Let’s be serious about Alejandro Mayorkas

Sunday, March 29th, 2015
By: Jonathan MontagJ.D.

For 4 years, from 2009 to 2013, Alejandro Mayorkas was the Director of U.S. Citizenship and Immigration Services (USCIS). This was not a glamor position highly coveted in government. It meant taking over a portion of the former INS which was split into three parts and moved to the Department of Homeland Security in 2003. Two of the parts, Immigration and Customs Enforcement and Customs and Border Protection, were the law enforcement portions of the former INS, while USCIS was the benefit-granting agency. This was the agency that approved petitions recognizing employment and family relationships and granting waivers for immigration and criminal law violations. In the post 9-11 environment in the United States, USCIS could never get the public’s praise for allowing foreigners into the United States with more speed and efficiency, but would take the blame for allowing for foreigners to be granted status in the United States who ended up doing harm. Mr. Mayorkas went into the job anyway and faced all kinds of bureaucratic obstacles with little hope of praise for success, but with expectation of blame for whatever might go wrong.

USCIS needed fixing. Mr. Mayorkas understood that he was running a federal agency that was enforcing the law when it administered its programs – the laws about granting petitions and waivers allowing for status in the United States – but the agency’s methods defied the consistency one expects when administering the law. Administration was arbitrary and the rules were hard to ascertain, and what rules were explained to the public, were usually explained in multiple memos with little authoritative value. Workers in the agency could show great flexibility in administering the law, which the courts of appeal often felt compelled or at least inclined to defer to.

To solve this problem, Mr. Mayorkas set out to assemble all the memos and later to abandon the memo system for a serious of policy manuals for the public, still a work in progress. He began posting memos, even older memos attorneys would struggle to locate, to the public and invited comment on memos before implementing them.

He also found an agency with hopeless backlogs and limited opportunities for customers to learn about their cases. He implemented systems so users of the system could have a better idea about the status of their cases despite the huge technological and bureaucratic obstacles in his way.

He also, from time to time, put common sense into the system. An example – everyone calls permanent residence cards green cards. Everyone, of course, except USCIS, which refused to make them green and instead called them “permanent residence cards,” or, more cryptically, “I-551’s.” Mr. Mayorkas made them green and let the term the world used for them, Green Cards, be the word for them.

Was he completely successful? No. USCIS, in the area of marriage adjudications, has gone from bad to its arbitrary worst in determining what a valid marriage is. More policy manual work needs to be done than has been done. Regulations still need to be written for some very old laws. Adjudications still have the air of arbitrariness. Case status information is often sketchy and far too many cases still languish for years. The asylum system is imploding with cases pending for years without interview and customer service in the asylum sphere more what one would expect in the poorest developing country that the world’s richest. The goal of a paperless agency is more of a dream than ever despite the billions tossed at the project. Yet anyone who encountered Mr. Mayorkas could tell he knew there problems and was working on them every day. The President must have noticed his hard work, principles, and dedication, as he nominated him and he became a Deputy Secretary at the Department of Homeland Security.

Mr. Mayorkas would come and talk to immigration lawyers at their annual conferences. He would go into the lions den and explain what he was trying to do.  Immigration lawyers had faith in him – not that he was going to give away the store – but that he was tying to make the store a coherent place to enter and shop in. At one conference, he discussed his efforts at increasing customer service systems so customers could learn about their cases. He expressed his dedication to the concept of equal access. All users should be able to ask about their cases and get answers. It should not depend on hiring the attorney with the best Rolodex to get a stuck case moving. His general counsel, recruited from the private immigration attorney bar,  told a conference crowd that she would not answer calls from her old immigration attorney friends for help with their cases as Mr. Mayorkas wanted a transparent agency where all users had access to problem solving.

Ironically, this is where Mr. Mayorkas is now being burned – for taking phone calls and helping move along cases from prominent people who had his phone  number. The assistance came in cases involving the EB-5 (Employment Based Immigration Category 5) program, the program that allowed foreigners to invest a million dollars and get a green card. This was a program that was faltering. The bureaucracy was not implementing or administering the program. In a time of recession, the White House wanted to encourage entrepreneurship, investment, and job growth and USCIS was dropping the ball. Mr. Mayorkas took a great interest in trying to make the program work for everyone. Ironically, a program that he was making special efforts to make work was the one he is now criticized for meddling inappropriately in.

Some things should be clear about meddling. Meddling by an official may smell of corruption, but corruption requires more than meddling, it requires profit. Had someone given Mr.  Mayorkas a stack of $100’s to move a case, then you have corruption. Then you have a crime. Otherwise, what you have may not be fair, but is part of the way the system is run. Everyone knows it. It may be unavoidable. Does knowing a cop help avoid a ticket? How about having a Police Benevolent Association sticker on your car? Does giving a donation to a politician help get access? Does a donation help get an official to make a call for you or your company? Rhetorical questions do not need answers.

USCIS’s operations were run for many years by a man named William R. (Bill) Yates. Before there was USCIS, he ran operations for the INS. The man knows a lot and I am sure has quite a Rolodex. He also has a consulting company. Do you think people hire him for his expertise in how USCIS operates now – he retired in 2005 – or because of the Rolodex? Heck, Eric Cantor, who had Frank Underwood’s job as the whip in the United States Congress lost his job when he lost his election. A lawyer with real estate training, Mr. Cantor went on from being whip to becoming the vice chairman of investment bank Moelis & Company at a compensation of $3.4 million. Is this because Eric Cantor is a whiz bang investment banker or because of his Rolodex? Another example, Trent Lott resigned from the Senate where he was the minority leader and majority leader after praising Strom Thurmond and lamenting that Strom’s segregationist views were not followed. After leaving the Senate he became a high priced lobbyist and think-tanker. Do you think this was because of his amazing intellect or his Rolodex?

Former immigration attorneys who went into high levels of government service and now are back in private practice describe their former positions prominently in their websites, like here and here and particularly mention their involvement with the EB-5 program.     Do they promise access at high levels to their clients? No. Do they make it clear they have a Rolodex – the result of high level service? You bet they do.

None of these people are doing anything wrong. In America, people pay for access. The Koch Brothers are not paying to make the system better for everyone other than in some abstract sense. They are buying access to get America to assist them in achieving their goals. It is not for anything other than money that Republican presidential aspirants engage in Sheldon Adelson horse and pony shows.

No one is accusing Mr. Mayorkas of corruption. He is accused of answering his phone when prominent people were calling and then asking why their cases were delayed or denied. My clients’ Congressmen, at least some, do that for their constituents. Is a call from Mr. Mayorkas more likely to unstick a bureaucracy than a call from my client’s congressman? Certainly. Would it be better if no one needed to make such calls on behalf of others? Yes. Would it be better if money did not buy access? I say, “Yes,” but this is not how America works. It may have once been an aspiration, but it is not even that  anymore.  Posted March 29, 2015.


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