Grassley Questions Commitment of Immigration Services to Security and Investigations
Director Resigned due to Lack of Resources and Alleged Retaliation
WASHINGTON --- Sen. Chuck Grassley of Iowa expressed concerns that the U.S. Citizenship and Immigration Services has not sufficiently dealt with internal corruption and benefit fraud especially as they relate to suspected terrorists and associates of terrorists exploiting the immigration system.
Grassley’s concerns come on the heels of allegations by the former Director of the Office of Security and Investigations, Michael Maxwell, that he was not given the necessary resources and authority to act on security issues and then was retaliated against because he expressed concerns to Congress. Maxwell has since resigned from his job.
In the letter, Grassley writes, “his (Maxwell’s) rights should have been fully respected by USCIS. Instead, he claims that he faced retaliation and that he decided to tender his resignation rather than continue in a position where he was prevented from carrying out his duties and where he believed that further, more severe retaliation was eminent. It is a sad state of affairs when officials believe they must leave federal employment in order to report fraud and mismanagement relating to national security.”
Here is a copy of Grassley’s letter to USCIS Director Emilio Gonzalez. The attachments can be found here.
February 23, 2006
The Honorable Emilio T. Gonzalez
Director
U.S.
Citizenship and Immigration Service
20 Massachusetts Avenue, NW
Washington
, D.C. 20529
Dear Director Gonzalez:
I am informed that Michael Maxwell, Director of the Office of Security and
Investigations (“OSI”) resigned last week because of his belief that he “will not be
allowed” to transform OSI into “a capable security and investigative element” and that he
“will not be allowed to carry out this charge nor address â€Â| national security concerns[.]”
I am deeply concerned about the implications of this resignation for combating
internal fraud and protecting national security at U.S. Citizenship and Immigration
Services (“USCIS”). In light of Maxwell’s attempts to report serious and systematic
problems within USCIS and to Congress, his resignation also raises questions for USCIS
about whistleblower protection issues. According to Maxwell, shortly after speaking
with Congress, he faced a series of retaliatory personnel actions. The retaliation ranged
from eliminating his eligibility for overtime pay to altering his office’s duties and
responsibilities regarding internal affairs investigations.
As you may recall, I wrote to you on January 6, 2006, to congratulate you on your
new position as Director of USCIS and to inform you of my concerns about the ability of
USCIS to deal with the issues of internal corruption and benefit fraud, especially as they
relate to suspected terrorists and associates of terrorists exploiting our immigration
system. In that letter, I also informed you of the several outstanding document requests
and asked that the requests be complied with by February 1, 2006. I have yet to receive a
written response.
As I previously explained, on September 8, 2005, the Judiciary Committee of the
House of Representatives requested a briefing on these topics by Director Maxwell. My
staff subsequently learned that this briefing was indefinitely postponed and that the
Office of Congressional Affairs used Hurricane Katrina as an excuse for doing so,
claiming that Director Maxwell would be in Louisiana dealing with the storm’s aftermath
when, in fact, he was not. Director Maxwell had been informed that he would not be
briefing Congress and was instructed not to talk to Members.
On September 21, I wrote to Secretary Chertoff to express my concerns both with
the possible fraud, abuse, and mismanagement at USCIS and with the fact that Congress
had been misled about Maxwell’s availability for a briefing. I requested that Maxwell be
made available to provide the first in a series of briefings for my investigative staff
seeking the Secretary’s assurances that any USCIS employees who chose to cooperate
with my investigation would suffer no retaliation as a result. My staff, along with staff
from the House and Senate Judiciary Committees interviewed Maxwell on September 29,
2005.
At the outset of the interview, my staff advised Maxwell that he had the right to
speak directly to Congress or to a Committee of Congress without interference
1
and
asked him if he would prefer to speak without other representatives from USCIS present.
He indicated that since there were likely to be questions about internal affairs issues, he
would be able to speak more freely without USCIS personnel present. After other USCIS
personnel left the room, my staff provided Maxwell with a copy of Public Law 109-115,
Section 618, which enunciates a government-wide prohibition on the use of appropriated
funds to pay the salary of any federal official who prevents or attempts to prevent a
federal employee from communicating with Congress.
2
When asked whether he was
aware of any potential violations of this provision, Maxwell indicated that he was
personally instructed not to talk to Members of Congress.
At the close of the interview, Maxwell was advised to inform my staff
immediately if he believed that he had been subject to retaliation for his cooperation with
Congress and/or for anything associated with the ongoing Congressional inquiry into
internal corruption at USCIS and its ability to prevent immigration benefits from being
improperly granted to terrorists and their associates.
Based on the information provided by Maxwell and others, I continue to be
concerned that USCIS is not fully capable of executing this mission because of its focus
on “customer service” to the exclusion of homeland security. My office has been
contacted by multiple benefit adjudicators to report their own management’s lack of
concern for security and nearly exclusive focus on processing as many benefit
applications as possible.
Alien Security Checks
According to information provided to my staff, criminals and potential terrorists
may be able to obtain immigration benefits or be permitted to remain in the United States
illegally through a variety of questionable policy decisions by USCIS leadership. For
example:
(1) USCIS allows adjudicators to processes benefit applications without complete
FBI or CIA fingerprint checks on the assumption that the results are negative if
there has been no response within 40 days;
3
(2) alien benefit applicants may obtain waivers of the fingerprint check requirement
if they “are unable to provide fingerprints,” because of, among other things,
“psychiatric conditions;”
4
(3) as of late September 2005, USCIS adjudicators handling applications for
refugee/asylee travel documents were
not
required to compare the photograph
of the applicant for the travel documents with the original photograph of the
refugee or asylee, allowing illegal aliens to easily establish a false identity by
obtaining such travel documents in the name of another;
(4) according to an ICE intelligence report, USCIS has been “systematically”
issuing multiple permanent resident alien cards to individuals with the same
alien registration number, even though USCIS systems recorded the photos,
fingerprints, and signatures so that it should have been obvious that the all the
applicants were not the same individual;
5
(5) service centers were instructed
not
to serve a Notice to Appear (“NTA”) on
criminal aliens subject to mandatory detention
6
because of an unwillingness or
inability to pay ICE to serve them; and
(6) a search for a missing A-File that was being sought by a Joint Terrorism Task
Force (“JTTF”) at one USCIS office recently resulted in the discovery of a stash
of some 2,500 A-Files of aliens whose applications for benefits had been
denied, but whose cases had not been turned over to ICE because USCIS
personnel at that office decided to hide the files rather than pay ICE to serve the
NTAs.
7
Part of the problem as it has been described to me is that adjudicators are not
permitted to deny an application even though they are aware that a law enforcement
agency has derogatory information about an applicant. Instead, they must independently
obtain and assess the derogatory information to see if it makes the alien statutorily
ineligible for a benefit. As of August 2005, 1,400 applications for immigration benefits
that had generated national security hits on IBIS were sitting in limbo at headquarters
because the adjudicators were unable to obtain the derogatory information that caused
them to be flagged.
OSI, whose law enforcement personnel have the security clearances and the
contacts necessary to obtain derogatory information on applicants, offered to assist
adjudicators with these applications. Rather than utilizing OSI, however, USCIS
leadership instructed the adjudicators to exclusively contact the Fraud Detection and
National Security (“FDNS”) unit. However, FDNS lacks law enforcement personnel, and
therefore, it has been unable to obtain the necessary information from these outside
agencies in some cases. Because of turf battles within USCIS, adjudicators are faced
with a choice between granting the benefit with limited information about why a national
security flag was raised versus asking someone at OSI to violate the direct order of the
Acting Deputy Director in order to share critical information with them.
Internal Security
I also understand that as of January 1, 2006, OSI had a backlog of 2,700 internal
affairs complaints, 15 percent of which are criminal on their face, and only 7 criminal
investigators to handle them, two of whom are Assistant Directors. Allegations range
from misuse of government property and bribery to espionage and undue influence by
foreign governments (e.g., high-level USCIS employees being paid by foreign
governments to grant or deny immigration benefits to nationals of that government).
Some involve clear terrorism connections. Allegedly corrupt employees range from mail
clerks to SES personnel in top leadership positions. For example, an attorney in the
General Counsel’s Office at USCIS/HQ was under investigation for misconduct when he
was asked to write a legal opinion on whether OSI needs 1811-series criminal
investigators, an apparent conflict of interest.
I have been told that in response to congressional and public attention to the
backlog of complaints and the woefully inadequate resources OSI has been given to
address it, the Acting Deputy Director and Chief of Staff of USCIS decided to go through
the complaints themselves. The Chief of Staff took possession of the complaints placed
an executive assistant in charge of deciding which were criminal and needed to be
investigated, which should be closed administratively, and which required only a
managerial inquiry. It is unclear what qualifications this person has to make these
decisions or whether she was given any criteria upon which to make them. The
complaints were turned back over to OSI the week of January 16, 2006. However, some
400 complaints have reportedly disappeared entirely and cannot be accounted for, and
dozens of complaints farmed out to other units as administrative have since been referred
back to OSI as criminal. I have been told that because OSI’s requests to obtain a casemanagement system have been denied repeatedly, it has no way of knowing which
complaints are missing.
Whistleblower Protection
Under 5 U.S.C. §2302(b)(8), a federal employee may not take any personnel
action against an employee because of protected whistleblowing. Protected
whistleblowing is defined as disclosing information which the discloser reasonably
believes evidences: a violation of law, rule, or regulation; gross mismanagement; gross
waste of funds; an abuse of authority; or a substantial and specific danger to public health
or safety.
Maxwell provided such information to Congress on September 29, 2005, and on
other occasions. Therefore, his rights should have been fully respected by USCIS.
Instead, he claims that he faced retaliation and that he decided to tender his resignation
rather than continue in a position where he was prevented from carrying out his duties
and where he believed that further, more severe retaliation was eminent. It is a sad state
of affairs when officials believe they must leave federal employment in order to report
fraud and mismanagement relating to national security. I look forward to a full
explanation from you about how you plan to address security issues at USCIS.
However, before we meet to discuss these issues on Thursday, March 2, 2006, I
would appreciate a detailed written response to each of the concerns raised in this letter
and a commitment to a date certain on which you will begin producing documents
responsive to my requests. Any questions or concerns regarding this matter should be
directed to Jason Foster at (202) 224-4515.
All formal correspondence should be sent
via facsimile to (202) 228-0554 and original by U.S. mail.
Sincerely,
Charles E. Grassley
Chairman
cc: Secretary Michael Chertoff
Department of Homeland Security
Inspector General Richard L. Skinner
Department of Homeland Security
Attachments
1
5 U.S.C. § 7211: “The right of employees, individually or collectively, to petition Congress or a Member
of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof,
may not be interfered with or denied.”
2
No part of any appropriation contained in this or any other Act shall be available for the payment of the
salary of any officer or employee of the Federal Government, who—
(1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee
of the Federal Government from having any direct oral or written communication or contact with any
Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the
employment of such other officer or employee or pertaining to the department or agency of such other
officer or employee in any way, irrespective of whether such communication or contact is at the
initiative