“Look at the DHS nominee, Alejandro Mayorkas. He was found by Barack Obama’s inspector general to be guilty of selling green cards to Chinese nationals on behalf of rich Democratic donors. Think about that. Selling citizenship to well-connected Chinese nationals on behalf of Democratic Party donors. That is disqualifying to lead the Department of Homeland Security.”

— Sen. Tom Cotton (R-Ark.), during an interview on “Fox & Friends,” Nov. 25, 2020

President-elect Joe Biden has nominated Alejandro Mayorkas, a former deputy secretary of homeland security under President Barack Obama, to be the next head of that department. But Republicans who generally turned a blind eye to malfeasance in the Trump administration are calling attention to a critical inspector general’s report issued in 2015 regarding Mayorkas’s earlier tenure as director of U.S. Citizenship and Immigration Services (USCIS) from 2009 to 2013.

The report, citing interviews with more than 15 DHS officials who had direct contact with Mayorkas, focused on the EB-5 visa program. Under a law passed in 1990, non-U.S. citizens were offered a fast-track path to getting a green card, allowing permanent residency in the United States, if they were willing to invest at least a minimum amount in a U.S. business — at the time, $500,000 — to create a certain number of jobs.

The report said that contrary to USCIS policies, Mayorkas pressed for approvals for three projects at the behest of politically connected players: Then-Sen. Harry M. Reid (D-Nev.), the majority leader, wanted action on a Las Vegas casino project; Terry McAuliffe, a former Democratic National Committee chair who would go on to become Virginia governor, touted an electric-car enterprise; and former Pennsylvania governor Edward Rendell pitched a film regional center in Los Angeles. Anthony Rodham, the brother of then-Secretary of State Hillary Clinton, also was involved in McAuliffe’s electric-car enterprise, and one of Reid’s sons, Rory Reid, was legal counsel to the casino project.

All of this would seem to be grist for some tough questions in a confirmation hearing. But Cotton takes these basic facts and spins them beyond recognition.

The Facts

The EB-5 program is designed to direct needed job-creation funds to poor areas of the United States, but it has long faced accusations of fraud and abuse. The threshold for jobs created per investor to get a permanent green card is fairly low — 10 jobs. Moreover, the projects did not necessarily end up in poor areas and might have been financed even without these foreign investors.

Jared Kushner, President Trump’s senior adviser and son-in-law, in 2015 financed an opulent, 50-story residential tower in Jersey City using the EB-5 program. The Washington Post reported that the investors and state officials essentially gerrymandered a map that defined the area around the tower as a swath of land that stretched nearly four miles and included some of the city’s poorest and most crime-ridden neighborhoods, while excluding wealthy neighborhoods only blocks away.

Moreover, in 2018, the Securities and Exchange Commission launched an investigation of the real estate company run by Kushner’s family after it was learned that the company had launched a marketing campaign in China, seeking as many as 300 investors who would earn EB-5 visas for helping to finance twin 66-floor commercial and residential towers in New Jersey.

Cotton, citing “scandal and fraud” in the EB-5 program, earlier this year signed a letter calling on Trump to immediately suspend it.

In the case of Mayorkas, the inspector general began an investigation after receiving a whistleblower complaint in 2012. The report said that Mayorkas intervened in an administrative appeal involving McAuliffe’s car company in 2011; expedited review of investor petitions in the casino deal in 2013, while taking the “extraordinary step” of requiring DHS staff to brief Reid’s staff on a weekly basis for several months; and ordered the reversal of the USCIS decision to deny funding of movie projects in 2013 after he was in contact with Rendell.

“In each of these three instances, but for Mr. Mayorkas’ intervention, the matter would have been decided differently,” John Roth, the inspector general, said in congressional testimony after the report was issued.

Roth detailed the significant resentment that Mayorkas’s actions created in the agency. “The number and variety of witnesses was, in our experience, highly unusual,” he said. “Each conveyed the same factual scenario: Certain applicants and stakeholders received preferential access to DHS leadership and preferential treatment in the manner in which their application or petition was handled.”

Mayorkas’s intervention in these three cases was especially striking because, the report noted, the EB-5 program has hundreds of regional centers to promote economic growth and during the period in question had received more than 700 applications. Roth said the cases stood out because “we found a number of instances in which Mr. Mayorkas declined to become involved in certain matters, stating that he did not think it would be appropriate for the director to do so.”

In the case of the film project, the report says that Mayorkas in 2013 took the “extraordinary and unprecedented” step of creating a decision review board, staffed with individuals he handpicked, to review Time Warner movie projects. “This board did not previously exist and was never used again after it voted to reverse the adjudicators’ proposed denials,” Roth said. “Remarkably, there is no record of the proceedings of this board.”

In an interview with investigators, Mayorkas said he did not know Reid’s son was involved in the casino deal and if he had, he probably would have consulted with counsel and the Office of Legislative Affairs. (Mayorkas’s nomination to be deputy homeland security secretary, which had been stalled in part because of a leak about the EB-5 investigation, moved forward after Reid invoked the “nuclear option” on Nov. 21, 2013, eliminating the use of the filibuster to block presidential nominees. A month later, Mayorkas’s nomination was approved on a party-line vote.)

When the inspector general’s report was issued, Mayorkas defended his actions as part of an effort to improve the program. “The EB-5 program was badly broken when I arrived at USCIS,” he said. “There was erroneous decision-making and insufficient security vetting of cases. I could not and did not turn my back on my responsibility to address those grave problems. I made improving the program a priority and I did so in a hands-on manner, through cases, policies, and sweeping personnel and organizational changes.”

Later, in congressional testimony, Mayorkas allowed: “As to the three cases, the Office of Inspector General found that through my involvement, I allowed some agency colleagues to develop the perception that I was favoring individuals with an interest in these cases. I thought I had taken steps to guard against this very possibility; even an appearance of impropriety is not acceptable to me.”

Still, it’s not a pretty picture. But now let’s dissect Cotton’s statement to see how he overhypes what happened.

“He was found by Barack Obama’s inspector general …” Actually, inspectors general are nonpolitical and “are appointed without regard to political affiliation,” according to the inspector general’s website. Roth continued to serve in the Trump administration for another 10 months. (Trump fired five inspectors general earlier this year, upending those norms, but that’s another story.)

“ … to be guilty …” This suggests a criminal prosecution, but that’s wrong. The report never suggested any action was illegal. “Each of these decisions was legitimately within his purview, and we take no position on the wisdom of these actions,” the report said. The issue was that as a manager, Mayorkas was not just setting broad policy objectives, but instead involving himself in matters well below his pay grade. A person familiar with the inspector’s report told The Fact Checker its findings were presented to the U.S. attorney’s office, and it concluded there was no case for prosecution.

“ … of selling …” This is also false. The report does not show that Mayorkas received any monetary or other tangible benefit at the time from intervening in these cases. The EB-5 program is authorized by Congress, and Mayorkas was obligated as director to run it.

“ … green cards …” Technically, these were not yet green cards. Investors received two-year visas. The issuance of the green card depends on whether the job-creation goals are met. (In the second part of his quote, Cotton called this “selling citizenship,” which is even more off base.)

“ … to Chinese nationals …” This is deceiving because Cotton makes it appear nefarious. But the EB-5 program is overwhelmingly used by the Chinese. Of the nearly 80,000 visas issued between 2000 and 2018, more than 55,000 — 70 percent — came from mainland China. South Korea, with 6.5 percent, and Taiwan, with 2.5 percent, are far behind.

“ … on behalf of rich Democratic donors.” We’ll grant Cotton some editorial license here. McAuliffe and Rendell are certainly wealthy — Reid less so — but apparently it is not as sexy to say Mayorkas took these steps on behalf of Democratic politicians.

“The IG clearly faults Alejandro Mayorkas for improper actions to benefit politically connected Democrats,” said Cotton’s press secretary, James Arnold. “Senator Cotton described him as guilty because he is guilty of this conduct.”

The Biden transition team declined to comment but pointed to Mayorkas’s statement when the inspector general’s report was issued.

The Pinocchio Test

This is a good example of how a politician can turn political gold into Pinocchio dust. The plain facts of the inspector general’s report about Mayorkas’s handling of these three EB-5 applications are striking enough that there is no need to hype it up further with words like “guilty” and “selling.” Cotton earns Two Pinocchios.

Two Pinocchios

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