In late June the President nominated Alejandro Mayorkas, current Director of USCIS, to be the next Deputy Secretary of the Department of Homeland Security. This nomination was a critical first step in addressing the issue of DHS leadership vacancies that I wrote about here a couple of weeks ago, and which has attracted notable media attention since Secretary Napolitano announced her resignation two weeks ago.
Until a few days ago, I assumed that this nomination would move forward smoothly, given Mayorkas’ very good reputation and his performance leading USCIS for the last four years. But as has been reported in the news this week, there’s been a bump in the road in his nomination process, related to a reported DHS Inspector General investigation into certain investments made via the Immigrant Investor Program (known as EB-5), and Mayorkas’ alleged involvement in key decisions related to this matter.
The Senate Homeland Security and Governmental Affairs Committee held its confirmation hearing for Mayorkas yesterday (July 25th), likely having scheduled this hearing before this news broke with the intent to try to get him confirmed before the August recess. Senator Coburn and the other Republican members of the Committee boycotted the hearing, arguing that these issues raised by the IG needed to be resolved before the nomination should move forward.
I’ve reviewed the transcript of yesterday’s hearing, all relevant news clippings on this EB-5 matter, and the relevant documents released by Senator Grassley yesterday. This is definitely the kind of issue that Senate Committees need to look at and sort out as part of a confirmation process. There’s still a lot of confusing and contradictory information in the public record on this matter, so I don’t feel confident to comment on the substance of the allegations. But from a process standpoint, I would note that these allegations are being brought forward publicly by the IG (who is under his own investigative cloud) in a way that seems very unfair to Mayorkas – who was perplexed and blindsided by these allegations at the hearing, and appears to have had no opportunity to respond to them in the year that the IG’s investigation has been open. The IG’s actions in relation to the Homeland Security and Governmental Affairs Committee also appear to be very strange – the Committee apparently only learned about this matter from the IG earlier this week, and Senator Carper indicated at the hearing that he found no relevant information on this matter in Mayorkas’ FBI background report.
And unfortunately, the net result of this matter is that it now seems unlikely that Mayorkas will be confirmed before Secretary Napolitano departs DHS on September 7th. (The Senate will be on recess from August 3 to September 9, so will have no opportunity to confirm him after next Friday, August 3rd). That will create a significant and troubling leadership gap at the top of DHS, just in time for the 12th anniversary of the September 11th attacks, and right in the middle of hurricane season. The Department is also likely to have a full legislative agenda this fall (cyber security, border security, appropriations etc.) and on the policy front is charged with working on the second Quadrennial Homeland Security Review (QHSR) and updating the National Infrastructure Protection Plan this fall. These issues will all suffer if there is a prolonged senior leadership gap after Secretary Napolitano’s departure.
For these reasons, I hope that the Senate will find a way to resolve this issue and move forward soon on Mayorkas’s nomination. And it is also imperative that the White House nominate someone as soon as possible to be the next Secretary of DHS, and also finally move forward on nominating and appointing individuals for other key vacant positions (CBP, I&A, ICE, IG, etc.) as soon as possible.