializing in the prosecution
of white-collar crime. Federal law enforcement agencies
recognized his success with multiple awards. For example, he
received commendations from the Federal Bureau of Investigation
(FBI) Director Louis Freeh for his successful prosecution of
Operation PolarCap, the largest money-laundering case in the
Nation at the time.
He continued to distinguish himself by becoming the first
U.S. Attorney in the Central District of California to be
appointed from within the office. He created the Civil Rights
Section in the office to prosecute hate crimes.
He developed an innovative program to address violent crime
by targeting criminals' possession of firearms, prosecuting
street gangs, and at the same time developing after-school
programs to help at-risk youth discover and realize their
potential. He uniquely demonstrated the ability to
simultaneously be firm with criminals, protective with the
innocent, and supportive and empowering to our future leaders.
As supported by the many law enforcement and community
awards he received during his tenure as a U.S. Attorney, Mr.
Mayorkas' accomplishments extended beyond his district.
He successfully expanded his office's community outreach
programs and cooperation with international players in the
fight against crime. He directly resolved cases while also
overseeing hundreds of attorneys addressing immigration
matters, which included complex and sensitive prosecution of
individuals and rings producing false immigration documents,
illegal reentry cases, and alien-smuggling conspiracies.
The Administrator for the Drug Enforcement Administration
(DEA), Michele Leonhart, noted, and I quote, ``he was
instrumental in broadening collaboration between law
enforcement agencies to address violent crime and expanded
cooperation with other nations to address the growing threat of
transnational crime.''
Combined with his prosecuting white-collar crime, public
corruption, computer-related crime, and international money
laundering, she wrote that such a ``broad base of experience .
. . provides him with a unique perspective on threats to
national security.''
He further developed his sharp legal skills as a partner at
O'Melveny & Myers from 2001 to 2009 where he represented
companies in high-profile and sensitive government enforcement
cases. He was recognized by his worldwide firm with an annual
award for ``leadership, excellence, and citizenship,'' and was
named by the National Law Journal (NLJ) as one of the ``50 Most
Influential Minority Lawyers in America'' in 2008.
Since his confirmation as Director of USCIS 4 years ago in
2009, he has continued to exert his influence through
leadership, excellence, and citizenship in accomplishing the
agency's mission. He has improved the immigration services and
policies of USCIS by realigning its priorities for a modern-day
America that seeks to preserve its legacy as a Nation of
immigrants while ensuring national security and public safety--
no easy task.
Throughout his current role as Director of USCIS he has
successfully preserved and increased the integrity of our
immigration laws by decreasing fraud and bringing
accountability to our immigration system. He has worked to
secure our Nation's criminal and immigration laws in the face
of increasing gang and border violence.
As technology advances, so too have our needs to prevent
fraud and to safeguard immigration documents from tampering.
Mr. Mayorkas has confronted that challenge by enhancing the
scope and frequency of national security vetting of applicants
for immigration benefits and by redesigning immigration
documentation with enhanced security features.
He has led USCIS in the other half of its mission, to
preserve the role of America as a just Nation that treats
immigrants at our shores humanely and with an eye toward the
potential they bring to our Nation.
To combat notario fraud and other unscrupulous practices
that undermine the integrity of the immigration system, Mr.
Mayorkas launched the Unauthorized Practice of Immigration Law
initiative. It is a nationwide collaborative effort with
Federal, State, and municipal agencies and enforcement
authorities that work to raise awareness among immigrant
communities and to investigate and prosecute wrongdoers.
After the 2010 earthquake in Haiti, he developed and
implemented a humanitarian parole program on an emergency basis
to save orphans and unite children with their adoptive families
here.
Significantly, under President Obama's directive to grant
deferred action to immigrants who were brought to this country
as children and who seek to legally remain in the United
States, Mr. Mayorkas swiftly implemented the Deferred Action
for Childhood Arrivals (DACA), initiative in 60 days. In less
than 1 year, over half a million people have applied to remain
in the United States, the only home they have known.
He has realigned the agency's organizational structure,
including 246 offices and facilities worldwide, to more
accurately serve key priorities and achieve efficiency. He has
stringent budget reviews that have resulted in cost-saving
measures of $160 million in budget cuts for fiscal year (FY)
2010.
Mr. Chairman, I took an additional amount of time because I
know there are currents swirling around Mr. Mayorkas's
confirmation. But I also know that this is an incredibly
special human being who is well deserving of this position, and
I know that this Committee will do the right thing and confirm
him for nomination to the floor of the Senate.
Thank you very much.
Chairman Carper. Thank you very much.
Senator Landrieu, thank you so much for taking time to join
this Committee as well as your other Committee, and we welcome
your remarks. Please proceed.
OPENING STATEMENT OF SENATOR LANDRIEU\1\
Senator Landrieu. Thank you, Mr. Chairman. I will be brief.
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\1\ The prepared statement of Senator Landrieu appears in the
Appendix on page 35.
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Chairman Carper. You do not have to be brief.
Senator Landrieu. I wanted to be here to join Senator
Feinstein in that fine and comprehensive and strong and
excellent introduction of Alejandro Mayorkas. I have come to
know this gentleman very well over the last several years and
want the Members of this Committee to know that I have hardly
worked with a finer individual in any Department of the Federal
Government. He is a can-do administrator with a heart for
people, an eye on the bottom line, and a person that is
absolutely full of the highest integrity.
Unlike Senator Feinstein, I did not know Ali Mayorkas 16
years ago. I met him most recently 2 years ago and was so taken
by his immediate willingness to help in a very serious problem,
Mr. Chairman, that had to do with children that had been
literally lost, adoptees stuck in orphanages for years, parents
in America desperate for someone to listen to them. And this
man, who runs the largest immigration agency in the world with
all of the pressure that is on him from all of us, took time
out of his schedule and identified some staff that could help.
To me, that says it all. And we need people in our government
that are willing to serve people directly, that understand the
hearts of people, and I know Ali Mayorkas is that kind of
person.
I am going to submit some additional statements about the
swirling that Senator Feinstein talked about into the record so
as to not gum up the meeting this morning. But I just want to
say how strongly I feel that the President could not have found
a better person, with more integrity than the gentleman sitting
before us today. And I am going to support him wholeheartedly.
I am going to talk with every Member of this Committee on both
sides of the aisle and urge them to quickly confirm this
nominee because this department needs all the focus and help.
And as the Chair of the Homeland Security Appropriations
Committee, I hope my voice and my opinions will be strongly
heard.
I thank you, Mr. Chairman, and best of luck to you, Mr.
Mayorkas. And I thank your family for being here. His wife is
not here, and his kids, because they have taken a vacation, and
he has not made a vacation in the last 4 years, he has been so
busy. But his brothers are here to support him, and his family
is very important to him, and as a refugee, political refugee
from Cuba in the 1960s, I think he most certainly can
appreciate the importance of our democracy, our laws, and the
significance of citizenship to the people of our Nation and the
world.
Thank you.
OPENING STATEMENT OF CHAIRMAN CARPER
Chairman Carper. Senator Landrieu, thank you very much.
Let me just say, Secretary Mayorkas, you could not have two
better advocates than Senator Landrieu and Senator Feinstein. I
think you know that. And we are just grateful that each of you
could be here to share your thoughts and your determination to
ensure that we do the right thing.
Today we meet to consider the nomination of Alejandro
Mayorkas, President Obama's choice to serve as Deputy Secretary
of the Department of Homeland Security. Mr. Mayorkas currently
serves, as we heard, as the Director of U.S. Citizenship and
Immigration Services. We thank him for that service and for his
willingness to be considered for the Deputy Secretary position.
This Committee is responsible for working with the
Administration to help protect our Nation's security at home
and abroad. At the same time, we strive to make sure that
Federal agencies work better and more efficiently with the
resources that we entrust to them.
Part of our responsibility is ensuring that we have
effective leaders in place to provide essential guidance. And
to that end, our Committee must consider Administration
nominees in both a thorough and a timely manner as part of the
full Senate's confirmation process.
At the Department of Homeland Security alone, I believe
there are 15 senior leadership positions that are or will be
vacant in the very near future. At least six of these positions
require Senate confirmation. I call this phenomenom ``Executive
Branch Swiss Cheese.''
Congressman Jason Chaffetz, a Republican colleague from
Utah who sits on the House Homeland Security Committee,
recently put the leadership predicament at the Department of
Homeland Security this way, here is what he said: ``It is one
of the biggest agencies that we have, and it has one of the
lowest levels of morale on record, based on the surveys. And
when you have vacancies at the top, you have this vacuum that
is unfulfilled, and there is a total lack of leadership.''
He has a point. In 6 weeks, we face the prospect of a
Department of Homeland Security led by an Acting Secretary and
an Acting Deputy Secretary. The issues this Department deals
with every day, including the days ahead, are daunting: the
threat of terrorist attacks, cyber attacks on a 24/7 basis,
border security, immigration reform, and the list goes on.
This Department has needed and will continue to need strong
leadership. Janet Napolitano and former Deputy Secretary Jane
Holl Lute have provided that for the past 4 years. Jane has
already left, and Secretary Napolitano will be gone by early
September. All of us must feel a sense of urgency to ensure
that we have the leadership that this Department needs in
place, and soon.
Having a confirmed Deputy Secretary of Homeland Security
will help fill this leadership vacuum. It is critical then,
that we carry out our constitutional responsibility to provide
``advice and consent.''
Although our nominee is currently the Director of the
agency that manages the largest immigration system in the
world, as Senator Landrieu has said, I am sure it comes as no
surprise to him when I say the next Deputy Secretary will have
some big shoes to fill.
Former Deputy Secretary Jane Holl Lute was widely respected
by this Committee on a bipartisan basis for her leadership, for
her expertise, and for her candor. I think it is safe to say
that the Department needs somebody with her same level of
commitment to tackling problems head-on.
In no small part due to her leadership and that of the
Secretary, the Department today made great strides in many
areas, for example, in narrowing the many operational and
management issues identified as ``high risk'' by the Government
Accountability Office (GAO).
In my talks with Director Mayorkas, I believe he
understands well these management challenges and is committed
to continuing these efforts and to move the Department further
forward.
His leadership has earned the respect of several former
Department of Homeland Security officials, including Jane Holl
Lute, who said to me she would sit next to you if it would help
today; Richard Skinner, Inspector General (IG); Elaine Duke,
Under Secretary for Management; and Robert Bonner, Customs and
Border Protection (CBP) Commissioner--all of whom have written
strong letters of recommendation for Director Mayorkas, as have
many other people.
I will ask unanimous consent that these letters\1\ and many
others we have received--including one from the U.S. Chamber of
Commerce--be included in the hearing record. Without objection.
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\1\ Letters of support for Mr. Mayorkas appears in the Appendix on
page 185.
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I would also like to take a minute to review Mr. Mayorkas'
qualifications. The Senate has twice before found him qualified
for Senate-confirmed positions, as Senator Feinstein has said.
The Senate confirmed him by voice vote in 1999 to serve as U.S.
Attorney for the Central District of California, the largest
Federal judicial district in the Nation. It did so again in
2009 to serve as the Director of U.S. Citizenship and
Immigration Services.
As Director of that agency, he has made national security a
priority by taking on fraud head-on. He even created a new
directorate for fraud detection and prevention.
He was also responsible for turning around the agency's
ambitious ``Transformation'' project to create an electronic
case management system. This system had previously been mired
in cost overruns and scheduling delays. Now it is on a much
sounder footing and is beginning to deliver new capabilities
for users every few months.
He was also in charge of standing up a massive new program:
the Deferred Action for Childhood Arrivals. Not everyone may
agree on the merits of this program proposed by the President,
but it is one I support, and I know many of my colleagues do.
But I think we can all agree on this: That getting it up and
running in a very short time--60 days to be exact--is an
amazing accomplishment.
Of course, with the immigration debate in Congress still
ongoing, Director Mayorkas' expertise would be extremely
helpful in leading this Department that would be charged with
implementing comprehensive immigration reform. This is where
the rubber will hit the road. But there are also some questions
that have recently been raised about Director Mayorkas'
qualifications.
Over the last 72 hours, we have learned, albeit through
some rather unusual circumstances, that Director Mayorkas is
reportedly the subject of an ongoing DHS Inspector General
investigation. News reports suggest that the investigation
relates to a purported role he may have played in facilitating
investor visas.
At this point in time, we do not have all the facts. It is
also my understanding that Director Mayorkas has not even been
interviewed by the Office of Inspector General (OIG), despite
the fact that this investigation began almost a year ago, in
September 2012. Furthermore, the Office of Inspector General
apparently does not have any ``preliminary findings'' regarding
Mr. Mayorkas, in contrast to earlier reports. In fact, the
initial allegations have not been confirmed at this point in
time, and the Office of Inspector General has found no
wrongdoing by Mr. Mayorkas.
I might also say the same Inspector General's Office has
not had a Senate-confirmed leader for over 2 years. They have
had a series of Acting Directors, one of whom is under
investigation himself, I think by a Member of this Committee.
And, last, before this highly sensitive information was
disseminated in a rather remarkable manner on Monday night, the
Office of Inspector General had not informed Mr. Mayorkas of
its investigation.
So rather than allowing rumor, speculation, and innuendo to
rule the day, this hearing will allow us to continue the
process of vetting this nominee.
I recognize that our Republican colleagues, in a letter
sent to me yesterday, would like me to hold all action--
including even a hearing--on Mr. Mayorkas' nomination until the
Inspector General has concluded his investigation. I
respectfully disagree.
First, a hearing provides an appropriate setting for
Members of our Committee to ask questions of the nominee and to
get answers in public and under oath. This type of open forum
where Members ask questions and the nominee is given the
opportunity to respond should be encouraged, not stifled.
Second, in talking with the Office of Inspector General, we
know it is months away from completing its investigation. And
given that this office is confronting its own set of challenges
and controversies, as I suggested, it appears highly likely
that this investigation will not be concluded in a timely
manner.
I believe it would actually be irresponsible to leave the
Department of Homeland Security without a permanent Deputy
Secretary and then with an Acting Secretary until this
investigation is completed, especially given that, on September
7, our friend Janet Napolitano will be off to serve in her new
responsibilities heading up the University of California
education system.
How can we honestly expect the Department of Homeland
Security to effectively and efficiently carry out its mission,
the kinds of missions that I talked about earlier, without
strong and stable leadership?
Given the qualifications of this nominee--you heard about
him from Senator Feinstein at length and from Senator Landrieu
as well--I believe it is important for us to proceed with the
nomination hearing today. In doing so, we will be practicing
one of my core values taught to me by my parents: To treat
other people the way you want to be treated. I have met with
Mr. Mayorkas on several occasions now, and at some length
earlier this week again, and one of the questions that I asked
him--I said, ``I try to treat other people the way I want to be
treated, and I put myself in your shoes, and if someone were
questioning my integrity''--we live our whole lives--Claire
McCaskill, Heidi Heitkamp, Mary Landrieu, Dianne Feinstein, our
colleagues, we live our whole lives trying to live lives of
integrity. And to have them questioned by innuendo and being
twisted in the wind for 6 weeks, I said, ``Do we need that? ''
We are trying to get people to come and serve in these
positions. We cannot even get somebody through vetting to be
the Inspector General for this Department because they do not
want to go through the confirmation process. And he dropped out
of the vetting process and said, ``I do not want to bring my
family from California to here. Why go through all that?''
We need to move. At least we need to move and hold a
hearing. And we are going to have that hearing today.
At the end of the day, I am interested in nothing but the
truth. I hope my colleagues on this Committee feel the same
way. All nominees--and that includes Mr. Mayorkas--have an
opportunity to address Members' questions about the nominees'
experiences and qualifications for a position--both in public
and in private. We have seized this opportunity to speak with
Mr. Mayorkas privately several times in regards to his
qualifications. I believe he deserves at least to tell his
story in public and under oath and to be questioned by all of
us. I have taken the opportunity to review Mr. Mayorkas' FBI
file this week--not once but twice. I asked to look at it again
to see if maybe I had missed something. But nothing in my
conversations with Mr. Mayorkas or in my review of his FBI file
has convinced me that he should not at least have the
opportunity to be heard in a hearing.
And when we talked--I would say to my colleagues, when we
spoke with him earlier this week, I asked him, ``Do you want to
go forward with this? Do you want to go forward with this and
subject yourself to this kind of hearing and this kind of
grilling in public under oath?'' And he said, ``I am eager to
appear.''
And so we are going to make that possible for you. We are
delighted that you are here. We welcome your brothers James and
Anthony. We are glad you guys are here. I understand you have
some daughters and a wife somewhere else, and we are sorry that
they are not here with us, but we are happy that you are.
And so with that having been said, I am going to introduce
our witness. We are going to swear him in, and then we are
going to hear from him and ask some questions.
Alejandro Mayorkas has filed responses to a biographical
and financial questionnaire, answering pre-hearing questions
submitted by this Committee, and had his financial statements
reviewed by the Office of Government Ethics. Without objection,
this information will be made part of the hearing record with
the exception of the financial data, which is on file and
available for public inspection in the Committee's offices.
Now, as you may know, our Committee rules require that all
witnesses at nomination hearings are asked to give their
testimony under oath, and I am going to ask you to join me in
standing, Mr. Mayorkas, and to raise your right hand. Do you
swear that the testimony you are about to give the Committee is
the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. Mayorkas. I do.
Chairman Carper. Please be seated.
I am going to ask you to go ahead and proceed with your
statement. Feel free to introduce your family or any other
guests that are here with you today. And then I am going to ask
you three perfunctory questions that we ask of all witnesses,
and then we will open the questioning up for our Committee.
Please proceed. Welcome.
TESTIMONY OF HON. ALEJANDRO N. MAYORKAS,\1\ TO BE DEPUTY
SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. Mayorkas. Thank you very much. Mr. Chairman,
distinguished Members of the Committee, I am deeply honored by
the President's nomination and the opportunity to appear before
you today.
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\1\ The prepared statement of Mr. Mayorkas appears in the Appendix
on page 41.
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I am deeply honored by Senator Feinstein's introductory
remarks, by those of Senator Landrieu, and those of yourself,
Mr. Chairman.
In my professional life, I have had the privilege of
serving our country for nearly 16 years. My love of our country
and my drive to serve it are grounded in my family history and
upbringing. My parents brought my sister and me to this country
as political refugees in 1960, having escaped the communist
takeover of Cuba. Our parents instilled in their children a
deep and everlasting appreciation for the freedoms and
liberties that define our country and an abiding respect for
its laws. Our Nation, they taught us, is like no other, and its
qualities are never to be taken for granted but instead
cherished and protected.
Mr. Chairman, distinguished Members of the Committee, my
beautiful wife and our two beautiful young daughters are on a
vacation with our daughters' grandmother. We thought it
important that they carry through with those long ago planned
travels because, quite frankly, there may not be very many more
of them.
Far less beautiful but no less loved, my two brothers are
here---- [Laughter.]
In their stead, and I am deeply grateful.
Chairman Carper. It looks like they have your back.
Probably always have, my guess is.
Mr. Mayorkas. I am deeply grateful that----
Chairman Carper. Happy to see you guys here. Welcome.
Mr. Mayorkas [continuing]. They traveled across the country
to be here: My brother James and my brother Anthony.
I have served our country for nearly 12 years as a Federal
prosecutor in the United States Attorney's Office for the
Central District of California. Each and every day, day and
night and most often 7 days a week, I enforced the laws of this
land, and I did so aggressively and with distinction. I did so
first as an Assistant United States Attorney (AUSA), and then
as a Senate-confirmed United States Attorney. It was an
incredible honor for me to stand in a court of law with law
enforcement at my side as together we prosecuted the laws of
this land and I announced to the judge and to the jury,
``Alejandro Mayorkas on behalf of the United States of
America.''
For nearly the past 4 years, I have had the privilege of
serving as the Director of U.S. Citizenship and Immigration
Services, an agency within the Department of Homeland Security
whose workforce and reach span the globe as we administer the
largest immigration system in the world. With an incredibly
talented and dedicated workforce, some of whom are here today,
for which I am also grateful, we have prioritized and
strengthened our agency's national security safeguards and more
vigorously combated fraud to protect the integrity of the
system of which we are guardians.
Mr. Chairman, distinguished Members of the Committee, my
parents not only instilled in us a deep and everlasting
appreciation for the freedoms and liberties that define our
country and an abiding respect for its law, my parents also
taught us what it means to live a principled life, a life
grounded in values, ethics, honor, and integrity. Their
teachings, advice, lectures, admonitions, and support were
strong but not more powerful than the lesson of example. They
conducted themselves as I aspire to lead my life. As this
Committee considers whatever I have accomplished, please
understand that it is a glimpse into the character of my
parents.
I look forward to your questions. I am eager to answer
them, and I am honored to be before you. Thank you again for
the privilege.
Chairman Carper. Thanks for being here today. Thanks for
your service, and thank you for your willingness to testify and
respond to our questions and serve if confirmed.
I am going to delay my questioning and turn to former
Attorney General, now Senator Heidi Heitkamp from North Dakota.
Senator Heitkamp.
Senator Heitkamp. Thank you, Mr. Chairman. I have to tell
you, Director----
Chairman Carper. Could you hold for just a second? I
apologize. I am supposed to ask these three perfunctory
questions that we ask of all witnesses, and then I will yield
back to you.
The first question is, again, the standard question we ask
of all nominees. You have been asked these questions before in
this hearing room. Is there anything you are aware of in your
background that might present a conflict of interest with the
duties of the office to which you have been nominated?
Mr. Mayorkas. No.
Chairman Carper. OK. Do you know of anything, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibilities of the office to
which you have been nominated?
Mr. Mayorkas. No.
Chairman Carper. And, finally, do you agree without
reservation to respond to any reasonable summons to appear and
testify before any duly constituted Committee of Congress if
you are confirmed?
Mr. Mayorkas. Yes.
Chairman Carper. Thank you very much.
I apologize, Senator Heitkamp. You are recognized.
OPENING STATEMENT OF SENATOR HEITKAMP
Senator Heitkamp. Thank you so much, Mr. Chairman, and
thank you for conducting this hearing.
As a preliminary matter, I want to express to the Chairman
how much I agree with his comments this morning and with his
concern about a process that seems to get short-circuited by
rumors and by innuendo and the lack of credible evidence.
And I want to tell you, Director, how much I enjoyed
meeting you in my office as we kind of relayed some of the
concerns I have, homeland security concerns I have for my
State, and understanding that your commitment to law
enforcement, your commitment and your support by people you
have worked with, which means the world to me, that cops like
you and law enforcement likes you, because you are willing to
do the tough work of taking tough cases to trial and
representing the United States of America in cases that maybe
other people might duck on. And so I really appreciated hearing
that history about you. I really appreciate having the chance
to meet with you. And hopefully if everything comes to fruition
the way we think it will, I look forward to the opportunity of
bringing you to North Dakota and introducing you to the unique
challenges we have on the Northern Border and the unique
challenges that we have in law enforcement in a booming
economy.
I had to decide this morning whether we are going to have
the discussion that I thought we were going to have before all
of this came to light or whether we were going to have the
discussion that I think we should have that will help hopefully
maybe clear the air and give you an opportunity to respond,
because at this point it is hard from a witness' standpoint or
from your standpoint to really have an opportunity to respond
to what can only be an enormously frustrating situation for you
and your family. And so I am going to jump right in, I have
decided.
In this situation with Gulf Coast Fund Management where you
had multiple requests to intervene in the regular process, what
structures, rules, or practices did you put in place to ensure
that no ethics or rules were violated during your tenure?
Mr. Mayorkas. Thank you very much, Senator, and it was a
pleasure to meet you as well, and it would be an honor to be
confirmed for this position and to have the opportunity to
travel with you to your State and explore the challenges that
the Northern Border faces in ensuring its security.
Senator, if I can, the issues, difficult issues, complex
issues, novel issues, of law and policy that challenge the
agency and that present opportunities for resolution percolate
up through the supervisorial chain to me when they need
resolution and when they have broad application.
The manner in which those cases reach me--those issues
reach me is through cases. We are an operation. We are a large
agency. We protect our Nation's security. We combat fraud, and
we assess the eligibility of applicants who come before us
through applications and petitions through the cases that they
present to us.
I become involved in those complex, difficult, legal policy
issues when they are raised to my attention by my colleagues
which very often occurs, by Members of Congress, which very
often occurs, by news accounts, by members of the public, or by
applicants or petitioners themselves.
We defer to adjudicators on the front line to adjudicate
cases. I do not adjudicate cases. I address legal/policy issues
that are brought to my attention through the channels that I
have outlined.
Senator Heitkamp. What types of verbal orders or requests
did you make to your staff on this issue that would not be
captured by e-mail or in any other written record?
Mr. Mayorkas. Are you speaking, Senator, with respect to
the Gulf Coast matter?
Senator Heitkamp. Gulf Coast, correct.
Mr. Mayorkas. I made no orders in these cases. What I did
was sit around the table with my colleagues, as is consistently
my practice when indeed difficult legal or policy issues rise
to my level. I sat around with my colleagues, and we discussed
and resolved those issues.
Senator Heitkamp. So there would have been some verbal
communications beyond e-mails and written correspondence?
Mr. Mayorkas. Most certainly. We have set up structures,
which responds to this question and your prior one, to resolve
difficult or legal issues. Sometimes we are able to resolve the
issues with the colleagues who are handling the matter
directly. Sometimes different people have to be involved in the
discussion and bring their relevant expertise to bear. We have
set up senior policy committees. We have set up leadership
meetings, and we have set up open and collaborative forums to
resolve those issues. I do not resolve those issues alone.
Senator Heitkamp. Director, would there have been a
scheduling note of who would have attended those discussions in
your office?
Mr. Mayorkas. There very well might be. Certainly there
were a number of people around the table when we discussed the
issues.
Senator Heitkamp. I believe it is safe to say that the EB-5
visa program has some challenges attached to it through its
very nature.
What added responsibility does an agency leader have when
dealing with the program that can be considered controversial
just as a result of the way the program is structured? And what
responsibility does he or she have to ensure that their orders
are clear and the staff understands the potential pitfalls?
Mr. Mayorkas. If I may, Senator--and I appreciate the
question very much--let me speak to my responsibility, and then
let me speak about the EB-5 program about which you have
inquired.
It is my responsibility to ensure that we administer our
responsibilities, our adjudicative responsibilities, our
responsibilities to safeguard our Nation's security, our
responsibilities to protect the integrity of the system, that
we do so in strict accordance with the law and based on the law
and the facts and nothing else, that our decisions are correct,
that they are consistent, they adhere to the highest ideals of
public service, and that they are correct. And that is how I
have carried out my responsibilities.
The EB-5 program is indeed controversial, and it is
extraordinarily complex. It is like no other program that we
administer. Quite frankly, it is a program that is primarily a
business and economic program and not so much an immigration
program.
What is involved in the case is an assessment whether
foreign capital is invested properly in a new commercial
enterprise, whether the requisite amount of capital is at risk
throughout the term of the investment, whether the business
enterprise that is proposed is specifically detailed and
viable, and whether the econometric models that are submitted
to us to estimate future job creation are sound and reasonable.
Those are some of the issues that are involved in the
adjudication of the EB-5 program. And, quite frankly, when I
arrived as the Director of this agency to U.S. Citizenship and
Immigration Services, I observed that the program was staffed
with nine adjudicators, no economists, no business analysts,
and no specialists in national security and fraud detection.
And throughout my tenure, we have built that program. We have
brought economists to bear, we have brought business expertise,
and we have brought individuals dedicated to ensuring the
integrity of the program as the program has grown throughout
the years.
Senator Heitkamp. I am out of time.
Chairman Carper. Thanks, Senator Heitkamp. There will be a
second round of questions if you are able to stay. Senator
McCaskill.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. I know from your record you are a former
prosecutor, and although I have to confess that I am what I
like to affectionately call a ``911 prosecutor,'' I did not
have the luxury that some of my Federal colleagues had of kind
of being able to sit around and decide what cases to take, so I
always had this little yin-yang with all the Federal
prosecutors, because, of course, as you well know, in the
system we thought we were the real prosecutors and you guys
were not.
Having said that, I know that you were moved up to U.S.
Attorney from an Assistant USA, which is extraordinarily
unusual and speaks highly of your leadership capability and
your capabilities as a prosecutor.
So as a prosecutor, I am just going to be really candid
with you. These things that are floating out there, they may be
rumors, they may be innuendo, this may be just political. But
you have to do a rebuttal here, and I do not think you can talk
around it, and I want to give you the opportunity to say what
you want to say about what is being said about you because you
are not going to get another opportunity like this, and this
thing is going to swirl and there are going to be
recriminations, and it is going to be a political brouhaha.
And, I respect IGs tremendously, although I will admit this IG
office is troubled, for a lot of reasons. But why don't you
take a few minutes here and say what you would want us to know
about the accusation that is being made about you, that you
tried to inappropriately use your position to influence the
outcome of a matter because of who was interested in the
outcome of the matter.
Mr. Mayorkas. Senator, thank you very much for the
opportunity, and let me share with you, if I may, that I very
often felt like a 911 prosecutor. [Laughter.]
Senator McCaskill. I am sure you did.
Mr. Mayorkas. Senator, it was Monday evening when I was
forwarded a copy of the e-mail that was published to this
Committee about an apparent Inspector General investigation of
which I reportedly am a subject. I had no idea of the existence
of that investigation, and, quite frankly, I still do not
understand it.
I will say this, and I say it firmly, and I say it
unequivocally, and I say it after 16 years of service to this
country, 12 of which were as a law enforcement official: I have
never, ever in my career exercised undue influence to influence
the outcome of a case. I have never based my decisions on who
brings a case but, rather, upon the facts and the law. I have
taken in my life oaths of office, and each and every day--
morning, day, and night--I have lived by those oaths.
And, Senator, I referred to it on a personal matter, on a
personal level in my opening statement. My entire life I have
tried to live in a way and I have aspired to live in a way that
brings honor to my parents, and there has never been an
instance in which I have failed to do so in terms of the
integrity with which I have brought my efforts to bear on
everything I have done, whether in the private sector or the
public sector.
I look forward to learning about the allegations, because I
still do not quite understand them, but I will tell you that
the allegations as they have been framed are unequivocally
false.
The Gulf Coast matter is a matter about which we received
complaints in 2011. Issues in that case rose to my attention
because, as I referred to earlier, the EB-5 program is complex;
it presents novel legal and policy issues. And a few issues
were brought to my attention, and I addressed them with my
colleagues around the table.
Chairman Carper. Mr. Mayorkas, normally I do not jump in
here, and I am not going to take away your time at all, but I
just think it might be helpful for us to have a basic
understanding of the EB-5 program.
Senator McCaskill. Sure.
Chairman Carper. And then we will--the clock is not going
to run----
Senator McCaskill. You can use my time for that. That is an
important part of----
Chairman Carper. I would like to hear just a good, basic--
my understanding is you did not create this program. You did
not ask it to be included in your area. It was not created in
this Administration. In fact, it was not created in this
century. I think it was created in maybe 1992 when we were
struggling to try to come out of a recession.
Senator McCaskill. You mean this decade, not this century.
Chairman Carper. It was not created in this century. It was
not created in this decade. But it was created in 1992. And I
think it was created during the Administration of George
Herbert Walker Bush. And what they were trying to do, if I am
not mistaken, at that time is try to figure how do we get our
economy moving. And one of the ways to get our economy moving
is to have access to capital. In this case, how do we attract
foreign capital to investments in this country which put people
to work.
But I just want you to take a few minutes and give us--I
will call it ``EB-5 101,'' and then I am going to go back to
Senator McCaskill. I think that would just be helpful.
Mr. Mayorkas. Thank you very much, Mr. Chairman. I am very
eager to complete my response to Senator McCaskill's question.
The EB-5 program has as its basis job creation. It is
premised on the belief that individuals who are in foreign
countries were willing to invest their capital in commercial
enterprises in the United States, and when those investments
yield jobs for U.S. workers, that the foreign investors have an
opportunity to gain lawful permanent resident status in the
United States. That is, at the very top level, the issue.
Chairman Carper. And not citizenship. What is it, a green
card?
Mr. Mayorkas. They first receive a conditional green card.
Then after 2 years, if the jobs have been created, the
requisite number of jobs, ten jobs specifically have been
created or are likely to be created within a reasonable period
of time, an undefined term--which gives you an idea of the
issues with which we wrestle in our administration of this
program. But if those jobs are created or are likely to be
created within a reasonable period of time, the conditions of
lawful permanent resident status are removed. The foreign
individual is a lawful permanent resident and, therefore,
eligible for citizenship after a number of years, provided that
they qualify for the eligibility requirements of
naturalization.
Chairman Carper. All right. Continue, please.
Mr. Mayorkas. So, apparently, Senator McCaskill, the
allegation is somehow that, by sitting around the table and
resolving a couple of difficult issues that were unsettled in
our agency in the administration of the EB-5 program, I
exercised undue influence. I did nothing that I have not done
hundreds and hundreds of times when difficult issues reach my
attention and the agency needs resolution of them.
It is interesting to note, I think it is noteworthy, that--
because really what I think I summarized the allegations to be,
that somehow a favorite treatment was afforded Gulf Coast.
Well, the complaints rose throughout the agency in 2011.
Noteworthy is the fact that the complaints persisted in 2012,
and they continue to this day.
Also noteworthy----
Senator McCaskill. You mean, complaints from this----
Chairman Carper. I am sorry. What kind of----
Senator McCaskill. What complaints are you referencing
specifically?
Mr. Mayorkas. Complaints about delays, complaints about the
failure of the agency to adjudicate the case.
Senator McCaskill. On this particular case?
Mr. Mayorkas. On this particular case. The complaints
persist.
Senator McCaskill. So it has not been resolved?
Mr. Mayorkas. I do not know the status of the cases.
Senator McCaskill. OK.
Mr. Mayorkas. I addressed discrete legal----
Senator McCaskill. So the folks that they are alleging that
you tried to help are still not happy, is what you are saying.
Mr. Mayorkas. The last time I heard, in 2013 they were not.
Senator McCaskill. OK.
Mr. Mayorkas. I do not know the status of the cases.
Senator McCaskill. OK.
Mr. Mayorkas. And, notably, when a report was published
with respect to raising a question with respect to the
integrity of this business enterprise, as I do in all
circumstances, drawing upon my many years as a Federal
prosecutor, drawing upon my prioritization of national security
and fraud detection in the agency, and my execution of those
priorities, as soon as I learned of a concern with respect to
this matter from that perspective, I referred the case to the
Fraud Detection and National Security Directorate.
Senator McCaskill. I think my time is up, and I appreciate
your many years, and I was teasing you about not being a real
911 prosecutor. I want to make sure you know that.
Mr. Mayorkas. I understood. Thank you.
Senator McCaskill. Like you were teasing about your
brothers not being as beautiful as your wife. [Laughter.]
Mr. Mayorkas. Senator, may that be the only time we
disagree. [Laughter.]
Senator McCaskill. I have a feeling there will be many
other times we will disagree, but it will be on matters of
finance, contracting, and audit. So thank you very much, Mr.
Chairman.
Chairman Carper. Thank you, Senator McCaskill.
Let me followup on her question just to say, what were the
difficult issues you alluded to in the Gulf Coast matter that
you personally addressed?
Mr. Mayorkas. If I can give you the one that I recall
specifically, and why I recall it specifically, Senator, is
when I get involved in complex legal and policy issues or novel
questions before us, what we seek to do is resolve them for the
benefit of the agency as a whole and so that they have broader
applicability. And the one complex issue that I remember so
clearly is because we actually memorialized the resolution of
that difficult issue in a new EB-5 policy memorandum that we
published publicly and throughout the agency as guidance to our
adjudicators in May of this year. And the resolution of that
case, of course, showed up in prior drafts of the final
memorandum that we just published.
The issue is this: There is an administrative appeals
decision published by our agency called ``In the Matter of
Izummi,'' and one of the----
Chairman Carper. In the matter of what?
Mr. Mayorkas. Izummi. I believe it is I-Z-U-M-M-I or it
could be I-Z-Z-U-M-N-I.
Chairman Carper. That must be an acronym.
Mr. Mayorkas. It is not.
Chairman Carper. OK.
Mr. Mayorkas. And one of the requirements in the EB-5
program, just to reflect its complexity again, is that the
foreign investor's capital must be at risk throughout the term
of the investment. ``In the Matter of Izummi'' stands for the
proposition that the existence of a redemption agreement in the
transaction documents militate against the foreign investor's
capital being at risk. In other words, if you can redeem your
investment during the duration of the relevant time period,
your capital is not at risk and, therefore, you do not satisfy
the legal requirement.
And the issue that the Gulf Coast case presented to my
attention was the following: Is it the mere existence of a
redemption agreement that disqualifies the individual from
satisfying the legal requirement that the capital be at risk?
Or is it a question of looking at the terms of the redemption
agreement and whether the terms militate against the
requirement that the capital be at risk?
And in this case, to the best of my recollection, the
individual investor, according to the deal documents, could
convert his or her common shares to preferred shares, or vice
versa, preferred shares to common shares--I do not recall. But
the deal documents provided, the redemption agreement provided
that there was not at the time a market for either the common
shares or the preferred shares, nor may there ever be a market
for those shares.
And so the conclusion was reached around the table that,
quite frankly, and as a matter of law, in the interpretation of
the deal document, the redemption agreement, the capital
remained at risk because there may not ever be a market for
that capital and, therefore, the redemption may never be
realized.
That is an example of a difficult issue that can rise to my
attention, and when we resolve it, what we do is we can provide
guidance to our adjudicators so that they can adjudicate cases
in strict adherence to the law more ably.
The absolute core principle of our agency is that we
adjudicate cases based on the facts and the law, and that is
all.
Chairman Carper. When I first learned about the EB-5
program--I had heard about, but I will be honest with you, I
did not know much about it until this month. And I have learned
a bit and am still learning. But it seemed to me when I learned
about it, I said this is a strange program to be located in
this agency, the agency that you lead. It seems you would need
people who have skills in economic development,
entrepreneurship, innovation, who can realize that this is
actually an idea somebody is willing to invest some money in
from overseas.
We have to have somebody who can look at this and say,
``Does this actually make any sense? Is this something that
actually brings value?''
Would you just respond to that thought? And how do you make
sure that you have the kind of people in your agency, not
traditional immigration employees, but how do you make sure you
have the kind of talent in your agency to help make the right
judgments, the judgment calls?
Mr. Mayorkas. Thank you very much, Mr. Chairman, for the
question. I would like to answer it in a couple parts, if I
may.
We receive more complaints about our Administration of the
EB-5 program than we do in any other area of our work.
Chairman Carper. Is that right?
Mr. Mayorkas. Yes. We receive complaints from the public,
we receive complaints from applicants and petitioners, and we
receive complaints from Members of Congress and from both
parties.
Chairman Carper. So this is bipartisan.
Mr. Mayorkas. Oh, it is absolutely bipartisan, and there is
probably not a week that goes by that I do not receive
complaints from Members of Congress with respect to our
Administration of the program. And, quite frankly, there have
been a number of EB-5 program issues that have been raised to
my attention from Members of Congress that I have addressed
with my colleagues, and I recall that the Members' concerns
were actually valid and we were able to resolve those around
the table.
Chairman Carper. Were there ever instances where maybe the
Members' concerns were not as valid?
Mr. Mayorkas. Most certainly, and we respond to the
concerns not by who is the author of the concern but, rather,
by what the facts and the law demand. That is our principle.
EB-5 cases have been brought to my attention from within
the agency. The Administrative Appeals Office brought an EB-5
case to my attention because we were terminating an EB-5
regional center for the first time, and we wanted to make sure
that our decision was correct because the stakes are high and
that the decision was well reasoned and well written. And so my
office became involved there.
As I mentioned, the EB-5 program really requires expert
economic analysis and a clear and sophisticated understanding
of business proposals and the myriad of legal and policy issues
that those arenas raise.
When I first came to the agency, I actually reached out to
partners in the Federal Government when I learned about the EB-
5 program, and I posited to them that they needed to become
involved as partners with us because they had the expertise to
bring to bear. The Department of Commerce would be one example,
and our discussions with other government agencies in sharing
responsibility for the Administration of the EB-5 program are
ongoing.
In the interim, I have not stood still. I do not stand
still when progress is needed. Progress is an obligation of
ours to achieve. And what I did was I introduced economists to
the EB-5 program. I brought them on board. We expanded the pool
of adjudicators. I do not think that we did right for many
years in support of our adjudicators because we put them in
charge of cases and did not equip them with the tools to
address those cases as I think they would most want, because
they strive for excellence.
I brought economic expertise, I brought business expertise,
and I brought fraud detection and national security expertise
to bear. Those efforts have been evolving, and most recently we
decided to create a new EB-5 program. Embedded in it will be
fraud detection and national security personnel and a greater
level of economic and business expertise.
Chairman Carper. One last question, and then I will yield
back to Senator Heitkamp. Just to followup on this, in
reviewing your FBI file, there was a reference to several
employees who asserted that you had retaliated against them. I
think they are maybe out in the California office. And in the
report that I read, it said it was fully investigated and it
was not viewed to be a matter of retaliation.
Do you have any recollection of that?
Mr. Mayorkas. I most certainly do.
Chairman Carper. Now, can you just put a little bit of
light on that, please?
Mr. Mayorkas. The Office of Special Counsel determined that
there were no facts to support the allegations.
Chairman Carper. All right. Good.
Mr. Mayorkas. Senator, let me, if----
Chairman Carper. Go ahead.
Mr. Mayorkas. Personnel decisions are very difficult to
make. They are singularly the most taxing aspects of jobs when
one has supervisorial responsibilities. One has to act in the
best interests of the agency. Personnel moves are not
necessarily disparagement, criticism of job performed or
anything critical. But as a supervisor, as a manager, as a
leader, one has to fit the needs of the agency with the talents
of the people most ably. My commitment is to the agency as a
whole as its Director, and my commitment is to the laws that we
are sworn to uphold.
Chairman Carper. Thank you. Senator Heitkamp.
Senator Heitkamp. Mr. Chairman, I would like just for a
moment to talk about becoming Deputy Secretary of Homeland
Security, if that is possible. And I just really have one
question, and that is, we are deeply concerned about the morale
of the Department of Homeland Security, and I know that we have
had these discussions before. But if you are, in fact,
confirmed as the Deputy, what will you do to improve morale
within the agency? And what steps would you take to bring, I
think, more cohesion to the group?
Mr. Mayorkas. Thank you very much, Senator. I have been
honored and continue to be honored to work with the men and
women of U.S. Citizenship and Immigration Services and the
Department of Homeland Security, of which our agency is a part.
We have an incredibly talented and dedicated workforce, a
workforce that is deeply committed to the mission of the
Department and that loves its mission.
It would be my responsibility, should I have the honor of
being confirmed, to ensure that our workforce has the tools
that they require to perform their work at the very highest
levels of excellence to which they aspire, that they feel fully
engaged in the execution of the mission, that they feel fully
supported, that they are trained, that they are provided with
transparent and open and fair processes. I will engage with the
workforce, and I would, if confirmed, engage with this
Committee and focusing to ensure that the morale of each and
every individual within the Department is as high as it should
be when one considers the talent of the people and the nobility
of the mission.
Senator Heitkamp. When you talk about the tools, because we
all know that what can affect morale is the lack of ability to
do your job, knowing your job but not having the tools, what
additional tools do you see as essential to the work of the
Department of Homeland Security?
Mr. Mayorkas. Senator, thank you. Let me, if I can, draw
upon my experience at U.S. Citizenship and Immigration Services
because I have spent a great deal of energy and focus on the
well-being of our workforce.
The workforce in USCIS has asked for more training. Our
immigration law and policy is ever evolving. New decisions are
issued, new challenges arise, and they have asked for enhanced
training, and we have delivered.
They have asked for opportunities for growth, for
professional development, and we at USCIS have delivered
professional development programs, details for employees to be
exposed to different parts of the agency to grow.
Managers have asked for training on how to manage, how to
manage people, how to lead people. Very often we pick managers
who are experts in the subject matter at issue but not
necessarily expertly trained in how to bring out the best in
people, how to assist people when they have challenges and how
to promote people when they have successes.
Those are some examples of tools that a workforce requests
and a workforce deserves.
Senator Heitkamp. Just one final point. As you have
disparaged the appearance of your brothers, we just want to
point out that some might suggest that they are better looking
than you are. [Laughter.]
Mr. Mayorkas. Senator, they have not gone through three
confirmation hearings. [Laughter.]
Chairman Carper. I would just acknowledge that you may have
lost some of your hair. You have not lost your sense of humor.
So that is good.
We have been joined by Senator Tester from Montana. Senator
Tester, the floor is yours. Welcome. Thanks for coming.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. Thanks. I am sorry I was late.
Chairman Carper. We are glad you are here.
Senator Tester. Do not take Senator Heitkamp's remarks to
heart because she always talks about me being ugly, too. So--
no, just kidding.
First of all, thanks for being here, and as we talked in my
office, I appreciate your willingness to serve this country. We
are in a situation where Janet Napolitano has stepped down, and
so consequently there will be a leadership void within the
Administration.
If confirmed, how will you work with the Administration and
Congress to make sure the Department is moving forward even
though there are going to be so many positions of leadership
missing at the Department?
Mr. Mayorkas. Thank you very much, Senator Tester, for the
question. If I have the privilege of being confirmed as the
Deputy Secretary, I would work with this Committee to ensure
that the President's nominees to fill the vacancies in the
Department of Homeland Security are completed successfully, as
swiftly as possible. And in the interim, Senator, I can say
unequivocally that we have tremendous talent within the
Department of Homeland Security to ensure that the mission of
the Department is accomplished successfully, effectively, and
efficiently until those vacancies are filled.
Senator Tester. OK. I want to talk about visa overstays. As
you know, 40 percent of the folks who are here improperly are
because of visa overstays. It is a huge problem in processing,
identifying, modifying, monitoring, or apprehending individuals
who overstay their visas.
From your perspective, is this an issue of inadequate
manpower, inadequate focus, resources? Are there statutory
obstacles in the road? It seems to me 40 percent is a little
over the top. And so why is that?
Mr. Mayorkas. Thank you very much, Senator. Your question
is a very important one. The Department of Homeland Security
has made great strides in addressing the problem of visa
overstays. Immigration and Customs Enforcement (ICE), one of
the agencies primarily responsible for the enforcement area,
has significantly improved in its battle to combat visa
overstays. We have developed enhanced biographical data to
ensure that we are aware of the individuals who have overstayed
their visas. And what I will do immediately, Senator, is ensure
that Immigration and Customs Enforcement reaches out to your
office and informs you with great detail of the tremendous
strides that they have made in addressing the visa overstay
problem because they have done so in recent months.
Senator Tester. Well, I appreciate that, and I think that
the immigration bill that recently passed the Senate went a
long way in eliminating a lot of those visa overstays. And as a
side comment, hopefully the House will take that up and not
play politics with it, because it really is important for the
country.
Montana is home to seven American Indian reservations and a
State-recognized Little Shell tribe. In the past, I have worked
to ensure that DHS maintains a strong relationship with all of
our tribal partners.
From a personal perspective, do you have any experience
working with tribal leaders, either in past roles as a U.S.
Attorney, or in your current position?
Mr. Mayorkas. Thank you, Senator. I do. When I was a U.S.
Attorney, I worked with tribal leaders to address some of the
challenges that they had in the Central District of California
with respect to enforcement issues on reservations as well as
certain civil matters with respect to specifically California
issues, legal issues, involving Indian gaming.
I have worked extensively with tribal leaders during my
tenures in the United States Attorney's Office, and I take
great pride in the collaboration and close working relationship
that I was able to achieve with them. And, if confirmed, I
would carry that collaborative teamwork approach to my duties
as Deputy Secretary.
Senator Tester. Well, I appreciate that, and I may have
some more questions for the record. I appreciate the Chairman
at this late time allowing me to ask a few questions.
I will go back and just say I wish you the best. We need
good people in the Department of Homeland Security. We need
people who can carry out this task, because it is a important
one. Hopefully, what has gone on here today will stop and we
will get you confirmed and get you back to work.
Mr. Mayorkas. Thank you very much, Senator. It would be an
honor.
Chairman Carper. Thank you. Thank you, Jon.
My staff has given me a little bit of information on the
EB-5 program. I asked you earlier with tongue only partly in
cheek to give us EB-5 101, and I think I said that my
understanding was that the program was created in 1992 when we
were in a recession. Actually, it was created in 1990 when we
were just going into a recession, and there was some interest
in trying to make sure it was short-lived.
I think the program in 1993 was modified, and I think
Congress added at that time something called the immigrant
investor pilot program in order to encourage immigration
investments through designated regional centers. Designated
regional centers. I do not recall hearing much about designated
regional centers in 1993. I had just become Governor of my
State. But we have all heard of enterprise zones, and when I
hear the designated regional center, I liken it to an
enterprise zone.
But just talk to us about designated regional centers. How
do they work? And the kind of people that are actually
responsible for trying to get them established and then collect
funds to fund the entrepreneurial activities there? Just give
us a little bit of discussion on that, please.
Mr. Mayorkas. Thank you very much, Senator. The regional
center program is indeed a pilot program. The EB-5, that pilot
program was reauthorized, I believe it was last year. I am not
quite certain, but it was reauthorized.
Chairman Carper. As a matter of fact, my notes here say
introduced in 2012, the word ``pilot'' was removed from the 20-
year-old program, provided a 3-year reauthorization of the
regional center model, legislation introduced by Senators Leahy
and Grassley, cosponsored by a number of our colleagues,
including Collins, Conrad, Hatch, Kohl, Lee, Rubio, and
Schumer, adopted by unanimous consent. That was about a year
ago.
Mr. Mayorkas. Senator, the regional center is an area of
economic activity in which commercial enterprises can be
developed into which foreign capital can be invested in the EB-
5 program and the jobs can be created in that area of economic
activity.
The popularity of the regional center program has increased
exponentially over the years, and over the last 4 years, for--
--
Chairman Carper. Do you think it had something to do with
the fact that we are in the worst recession since the Great
Depression and we are looking for ways to create jobs and this
was an effort to try to draw capital into job creation in this
country? Do you think that is what is going on?
Mr. Mayorkas. Senator, outside reports have concluded that
indeed the EB-5 program and specifically the regional center
program within it has grown exponentially over the last few
years because capital has been difficult to raise in a
challenging economy. There is a great deal of interest amongst
individuals in other countries to immigrate to the United
States, and those who can afford it find the EB-5 program to be
a valuable means of doing so.
Chairman Carper. So is the rationale here they are
investors, entrepreneurs in other countries that have maybe
good ideas, business ideas, they have some money, and we are
looking for somebody who will invest capital here for job
creation here rather than compete with those folks from another
country? Is that--that is my understanding. Is that close to
correct?
Mr. Mayorkas. That is. Mr. Chairman, specifically that
individuals with the requisite amount of capital--it is either
a minimum of $500,000 or a minimum of $1 million, depending on
where the regional center is located, whether it is in a
targeted employment area, an area of acutely high unemployment
or otherwise. They will invest their capital, that requisite
amount of capital in a regional center, and if U.S. jobs are
created, they will have conditional lawful permanent resident
status, as I outlined earlier, and if they qualify under the
other eligibility requirements.
Why the regional center has grown exponentially, as well as
the economic factors that others have concluded as a causal
link, is because when the investment is in a regional center as
opposed to a new commercial enterprise outside of a regional
center, the job creation can be computed to include not only
direct job creation but indirect job creation--in other words,
not necessarily just employees of the new commercial
enterprise, but people--jobs that are created as a result of
the new commercial enterprise. Suppliers to the new commercial
enterprise would be a perfect example. If a supplier increases
its workforce by virtue of the new commercial activity and jobs
are created that are attributable to the regional center, then
that job creation is attributable to the capital invested and
counts to the job creation requirement. And this is where the
complex economic methodologies, the econometric models to
assess potential for job creation, come into play. And if one
presented those to me, even though I practiced as a lawyer for
many years, I would not know how to adjudicate them. They are
extraordinarily complex. They fall within the purview of
economic expertise, and that is why we have brought that
expertise to bear.
There is one very important additional point that I would
like to make, and that is the following: That with growth in a
program comes the potential for challenges to the program's
integrity. And we have, of course, seen cases where individuals
have sought to make misrepresentations to us in order to avail
themselves of the program for which they are not qualified or,
worse yet, individuals who seek to avail themselves of entry
into this country through the EB-5 program when they very well
may pose a threat to this country.
Chairman Carper. What do you do about that kind of fraud?
Mr. Mayorkas. Well, we have done a great deal, because this
is our highest priority: to help secure our Nation and to
protect the integrity of the system of which we are guardians.
We have reached out to the law enforcement and intelligence
communities, and we have developed stronger and closer working
relationships. We have increased the staffing of our fraud
detection and national security personnel. We are embedding
them in the EB-5 program. We have reached out to the Securities
and Exchange Commission (SEC) to make sure that the securities
laws are upheld.
I reached out, based upon my relationships from my law
enforcement days, to the highest levels of the SEC to make sure
that they brought their enforcement efforts and their
enforcement expertise to this very important area. We were
substantial cooperators and partners in the first successful
SEC enforcement action against an EB-5 program in Chicago,
Illinois.
Chairman Carper. Give us some idea, how do these designated
regional centers become created? What has to happen? Are there
a lot of them? Are we talking about a few, a dozen, scores,
hundreds?
Mr. Mayorkas. I do not know the number of regional centers
that exist currently.
Chairman Carper. Would it be more than a hundred? Less than
a hundred?
Mr. Mayorkas. I do not want to speculate, Mr. Chairman.
Chairman Carper. OK.
Mr. Mayorkas. But I can certainly provide that information
to the Committee.
Chairman Carper. Thank you, if you would.
How do they get created? What is the process?
Mr. Mayorkas. So from my understanding, because I sit as
the Director and I do not get involved in seeing the actual
applications and petitions, the business plans themselves, but
people come up--develop business ideas for the development of
commercial enterprises----
Chairman Carper. ``People'' being American people, American
business people?
Mr. Mayorkas. People here in the United States.
Chairman Carper. OK.
Mr. Mayorkas. And they develop business plans for the
development of those enterprises, those commercial enterprises.
And once those business plans and commercial enterprises are
outlined and they have approval from us to proceed, they begin
to attract investors. And, quite frankly, I do not know if they
begin to attract investors before we approve them or not, but
they develop their business plans. They begin to execute on
their business plans. They present their business plans to us.
And if we approve them as regional center designations, they
proceed with the execution of their plans from there.
Chairman Carper. Knowing my colleagues and me, if I had
somebody that wanted to create jobs in Delaware and they wanted
to create one of these designated regional centers in order to
increase employment opportunities in my State, I would probably
be interested in seeing that succeed. You mentioned a number of
my colleagues, Democrat and Republican--I do not think I have
ever reached out to your office on this, but a number of our
colleagues actually do call your office, and in some cases you,
and say, ``There is this effort to create employment activity
in my State,'' and they probably do not call just to say, ``You
all are doing a great job. Keep it up.'' Maybe they do. But my
guess is they probably call to raise concerns.
Would you talk about the nature of the concerns that our
colleagues might raise or a Governor might raise and the kind
of concerns that might be raised by someone who is attempting
to establish one of these designated regional centers, like,
``It is taking too long,'' or, ``I do not like your decision,
you have not agreed to establish this center''? Can you just
share with us the nature of those conversations?
Mr. Mayorkas. Thank you, Mr. Chairman. We received e-mails,
calls, letters from Members of Congress of both parties with
respect to the EB-5 program more often than weekly and more
often than one a week, I assure you. And the interest, of
course, is in the infusion of capital into a particular
jurisdiction and the creation of jobs for U.S. workers in that
jurisdiction, a need and a priority that is acutely held in
times of economic challenge.
The complaints vary widely. One that we most often hear is
that we are taking too long. We have goals of approximately 6
months, but we do not meet that goal. Rarely do we, and
sometimes the time period extends far longer, sometimes for
very important and valid reasons, making sure we are right,
according to the law and the facts, making sure that the
integrity of the application is assured, making sure that there
is not a threat to our security. We are being inconsistent in
our adjudications. We are being untimely. We are not adhering
to the law. We are not following our established policies. The
complaints are very diverse.
There was one very notable complaint that I recall because
it accused us of being unfair, that we had made adjudicative
decisions in a case and then subsequently we changed our mind.
And the concern of the Member of Congress was that seemed to be
inequitable, that investors and business developers had relied
on our earlier decisions, and for us to change course midstream
seemed inequitable. And I looked into that, consistent with the
principles to which I referred at the outset of this hearing,
when something speaks of a difficult legal or policy challenge
that the agency confronts.
And I looked into that matter around the table with my
colleagues, and I agreed with the concern. And my colleagues
asked me to get involved, to assist in the resolution of that
matter, and I did. And what I did was I made--a decision that
was going in the wrong direction, I made it right. I made it
right in the spirit and the letter of the law and the policies
that we are sworn to uphold.
The temperature of the complaints that we receive are
equally diverse as the nature of the complaints, and neither
the temperature with which the complaint is made nor the author
of the complaint are material to our decisionmaking. The
decisionmaking is based on the law and the facts. And when I
get involved in an issue like the EB-5 issue to which I just
referred, like the EB-5 issue I described in the Gulf Coast
matter, my guiding principle is no different than the guiding
principle of the adjudicator and the guiding principle that I
have articulated and emphasized throughout my tenure. We do
what the law and the facts require, and nothing less and
nothing otherwise.
Chairman Carper. All right. My understanding is that among
the many people establishing or attempting to establish one of
these designated regional centers was Terry McAuliffe, who was
interested in bringing green card technology to the State of
Virginia in one of these regional centers, ultimately ended up
doing it, I think, in the Gulf Coast States, and I think one of
the reasons why Senator Landrieu was here is because
apparently, as part of the economic development issues in her
State, they are interested in creating a regional center--this
is my understanding--and would like to encourage that kind of
thing.
But could you just share with us any communication you had
with Mr. McAuliffe with respect to the effort to create one
center in Virginia or maybe one on the Gulf Coast, any meetings
you had with him, any telephone conversations that you recall?
Mr. Mayorkas. Thank you very much, Mr. Chairman. I was
asked to attend a meeting with Mr. McAuliffe so that I could
hear in person his complaints.
Chairman Carper. And what year was that?
Mr. Mayorkas. I do not quite recall. It was quite some--2
years ago?
Chairman Carper. All right.
Mr. Mayorkas. Quite some time ago. And I heard those
complaints, and that was the extent of the interaction.
I should say that I engage with the public very often. I
meet with associations, groups, individuals, representatives,
and the like who voice concerns, who praise us when we do jobs
well. One of my areas of focus on behalf of the agency as a
whole is to increase and elevate the level of public engagement
so that we are a transparent agency, transparent not only to
the public that we serve but to the media whose responsibility
it is in part to hold us accountable, and, of course, to this
Committee, to the Committee of oversight to which we are held
accountable.
I heard Mr. McAuliffe's complaints, and I moved on with my
work.
Chairman Carper. Did you ever hear from him again after
that meeting?
Mr. Mayorkas. I recall Mr. McAuliffe----
Chairman Carper. Let me just back up. Did you come back to
your agency and say, after the meeting with him and the other
folks that were part of the meeting, let us do things
differently, let us change what we are doing, let us change our
course, I had this meeting? And how did you react once you got
back to work?
Mr. Mayorkas. The answer to your question, Mr. Chairman, is
absolutely not. I do remember returning to the office and
complaining about the fact that I had to hear complaints.
Chairman Carper. All right.
Mr. Mayorkas. That is all.
Chairman Carper. And you are probably used to hearing
complaints about this program. It sounds like there are a lot
of them.
Mr. Mayorkas. Yes.
Chairman Carper. From elected officials and from those who
are not.
Mr. Mayorkas. Yes. And my mantra to the workforce is the
following: ``Do not shrink from criticism. Just work very hard
not to deserve it.''
Chairman Carper. OK. I think the basic question here is,
for those who are suggesting that these unnamed sources and
innuendo and anonymous assertions, is the question of whether
you, if you will think of the scales of justice, if you have
placed your hand on the scales of justice, to somehow--whether
it was in the case of the business case in the Gulf Coast or
other places, whether you have placed your hand on the scales
of justice to change a decision that is being made by the folks
in your agency. Would you just respond to that on the record,
please?
Mr. Mayorkas. Mr. Chairman, for 12 years as a Federal
prosecutor, I served as an officer of the court. I do not--I
have not changed my approach to the execution of my
responsibilities. I continue to hold myself up as an officer of
the court. I enforce the law. I enforce the law based on the
facts. I do not put my finger on the scale of justice. The
scale of justice is based on the facts and the law, and nothing
else.
And I should say that Gulf Coast complained in 2011, they
complained in 2012, and they continue to complain in 2013. And
we will follow the law and administer the law based on the
principles which I articulated and nothing less and nothing
otherwise. And I will say for someone to be accused of tipping
the scales and in 2013 referring the matter to the Fraud
Detection and National Security Directorate for appropriate
action based upon a question of the project's integrity seems a
bit contradictory.
Chairman Carper. Yes, it does.
Mr. Mayorkas. It is very difficult to have allegations
swirling and not have had an opportunity to address them. And I
am eager to be interviewed by the Inspector General's Office,
and I wish I had been interviewed earlier.
Chairman Carper. I wish we had an Inspector General
confirmed by the Senate in place to do that in this Department.
Two years have passed since we have had that.
One last question. The vote has started, so I will ask
maybe one last quick question before we close and then give you
a short opportunity to make a closing statement of your own.
In my old role as Governor, every month I would meet with
my legal counsel, and we would go over requests for pardons,
requests for commutations, and my legal counsel would make
recommendations. We would go through the case. I used to serve
on the Board of Pardons when I was State treasurer. And from
time to time, my staff would reach out to other people and ask
them questions, this person is coming before the Governor,
recommended for a pardon or commutation by the Board of
Pardons, and we would ask for input.
One of my colleagues I think raised with you a question
about a pardon that was being considered by President Clinton
near the time that he left office. As we all know, when
Presidents are about to leave office, there is kind of a rush
to see if we cannot get a President to issue a pardon or a
commutation. And our understanding from one of my colleagues is
that someone reached out to you from the Clinton White House
and asked a question about a particular case. Can you just
share that with us and share with us the nature of that
discussion, that conversation?
Mr. Mayorkas. Yes, Mr. Chairman----
Chairman Carper. I just want to get it clear. I think you
responded to this before. I will ask you to respond to it one
last time.
Mr. Mayorkas. Most certainly, Mr. Chairman. Thank you for
the opportunity. Yes, that question was posed to me when I
appeared before the Judiciary Committee of the U.S. Senate in
the confirmation hearing for the position of Director of U.S.
Citizenship and Immigration Services, which I now hold. The
White House reached out to me when I was the United States
Attorney for the Central District of California and asked me
whether I supported the commutation of a narcotics trafficker
that had been prosecuted in the District of Minnesota by my
colleague, my fellow United States Attorney, and I informed
them that I did not support the commutation, that I did not
know the facts of the case, and that deference should be
afforded to the Federal prosecutor in the District of Minnesota
who prosecuted that case.
Chairman Carper. Thank you.
The last thing I want to do is just give you an opportunity
to make a very short statement, a short closing statement, and
then I want to make one of my own, and I am going to run and
vote. Please. Thank you for your testimony today.
Mr. Mayorkas. Thank you very much, Mr. Chairman, for the
privilege of appearing before you and before the distinguished
Members of the Committee.
Let me, if I can, say that one of the greatest sources of
honor that I have had in my professional career is to serve
alongside the men and women of the United States Citizenship
and Immigration Services. It is an extraordinarily dedicated
and talented workforce.
It has been equally an honor to serve as an Assistant
United States Attorney and United States Attorney. I love
public service. I love aspiring to fulfill the highest ideals
of public service. I love being an officer of the court. I love
being a guardian of the law. I love the privilege and the honor
of always doing the right thing.
I also love my family. I love my two brothers that are
here. And I love the family that they are representing here.
I adored my parents. My parents were individuals of
unflinching integrity and ethics and honor. And I have executed
my public service responsibilities in a way in which they would
be proud. And if I have the privilege of being confirmed as the
Deputy Secretary of Homeland Security, I will continue to do
so.
Thank you.
Chairman Carper. Thank you for those words.
When we met earlier this week, we talked a little bit about
your parents. I am sure you will recall that. And you said
these words, and I will paraphrase, but I think this is pretty
much what you said. You said: I live my life to honor my
parents. And I think if your parents were here today--I am sure
they are tuning in, looking down--my guess is they are very
proud of their three sons.
I think it was Thomas Jefferson who used to say, ``If the
people know the truth, they will not make a mistake.'' The
purpose for this hearing is to try to ensure that we get to the
truth, that we do not hear about rumor and innuendo and
unconfidential sources, anonymous sources for investigations
that take not just weeks but months, now almost a year. We have
to get to the truth. You have helped us to get there. And while
I am disappointed that some of our colleagues could not join us
today, my hope is that they will have an opportunity to
consider what has happened today and what we have heard today
and what we have learned.
I also hope that the Inspector General or the Acting
Inspector General or whoever is in charge in the Inspector
General's shop these days over at the Department of Homeland
Security, I hope they will put their foot on the accelerator
and get this done. Justice--what is the old saying? ``Justice
delayed''----
Mr. Mayorkas ``Is justice denied.''
Chairman Carper [continuing]. ``Is justice denied.'' And we
have a Department that is without a confirmed Deputy Secretary,
will soon be without a Secretary, that has gaping holes in its
leadership, and we need to address it. Of all the departments
of our Federal Government, this one, perhaps more than any,
needs leadership, needs strong leadership, and they have had
that in Janet Napolitano and Jane Holl Lute, and you and others
with whom you serve. And God knows they are going to need it in
the months and the years to come as we deal with cyber attacks,
which are occurring at this very moment, with terrorist
attacks, which are being planned this day, with the challenges
that will come from immigration reform legislation if we are
able to implement it, and with God knows how many other
challenges that are before us.
The last thing I would say is just a word on integrity. One
of my favorite sayings is, ``Integrity''--I do not know who
said this, but it is a good one. ``If you have got it, nothing
else matters. Integrity, if you do not have it, nothing else
matters.'' And it sounds like to me that your parents infused
in you and your brothers a fair amount of integrity. And we
appreciate that. We appreciate your presence here.
This hearing record will remain open until noon tomorrow,
July 26th at 12 p.m., for the submission of statements and
questions for the record.
With that, this hearing is adjourned. Thank you all.
Mr. Mayorkas. Thank you, Mr. Chairman.
[Whereupon, at 12:40 p.m., the Committee was adjourned.]
A P P E N D I X
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