The nonprofit watchdog organization Democracy Forward is suing agencies including US Citizenship and Immigration Services and the Department of Homeland Security for information that could indicate whether Kushner had any involvement in discussions about the extension of a program offering foreigners who invest in US businesses, including real estate, visas and a path to a US green card. The Kushner family's real estate company has used the program to court investors.
USCIS told Democracy Forward in a letter sent last week that more than 100 pages of responsive records were referred to the White House for review.
At a hearing for the lawsuit Wednesday, Judge Tanya S. Chutkan said she found the referral unusual.
"The White House has said, 'We've got this. We'll take it from here,' but I don't think that's how it normally works," Chutkan said.
A Justice Department attorney representing DHS in the case, Fred Haynes, did not immediately offer an explanation, saying that he would have to "get in touch" with USCIS to find out why documents were sent to the White House.
He said that that despite some previous errors in processing the request, DHS plans to release all applicable documents but did not address the status of the documents sent to the White House.
Democracy Forward sued for the documents for more information on why the Trump administration has extended the visa program, known as EB-5, despite allegations of fraud and mismanagement. The organization initially filed its freedom-of-information request for documents involving Kushner, his family's company or the EB-5 program in May 2017.
Josephine Morse, an attorney with Democracy Forward, said in court Wednesday DHS has provided "shifting stories" on its processing of the request.
Morse expressed frustration in separate comments to CNN. "We still don't have clear or coherent answers on where these documents are, what these documents are and when we will receive them," Morse said.
The White House and USCIS did not respond to CNN's requests for comment.
A DHS spokesperson declined to comment.
An attorney for Kushner previously told CNN that Kushner would recuse himself from "particular matters" involving the EB-5 program. There's no indication Kushner was involved in deliberations.
The EB-5 program allows foreign investors who pay at least $500,000 to get US visas, and potentially green cards, for themselves and their families if the developments they invest in meet certain criteria. The program grants up to 10,000 immigrant visas per year.
In 2017, Kushner Companies sought to attract EB-5 investors to a development in New Jersey called 1 Journal Square. During a pitch to investors in China, Kushner's sister mentioned Jared Kushner's role in the White House, which prompted backlash from ethics watchdogs who questioned whether the pitch sought to leverage Kushner's position for profit. Kushner Companies apologized but said the name-drop was not intended to attract investors.
The Kushners previously raised $50 million through EB-5 loans for a separate New Jersey development called Trump Bay Street.
The EB-5 program, which Congress created in the 1990s to spark economic growth in rural and low-income urban areas, has faced criticism for straying from its original intent. The program expanded in 2008 and has become a source of low-interest income for some developments in newly redeveloped areas.
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