Summary
- In order to make the case for his June “Securing the Border” rule — “urgently needed to avert significant public harm” — DHS Secretary Alejandro Mayorkas had no choice but to admit to the harm caused by the mass release of aliens apprehended at the border. He had to disavow positions he has consistently taken, positions grounded in his “detention is morally inexcusable” mindset.
- Consequently, the narrative of the rule reads like a case-study in cognitive dissonance — “the unpleasant mental state that may result if someone really does have certain beliefs but thinks or acts in a way that contradicts them”.
- Earlier this year, the U.S. House of Representatives impeached Secretary Mayorkas in part precisely because his “unlawful mass release of apprehended aliens … ha[s] enticed an increasing number of aliens to make the dangerous journey to our Southwest border”. Mayorkas has long known the deleterious effects of mass release. But this rule is the first time I know of that he has actually admitted the harm.
- Mass release creates a de facto open border, which is at the core of the alien smugglers’ open-border narrative that Secretary Mayorkas has long attacked as a lie. In actuality, the smugglers have been more truthful about the state of the border than has Mayorkas and he needed to admit to the truthfulness of their narrative, to admit that their “lies” were in fact true. But this made Mayorkas uncomfortable, so elsewhere in the rule he seemed to implicitly question the narrative or even return to calling the smugglers liars.
- There is another explanation for the peculiar manner in which the rule was written. It is possible that Secretary Mayorkas never even read the rule that he signed. If so, the staff tasked with writing the rule was simply trying to perform an incredibly difficult balancing act: justifying the rule by admitting where necessary to inconvenient truths, while also not too openly contradicting past statements by their boss.
Secretary Mayorkas’s “Absence of Prisoners Dilemma”
DHS Secretary Alejandro Mayorkas acknowledges in his (and Attorney General Merrick Garland’s) June “Securing the Border” rule the “critical need to immediately implement more effective border management measures”. In order to make the case for the rule — “urgently needed to avert significant public harm” — Mayorkas had no choice but to admit to the harm caused by the mass release of aliens apprehended at the border. But, in so doing, he had to (at least implicitly) disavow positions he has consistently taken during his tenure as secretary, positions grounded in a mindset that I have described as “detention is morally inexcusable”. The Biden/Mayorkas border fiasco thus presented Mayorkas with a dilemma. But rather than a “Prisoners’ Dilemma”, Secretary Mayorkas’s might be called an “Absence of Prisoners Dilemma”.
Mayorkas’s mindset was on display when he testified before the House Appropriations Committee’s Subcommittee on Homeland Security in May 2021:
One of the things that I have observed is the detention of individuals that do not pose a threat to public safety, or do not pose a risk of flight such that we are not confident in their appearance in future immigration proceedings. I am concerned about the overuse of detention, and where alternatives to detention would suffice … we will indeed be looking at that.
His mindset was also on display when, as I have written, he appointed as the immigration detention ombudsman “an anti-ICE [U.S. Immigration and Customs Enforcement] activist ‘who has called ICE’s activities ‘abusive’ and wants to limit the agency’s powers of detention’, and asserts that removing illegal aliens before they commit crimes sounds like ‘a police state’”.
Consequently, the narrative of the rule reads like a case study in cognitive dissonance, defined as “the unpleasant mental state that may result if someone really does have certain beliefs but thinks or acts in a way that contradicts them”. Reading the preamble of the rule reminds me of the classic Star Trek episode “The Return of the Archons”, in which Captain Kirk tells a computer run amok that “You must create the good. That is the will of Landru … . [T]he evil must be destroyed. That is the Prime Directive. And you are the evil … . Fulfill the Prime Directive.” The computer cries out “Help me, help me, help me, help me”, and then self-destructs.
Secretary Mayorkas’s rule supposedly prevents apprehended aliens from qualifying for asylum when the border is overrun, in order to quickly remove them. Now, as my colleague Andrew Arthur has written, the rule is “likely too riddled with exceptions to do much good”. But, in any event, to justify the rule’s necessity, Secretary Mayorkas needed to admit to DHS’s mass release of aliens apprehended at the border (at least during the ongoing border emergency’s apogee and albeit “[b]ecause of … resource limitations”): “Individuals are more likely than not to be released to pursue a years-long immigration court process during which … they may be authorized to work.” He also needed to admit the great harm caused by such mass release:
[In the current emergency border] circumstances … absent this rule[ DHS] must resort to large-scale releases of [aliens] pending section 240 removal proceedings [before immigration judges], which leads to significant harms and threatens to incentivize further migration by individuals who recognize the limitations on the ability to deliver timely consequences.
Such releases [from DHS detention] have significant impacts on communities and contribute to further migration by incentivizing potential migrants to travel to the United States with the belief that, even if initially detained, they will ultimately be released to live and work in the United States for long periods of time.
This is rich because earlier in the year the U.S. House of Representatives impeached Secretary Mayorkas in part precisely because his “unlawful mass release of apprehended aliens … ha[s] enticed an increasing number of aliens to make the dangerous journey to our Southwest border”. (In full disclosure, I note that, during an unpaid leave of absence from the Center, I had the great privilege of serving for a few months as a special counsel for Chairman Mark Green of the House Committee on Homeland Security to assist with the impeachment inquiry and proceedings against Secretary Mayorkas.) As U.S. District Court Judge T. Kent Wetherell II of the Northern District of Florida concluded in 2023 in Florida v. United States:
[DHS] effectively incentivized [the surge in illegal migration] that has been ongoing since early 2021 by establishing policies and practices that all-but-guaranteed that the vast majority of aliens arriving at the Southwest Border who were not excluded under the Title 42 Order would not be detained and would instead be quickly released into the country where they would be allowed to stay (often for five years or more) while their asylum claims were processed or their removal proceedings ran their course — assuming, of course, that the aliens do not simply abscond before even being placed in removal proceedings, as many thousands have done.
[The Biden administration’s claim that the] crisis at the border is not largely of [Secretary Mayorkas’s] own making because of [DHS’s] more lenient detention policies is divorced from reality and belied by the evidence.
Last year, chief Border Patrol agents admitted in transcribed interviews with the House Committee on Homeland Security that:
Chief Patrol Agent Joel Martinez, Laredo Sector, was asked whether he believed ‘‘the current rate of release at the southwest border’’ to be ‘‘an active pull factor for people coming into the United States.’’ His response was “Yes.”
Chief Patrol Agent Anthony “Scott” Good, El Paso Sector, was asked whether if ‘‘someone perceives that they’re going to be released, is that a pull factor?’’ His response was ‘‘Yes.’’
Chief Patrol Agent John Modlin, Tucson Sector, stated that ‘‘the most obvious way to not encourage illegal migration, is everyone’s held until they have a hearing.’’
Deputy Chief Patrol Agent Dustin Caudle, Yuma Sector, stated that ‘‘the belief that they are going to be released with no consequence is certainly something that many migrants tell our agents’’ as a reason that they came illegally to the United States.
Of course, Secretary Mayorkas has long known the deleterious effects of mass release. Rodney Scott, his first Border Patrol chief, informed the House Committee on Homeland Security that Mayorkas was warned early on:
During my professional conversations and interactions with Secretary Mayorkas while I was still Chief, he made it very clear that he fully understood that decreasing deterrence and consequences for illegal entry, and increasing the release of aliens that had entered the U.S. illegally, wi[ll] unquestionably result in an increase in illegal immigration to the U.S., that in his words at that time, would be unsustainable.
Secretary Mayorkas chose to ignore these stark warnings and implemented a series of decisions that directly resulted in the massive illegal immigration and the associated crime, death, and general chaos that we are experiencing today.
And, as I have reported, Mayorkas’s DHS itself released data demonstrating the consequences of mass release. Of aliens encountered at the southern border in fiscal year 2013, 98.4 percent of those who were continuously detained had been repatriated as of December 31, 2021, as had only 6.9 percent of those who were sometimes detained and 15.1 percent of those who were never detained. Of those continuously detained, only 0.7 percent had an unexecuted removal order, while 23.2 percent of those sometimes detained and 12.6 percent of those never detained had unexecuted orders. DHS data for fiscal years 2014-2019 show similar outcomes. As the Committee on Homeland Security’s report on the Mayorkas impeachment resolution concluded, “continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been”.
Despite his prior knowledge, Secretary Mayorkas’s admissions are still of great note because this is the first time I know of that he has admitted to the harms caused by the mass release of aliens apprehended at the border.
Such mass release creates a de facto open border, which is at the core of the alien smugglers’ open-border narrative that Secretary Mayorkas has long attacked as a lie (and as a driver of the border crisis):
- In April 2022, Mayorkas signed a self-congratulatory memo setting forth DHS’s “Plan for Southwest Border Security and Preparedness”, that stated “We are … sending a clear message in the region to counteract misinformation from smugglers, including that the termination of the Title 42 public health Order does not mean that the U.S. border is open.” (Emphasis added throughout.)
- In December 2022, DHS’s updated Mayorkas’s plan, stated “[W]e anticipate migration levels will increase as smugglers seek to take advantage of and profit from vulnerable migrants once the Title 42 public health order is lifted. This will likely include spreading false information about what the end of Title 42 will mean.”
- In May 2023, DHS announced that it had “launched a digital advertising campaign to counter lies peddled by smugglers about the end of the public health Order under Title 42 … . [Secretary Mayorkas stated] ‘This campaign adds to our extensive ongoing communications efforts in the region … . [W]e are making it very clear that our border is not open, that crossing irregularly is against the law, and that those who are not eligible for relief will be quickly returned. Do not listen to the lies of the smugglers. This is what will happen to you. You will be returned.”
In actuality, the smugglers have by and large been more truthful about the state of the border than has Secretary Mayorkas. As I have written, word had gotten out around the world that a claim of fear of persecution upon apprehension at the border represented a virtual free pass into the U.S. — often trumpeted by alien smugglers seeking new business. And the smugglers weren’t engaging in puffery — they were accurately describing the situation.
But in order to justify the rule’s necessity, Secretary Mayorkas needed to admit to the truthfulness of the smugglers’ narrative. It would clearly greatly pain Secretary Mayorkas to have to explicitly state that the smugglers’ “lies” were in fact true. So, he implicitly admitted the truth of the smugglers’ narrative:
The TCOs [transnational criminal organizations] … and the migrants they prey upon who intend to make the dangerous journey north … understand that when the capacity of DHS to quickly process individuals at the border is strained, DHS is limited in its ability to deliver timely consequences.
DHS cannot impose consequences swiftly or predictably on most people encountered at the border, feeding the narrative pushed by smugglers that irregular migrants will be able to stay in the United States.
[The] vicious cycle … in which increasing numbers of releases lead to increased migration [is] fueled by the narrative, pushed by smugglers, that migrants who are encountered at the border will be allowed to remain and work in the United States for long periods of time.
Smugglers and … TCOs … have exploited … [the government’s “inability to predictably deliver timely decisions and consequences”], further fueling migration by actively advertising to migrants that they are likely to be able to remain in the United States.
DHS assesses that the surge in late 2023 was likely the result of a number of factors, including the growing understanding by smugglers and migrants that DHS’s capacity to impose consequences at the border is limited by the lack of resources and tools that Congress has made available.
Even this roundabout sort of acknowledgement makes Mayorkas uncomfortable, so elsewhere in the preamble he seems to implicitly question the smugglers’ narrative:
[T]his rule will significantly increase the ability to deliver timely decisions and timely consequences at the border within current resources, combating perceptions and messaging to the contrary. [Emphasis added throughout.]
[We have a] situation in which large numbers of migrants … [are] encouraged to put their lives in the hands of dangerous organizations to make the hazardous journey north based on a perceived lack of immediate consequences.
Secretary Mayorkas is the Nadia Comaneci of linguistic gymnastics — I award him a score of a perfect 10.0. Combatting “perceptions and messaging to the contrary”? That gives the impression that the perceptions and messaging are false — without having to actually say so. But that is certainly what he means, for elsewhere in the preamble Mayorkas sets forth a distinction between “real” and “perceived” incentives: “generally, would-be migrants respond to real and perceived incentives created by border management and immigration policies”.
But this roundabout sort of doubt-sowing doesn’t seem to be enough for Secretary Mayorkas, so elsewhere in the preamble he returns to his comfort zone — outright calling the smugglers liars:
These smuggling organizations have built a multi-billion-dollar industry, featuring online marketing campaigns to spread misinformation and sophisticated logistics networks designed to quickly funnel migrants to the parts of the border where DHS capacity is lower. [Emphasis added throughout.]
[S]mugglers routinely prey on migrants by spreading rumors, misrepresenting facts, or creating a sense of urgency to induce migrants to make the journey by overemphasizing the significance of recent or upcoming policy developments, among other tactics, and do so particularly when there is a change announced in U.S. policy.
Secretary Mayorkas made the claim in the second bullet to bolster his argument that there was “good cause” for DHS to bypass the “notice and comment” usually required by the Administrative Procedure Act before the issuance of a regulation. But the claim was an odd one for Mayorkas to make, because on the very next page, he stated that his rule was in fact a significant policy development!
As demonstrated by the Departments’ experience with the end of the Title 42 public health Order and MPP, significant shifts in U.S. border policies lead to an increase in migrants coming to the SWB that risks overwhelming the Departments’ resources and operations. This rule is likewise a significant shift in U.S. border policy that affects the vast majority of [aliens] arriving at the southern border who do not have documents sufficient for lawful admission — a shift that may be viewed as similar to the end of the Title 42 public health Order and MPP. [Emphasis added.]
Slip-ups like this make it seem like Secretary Mayorkas just isn’t bringing his A-game to the “Securing the Border” rule — the A-game Mayorkas brought to his position as Deputy Secretary of DHS during the Obama administration. DHS’s Office of the Inspector General concluded at the time that Mayorkas had “intervened with the career USCIS [U.S. Citizenship and Immigration Services] staff in ways that benefited [politically connected investor visa program] stakeholders” to the extent that “but for Mr. Mayorkas’s intervention, the matter[s] would have been decided differently”, which “created significant resentment” at USCIS and “an appearance of favoritism and special access”. Maybe Secretary Mayorkas has been thrown off balance by having to walk away from his deeply held views on immigration detention.
Or maybe he hasn’t. I should have mentioned earlier that there is another explanation for the peculiar manner in which the Mayorkas rule was written. Secretary Mayorkas (and Attorney General Garland) likely did not participate in the actual writing of the rule that they signed and issued. It is also possible that Mayorkas never even read the rule that bears his name, but rather simply relied on summaries and talking points provided by his staff. In that case, I shouldn’t be trying to psychoanalyze Secretary Mayoras. Rather, I should be trying to psychoanalyze the staff tasked with actually writing the rule. It could be that they were simply trying to perform an incredibly difficult balancing act — justifying the rule by admitting where necessary to inconvenient truths, while also not too openly contradicting past statements by their boss.
This reminds me of another Star Trek episode — “Wolf in the Fold” — in which Spock orders the Enterprise’s computer, taken over by an evil entity desiring to kill the crew, to “compute to the last digit the value of pi”. The computer exclaims “No, no, no, no, no, no!” Spock explains to Captain Kirk that as “the value of pi is a transcendental figure without resolution[, t]he computer banks will work on this problem to the exclusion of all else until we order it to stop.”
Defense Mechanism
In the rule, Secretary Mayorkas claims that his failure to detain more apprehended aliens, as required by federal statute, is caused by Congress not appropriating him enough money to do so:
Due to its funding shortfall, DHS simply lacks sufficient resources … to process and hold individuals in … ICE … custody during the expedited removal process.
Because ICE has very limited detention capacity and appropriated bedspace has remained relatively static, the agency must carefully prioritize whom it detains.
Although Congress did ultimately enact an FY 2024 appropriations bill for DHS, the funding falls significantly short of what DHS requires to … avoid large-scale releases pending section 240 removal proceedings.
But, as the Committee on Homeland Security’s impeachment report concluded:
Secretary Mayorkas claims that he cannot detain aliens at the border because he does not have the funding or detention capacity to comply with the statutory mandates. However, Secretary Mayorkas has purposefully reduced detention capacity by closing detention facilities, underutilizing available detention beds, and requesting insufficient funding.
And as Judge Wetherell similarly concluded in Florida v. United States, Secretary Mayorkas “took steps to reduce detention capacity, including closing all of DHS’s family detention facilities”, “requesting less detention capacity from Congress”, and “le[ading] Congress to believe that it did not need more detention capacity”. Judge Wetherell concluded that ‘‘it is hard to take [DHS’s] claim that they had to release more aliens into the country because of limited detention capacity seriously”.
First, Secretary Mayorkas has long asked Congress for fewer resources to detain aliens. The impeachment report noted that:
[I]n Fiscal Years 2020 and 2021, DHS [during the Trump administration] requested enough funds for 54,000 and 60,000 detention beds, respectively. By Fiscal Year 2022, however, Secretary Mayorkas reduced requested detention space by nearly 45 percent, for 32,500 beds. In Fiscal Years 2023 and 2024, Secretary Mayorkas requested only 25,000 beds.
Second, Mayorkas’s policy priorities prescribe limiting the detention of aliens. As the impeachment report noted, ICE’s justification to Congress for its requested fiscal year 2024 budget admitted that “It is important to note that policy priorities seeking to limit detention of [aliens] assessed to not pose a threat to national security or public safety make significant increases in ADP [the average daily population of ICE detainees] unlikely under current circumstances.” Further, as the report also noted, Secretary Mayorkas’s DHS argued in budget request documents that:
[A] reduction in detention capacity level will not impede ICE’s ability to detain, and remove [aliens] that present a threat to national security, border security, and public safety.
In alignment with guidance to limit detention among [aliens] who do not threaten national security, public safety, or meet mandatory detention requirements, noncitizen ADP remained below target in [fiscal year] 2022.
Funding an ADP of 25,000 maintains ICE’s ability to effectively manage its current detainee population flows. ICE retains the ability to apprehend, detain and remove [aliens] that present a threat to national security, border security, and public safety. As [aliens] pass through immigration proceedings, sufficient and appropriate detention capacity provides ICE with adequate time and flexibility to gain custody of immigration law violators, ensure compliance with court procedures, and efficiently utilize transportation networks to remove priority individuals.
Supporting an ADP of 25,000 will provide ICE with the flexibility and capacity to detain immigration law violators and those who pose a security threat while efficiently managing the detention portfolio.
Third, other presidents who faced resource constraints performed significantly better at complying with detention mandates than has Secretary Mayorkas. As the impeachment report noted, President Biden’s solicitor general provided information to the Supreme Court “demonstrating that of single adult aliens and aliens in family units encountered at the Southwest border, the proportion continuously detained was 56 percent in fiscal year 2017, 54 percent in 2018, 33 percent in 2019, 66 percent in 2020, but only 10 percent in 2021”. Further, as the report concluded, “the number of inadmissible aliens who CBP’s [U.S. Customs and Border Protection] Office of Field Operations officers encounter at Southwest border ports of entry, and aliens who USBP [U.S. Border Patrol] agents apprehend between the ports of entry released into American communities increased from an average of approximately 80,000 a year during 2017-2020, to approximately 320,000 in 2021, 780,000 in 2022 and 1.28 million in 2023”.
Conclusion
Secretary Mayorkas’s “Securing the Border” rule is truly a golden rule. Not in the sense that it will be wildly, or even minimally, successful, or that it was even designed to be so, but in the sense that it forced Mayorkas to admit to the harm caused by his mass release of aliens apprehended at the border and forced him to admit that the smugglers were not lying (though maybe he was). Secretary Mayorkas had to disavow positions he has consistently taken during his tenure as secretary. If he was aware of his disavowals (i.e., if he actually read the rule he signed), this must have caused him mental distress. If he wasn’t aware, this likely caused the staff who drafted the rule some mental distress of their own.