Questions for Biden's Choice for Homeland Security

Alejandro Mayorkas brings experience, but senators should revisit his 2013 confirmation hearings to be deputy secretary.

Alejandro Mayorkas, President-elect Joe Biden’s choice to be secretary of homeland security, brings significant experience to the role, having worked as deputy secretary during the Obama administration after serving as director of Citizenship and Immigration Services. But his confirmation to that office came while he was under inspector general investigation for allegations of preferential treatment of visa applications, and only on a party-line vote after Harry Reid eliminated the 60-vote threshold for executive branch nominations. It’s worth examining Mayorkas’s entire record of service and the 2013 confirmation process.

If confirmed, Mayorkas will have one of the most challenging jobs in Washington. The DHS secretary leads a 240,000-employee workforce and is responsible for diverse missions including border security, enforcing and administering immigration laws, counterterrorism, protecting critical infrastructure, promoting cybersecurity, and preparing for natural disasters. 

The department has faced significant challenges executing its critical missions, in part due to the design of the organization, created in 2002 in response to the 9/11 attacks. A small headquarters leadership office is charged with the difficult task of aligning eight large components with focused mission areas. 

Another problem is the department’s complicated relationship with Congress. DHS must answer to dozens of different committees and subcommittees with competing jurisdictions. Congress’ longstanding struggle to reauthorize the department or reform the most controversial legal aspects of its missions, such as immigration law and enforcement, means that DHS leaders typically face intense political opposition for some of their key policy and management decisions. This has certainly been the case during both the Obama and Trump administrations.

As a former Senate Homeland Security and Governmental Affairs Committee staffer and senior adviser to former Sen. Tom Coburn, who was ranking member at the time, I closely followed his nomination and was involved in oversight of the department from 2011 to 2019. 

A nominee confirmed while under investigation. 

Mayorkas is best known as the architect of President Barack Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) policy, which created a legal status for the children of illegal immigrants who were brought to the United States during childhood. At the time, he had been serving as the director of citizenship and immigration services (USCIS), having been confirmed by the Senate by voice vote

But the debate over Mayorkas’s nomination to be the deputy secretary focused on his management of the EB-5 visa program: specifically, allegations that he improperly influenced the process for screening immigrants.

Under the Employment-Based Fifth Preference (EB-5) visa program at the time, interested foreign nationals could apply for conditional status in the United States by investing $500,000 in an eligible business enterprise that resulted in the employment of 10 Americans. The immigrant investors would be eligible for green cards within two years after meeting these requirements and could then pursue naturalization. USCIS was responsible for vetting both applying immigrants and the investment projects (the majority of which were managed by entities called regional centers) to determine their eligibility. 

The EB-5 program put USCIS’s 19,000-person workforce in the complicated business of analyzing the assets of foreign nationals to determine their source of funds for the investment, vetting potential natural security risks, and evaluating real estate and other development projects to assess their likely job creation prospects. The EB-5 program grew rapidly during the Obama administration, adding to the challenge for USCIS. 

Fewer than 1,400 EB-5 admissions were awarded in 2008 during the final year of the George W. Bush administration. In 2013, USCIS granted more than 8,500 EB-5 visas. During this period of growth under the Obama administration, the overwhelming majority of these visas were being awarded to applicants from China. According to the Congressional Research Service, Chinese nationals received 83.5 percent of the EB-5 visas in the 2015 fiscal year.

Real concerns about the program’s problems were growing within the Department of Homeland Security at the time. 

An internal DHS review of the EB-5 program prepared by U.S. Immigration and Customs Enforcement and made public by Sen. Chuck Grassley identified major vulnerabilities and risks, including its potential use by terrorists and foreign government agents, technology transfer and economic espionage, money laundering, and fraud by both the investors and the regional centers. A 2013 Office of the Inspector General audit warned that USCIS was “limited in its ability to prevent fraud or national security threats that could harm the U.S.” and could not demonstrate that the program was “improving the economy and creating jobs.” 

Questions emerged soon after President Obama nominated then-Director Mayorkas to be deputy secretary in June. Days before his nomination hearing, the Office of Inspector General notified Congress that Mayorkas was under investigation related to his management of the EB-5 program. The investigation was prompted by whistleblower complaints and allegations that he intervened on behalf of politically connected regional center owners that stood to benefit from immigrants’ investments.

Former Sen. Tom Coburn and other Republicans on the committee didn’t participate in his hearing, believing it was bad practice and unfair both to the nominee and Congress. They urged the committee to wait for the investigation to be completed. “Holding this hearing in light of an active investigation into serious, relevant allegations of professional misconduct by the nominee, and over the objections of the ranking member and others, appears to be virtually without precedent in the history of this or any other Senate committee,” Coburn said in an official statement.

Lacking bipartisan support, the nomination stalled for months. In the interim, Secretary Janet Napolitano announced her resignation. President Obama nominated and Congress swiftly confirmed Secretary Jeh Johnson, who earned broad bipartisan support.

In November, Sen. Reid deployed the nuclear option. As a result, Mayorkas could be confirmed without a single Republican vote. On the last day in session before Christmas, he was approved on a party-line basis, 54-41. Sen. Reid was sick that day and did not vote. 

What the inspector general’s investigation found. 

More than a year later, Inspector General John Roth, who was nominated and confirmed in March 2014, released the final report on the investigation

While finding no wrongdoing, Roth detailed three instances in which Mayorkas “intervened in the adjudicative process in unprecedented ways” in cases involving key politically connected stakeholders.  

On behalf of the Los Angeles Regional Center, Mayorkas directed USCIS staff to reverse a ruling to deny visas that were going to support Sony movie projects after hearing appeals from the L.A. mayor’s office and former Gov. Ed Rendell of Pennsylvania. In response to appeals by Sen. Harry Reid, he pressed staff to fast track the review of visas connected with a Las Vegas hotel and casino project and “took the extraordinary step of requiring staff to brief Senator Reid’s staff on a weekly basis for several months.” He also intervened in the administrative appeal of a regional center with ties to Terry McAuliffe, a move USCIS staff perceived to be “politically motivated.”

More than 15 whistleblowers spoke with the IG about these allegations and many did so only after they’d been assured anonymity. “That so many individuals were willing to step forward and tell us what happened is evidence of deep resentment about Mr. Mayorkas’ actions related to the EB-5 program,” the report states.

Inspector General Roth testified to Congress that “Mr. Mayorkas’ actions in these matters created a perception within the EB-5 program that certain individuals had special access and would receive special consideration.” 

Mayorkas defended his actions in a written statement: “I respectfully submit that a complete and total repudiation of the allegations against me is the only correct and just conclusion.” 

Looking back from 2021 and all that has happened since, the perception of preferential treatment in an immigration program may seem like a weak allegation. But at the time, the inspector general’s findings led many on Capitol Hill to believe that the a senior official at the Department of Homeland Security was willing to use his power on behalf of prominent Democrats, even if it meant issuing visas through a program known to be vulnerable to serious fraud and national security risks. 

Mayorkas’s record at DHS and USCIS. 

Putting aside the EB-5 investigation, senators will look to Mr. Mayorkas’s record at DHS when considering his nomination. More than any previous nominee to be secretary, Mayorkas can point to significant experience at the department in senior leadership positions, serving at DHS throughout the Obama administration. 

As deputy secretary, Mayorkas led Secretary Johnson’s “unity of effort” initiative, which focused on strengthening DHS’s management and coordination across its components. 

While longstanding management and coordination difficulties at DHS continued beyond the Obama administration, Johnson and Mayorkas deserve credit for attempting to address one of DHS’s biggest weaknesses. 

Johnson was well-respected on Capitol Hill. The department under his leadership earned a reputation for being responsive to Congress and even to Republicans in the minority. Mayorkas was a key part of that. Keith Ashdown, former Republican HSGAC staff director and my former colleague, said, “There has been no team more responsive to Congress at DHS. Mayorkas played a significant role in making that happen.” 

On immigration policy, the Johnson-Mayorkas leadership team at DHS headquarters championed the Obama administration’s deferred action programs, while also recognizing how legal incentives were encouraging illegal immigration and mass migration from Central America.

In 2014, Secretary Johnson initiated a family detention policy that was aimed to discourage illegal immigration. “We want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released,” Secretary Johnson reasoned at time. A federal district court later ruled that policy to be illegal under the terms of the Flores Settlement Agreement, which required that minors be released shortly after detention. Senators should question whether Mayorkas agreed with that approach, and whether he will revisit the Trump administration’s 2019 rulemaking to address Flores and the policy of court-mandated catch-and-release for minors detained with their families.

Another area of Mayorkas’s record that deserves examination is his management of Citizenship and Immigration Services from 2009 to 2013. During that period, USCIS was working to transition from a paper-based system for managing and processing applications for legal immigration benefits to an electronic system called ELIS, which was intended to improve service and security. Transitioning from paper was intended to reduce processing times, allow applicants to track their status, and improve the agency’s ability to vet applications.

But by the final year of the Obama administration, only two of 90 immigration benefits were being processed online, and the agency admitted that it would require another $1 billion and three more years to transition. Lacking the electronic system, “the agency [would] remain unable to achieve its workload processing, customer service, and national security goals,” the inspector general warned in 2016. USCIS’s failure to execute the transition had real human costs. For example, the department’s watchdog determined that poor data sharing between USCIS and ICE had allowed known human traffickers to use visas to bring victims into the country. Mayorkas has pointed to his record at USCIS working to strengthen the agency’s ability to detect and prevent fraud. Senators should question his role in overseeing the ELIS transformation and what it means for the Department’s ongoing technology and cybersecurity challenges.

What Mayorkas will mean for DHS after the Trump administration. 

Over the past four years, the Department of Homeland Security has experienced significant leadership instability with two secretaries, three acting secretaries, many ongoing leadership vacancies in senior positions, and acting officials serving in leadership posts without legal authority to do so. Just this Monday, Acting Secretary Chad Wolf resigned, citing litigation over Trump’s immigration policies that questioned the validity of Wolf’s appointment. In August, the nonpartisan Government Accountability Office issued a decision that the leadership changes in the wake of Secretary Kirstjen Nielsen’s departure violated the Federal Vacancies Reform Act by not following the appropriate legal line of succession. 

Persistent instability and leadership vacancies have serious consequences for the department, which has struggled to effectively align its diverse components. “In the best of times, this is a difficult department to manage effectively,” former Inspector General Roth told Congress in 2019. “But vacancies, particularly those that remain vacant for a long time, cripple the ability of the department to move forward.” 

The next secretary of homeland security and his team will face daunting challenges, beginning with managing the department’s responsibilities to mitigate the pandemic. From the threat of growing domestic violent extremism to ongoing nation-state cyber-attacks to the inevitable natural disasters, the Secretary must lead the Department to overcome its organizational structure to execute its difficult and broad missions. 

Based on experience alone, Mayorkas is qualified to lead the Department of Homeland Security. But his party-line confirmation in 2013 and the 2015 findings of the inspector general investigation will raise ongoing questions about the political aspects of his leadership at DHS. He could earn trust and respect by explaining what lessons he learned from the investigation. 

Looking forward, as Secretary, Mayorkas would be wise to follow Jeh Johnson’s example by committing to be a transparent and nonpartisan partner with Congress and to present a clear vision of where he wants to take DHS as it approaches its 20th anniversary. Establishing and maintaining bipartisan support for that vision and the Department’s policies and programs is an important first step to overcoming the many challenges that lie ahead.