Mayorkas Faces Senate Fire on Payments to Migrants, ICE Non-Enforcement Policy, Border

DHS secretary questions whether aliens ordered removed received due process, claims more border control now that is ‘consistent with our values’

By Andrew R. Arthur on November 18, 2021

On November 16, DHS Secretary Alejandro Mayorkas appeared at a DHS oversight hearing before the Senate Judiciary Committee. The secretary faced fire over proposed payments to illegal migrant families separated under the Trump administration, the national-security and humanitarian disaster at the Southwest border, DHS’s non-enforcement policies, and various other Biden administration policies. He ducked a lot of questions, but some of his answers were shocking.

Payments to Illegal Migrants

On the issue of payments to migrants separated as a result of the Trump administration’s “zero tolerance” policy, Mayorkas deflected response by noting that DOJ is in charge of those negotiations. As a matter of law and fact, that is true, but I trust that he is still in the loop on the course of those talks, given his department is the defendant and that the outcome will shape border policy.

In that vein, and interestingly, Mayorkas denied that making cash payments to illegal migrants would be a “pull factor” encouraging more illegal immigration. He asserted: “The settlement payment of a federal tort claim charge arising from a family separation effected under the prior administration's zero tolerance policy would not be a pull factor, that is my testimony.”

That is an opinion, and the secretary is entitled to his. Any settlement stipulating that DHS will not hand illegal migrants who enter the United States with children over to DOJ for criminal prosecution for illegal entry, however, would “immunize” future illegal migrants from criminal liability, and thus create an incentive to enter illegally with a child. If that is not a “pull factor”, I am unfamiliar with the term.

But you don’t have to take my word for it. As a bipartisan federal panel studying illegal entry by such “family units” (FMUs) concluded in November 2019: “We assess that pull factors, especially the prompt release of migrants who bring a child, account for much of the huge increase in FMU migration over the past year.”

Worse, however, such an agreement would encourage parents to use their children as “pawns” to escape prosecution and gain release from DHS custody — at great danger to themselves and their children. As that panel explained in an April 2019 report:

Migrant children are traumatized during their journey to and into the U.S. The journey from Central America through Mexico to remote regions of the U.S. border is a dangerous one for the children involved, as well as for their parent. There are credible reports that female parents of minor children have been raped, that many migrants are robbed, and that they and their child are held hostage and extorted for money.

During his questioning, Sen. Thom Tillis (R-N.C.) put a human face on this carnage, alluding to migrant deaths on the dangerous trek to the United States, and one particularly horrifying incident involving an 11-year-old girl who was unable to speak after having been gang-raped during that trip.

The money proposed would simply sweeten the pot to incur such risks, as parents who brought a child with them would know that if they were prosecuted (as the law requires, by the way), they would be in for a big payday.

Restrictions on ICE Enforcement

Then, there was Mayorkas’s justification of the restrictions that his department has placed on ICE in removing the 1.2 million aliens present in the United States who are under final orders of removal.

In a September 30 memo captioned “Guidelines for the Enforcement of Civil Immigration Law”, Mayorkas circumscribed the ability of ICE agents to take action against most aliens illegally present in the United States, with three exceptions (denoted as “priorities”): Terrorists and spies; aliens who pose “a current threat to public safety, typically because of serious criminal conduct”; and aliens who entered illegally after the arbitrary date of October 31, 2020.

Sen. Chuck Grassley (R-Iowa) focused on a sentence in that memo, in which the secretary stated: “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” Specifically, Grassley asked Mayorkas whether that applied to aliens “who have received due process” and received a final order of removal from an immigration judge.

Mayorkas first attempted to dodge the question by asserting that DHS does not have the ability to remove 1.2 million aliens. As an aside, I note that this is a questionable assertion, given the fact that then-ICE Director John Morton stated in 2011 that his agency could remove 400,000 aliens annually; Mayorkas has at least three years to try, which would mean 1.2 million removals.

That fact notwithstanding, when pressed by Grassley, Mayorkas’s response got “interesting” as he averred: “I would not necessarily accept the fact that all of them received due process.”

That is a stunning contention from a man who is (1) the secretary of DHS and (2) a former prosecutor (a fact Mayorkas himself brought up). Does he believe that immigration judges are violating their oaths of office and professional ethics by denying alien respondents due process? If that is true, I would like to see proof, but respectfully, as a former immigration judge and a lawyer myself, that blanket statement is offensive.

It is offensive to our system of justice, offensive to those who oversee that system (including Congress), and offensive to the American people who put their trust in a fair and impartial judiciary. If anything, such an unfounded and unsupported statement by a cabinet official casts an unacceptable shadow over the very concept of due process — the bedrock of our system of justice.

Dudgeon aside, however, does that mean that Mayorkas wants to reopen all 1.2 million cases in which aliens have received final orders of removal to make sure that each meets the “Mayorkas standard” of due process? Because it sure sounds that way.

Mayorkas referred repeatedly to the “broken immigration system”, but it is sentiments like his that are the reason why the “system” is broken, if at all.

Laws have consequences, and if the Biden administration refuses to impose those consequences in the immigration context (the clear implication of Mayorkas’s memo and his testimony) U.S. immigration will be broken. “Nice immigration system here — it would be a shame if something happened to it”, to paraphrase Monty Python.

The Disaster at the Border

Then, there is the disaster at the border. Sen. Lindsay Graham (R-S.C.) asked Mayorkas whether he thought the United States had “more control over the border now than we did under Trump”.

Interestingly, Mayorkas responded “We’re very focused on it,” which I hope is true given the fact that more illegal migrants were apprehended at the Southwest border in FY 2021 than in any prior fiscal year in history, but as Graham (appropriately) retorted: “That’s not the question.”

Again, when so pressed, Mayorkas’s response was telling: “I think that we have more control consistent with our values as a nation.”

With due respect to the secretary (and former prosecutor, in case I failed to mention it), that is an opinion, not a statement of fact — which was what Graham’s question called for. But even as an opinion, unless our “values” preclude and eschew enforcement of the laws, it is demonstrably false.

I have noted in the past that “operational control” of the border (the phrase used by Sen. Mike Lee (R-Utah)) is a legal term, defined in the Secure Fence Act of 2006 as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”

That act requires Mayorkas, as DHS secretary, “to take all actions” he “determines necessary and appropriate to achieve and maintain” such “operational control”. Has he done so? Here are the facts.

Under questioning by Graham, Mayorkas “estimated” that 375,000 of the 1.659 million-plus illegal migrants apprehended by Border Patrol at the Southwest border in FY 2021 were “still here” (read: “were released”), not counting 125,000 unaccompanied alien children who were sent to the Department of Health and Human Services for placement with sponsors in the United States.

Of course, that doesn’t even include the estimated 400,000 alien “got-aways”, who entered illegally and evaded apprehension. Again, border “control” is Mayorkas’s mandate, and his alone. If 900,000 illegal migrants have entered the United States in one fiscal year, Mayorkas has failed to achieve operational control as required by law — and he knows it.

Now, neither Congress nor I want the secretary to transgress “our values as a nation” in securing the border. But consistent with those values, he must do so. He hasn’t and failed to lay out a plan under which he would do so in the future.

Looking Forward

There are many other significant points that came out in Secretary Mayorkas’s testimony that I will address later, including the fact that more than one in three illegal migrants who were released — 35 percent — have failed to appear, and that Mayorkas claims that he and Vice President Kamala Harris are “advancing considerably” in addressing the “root causes of irregular migration”.

It is clear, however, that the Republican senators on the committee were dissatisfied with Mayorkas’s policies and many of his responses. If Mayorkas serves for another three years — and if the GOP captures the Senate in the midterms — he had better come up with better answers and policies.