Wednesday, March 30, 2011

Federal agency stonewalls Freedom of Information Act requests on Forest City's EB-5 green card scheme, waits four-plus months to send denial letters

Will we ever find out how exactly federal authorities gave preliminary approval--and more--to the astounding efforts to get Chinese millionaires to invest in Atlantic Yards in exchange for green cards?

Not that likely.

During a crucial four-month period when developer Forest City Ratner and the New York City Regional Center successfully recruited immigrant investors in China and South Korea, the United States Citizenship and Immigration Service (USCIS) stonewalled my Freedom of Information Act requests in a a very odd fashion.

The USCIS responded to me in letters dated 10/22/10 and 11/2/10, as well as two undated letters.

However, it did not mail those letters until early March, some four months later, and gave no explanation for the delay.

(Was the belated contact made in anticipation of National Freedom of Information Day, held March 16 in honor of James Madison’s birthday?)

Moreover, the explanation given for three denials of my FOIA requests--that they were not of journalistic and public interest--seems belied by another letter that granted a request for expedited treatment, apparently because my request was of journalistic and public interest.

While that request was granted, I have not received the records at issue.

Little scrutiny

The denials essentially insulated the parties from another level of journalistic scrutiny by me, and potential scrutiny by others.

The story is juicy but complex, and while there have been quick hits in the New York Post and the New York Daily News, no news organization has dug into the story. The New York Times has virtually ignored EB-5, papering over the controversy in two paragraphs.

The Wall Street Journal scooped me in uncritical coverage apparently fed by the developer, then followed up by ignoring irrefutable evidence, raised not only by my reporting but also by Reuters, of deceptive marketing.

The background


In September, I began researching efforts by the New York City Regional Center (NYCRC), a federally-authorized investment pool working with developer Forest City Ratner, to recruit immigrant investors for purportedly job-creating projects under the EB-5 program.

The NYCRC, which had already been authorized to seek investors in several business sectors (and had recruited investors for projects at the Brooklyn Navy Yard), had successfully petitioned the United States Citizenship and Immigration Service (USCIS) to include the Atlantic Yards project.

They did not ask to include the "Brooklyn Arena and Infrastructure Project"--said to consist of the arena, infrastructure, and a new railyard--as marketed to immigrant investors.

Why? Perhaps because 1) there's no such thing and 2) the arena's already funded.

Documents sought


In September, I attempted to get documents from the USCIS under the federal Freedom of Information Act (FOIA).

My requests for documents, as well as expedited treatment and fee waivers, were filed in September and October 2010.

The specifics


In my first letter, dated 9/27/10, I made several records requests, all relating to the work of the NYCRC.

Knowing that the USCIS had earlier approved the requested designation of the NYCRC as a Regional Center under the Immigrant Investor Pilot Program, I sought a copy of the "June 18, 2008 business plan and job creation analysis and multipliers reflecting the development of various sample projects."

Given that developer Forest City Ratner and the NYCRC planned to seek immigrant investors to invest in the NYCRC to support the Atlantic Yards project in Brooklyn, I requested copies of updates to the NYCRC's business plan, and documents that explain the connection between that planned investment and jobs.

I also sought a copy of any representative Form I-526, and associated documents, filed by an immigrant investor regarding an investment in the NYCRC to support the Atlantic Yards project. I noted that I did not seek any personal information, which can and should be redacted, but rather sought "records that indicate the connection between such an investment and retention or creation of jobs."

I also filed a request for a waiver of fees, as is typically granted to journalists.

USCIS response

I got a quick response, in about a week.

My requests were divided by the USCIS into two parts--one regarding NYCRC documents in general and one regarding the I-526 request. Both requests were rejected, as was my request in each case for fee waivers.

I filed appeals on 10/5/10.

On 10/18/10, I wrote to update and amend my previous requests.

I noted that, according to a 9/23/10 letter from USCIS to the NYCRC, the latter had successfully requested to amend its designation as a regional center to include the Atlantic Yards project, having sent such documents as a business plan, job creation methodology, economic impact report and sample organizational documents.

I requested "copies of documents that help describe how the EB-5 investment is expected to create jobs, when combined with private and government funds."

The response


The USCIS responded to those requests--two for records, two for fee waivers--in four separate letters.

Two letters were undated, one was dated 10/22/10, and the other was dated 11/2/10. Presumably the undated letters were prepared at around the same time.

However, three of those letters were mailed 3/1/11; the other was mailed 3/3/11. (Click on graphic to enlarge, and also see below.)

The rationale: not of public interest


My appeal for access to records pertaining to I-526 forms was denied, according to the letter (below), because I did not sufficiently demonstrate that my request involves "an urgency to inform the public about an actual or alleged federal government activity (if you are a person primarily engaged in disseminating information)."

My request for a waiver of fees regarding records pertaining to I-526 forms was denied, as the agency stated, because "We are unaware of any significant public understanding of government operations or activities that would result from the release of the records you seek."

My request for a waiver of fees regarding NYCRC records was denied because, as the agency stated, "We are unaware of any significant public understanding of government operations or activities that would result from the release of the records you seek."

Very strange.

Request granted, not fulfilled

However, my request for expedited treatment regarding such records was granted in the 11/2/10 letter, "based on additional information obtained in reviewing your appeal."

The "additional information" implies that the USCIS did reconsider whether any "significant public understanding" was at issue.

(I had sent information about the controversy over the potential EB-5 funding, which had been covered in my blog, my Huffington Post coverage, the New York Post, and the New York Daily News. "As far as I can tell, no other EB-5 project has generated such public discussion and concern," I wrote.)

However, I have not received any records.

The bottom line

I was able to do a significant amount of reporting without the governmental records, as detailed in my Anatomy of a Shady Deal series and other coverage.

However, some information is still missing. How exactly are they calculating jobs? (We have some hints, from a web site set up by EB-5 marketers in South Korea.)

Indeed, the “urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information,” is greater than ever.

USCIS EB-5 letter C

USCIS EB-5 letter B

USCIS EB-5 letter A

EB-5 letters, mail dates

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