Mayorkas Downplays Crisis at the Border

Offers non sequiturs while ignoring public safety and the loopholes that encourage illegal migration

By Andrew R. Arthur on May 18, 2021

On May 13, DHS Secretary Alejandro Mayorkas appeared before the Senate Homeland Security and Government Affairs Committee (HSGAC) and downplayed the crisis at the border. Many, including Sens. Rob Portman (R-Ohio), Ron Johnson (R-Wisc.), Mitt Romney (R-Utah), and Josh Hawley (R-Mo.), challenged his contentions, and got some interesting answers from Mayorkas — none of which addressed the loopholes that encourage illegal entry, or even admitted that those loopholes even exist.

The subject of that hearing was formally “DHS Actions to Address Unaccompanied Minors at the Southern Border”, and although many of the statements at that hearing and much of the testimony addressed that subject, the Q&A was more wide-ranging.

In a May 15 post, I focused on one aspect of that hearing — Portman’s statement that Border Patrol “conservatively estimates that over 40,000 people who crossed illegally got away and were not apprehended in April” — and will not rehash that analysis.

In his written testimony, Mayorkas lauded his department for its efforts to respond to the border situation (he never used the term “crisis”), and in particular its achievements in moving unaccompanied children out of CBP custody and into the custody of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).

These points were parroted by the NPR reporting on that hearing, which was headlined: “Far Fewer Young Migrants Are In Border Patrol Custody, DHS Secretary Says”. That article detailed a few of the GOP’s points, but you have to read pretty far down to get to them.

As noted in that May 15 post, Romney asked Mayorkas whether he was planning on doing something “dramatically different” to reduce the number of unaccompanied children entering illegally, because traffickers are exploiting the situation to funnel drugs into the United States.

Mayorkas responded that “the laws or our country provide certain procedures and certain rights for children who arrive unaccompanied and have claims for asylum”, specifically referencing the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).

I have explained several times in the past that TVPRA’s differential treatment of unaccompanied alien children (UACs) for release to sponsors in the United States based on nationality creates a magnet for many of those children (logically at the behest of their families) to enter this country illegally, if they are not from the so-called “contiguous” countries of Mexico and Canada.

In fact, even President Obama called on Congress to plug this loophole by addressing the discrepancy in June 2014, and the Editorial Board of the Washington Post in August 2014 admitted that the TVPRA “has encouraged thousands of Central American children to try to reach the United States by granting them access to immigration courts that Mexican kids don’t enjoy.”

Apparently, Mayorkas is not familiar with these assessments, because despite Romney’s entreaties, he did not propose amending the TVPRA to address the issue of thousands of unaccompanied children entering the United States each month by closing the “non-contiguous country” loophole.

Nor did he even address Portman’s proposal that, if these children did have a right to apply for asylum (although an asylum claim is not required to trigger the TVPRA’s requirement that a UAC from a “non-contiguous country” be transferred to ORR for placement with a “sponsor” in the United States, a fact Mayorkas elided), an asylum hearing be quickly completed at the border.

Mayorkas should have. There is no reason that immigration judges (IJs) could not hear those claims in a matter of days, either in person or via video teleconference (VTC). We are all using Zoom and Skype during the pandemic to do business, but the VTC I used as an IJ was far more advanced even five years ago, and is more than sufficient to ensure due process for those children.

In fact, on his campaign website, Biden promised that he would address the immigration court backlog by doubling the number of IJs, their staff, and interpreters. Thousands of children entering illegally each month will cause that backlog to surge, so it is better to address that docket at its source — the border — and those new IJs could be flooded to the border.

Interestingly, as an aside, in response to questioning by Johnson, Mayorkas claimed that he did not have the asylum grant and denial rates (the grant rate was 19.2 percent in the immigration courts in FY 2020).

That’s rather remarkable considering the fact that USCIS (which Mayorkas helmed from 2013 to 2016 and over which he has ultimate authority today) has jurisdiction over affirmative asylum claims. But I digress.

Mayorkas also argued that his hands were also tied because those minors are eligible to apply for “Special Immigrant Juvenile (SIJ) Status” under section 101(a)(27)(J) of the Immigration and Nationality Act (INA).

As my colleague Robert Law recently explained, Congress created SIJ in 1990 “to provide a pathway to legal status for certain alien children in the U.S. foster care system who required judicial intervention to protect the minor from parental abuse, abandonment, or neglect.”

Law noted, however, that “over the years, the SIJ classification was increasingly targeted by alien minors solely for the purpose of obtaining lawful immigration status and not due to abuse, neglect, or abandonment by the parents.”

SIJ was amended in 2008 by TVPRA, as well, as I explained in a 2018 Backgrounder. Those amendments broadened the applicability of that relief, by replacing a requirement that that a juvenile court deem an alien minor eligible for long-term foster care for that minor to be granted SIJ with a requirement that the juvenile court find reunification by that child with one or both parents is not viable.

That means that an alien child can seek SIJ (and the green card that it guarantees) even if one parent is available, willing, and able to care for that child in that child’s home country. As DHS argued in February 2018:

We must end abuse of [SIJ] to ensure the applicant proves reunification with both parents is not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. This is necessary as many UACs are able to obtain a Green Card through SIJ status even though they were smuggled here to reunify with one parent present in the United States.

The Securing America's Future Act of 2018 (SAFA) would have addressed these issues, but it failed a vote on passage before the House in June 2018.

Again, Mayorkas did not raise any amendments to the SIJ provision (including by rolling back the TVPRA as in SAFA) during his testimony, nor even address the fact that his department had called for amendment of the SIJ provision just three years ago.

This is a complicated issue, so perhaps Mayorkas does not understand it himself. That said, perhaps he was banking (correctly) on the senators not being aware of the finer points of SIJ status.

Johnson also questioned Mayorkas about ICE’s February 18 interim guidance. As I explained in a February 23 post, that guidance “is really just a directive to officers to ignore most of their enforcement responsibilities, and to waste ICE resources it claims to be conserving.”

Johnson asked Mayorkas whether there was “any analysis on how that guidance would impact crime and public safety before [it] was issued”. Mayorkas assured the senators that such an analysis was performed, and promised that he would provide the committee with than analysis — but he did not elucidate on it.

Similarly, Johnson asked Mayorkas whether there was any “consultation or coordination with states regarding how the new guidelines would impact law enforcement and public safety”. Mayorkas asserted in response that he did not know what engagement occurred before he took office (a remarkable statement in and of itself).

Most exceptionally, though, when Johnson asked whether ICE was issuing detainers on every illegal immigrant that local law enforcement was holding and “flagging for removal”, Mayorkas responded: “I am sure they’re not, nor should they be.”

The secretary promised that he would provide the committee with the percentage of those cases for which ICE was issuing detainers (that will be interesting), but he never explained why, exactly, ICE should not be issuing detainers on those aliens.

Note that section 236(c)(1) of the INA requires DHS to take aliens removable on most criminal grounds into custody. That appears to have been the category of aliens about which Johnson asked, but even if it wasn’t, Mayorkas never explained why ICE would not take custody of an otherwise removable alien that local law enforcement was, essentially, delivering to it.

Johnson’s line of questioning on that ICE guidance may arguably have been outside the scope of the hearing, but Mayorkas had to have known that those questions would be coming — and, in fact, the secretary’s “I am sure they’re not, nor should they be” response demonstrates that he had thought about it.

That said, statements made by Mayorkas about “family separation”, in purported response to Johnson’s line of questioning, were not relevant, either, nor were they invited.

Given extended time by the chair to respond to Johnson’s questions, the secretary testified:

One of the things that the Trump administration did was separate children from their parents. And they, they ripped sons and daughters out of the hands of fathers and mothers and said they would never see each other again. That’s one of the things. And, maybe that worked and maybe it didn’t, but I’ll tell you that what it didn’t work for was the values and principles of this country. Number one ... And, number two, the only additional thing ... I would say is that our enforcement efforts are focused on smart and effective enforcement that delivers the greatest public safety consequence.

This was a hearing on unaccompanied minors, so the issue of children who arrived accompanied by adults in family units was not actually germane to the hearing itself, nor was Mayorkas’s posturing responsive to any of Johnson’s questions.

That said, however, I am unaware of any policy, position, or statement by anyone in the previous administration to the effect that families were separated for any purpose other than to prosecute the parents or other accompanying adults for illegal entry, or because there were suspicions of fraud, for medical reasons, or on security grounds, as I explained in a May 6 post.

Simply put, I do not know of — nor have I heard — any assertion that DHS under the Trump administration intended to separate migrant parents and children apprehended at the Southwest border permanently.

Mayorkas’s contentions do not even make sense under the Trump administration’s short-lived (April 6 to June 20, 2018) “zero tolerance” program (which I followed in real time), because the purpose of that program was to remove both the parents and the children, and to discourage other families from entering illegally.

That said, if the secretary’s statements about permanent separation of parents and children are true, he should be expected to offer evidence to prove them. If not, however, he should correct the record.

The last statement in the excerpt above, however, about DHS’s “enforcement efforts”, is relevant to Johnson’s queries. That statement raises the question, however, of how ICE’s turning a blind eye to criminal aliens whose crimes render them removable (which the February 18 ICE guidance does) “delivers the greatest public safety consequence”.

In a May 2018 analysis reviewing recidivism rates of prisoners released in 2005 over a nine-year period, the Bureau of Justice Statistics at DOJ concluded that, according to its estimates, 68 percent of released prisoners were arrested within three years, 79 percent of them were arrested within six years, and 83 percent were arrested within nine years.

I am a strong believer in redemption and second chances, but when it comes to removable alien criminals, if they are not eligible for relief or protection in this country, they should be required to redeem themselves back home, for two reasons.

The first is because that is what the INA says. If Mayorkas does not like the law, he should run for office; neither he nor his department should be allowed to ignore it.

The second is that, given the high recidivism rates for released prisoners, releasing criminal aliens back into the United States carries too high a risk to the community. ICE’s current enforcement policies not only don’t “deliver the greatest public safety consequences”, they don’t deliver any consequences at all for any except the most hardened of criminals.

There were many more interesting and relevant facts that were revealed at that hearing. One statement, however, by Johnson, is telling, though: “The first step in solving any problem is admitting that you have one.”

After reviewing Mayorkas’s statements and answers before HSGAC, I would expect many more months in which an average of 5,782 migrants (or more) are apprehended daily, more than 40,000 other migrants enter scot-free, and ICE removals fall to new lows, because he won’t admit that he, his department, or the American people have some very real problems when it comes to immigration.