Transcripts For CSPAN2 Key Capitol Hill Hearings 20150501

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 get a flavor for good on this important manner i and stand his colleagues not necessarily have known what i did to to adhere to applicable guidelines in these three cases. Nor would they necessarily have been aware of my involvement in many other cases many of which were responsive to concerns and inquiries of members of congress for both parties. This context would better guard against the possibility of such perception. I support and embrace secretary johnsons protocols developed to more ably and sure employees understand the involvement of their supervisors in specific cases. The protocols will benefit directors who become involved and provide guidance in certain cases. I regret the perception by own involvement cause. In the three cases at issue cases that were the subject of bipartisan support i did what i did in the many other cases that were brought to my attention. I did my job and fulfill my responsibility. I did not lead to errors go unchecked but instead help ensure that those cases were decided correctly nothing more and nothing less. I took the advice of collies including agency council, took steps that would guard against the chance of misperception raise concerns that Broader National Security and follow the facts and apply the law. I became involved in court cases eb5 and other types. All applicants are entitled to and deserve a the fair and correct applications of the law. The cases in which i became involved when it was the case of the guatemalan orphan seeking to be united with her adopted American Family the pregnant mother seeking urgent humanitarian to escape forced abortion in china and the performing arts groups cultural influences and seeking the performing arts needs visa this basic principle was my guide and my responsibility to fulfill. Thank you for the opportunity to appear before you. Thank you. Deputy secretary. I would now recognize myself for five minutes. Let me say first again i did not create this report. I have nothing to do with it. It raises serious allegations and you and all people know that i have an oversight responsibility under the constitution but i want to go through some of the issues that have been raised by the report to give you the opportunity to respond to that and first i know in april 2008 issued in ethics policy to all of your employees and i would like the clerk to provide the policy memorandum to the witness. I just want to ask you first why did you issue this ethics policy and what was the purpose behind it . Mr. Chairman i issue this ethics policy because the principles articulated in this policy are very important and are applicable to everyone in the agency. You correctly noted that Public Confidence in the decisionmaking of a Government Agency is critical to the Public Interest into our responsibility as Government Officials. In the service of that principle i issued this important ethics memorandum. And i think its a good memorandum. You coming from the Justice Department like myself say the purpose is to prevent situations that could appear to be preferential. What are the penalties outlined in this policy that fails to meet the standards set . Mr. Chairman the penalties depend upon the facts of a particular case. The memorandum does spell out that the penalties can cover a wide range of possibilities anywhere from a counseling to incrimination depending on what principles specific they are violated and the facts of the violation. At this point up to and including a rhino for employment in a memo. More than 15 civil servants, career employees came forward in your matter regarding your actions in the three ev five cases and according to the ig there allocations were unequivocal given special access to treatment for certain individuals and parties and i would like to ask you about these three cases specifically. First in the l. A. Films case. According to the ig report within an hour of speaking to ed rendell former governor and chair of the Democratic National committee you directed a uscis staff to stop processing that the miles of eb5 the petitions that you had already signed off on. Is that true . Mr. Chairman i dont remember the chronology of the communications in that particular case. I think there is a very important principle at stake though and that is the following following. That is a concern with respect to our turns to the law is raised it is our obligation to address that concern and have confidence that the ultimate decision that we are making in a case and heres to the law and the facts in every case. That is what i did in that case. On page 18 of the ig report it says you stop processing the denials but you have already signed off on them. I mean i guess you cant answer that question . Im just reading from the ig report. Mr. Chairman im not questioning the facts that the Inspector General laid out that particular point in the report. What i am sharing with you is that i dont recall the chronology of the communications in that case but the principle is vitally important that when we issue an adjudication in a case it is our obligation to adjudicate the case in adherence to the law based on the facts in that particular case. According to the report you also told staff to create a onetime review board that resulted in approval of 249 positions in the opinion of the career staff would have otherwise been denied. Do you know if thats true . That is not precisely true if i may. And if i can please share. Very specifically. I have very little time. S. Mr. Chairman to hear. In 2011 amends many complaints with respect to our administration of the eb5 case we developed a series of reforms reforms, proposals that they would flush out subsequently. One of those reforms that we discussed in agency and announce publicly into which the public responded was the creation of a decision board in eb5 cases to address complex issues that were unresolved between the agency and the partner. I appreciate it but you said it was used once in the specific case creates the appearance emet created a special process to accommodate special parties which i argue arguably were in violation of your own policy. If i could get to the case. According to the igs report not me you directed your employees to provide senator reids staff with weekly briefings. Is this correct . I dont recall doing so. That is case 36 of the i. T. Report isnt Standard Practice to provide weekly updates to the status of eb5 visa applications to outside parties . Mr. Chairman we have prided ourselves in a responsiveness to congress and how frequently our office of legislative affairs responded to the innumerable questions and inquiries and concerns from members of congress i could not speak to. I know that the dialogue between our agency and members of congress from both parties was constant and consistent throughout our administration of the eb5 program and for reasons that were quite understandable quite frankly. Well i mean in all three of these you have been able to confirm or deny the specific allegations set forth in the igs report. I believe it seems clear that your actions to the recent request to expedite this case providing staff with weekly updates. I understand the a. G. Is making the accusation and you are denying or youre saying you dont remember. That would in my judgment creative perception of preferential treatment in violation of your own ethical policies that you set forth sir. Let me go to the last one. The gulf coast case. According to the igs report following medications with current Virginia Governor and Democratic National committee Terry Mcauliffe is subsequently intervened in the decision on the gulf coast appeal even sing to career staff you would rewrite the decision yourself and that is set forth in the ig report. Can you respond to that and respond to these accusations r . Thank you very much mr. Chairman for that opportunity. I was asked by the then secretary of the office to look into this eb5 case because it was the subject of considerable concern not only by stakeholders outside of the government but by members of congress of both parties as well. It was at that direction that i looked into the case and learned that there were serious legal issues at play in that case, legal issues the seriousness of which my own colleagues recognized. I was a prosecutor in the Campaign Finance reform and the chinese influenced election protected tell you im going to pursue this for the eb5 applicants and what was behind that with respect to some these foreign nationals. I think it warrants further work. In conclusion i would like to say your 2010 ethics policy and begin a state in your policy quote often the appearance of preferential treatment can be damaging of a organization with preferential treatment. Therefore employees should avoid matters if his or her produces patient may cause a reasonable person to question the employees of partiality. I believe in my judgment reviewing this matter and the responses you have given today not and not really being able to respond specifically that your actions in these create created special access and special favoritism. I think you also violated your own ethics policy. At the end of the day you know you and i are both career employees and now you are a political appointee but political appointee should be held to the same ethical standards as rankandfile members at the department. And with that the chair in a recognized as the Ranking Member. Thank you very much mr. Chairman. Deputy secretary mayorkas the Inspector General was the forest a few weeks ago. I asked him some questions about the normal process by which he reviewed this eb5 program. All of us as members of congress are constituents ask us all the time to contact this agency on our behalf do what you can and for the most part we do. Its not unusual for a member of congress to contact a fellow agency about a constituents interest in a program. Eb5 is a job creator. That was one of the reasons it was put together. But i am going to specifically to the three ev five cases mentioned in the Inspector Generals report. The gulf coast case. The Inspector General talked about context from democrats. Are you aware of any contacts from republicans in this same case . Yes congressman. That eb5 case was the subject of bipartisan support and we received communications are members of congress of both parties. I think if i may articulate a very important principle here that the individual who brings an issue to our attention does not decide the disposition of that issue. The disposition of the issue is neutral to the messenger but scrupulously loyal to the laws and the facts in the case. Thank you. Now you know this is not mp and individuals but my former Governor Haley barbour is known in the republican National Committee a very active person in the community and somebody who is interested in jobs. Im told that he contacted your office on the half of the gulf coast. Is that correct . Yes congressman. I want people to understand that perception, here you have a republican governor contacting a democratic administrator on the half of a job creator but in the ig report gives the impression that only democrats were contacted. I understand that both my senators contacted your office on behalf of this very same policy is that correct . Happily i believe that is correct. A former member of this committee that just left a few weeks ago contacted you on behalf of this very same project project. Am i correct . I believe so. In the point im trying to make is we get into the Inspector Generals report that would lead you to believe that only democrats contacted on behalf of this job creation program. That goes to the l. A. Films program. A former member of this committee i am told that a former member of this committee contacted you republican contacted you on behalf of this program. Are you aware of that . I dont recall. I know that that case was the subject of communications from both parties of congress. Are you aware of bipartisan contacts in support of this program . I am. So they assumed that three cases presented to us by the ig did not include any republican Member Support for those projects as you saw. As best i can recall. I asked the ig in this hearing and he did not answer the question but i would say again the report was incomplete. Gentlemen, ladies we asked we are are asked their constituents all the time to support various projects. There have been some questions about that deference that you allegedly created to review the case. Are you aware of that . Yes but that was not created for that case. That was created for all cases. The concept of the decision board was generated in 2011. I discussed with career employees the application of that decision board to the issue of deference which was tremendous concern in the community in the eb5 program. I discussed its application with a number of career employees in 2012 and ongoing. So it was not limited to that one case . The decision board or the difference board as it was termed subsequently was a reform that was applicable to the eb5 program writ large and it was needed and especially with respect to the issue of deference which caused so much consternation in the community when uscis would make a decision decision, investors would invest. Capital with the viewed. Business projects would begin and the agency would change its interpretation reverse the course and projects would collapse in jobs would be lost. And my last question mr. Mayorkas goes to was it unusual for the director or the agency to refer items to counsel for their review and opinion of . I did that congressman with some frequency depending on the issue. And with respect to the eb5 case cases without that stakeholder you sought counsel in these cases. Quite frequently we would discuss legal issues and other issues involved in these cases. Thank you. I yield back. The chairman recognizes the gentleman from new york. Mr. Mayorkas thank you for being with us today and to reiterate the chairmans comments, we didnt make this report and we are duty bound to follow up on it so i want to ask a series of questions. If you could keep your answers as brief as possible unless i ask for an explanation. With regard to the l. A. Film issue did you speak to governor rendell about that issue . I believe i did in a conference call. They believe i did to the best of my recollection. Your best recollection do you recall was said during that discussion . I do not. You do recollect that you spoke about this issue . I know i spoke with him about in eb5 case and i believe it involves the l. A. Films case. Im not certain congressman. The difference review board that was referenced as part is the l. A. Film regional issue it did in fact exist after this after the l. A. Regional center issue . To learn from me the Inspector Generals report that it was not convened since the l. A. Films case. My hope is that number one the agency was not issuing incorrect decisions. Im sorry to cut you off. I just want to know if the facts are reviewed in your answer is it was not. Based on the Inspector Generals report it was not. I left sometime after and so i did not keep track of the difference review board especially because of the changes i made in our administration and the leadership that i brought, the new office that i created in the due process as we put in place. Thank you. With respect to the difference review board was it used before they l. A. Films Regional Center case . To the best of my recollection congressman we discussed using it in 2012 with respect to another eb5 days and we decided a different process could be used to resolve that very same issue difference in that eb5 days. That was in eb5 case im sorry to cut you off but was a bit for the l. A. Films case or not . To the best of my knowledge no. Thank you. Now, with respect to the las vegas Regional Center issue do you recall specifically speaking with senator reid about this . I do. Okay. Also with respect to steve olson executive director selectu. S. A. . I do not remember speaking with him about the case and that doesnt mean i did or did not. I just dont recall. Now with respect to the gulf coast case that was mentioned in the report do recall having contact with governor mcauliffes . I do. How much contact did how much contact did he have with them about this case . I remember to the best of my recollection less than a handful. To the best of my recollection is as i sit here congressman i remember a meeting i attended in which mr. Mcauliffe was present in the department of Homeland Security headquarters under the direction of defense secretarys office and i remember him calling to complain over the ensuing couple of years i believe a few times. The general discussions were about trying to get that approved, is that correct . Mr. Mcauliffe complaining about our adjudication in the case. Thank you. Now you mentioned during your Opening Statement and i think in her testimony as well that you get involved in cases decided correctly. You recall that . Absolutely. Were there procedures in place to handle these cases at your agency . There were but there were times when cases were brought to my attention that my own employees were so complex legal policy issues. That was with respect to the eb5 cases and many other cases outside of the eb5 program. With respect to the eb5 cases to make sure im clear and tell me yes or no did establish future eb5 cases . Yes. C and whether eb5 cases procedures contemplate a rejection by the head of the agency like you did . I believe they contemplated supervisor earl review so when supervisorial review was warranted supervisors engaged and i viewed myself as theyll commit supervisor responsible for the agencies fair and correct administration of the law. In your mind it was appropriate for you to interject yourself and in the process as he saw fit . It was my responsibility to ensure that we were hearing to the law congressman and that warranted my involvement in a case that i became involved. I was a very handson leader and i believe in the agency and all of its workforce. I know you have to do this as a prosecutor, take a step back and look at it from a laymans perspective. Looking at from a laymans perspective you have instances in which individuals are trying to influence the eb5 process for their own benefit. You are taking their input and ejecting yourself to those cases. And trying to affect the out come of those cases. Fair to say from a laymans perspective it make it be a perception of something less than impartiality. Is that fair to say . Congressmen if i may have would not characterize it that way because what you said is that i would interject myself in a decision that would benefit those individuals and that is not true. What i did do was get involved in cases to ensure that we were hearing to the law whether that lead to a denial of a case or the approval of the case. Its fair to say these allegations are true you are projecting yourself in these cases and that point specifically to the allegation that you wanted a case file into mcauliffe instance because you wanted to rewrite the decision yourself is that fair to say . No congressman respectfully, that is not accurate. I interjected myself and to use your terminology in many many cases in the agency. Im not talking about those cases. I understand. I sat around the table and discuss the legal issues that were involved that are on agency designated as conflict better on agencys referred to as its own Appellate Review Office because of the complexity of the issues. Winner result in a particular issue i offered to write the legal analysis justice i had offered a settlement conference in a particular case because i thought i could add value to the position of the case just as i offered and the chairman will appreciate this, just as i offered you try a case that involves National Security interest because our agencies felt we were compelled to grant citizenship to an individual who i believe did not deserve citizenship and actually posed a danger to our community and i offered to try that case myself to the benefit of the agency, to the benefit of the interest that our agency was guarding up. Just one moment thank you. I guess im getting at the point of perception even if there is no wrongdoing. Perception is that people are calling it these, gulf coast case people had a strong interest in seeing it a certain way. Certain actions were taken by you in looking back on it wouldnt be fair to say that you said yourself that you have regrets that perceptions were caused by your action and is that fair to say that perceptions were a problem in the guidelines that perceptions of that is doing something wrong. Looking back on it would you say at a minimum its probably not a good idea to have such access to the outside in a cases based on the facts . Principles to which i have adhered throughout my 18 years of Government Service 12 as a federal prosecutor and 4 as the director of u. S. Citizenship and Immigration Services and approaching 2 as a deputy secretary of Homeland Security. Ive thought a great deal about the report, ive thought a great deal about the allegations, and i have reviewed the report and the allegations with great care and reflected upon them and reflected upon to my activities and the concerns expressed by my colleagues at u. S. Citizenship and Immigration Services. And i do regret the perceptions that my activities created, and i take responsibility for those perceptions. And ive thought about what else could i have done to better guard against those perceptions, and that is one reason why i value so much the report that the Inspector General prepared, and importantly and critically, why i have endorsed and embraced the protocols that secretary johnson directed and that the office of the general counsel for the department of Homeland Security have promulgated. Those protocols would have better equipped me to guard against the perception of some employees who did not necessarily have complete context with respect to my involvement in these three cases, nor my involvement in so many other cases. And i appreciate the opportunity to address your important question. Gentlemans time has expired. Thank you. The gentlelady, ms. Watson coleman is recognized. Thank you, mr. Chairman. Mr. Mayorkas, i have a lot of questions so i too, would like to have expedient answers. You started in 2009 in this program over the eb5 program, right . Yes. I became the director in august 2009. And when did you leave . I left in december of 2013. And when were these three cases in particular the subject of consideration and supposedly your involvement . 2011 on and i cant i apologize, i cant provide a more discreet time frame. Do you know when the Inspector General started his investigation . I dont. I believe i believe it was in 2012 or 2013. Some of this happened while you were there, and some of this happened while you were gone . I learned of the Inspector Generals investigation in july of 2013. During his investigation how many times did he interview you . I was interviewed once. During that interview did you share with him did he raise the issues that of preferential treatment and preferential access was alleged and that decisions based upon that access on your part was alleged with regard to these three cases . Yes. That subject was raised in the interview, and i should say that the Inspector General himself did not interview me but investigators did. Did the investigators tell you the individuals that you supposedly gave access to . I believe the allegation was that i give access to some individuals with interest in the outcome but did he identify them for you . I dont recall my question is going to be, my question is basically this Inspector General only reported to us that there was access by people who are of one political persuasion. The information that weve been briefed on consistently is that there was bipartisan interest many each of these instances in each of these instances. So i want to know at what time did you ever inform the Inspector General that in addition to the people that he was concerned about or his office that there were equally as many other either nonpartisan or partisan individuals from either side of the aisle who expressed consistent interest in the outcome of these cases . I believe i informed the Inspector Generals office that these cases were the subject of bipartisan support. I dont believe i identified particular individuals. And i did articulate the overarching and critical principle that our obligation is to decide a case not by whos interested in it, but by the law and the facts in the particular case. Thank you. One of the things that i heard you say or i read was that perhaps individuals who had made these allegations who were lower in the hierarchy did not know what was going on because you were discussing these issues with counsel and with members above you in the hierarchy. And so they didnt know that you were, in fact, checking with Legal Counsel and others as you were proceeding to work your way through these particular issues as you might on other issues too. Is that correct . I think there were individuals with whom i worked at all levels of the agency with whom i interacted about these cases. But i ive thought a lot about this, but perhaps i could have done a better job of providing full context more those with whom i worked, and maybe that would have better guarded against the perception well, those are ones that are below you in the system that were below you in the organizational chart . Well in other words, you would be communicating down to them that which you were doing on behalf of these cases or in the interest of resolving these issues . Those were individuals who reported to me either directly or through chains. So you did have, you did have interaction with people you were seeking counsel from at the counsel level or at your level or above . Oh, yes. With respect to my involvement in these cases i was very open with my colleagues. On the three cases that have been a part of this discussion and the only discussion weve had, two of them had an outcome which was not favorable to the individuals who were seeking the applications, is that right . Um, i know that the um, in the green tech case after my involvement concluded because once the complex legal issues were addressed i withdrew from involvement in the case. My involvement was no longer warranted. I know that complaints regarding the case continued for quite some time. In the sls case my involvement was very discreet with respect to whether we were applying our expedited criteria correctly and i concurred in that case with the career employee right. Who led the eb5 Program Office at that time right. And then with l. A. Films, i was not involved in the decision of the what has been termed the deference board. I was not involved in its Decision Making. So in your opinion why are these three issues before you these allegations raised by these employees that are beneath that were beneath you . Was there something going on in your agency . Well i will say this, if i may, and then id like to answer your question directly. I was very active and id just like to say were about 1 30 over time, so if you could excuse me, with all due respect, mr. Chairman we just had an 11andahalf minute between my esteemed colleague mr. Katko and thats fine and i gave the witness a very long opportunity, a very long time to respond to his benefit. I can wait for another round. In deference to all the other members here, im going to have to keep a little more discipline. But go ahead thank you. Itll be your last question. You know what . I will come back for a second time, because theres only two of us here. But i just ask for consistency. Im not going to allow ten minutes for every every member. Now well, how we pick and choose is the issue. The last one the response from the witness was a little bit on the long side and i allowed that to go forward. Okay. But i am going to maintain some discipline as chairman of this committee. Your last question. Thank you, mr. Chairman. Excuse me. Last question. Mr. Chairman . I think what the gentlelady is asking for is a balance. And at no point did anybody get time called on them. Gentlelady was only a minute over. All we had to do we will have a balance and it will be more disciplined moving forward in this hearing or we will not be done by the time votes occurred. But having said that the gentlelady please, ask your last question. I believe that mr. Mayorkas was in the process of answering a question, mr. Chairman. Sure. Um if i may ill answer it very briefly by saying this it is my responsibility to insure that my employees understand my actions as a leader of the agency. It is my responsibility to insure that they understand entirely and completely the reasons for my involvement and the consequences of my involvement. Thank you. At this time i was making extraordinary changes in the eb5 program and our administration of it. Thank you very much. Mr. Chairman um [inaudible] i dont know if you were planning to come back afterwards for me. I i have a series of questions, but i tell you i also have a series of questions that id like to bring before the Inspector General. As to why we were only given a little bit of information regarding these three issues in particular and why with all associated with some sort of partisan so i dont know what your plans are but i dont think were done here. And i thank mr. Mayorkas. I really wanted to talk to you about all the improvements that youve made to the management of this office and the department in general and how we should be applauding that instead of sort of excoriating you. But maybe next time. Thank you very much, mr. Chairman. Thank you. And let me just say i im very lenient with time normally as the chairman, but i am trying to keep this within some bounds of reason. Ill let members go over the five minutes, but within bounds of reason on both sides of the aisle. With that now the chair recognizes mr. Walker. Thank you, mr. Chairman. May take just a point of privilege there, the chairman did not interrupt the member, but i think was directly to mr. Mayorkas. The 2009 2009 eb adjudication policy contains a section quote eb5 external stakeholders. The section of the policy states Oral Communication takes place between uscis staff regarding specific eb5 cases the conversation must be recorded or detailed minutes of the session must be taken and included in the recording of proceeding. The record proceeding. The eb5 program maintains an email account for external stakeholders to use when seeking general eb5 Program Information inquiring about the status of pending cases or requesting the expedite of a pending eb5 case. The policy continues with this uscis personnel are instructed to direct all casespecific and general eb5related communications with ec terrible stakeholders external stakeholders through this email account or through other established channels such as the National Customer Service Center or the office of public engagement. So during your tenure as director would you be considered uscia personnel and as such the clause in this policy that i just read, would it be amake bl to you applicable to you, yes or no . Yes, i was a uscia personnel. Those guidelines would apply to me. However, they should not be at the debt result of insuring detriment of insuring that we get to the right result in a case. And so i would become involved in a case if my involvement was warranted to adhere to the law that Congress Passed. So are you saying you not only made that decision whether you should kind of abide by the policy is that my understanding, or are you saying Something Different here . Im saying Something Different, congressman, if i may, and i apologize if i was unclear. I was a consultative leader. And so when i engage in a particular case sometimes at the behest of my employees sometimes because a concern or inquiry was raised by a member of congress, sometimes because of a stakeholder i did not do so in the dark of night, but did that openly in collaboration with my colleagues to insure that we were resolving legal and policy issues correctly and bringing force to the laws that Congress Passed in the eb5 program. Thats okay. You also had contact over email telephone and in person with eb5 external stakeholders including but not limited to ed rendell, anthony [inaudible] what were the status of pending cases were discussed is that correct . Yes. Okay. These email communications occurred through your uscia email and not the established eb5 email the National Customer service or other established Communication Channels is that correct . They were with me through email on occasion, and then i would share the emails with my colleagues for the recordkeeping to which you refer how would you go about sharing those emails with your colleagues . So, for example, in the green tech case when my involvement was needed to address the issues with which the agency was grappling, i would forward my emails to counsel. And i mr. Mayorkas, would you say that was in line with the policy, the eb5 policy or not . Id have to take a look at that policy, but it was in line with our ultimate obligation to adhere to the law. I became involved when my involvement was necessary, when the complexity of the legal or policy issues warranted it. When my involvement was not necessary, i did not engage. In fact, if one takes a look at the chronology of these case one will see that i was involved when the issues warranted and when the issues were resolved i withdrew from my involvement. Okay. Ive got a couple more i want to squeeze in here but there seems to be a pattern as far as overriding the policy when its your interpretation that you feel like the overall law was more important. My question is your telephone calls and inperson meetings were not recorded and or detailed minutes were not taken and submitted into the record of proceeding. True or false . I couldnt speak to that. I certainly communicated if i may, congressman i communicated the fact of communications with my colleagues. How those were recorded, im not certain. But i will say this, and this is let me pause before you move on there because to this at this point ivan counted about 14 or 15 points where youve said i believe so, but im not certain to the best of my recollection, and then on to something else. Let me go back to the question before we get did you fall in line with the policy, do you need to reread the policy, or in your interpretation that youre testify, you felt there was a larger scope to go by instead of the policy itself . Congressman i sought thats my last question. After he responds, i will yield back. Thank you, congressman. I sought each and every day to adhere to the highest legal and ethical standards that guide a public servant. The protocols that secretary johnson directed and that the office of general counsel promulgated will bring improvements to the very issue about which you inquire. Thank you mr. Mayorkas. Thank you. Mr. Chairman, i yield back. Thank the thank the member. The chair now recognizes ms. Kathleen rice from new york. Thank you, mr. Chairman. Mr. Mayorkas, you have made reference to in your testimony and in your written statement that you support and embrace secretary job softens protocols johnsons protocols that were developed to more ably insure that employees understand the involvement of their supervisors in specific cases. Can you forgive me if i missed this, but did you tell us what those protocol changes were . No, i havent. And i believe they were issued formally this past monday in the office of general counsel. They set forth protocols that speak to a clearance process before certain leaders become involved involved in particular cases. They define very generally the circumstances in which that involvement is warranted, or i should say optimal. They speak to the, congressman walkers issue in question. They speak to the recording of the involvement so theres clarity and understanding by all employees with respect to the reasons for and the fact of that involvement. And i clearly would have benefited from those protocols. And what about whether or not in order to address mr. Katkos line of questioning about perception are you or someone in your position youre not there anymore but many charge of cis are they able to accept phone calls from elected officials . Under the protocol, i would i believe so, and i believe the protocol speaks to that and the fact that those communications should be recorded. Okay. So and by reporting i mean memorialized not necessarily audibly recorded. I will agree with mr. Katko that very often perception becomes reality, and perception is an issue that we all have to deal with. You have gone through and been questioned very much about, you know the actions that you took and the perceptions that they actually gave other people whether accurate or not. But i think the more relevant question, mr. Chairman, that we have to ask on this committee is and maybe we do this in a closed session do these phone calls that all of us make to various federal agencies inquiring about specific issues, is that a negative perception right there and should we not do that . Or can we figure out a way that we can serve our constituents, because thats what these phone calls do, in a nonpartisan way because republicans and democrats both do it, and do can it in a way that makes sure that the perception is not misconstrueed and theres a transparency. I just throw that out there, and i thank you for your consideration, mr. Chairman. Thank you. Thank you. Chair now recognizes mr. Perry. Thank you, mr. Chairman. Mr. Mayorkas, good afternoon. Good morning. Americans pride themselves on a transparent government where any person from any background has an equal chance of success where a persons success or failure is blind to privilege or association and that success is solely based upon merit as it relates to a set of objective criteria established for the express purpose of insuring fairness while denying individuals in positions of power and influence the latitude to use their position to unethically benefit for themselves or for those whom which they wish to curry favor. Based on that premise under what circumstances do you consider preferential treatment by a Government Official acceptable . Congressman, if i may principle which you espoused thats mine. Use your open. No, no, no. Use your own then. Under what circumstances is preferential treatment by a Government Official accepten . I embrace your articulation okay. So there arent any . Preferential treatment is not acceptable. Okay, thank you. With that understanding, with the understanding that you worked throughout your tenure to revise the eb5 visa adjudicative process and as a former United States attorney, is it accurate to state you were aware the process was governed by statute regulation and uscis policy . Absolutely so. Okay, so thats a yes. And is it also accurate that you violated established policy for handling inquiries into the program . I do not believe i did, congressman. Okay. Well im just so youre saying that the office of the ig is wrong and thats okay if youre saying that. No, i am not and this is very, this is very important because the process of the office of Inspector General is one that i have profound respect for, and i understand its importance. The office of Inspector General found that employees im talking about what you did, sir. Yes. That had a perception that i granted preferential treatment to individuals with an interest in these cases. I am responsible for the perception that my employees have of the work that i do. Okay. And i bear that responsibility, and i regret the perceptions that my work created. Okay. So its their perception however. And you disagree that you violated the policy. Thats find, you can. Do you consider the eb5 visa valuable . You know what the value is of the eb whats the cost . Generally speaking, within the parameters of the program. When youre asking what does it cost, the fee 500,000 to a Million Dollars right . Oh, im sorry. To obtain yeah. Thats what kind of money were talking about here right . We are talking about a Million Dollars unless the investment is in an area of high unemployment or rural area right right. 500,000. So were talking significant money. I dont know about anybody else yes. As of july 15th, and i dont mean to rush but ive only got so much time. Did you have a previously existing relationship with former dnc chairman and pa governor ed rendell . Before when, im sorry . July 15, 2011. Not to my recollection. Okay. The answer is no there. Is it true that as of july 13, 2011 uscia adjudicators were going to deny eb5 vis a vis applications for a firm known as l. A. Films . I believe from my reading of the Inspector Generals report that is the case. Okay. So you believe so. And is it also true that on july 15th two days later getting a phone call from somebody that you did not know, probably knew of him, you received a call from former pennsylvania governor ed rendell, and within an hour of this call you directed your staff to reopen the denied application for l. A. Films true or false . If i may, i want to clarify something in your question. Sure. Congressman because i believe that governor rendell reached out to me about an eb5 case earlier. And as i mentioned and i believe it was in response to the chairmans query perhaps another member of this committee, i dont remember the chronology. Well, i have the chronology from the Inspector General report. You just told meow didnt have a me you didnt have a previous relationship with the governor so thats a little cloudy for me. I guess finally so youre telling us its a coincidence that former dnc chairman and pa governor ed rendell was a paid consultant representing l. A. Films, and he just happened to call you two days after it was known the l. A. Films eb5 request was going to be denied, and that within hours of receiving the governors car you, mr. Mayorkas directed your staff to reopen the denied application for l. A. Films . Is that a coincidence . I would respectfully take issue, congressman, with your characterization. I understand that. Youre an attorney, right . It doesnt seem like you came very prepared for the meeting knowing that it was coming. One final question, mr. Chairman. What is dhs policy for employee use of personal emails in the context of on april 7 2015, this year, i sent a letter to the secretary requesting to see a copy of your email usage policy. Why has it taken so long to i know you cant answer that question. What was the powell for the employee use of policy for the employee use of personal emails . Do you know . To the best of my knowledge official business is to be conducted on official government email, and i will will follow up with your question congressman, with respect to your request for a coup of our email usage policy. Thank you. Mr. Chairman, i yield. Chair recognizes mr. Loudermilk from georgia. Thank you, mr. Chairman. Mr. Mayorkas, thank you for being here today. As subcommittee chairman on another committee on oversight its amazing how i guess being in the Committee Room in oversight causes selective memory with some people, so i understand im understanding the process a little bit more of asking multiple questions over and over, and i think i appreciate you being here and willing to share with us what you recall. First i wanted to ask you about the deference review board. When you when you established that did they already have when they first met, were there policies and procedures in place when they had their they convened their first meeting . Congressman the board was first considered and formulated in concept about two years earlier in 2011. It was discussed when First Published as a proposal and evolved since then, and the board convened in the l. A. Films case, and i am not aware of what procedures it did or did not have in place atta time. Well, according to the ig at that time. Well, according to to the igs report it appears they had no policies and procedures in place when they first convened. Now, how many times did the drb convene . My understanding from the report, congressman, is that it convened once. And it was only regarding the l. A. Films case . That is correct. And my hope is twofold. One, that with the issuance of a governing eb5 policy memorandum approximately two months after the board convened that gave better guidance to our adjudicators, we were no longer making decisions that we deemed to be incorrect and had to reverse at the great expense and consternation of stakeholders as well as members of congress. And that we were adhering to our deference policy with greater orthodoxy than had previously been the case because the concern was that we were failing to honor our own substantive eb5 policies. Was disbanded or just not utilized but if an issue was not resolved yet the uscis adjudicate ors could for example pose inquiries to the party in interest. They could request evidence and there could be align of communication of the written questions and written responses. Usually fact based trying to obtain evidence that addressed one of the elements of the particular visa category at issue. And the decision board was contemplated in 2011 to bring greater efficency to that process. So that the party in interest could convene with an appropriate uscis represent tifdz to seek to resolve the legal and the policy or the factual issue thats had not yet been resolved. So based not what you are telling me in the oit report, the drb met one time. Heard an appeal. They overturned it. And it was disbanded. How many denials since then have been appealed and then approved . How many denials of the eb 5 cases . Eb 5 cases. My concern with this program is that um and it looks like staff has done a pretty good job with this of the but my concern is that it is an avenue that could be abused for someone that has money to buy citizenship in the United States. Congressman if i can two things. One, the program contemplate not only the invest ment the capital but importantly the invest ment the capital that will lead to the creation of the certain number of jobs for u. S. Workers. Number one. And number two what i think that you may be hinting at which is a subject that mr. Chairman reference is the the concern of the avenue for the people to come into the United States and importants ensuring that the National Security interests are well protected in this program. I actually made significant reforms in our administration of the eb 5 program to bring that National Security vetting rigor to the program. I brought in our fraud detection and direction to get in the engaged with the eb 5 cases and i would like to say congressman that it was i who created the fraud detection and National Security director to bring greater fraud detection and now National Security rigor to all of the adjudications across the agency. One more question. Regarding gulf coast, mr. Mccaulive contacted you in 2008 and from the questions that we had that continued on until 2011. I assumed that though mr. Mccaulive had several roles during the time period ceo of green Tech Automotive and the chairman of Hillary Clintons president ial campaign and chair of the dnc in various times there. Much an assumed that the contact that he made was regarding ceo of green Tech Automotive. Now during that time period, when we read the report gulf coast was denied the investment for green tech for three different reasons. And all of them. When you read the reasons was to prevent against someone just being be able to buy citizenship into the United States. One was Investment Funds and would not be at risk. The investor did not have a managerial role in the center. And did not encompass a region. With several emails and phone calls you decided to then engage and according to an ig report that were you willing to rewrooity the decision. If i may congressman the point of clarification. That the time frame was not 2008 will to 2011. I became the director in 2009 the and it was a subsequent to that. And the very legal issues that were involved in the green tech case. Our own agency for internal administrative appellate review because of their complexity and my involvement was to ensure that we were resolving those issues in adhere ans to the laws that Congress Passed and regulations of the service of the laws. Is that what the drb would have did not had it stayed in place had it involved your direct involvement . I do not recall the timing of the drb. We did not launch the drb to the best of my recollection congressman at the time that these legal issues rose to my attention. Would i have to look at the timing. We were not ready for the decision review board at that time. When we had published a concept of it by that time i just dont recall. I will say this. The resolution of those three issues was reached. In adhere ans to the law. The issue of the risk and the correct reading of the matter of asumi was decided correctly. You you are inferring that the staff did not interpret the law. When your engagement came in. There was a correct interpretation of the law . I this i that our collaborative review of these issues led to the correct results in the cases. I did not decide them alone did the law need to be clarified. It has to be pretty subjective then. I this i that at the time that the agency and as i refere in the Opening Statement. The agency did not have adequate guidance to the adjudication. And we fixed that. Two months after the review board met approximately two months after we promulgated for the first time a comprehensive policy memorandum that better guided adjudication in the administration of this program. Thank you sir. And i think that the chair and the Ranking Member deputy second tree. Thank you very much. As i indicated, i had to step away. We are in the judiciary committee. And marking out the usa freedom act to protect Civil Liberties and the privacy rights of americans while we protect the domestic security. Another aspect of responsibility that i know that you teak very deer as deputy secretary for hom homo. Let me justin kate the discussion that i missed on the swearing in and the not swearing in. And i draw support from my colleagues who raise the point. And i support them that though you willingly were sworn in. It is appropriate that if the answer of the report is sworn in, that the presenter of the report should be as well with no anyway integrating with the Inspector General. I want to quickly go through the points. First. To acknowledge that you came to the deputy secretarys responsibility to improve of a lot of infrastructure aspects of one of the largest departments in the government. Of the department of Homeland Security. And many of us on this committee were there when the department and this committee ultimately were founded if you will after the select commit eve Homeland Security, we are well aware of the monumental responsibilities of security and many of the other very important duties that this agency has including the oversight of the secret service and our border security. And so, i believe that this is a matter that we will need to put to rest so that you can get to the office and do the work that add heres to the securing of the nation. What i would say is that. You can listen as i say it. My understand something that the igs report found no wrongdoing. Found no unlawful act committed for an unlawful purpose. My understand something that there was nothing at that that is attributed to you that you did unlawfully is. That accurate . I believe that the Inspector General did not make a fine that can i violated any laws. I do believe that the Inspector General found that i did not adhere. I will get to that. I will let you answer that in a moment. I want to answer the not lawful at this point is. That what the to your understanding is that the Inspector General found that you did not do anything unlawful . That is my understanding. That is my understanding so i will not ask for you to do yourself in, i will ask, i will indicate that it is my understanding of the beginning parts of the report. The report found that there was three unusual acts but nonwere determined to be unlawful. So we will get to in quotes the unusual acts but i this i that you answered the question as i was listening to the inquiry that was made by the colleague. That there are decisionmakers on the eb5 and you ultimately sign off on their work. That is done. And am i clear on that . Congresswoman, i do not sign off on their work. What i mean to articulate that i did not do so clearly. Is that i is the leader of the agency bear ultimate responsibility for the correctness of our decision and administration of the law. You are taking responsibility for whatever comes out of the department of Homeland Security that may have been under the jurisdiction as director and is accurate. And we thank you for that. So there was work done by other burn persons on the eb5 applications. Is that correct . Yes. And you are now saying that the work is now being directed with better criteria and guidelines that can be checked and doublechecked by otheres to make sure that the work is correct. Improvements very significant improvements that the administration and the program. And better equip are personnel to administer that program in adhere ans of the law congresswoman. So when the Inspector General is ed that unusual acts that played into or did it play into in your interpretation as poor guidelines or structure for the eb 5 . Um congresswoman, um i did. My involvement in these cases was as so many, many other cases whether it is eb an or otherwise. When a case presented issue thats warranted my involvement. I became involved in my own many employees brought cases to me. Because of the issues in involved. And members of congress. And stake holders and i learned from the media in certain cases and if the issue warranted my involvement, i would engage and if the issue d i did not. That was evidence by the chronology of the actions and the cases that were a subject of the Inspector General review. When the issue in the in the green tech case warranted my involvement. I will work with the colleagues to resolve the issue when the case no longer warranted my involvements i withdrew. So if i can interpret what you are saying. Have you the commitment to the country. And you have a commitment and the better workings of the yuz department of Homeland Security. To make this department. Affective department . Reporter i do. So your intersomethings camp through news and stake holders. To be a problem solver. And to make department better. Is that what would you interpret the intervention or work in the category . A be salutely and also an additional calling and additional biting duty to the law and let me be very clear. I am a strong supporter of eb a for the poor and minority communities in america. I would hope that the department looks to the process. That those communities may be the ultimate benefactors in many instances and that there are structures that are in place. I will tell that you if there is anyone that i believe that can put the structures into place, it would be you and secretary johnson. I do have a sense that you both want to be problem solvers. So this my question. Would you comment on the value of the investments in the poor communities . Where jobs could be created. And in any the noted for. And cited for if you will did you have a personal stake. Whether self interest. Did you benefit financially from any of the involvement of those particular incidents . I did not have a personal interest and disposition. And case pending citizenship and Immigration Services. And the dramatic increase in the eb5 cases and a reflection of the great interest of seeing the infusion of the capital and the creation of jobs. Suffering high unmany mroement at the time. I think that the final point of not inquiry. That the chair and the Ranking Member for indulgence to get on the record that eb5 did not right can infuse the Economic Opportunity and jobs to struggling communities across america. So let me ask this question. Of as you are deputy secretary. Are those some of the elements that you look at and procedures of the now persons that do the initial review and Decision Making to have those types of frame works in their mind in the i site of the creation of jobs and helping to underserve communities in america. They are some of the specific filedments of. Adjudication in a certain amount of capital that had as to be invested if and if it is an area of high unmany brother immaterial that is defined specifically. It will impact the amount of Investment Capital that would be made and also there are one of the elements of the likely hope that i have the legal terminology correct. Jobs have to be create and likely to be created. I would end on the note of saying mr. Deputy is he can tree that you did not in turn of this seriously. I did not. I think that we got a they are owe review of the service and commitment to the country and the fact that we are better off and you are serving the department of Homeland Security and more importantly that eb a will be what it is which is the investment of the job creation where it is need with the that. Mr. Chairman. I will yield back. Raining members for the record. Thank you mr. Chairman. For the purposes of the entering into the record. I have or a statement. Without that object. I will close by saying thank you so much for coming here today. And to give your side of the story. Sorry. We have arrived. And you are recognized. Thank you so much for being here i know that it was not an easy task for to youed. I am knew new to the committee. And new to the issue. I would like for to you outline the steps that you took as a director of of the u. S. Citizenship and the Immigration Services. And to improve the transparency of the eb5 program. Thank you very much congresswoman. I made a number of reforms to the eb5 program. Culminating in the ultimate Public Development and publication and policy memorandum that is set forth clear resolutions of which the agency was grappling for quite a number of years. And i created a new eb5 office and create edd an he cantive leadership position for the office. We create that had in washington, d. C. Because in part for the amount of the interchange that we had in the other Government Agencies and stake holders here in the governments capital. And we select that had in the leadership position that came from the financial regulatory back ground. We brought and strengthened the fraud detection. And safeguards into the program. There were a series of reforms made to the loud chorus of the concerns and complaints that we had received. Not only from the members of congress from both parties but especially from the public at large. Moving forward. Have you identified some of the changes. What else would you say that you in the department will work on Lessons Learned . And improving transparency two things have come to mine. In referring to the testimony. And congresswoman, one is that the very important perot comes with respect to the leadership involvement. They were promulgated on monday with the secretary of Homeland Security. Jay johnson. And promulgated by that General Council to bring the Greater Transparency to the leadership involvement in the particular cases. And we well comment opportunity. Welcome the opportunity to provide Technical Advice to members of congress as they review the program as it will approach the sunset period of time. There are changes that can address the National Security and fraud. Antifraud regime that is currently in place. Thank you very much. Thank you for your patience. A closing statement that it may be a question so. I will open this up to one last rouven questions and we will close. Sir sir, there is some interest in the case of the gulf coast state with the dnc chair. That involve the visas for the foreign nationals. You did intervene in the case and said that you would rewrite the decision yourself . Um. What i would do is offer of an analysis of the issue thats we have resolved around the table. And it was a matter of the amount of Investment Capital is at risk. Is this for National Security reasons . I would hope so. It is our responsibility of course. To ensure that individuals that are granted visas. Do not pose a National Security risk to our nation. One the critical improvements made to the eb5 program was to bring our fraud detection and National Security expertise to bear in the vetting of the eb 5 petitioners. I common you for that do you know if this in this case they were vetted for National Security reasons . Would you enter into a case like this and reright a decision with a National Security concern . Let me say two things. One that i was brought. I became involved in the case to address issues. Number one. And not the all of the issue thats were involved in the case. So this draws an issue. A concern. If i may mr. Chairman. Vetting the applicants. This is very important. And it goes to the number of the issues. I read a report that raised concerns of National Security or fraud in this case. I referred this case immediately, myself to the fraud detection direct rat. And when the issue arose in the case and i believe that it was subsequent to our resolution of the at Risk Management and contingency ewity issues in the case i learn of a concern. I believed it was a public concern. Not one that percolated within our agency. And i brought in our fraud detection and personnel to look at it. In this case. In this case. Okay. And that is i am glad to hear that at first you said i hope so. Now you have a more definitive response. I would like to know. Because i dont who they are. I would like for the department to produce to me the names of the individuals who applied. Their background. And the National Security vetting of the individuals. Of course. And i will make that request if you will agree to that. Lastly. Sheila jackson lee testified. And asked questions previously. There should be no communication to provide an avenue for the undue influence on the judecation. It should be inbased and the laws and facts that you stated previously. The only issues if you create a policy you need to follow it. And if you do not follow it. Create a new policy. But when you say that there sh not be preferential treatment in the policy. This is one thing. That points out. The members of congress do contact all of the time and we just ask this about the case. And the cases are a little bit different than that. And and specifically. With 249 petitions and another case that you over rule the case stlauz already approved and it seems to me that this is more than just a phone call from a member points out that we are entitled to do. And in in these cases you went out of the way. In an eggs cemention to the rule. And as you said in the Opening Statement, peripheral treatment so that is the purpose. And of course you do have the penalties here. And though the appearance is violated that there should be disciplinary penalties including a removal from office. What do you think is in your case . Mr. Chairman i was involved in these cases as i was involved in many many cases both in the eb5 program. And outside of the eb5 program. It depended on the resolve of the difficult issues and my level of involvement in the cases is mirrored in the other cases. As well. What the case needed to resolve the adhere ans of the law and the policy. If i may mr. Chairman. The Inspector General found that by the virtue of my involvement of these three cases, many employees perceived that we exercised undue influence in these cases and i thought that i had taken steps to guard against that. I bear responsibility and acknowledged that. And profound for the Inspector General. And investigation. Throughout the work. We appreciate the honesty and candor. And do you believe there should be any disciplinary action in your case . Secretary johnson. And have you spoken with me about this case. About this matter. He has spokech with me. We discussed not only a my involvement in the case. We suspected the Lessons Learned and the perot comes that have time he directed and since has promulgated which i do support and embrace. And i thank the witness for your candor as always and honesty. Thank you very much. And deputy secretary, the eb a program. For the committee. Can you indicate that the individuals who invest in the programs can you describe the vetting of the invest or for the committee. There are two issues that the best that i could recall congressman that are an issue. One is the need to ensure that the funds that are invested are from the lawful source and then there is the vetting of the individual him or herself to determine whether they to ensure that they do not close the National Security risk or otherwise would pose a Public Safety danger such to the admission of the United States should be denied. I cannot add at . This moment to articulate. I did not conduct the vetting or the forensic work myself. Is it a common place for members of congress to contact usis on behalf of the eb5 program . As i mentioned. We received 1500 members of congress per year about the eb5 program. And the number of the communications that they have received from congress about the program dwarfed the number of the Communications Received about any other program that we administered. Is it not uncommon enfor governors and the other interested individuales to contact usis on behalf of the eb5 program. All quarters. And by vir tuf the very two distinct forces at play. And the number one increasing importance of the program because of the challenge thats our economy has faced in that time and number two the poor strafths program by the agency which i should underscore was never the fault of our adjudicate ors but the fault of the institution and not in providing those adjudicate or thats are hard working, dedicated and talented publicer is vents and not providing them with support that they needed. They complicated, and Legal Business economic cases. That contact either by the members of the congress. Or governors or state and state and local officials, has been by both democrats and republicans . Yes sir. And so did you or your staff feel this type of contact should not take place . Which wrp proud of our responsiveness to congress. It is our responsibility. If anybody contacted you on behalf of the eb 5 program, on your direction. You did not feel that that contact was improper or would have changed your Decision Making on the particular project . The fact that it would not affect the Decision Making. What would the law require on the facts at issue in the particular case. Do you have any aal questions, i apologize again. You do not . Okay. I want to thank the witness today, and the members of the committee may have additional questions for the twins. Proo irto the rule. The hearing and would be open for ten days without that object city will stand adjourned. Thank you. Supreme court will hear an argument on johnson verses u. S. And the justice tises are considered whether the sentences for possession of short barrelled shotguns and whether the residual clause in the law is unconstitutionally vague. And the court is expected to decide this case before the end of the term in june and oral arguments for the case will run one hour. An argument here today in the case. Johnson verses the United States. Good morning your honor. May it please the court. The clause of the violent felony definition of the armed career criminal act is unconstitutionally vague. Text and structure do not sit out with clarity what offense left side fall within the coverage and what do not. It is proven by the cores inability by the repeated efforts to dose certain the framework for lower courts. Just to clarify much only the residual clause not the rest of the statutes . So the statute. And doing. Or extortion. Or involving use of explosives. You are not a being at thatting any of that. But it is a residual cause is that correct that is correct yurnl. We believe in fact that the other portions of the statute would shed light onto why the residual clause is unconstitutionally vague. For stance they tie the qualifications for violent felony status here. Directly to the elements of the offense in question. And cla u. S. Would require that the use of force through the attempted use of force would be an element of the offense. And the burglary arson. Extortion and the use of he can flows thafz your honor references to that of the offense analysis. When you were here before. You did not think that the statute was vague as applied to your clievenlt you argue that had it was clear. And your client did not fall within the residual clause because he was convicted of the offense that is at issue a possession offense. And you argue that had none of those listed was a possession offense. You are correct yufrnlt we argue that had it was not included for the reason thats you mentioned as well as others. So if it was not plainly included why should we reach out to decide the constitutional question . Certainly the fact that we believe that it is clearly exthroughouteded is at odds and the opinion of the solicitor general of the willth Circuit Court of appeals. And other courts. And something that seems to not to fall within a plain definition and would be hell to fall within numerous courts will reveal that vagueness clause. We get almost every case that comes here involves a dispute among the lower courts over some something means and what the rule is. And the statutory interpretation should be. The fact that there is disagreement. This would be constitutionally vague and this is beyond mere disagreement of the i can think of no instance that the court could endeavour so many times to answer the same question. And not nearly. Interpreting the same 14 words but asking for each time whether the single offense will satisfy those 14 words. In 2007 we hell the residual clause that is not unconstitutionally vague. And in 2011. We reaffirmed that. Can you give me other examples of which the court has over ruled a constitutional holding that has been twice reaffirmed within the period of eight years. Has that happened frequently . I do not have a case at the ready for that question. What i can say that this court has to grapple with the frequent see. And is not able to create an inch termtive framework. Press dense that are workable and useful to apply the guidance will create devrans and with due respect to the understandable hesitation for the constitution vague. That is proven not to be worth it. Do you think that the issue is whether the statute is unconstitutionally vague . Or whether this courts interpretations of the statute create the basis for a vagueness argument . Just because it will mess it up . [laughter] your honor that not the case in this case. Rendered vague by the poor interpretation. And the text and the operation of itself this courts repeated efforts to discertain the framework have not caused a vagueness. But they have provided it. Suppose that you had a state Court Meeting of judges for sentencing and they agreed that within their discretion time pose a maximum. That they would impose a greater sentence if the defendant had a rap sheet and previous offense thats create add serious potential risk of injury to another. Would you say that is judging. That it is vague. Judges are tasks with the individual case before them. Judges say that we would increase your sentence if you commit the offense that categorically will pose a serious risks injury to another. Do you think that is bad judge something i will never presume that. It is a hypothetical. You can say that. It is a hypothetical and it goes beyond that judging into the task of legislation. You dont think that the judges should give reason for what they do . They do. Your honor. And give reason force what they do you say that it is a vague reason . Into this is bad reasoning and bad judging . The part of the hypothetical that troubled me is that the idea that the judges would get together to make the policy decision thats are unferted to the individual. New do announce the policies and in the cass case the court. All of the members of the bar to know that if there is a rap sheet. Prior could not vick thats have of which are a we will up the sentence. Can we do that. As a matter of law. And not just a matter of recommending to their fellow judges . Can they reverse it if the fellow judge does not adhere . I never heard of that. Sounds like legislation. And sounds like fanciful do you think that it is bad judging for the judge to sigh what his policy will be for future cases . Yes, i do think that the judge will decide the case on the fact before. And there is a lot of states that have guidelines. And legislated. And they are commit other hes that will decide it. And judges are on the committee. So i dont know if it will help us to much have i counted out the number of the splits and so forth and the briefs and others presented to us. And adding in the cases. I think that generously. The basis of what is what you would present to us. There are 14 splits. Over the period of years. And 15 years anyway. And literally. There are really. Hundreds and hundreds of different crimes. Thousands so i do not know how to decide whether 14 is a lot or a little. I am at sea on this. Maybe 14 is just a few. After every statute has an uncertainty within the edges. Or maybe it is a law. Help me. I think that first of all the number of the splits is the fact that each of the courts efforts will seem to answer the question before the court. That has a very difficult time answering newest 14 questions. Are there nix am thames you can their where it was a basis for holding a statute unconstitutional. The vagueness cases that we cited is that this is not amenable to the intemperaturetive framework and being consistently applied by the lower courts. In front heard of that. The common law had a method. And i dont know if. They had crimes. You know. There was common law crimes. And the government cites so many. Words like risk of harm or reckless, they use the words like here. Serious risk or risk of the physical harm. And they have cited the law. Are we holding those all unconstitutional . I understand that you think that all that i need is help. The first is the one. In addition to the number of the flits. And whether 14 is a lot or a little. There is an enormous amount of time for this court to have to weigh in to resolve the unsettleable question. Precisely the same question. We can take instruction from the lower courts and what they are saying about the struggle. We have decide that had a half dozen circuits that have described it as everything from a black hole to the impossible and mean full apply. So we are not just talking about counting the number of of the disagreements but we are talking about the completely unworkable framework. This is connect with the question. Do you think that there is a core that everybody in fact does agree upon. In other words, there is offenses that people just say well of course that fits within the residual clause this. Isnt the type of thing that will create the splits. Creates couldnt versusy. There is a core to the agreement to what it means and all of the trouble is occurring on the margins. The margins are here. Bigger than the core. If we are able to agree on the small number of things that may clearly fall within the center that the fact is that what do you think is in the core kidnapping may be in the core. A kidnapping that would not fall within the clause that may many would not do is more in the clause. And more instructive is that so many things that the government have suggested is easy cases and the exam thames they would give on pages of 8 and 9 on the brief. On closer examination are not that easy. For example, child abuse it. Is true that one circuit or of other circuits the case that exam initialled a florida statute of child abuse found it would not account and the government says that to all of of the applications will have to be vague. And i guess your contesting the standard because you are admit that can at least one thing that you can think of kidnapping, that the application would be appropriate. Is that right . Your honor. I think that. It is important to look at where the government standard of it would have to be vague in every imagine edd estate that dealt with the financial fines and more importantly where everybody agreed that the conduct and the questionnaire was in the court this. Is different in all three respects. And this is not only with the sentence penalty but the mandatory one. You are not answering the question. The question is whether you agree with the government that so long there is something that is clearly within the court. I suppose that you could have a statute to criminal liza knowing conduct. Ard coming the government that would not be unconstitutional. There is some stuff that is annoying, right . Ard coming the government. What do you do when all of the statutes that are cited in the appendix of the government do they say using language. Serious risk of sister physical injury to another. The same words used here. The government suggest thats all of the statutes would be vulnerable. Thank you your honor. The term serious risk is not on trial here. And none of those with perhaps the possible exception. We believe that the two described on the first page come close in operation or function to what the residual clause does. And never one of the cases. Part of the elimination. And additional elimination. And elements that will help to narrow conduct. Is it also that most of the statutes that were cited and the fafkts particular case. The on sift the category approach that is an important distinction your honor and it is up to the jury. And the jury. You know. They do not have to be clear. They can be vague. And the task of something. Whether there is an individual conduct. Not abstract imagination but what the defendant did constitutes a serious risk and that combine with the a fact that it is usually apart of a narrow statute will prevent those from being vague. Addition with the respect to questions. Not one of those statistic utsz and not one has given rise to the expressions of the frustration from the lower courts. And the 14. Youve got that but this is not that cant be. This is something odd about the statute that is causing the problem. And i cannot put my finger on it. And what have you done is simply point out that the courts have had the difficulty with it. That is not enough. I dont think. Why . Words seem to be clear enough. What is it about this that led to the difficulty . It isnt a problem to identify so many case wheres there is a serious risks of the physical harm . But there is something that is giving arise to this. I have not yet been able to articulate it to myself. And you thought about it more than i have i thought about it a lot your honor there. Are several things to give rise to the confusion. One is the fact that it will ask the judges to answer to the almost impossible question. And they have to imagine whether an ffence in the abstract and ordinary case will present a substantial risk to select the ordinary cases and something that you would have no idea guide anz about. And what dig degree of risk would be required to get the information and regarding the risk this. Is completely imaginary and subjective. What it is a risk of physical injury to another. And the question. Submitted today be determined on the basis of the what your client did. Would that be unconstitutionally vague . Your honor. I this that i it would go into a direction towards solving a problem. It would require analysis by the your sneechlt is that a yes or a no . I think that will if it still had an it would avoid the problem. Yurnl and it would create other problems wouldnt it. And trying to do this based on the 20yearold convictions. And often on the questions that nobody had incentive to argue or to litigate. Would that be. That is the ran that we went down the road. Isnt it your honor. Points out why it is a solution. An unworkable solution it. Will get around the vagueness, and if parties were entitle today argue this to an injury and relitigate the specific facts, i do not think that anybody would financings that way. I was not asking about the statute. But asking about the statute that imposed a particular penalty for the possession of a sawed off shotgun. It says that. Or. It someone is convicted under the statute that has this language. And the possession of the sawed off shotgun had just occurred. And do you think that would not be unconstitutionally vague in this offense to decide whether that possession presented a substantial risk . Beyond a reasonable doubt i do not think that would cause the same problems your honor and i think that the other thing that is inherent in other parts of the violent felony definition. When it requires the el ment offense as with a forced clause or burglary all you would need to do is look at the elements of the offense to determine whether it qualifies. Congress is trying to do something here. And some may think it is a good thing to do. Some think it is not a good thing to to do but allegity mat thing to do. Enhance the penalty for the people who are felons to possess the firearms and have a record of prior convictions for certain categories of offenses. And if you do not usz. If the residual clause is held to be unconstitutionally vague. Is there any other way that the congress will an accomplish that send in yes, there is. I think that one solution will be to boast the risk to the elements so for instance to keep the same 14 words and add in as an element that is a creation of the serious potential risk of anything that would not fall within the congress to add as a newman rated offense. And and they would only have to look at the criminal coasted state that has the predicate offense. As an element of the risk. And the possession of him, as a sawed off shotgun has an element of the sawed off shotgun. And they would not count. And creates a risk. And the cases that and nothing else would. Would you have to have it listed and this conduct created a serious risk of injury. If congress chose that as a solution. It will demonstrate why it will left to be with grechlts extortion is the offense. And anything that doesnt have. Is there a crime like that . What is the crime like that. Attempted use. Use of adding to those. Three categories. Risk of serious risk of what. Ricks much injury to another. And how they would choose to define it. And i apologize. And and element. To the government that has collected for us. 200 exams and the risk as an element. Presumably would count. And if there was of some that were left out of the Solution Congress would want to include like for instance. Next toefrgs not one of the offenses and they wanted to include this, all that they would have to do is list it. It is a perfect congressional function your honor to hear the data and assess the risk hear the testimony. And they can decide what should and should not count. We should not be imagining it every time. You are saying that this is something in response to the justices question it is away for congress to fix statute . Or it is away that we can fikt statute. Nerts that it is an available we can feel free to adopt. I dont presume to tell the court what it can and cannot do. To create a problem. Far be it from me. To congress and let me ask can you get to the suggestion from the text of the statute . I do not about of so your honor. We would not be in this place to begin with. It is important to me. To evaluate the statement, that most of the problems are in the margins and not the core. How do i do that . If my assumption is the opposite the margins are the few. And core is covering criminal conduct. Where do i look to determine who is right on that . Your honor i think that we grapple with the that. You are right. Of the core is large. The margins are gray. And they should not lead to the conclusion of vagueness. In this case the fact that over and over and over again there is disagreement about things that should seem obvious . That because this is a mandatory increase the standard for vagueness is precisely the same as the standard we applied to determine whether or not the crime and its definition is in itsel