Biden’s choice for Homeland Security secretary spells trouble

President-elect Joe Biden intends to nominate Alejandro Mayorkas, a Cuban American immigrant, to be the secretary of the Department of Homeland Security (DHS). If Mayorkas is confirmed, he will be the first Latino to lead that department.

This should please the immigration advocacy groups that supported Biden’s campaign, particularly the Latino ones. In fact, Janet Murguía, the president of the Latino advocacy group UnidosUS, has called Biden’s pick “historic and inspired.” UnidosUS is the nation’s largest Latino civil rights and advocacy organization.

Apparently, Biden intends to keep his promise that he will have “the single most diverse Cabinet based on race, color, based on gender that’s ever existed in the United States of America.”

But it will be a big disappointment to supporters who believed Biden when he promised to heal political division and bring the country together. If he really intended to do that, he wouldn’t have chosen Mayorkas to be the DHS secretary.

The Republicans were vehemently opposed to Mayorkas’s confirmation when President Barack Obama nominated him to be the deputy secretary of DHS on June 27, 2013. His nomination precipitated a vitriolic partisan debate that raged for months.

This should not have surprised Obama.

Three years before Obama made the nomination, Sen. Chuck Grassley (R-Iowa) sent a letter to the DHS secretary expressing apparently well-founded concern over the way Mayorkas, then the director of USCIS, was handling immigration benefit applications.

Grassley said that he had received complaints from USCIS employees alleging, among other things, that Mayorkas was fostering an environment that pressured them to approve as many applications as possible and condoned retaliation against employees who objected.

Grassley attached a copy of a request he had made to the Office of Inspector General (OIG) for an investigation of the visa approval policies at USCIS.

Grassley’s investigation request states that USCIS employees were claiming, among other things, that visa petition approval rates were around 98 percent, despite estimates that approximately 25 percent of them were fraudulent. 

The investigation Grassley requested was conducted.

It was still being conducted in 2013 when Obama made the deputy secretary nomination, and it continued throughout the course of the confirmation hearings for that nomination.

Mayorkas was confirmed on Dec. 20, 2013, on a roll-call vote along party lines — 52 Democrats and 2 independents voted yea and 41 Republicans voted nay.

The unanimous Democratic vote for confirmation probably was due largely to party loyalty, but that was not the case with the unanimous Republican vote. Four days before the Mayorkas confirmation vote, a majority of the same Republican senators voted to confirm Obama’s nomination of Jeh Johnson for secretary of DHS.

The results of the inspector general’s investigation were not released until March 24, 2015.

Highlights from the investigation

According to the inspector general’s report, Mayorkas communicated with EB-5 investor visa stakeholders on substantive issues outside of the normal adjudicatory process in three matters pending before USCIS, and he intervened in the handling of these matters in ways that benefited the stakeholders.

For instance, a number of USCIS employees complained that an application from Gulf Coast Funds Management (Gulf Coast) received extraordinary treatment as a result of Mayorkas’s intervention.

The California Service Center (CSC) sent Gulf Coast a notice of intent to deny an amendment request it had made.

After a number of contacts from Gulf Coast’s counsel, Mayorkas told CSC that he did not agree with the decision they intended to issue.

When he was unable to change their minds, he asked for the case file and said he would rewrite the decision himself, but CSC persuaded him not to do it.

Mayorkas told OIG that he offered to rewrite the decision to be helpful and to lighten the workload. According to OIG, however, this was the first time Mayorkas — or, to their knowledge, any other USCIS director — had ever reviewed the merits of or intervened in the writing of a decision. 

The number and variety of witnesses who supported the complaints about the way Mayorkas ran USCIS was highly unusual, according to the OIG. The witnesses included current and retired career and non-career members of the Senior Executive Service, attorneys, all levels of supervisors, immigration officers, and employees involved in fraud detection and national security.

OIG found that Mayorkas’s intervention in the three matters created significant resentment and resulted in an appearance of favoritism and special access. And but for Mayorkas’s intervention, the three matters would have been decided differently.

Diverse, but good for the country?

Biden’s emphasis on diversity is commendable, but it’s worth remembering that diversity alone isn’t a qualification for any Cabinet position.

Mayorkas offers diversity because he is a Latino immigrant, but he’s highly objectionable to the Republicans — and based on the OIG report, apparently for some good reasons. The fact that Biden chose him anyway indicates that he is according more weight to demands for diversity than he is to ending the hostility between the Democrats and the Republicans.

More importantly, that OIG report suggests Mayorkas should be objectionable to more than just Republicans.

In addition to the questionable things people accused him of doing, it is apparent that his management style antagonized many of his employees. The OIG investigators were surprised by the number of employees who said bad things about him — from all levels of the department he ran.

According to the OIG report:

“During the course of our review, we found that a number of staff members described Mr. Mayorkas’ communication and management style as very aggressive … One staff member said Mr. Mayorkas was ‘full of emotion, impulsive, volatile, and tenacious.’ Another high-ranking USCIS official told us that employees were afraid to speak up in the meetings because if they had a different view, Mr. Mayorkas would ‘cut them up, take them apart, or put them in their place.’ Another high-level employee said that Mr. Mayorkas’ modus operandi would be to eliminate those who disagreed with him from the group or future discussions … Another high-ranking official described going to a meeting with Mr. Mayorkas as feeling like ‘going into the lion’s den to justify our existence as a Christian’ and said, ‘That scenario always comes to a predicable end.’” 

Senators from both parties should be concerned about these comments.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.