For the Second Time in a Year, DHS Secretary Mayorkas Admits His Prior Border Strategy to Be an Abject Failure

If this week's announcement, the administration's third try at a border plan, also fails, then what?

By George Fishman on June 7, 2024

Just about a year ago, I wrote about Secretary of Homeland Security Alejandro Mayorkas’s warning that adhering to his own earlier, and highly self-touted, “Mayorkas Plan” (“DHS Plan for Southwest Border Security and Preparedness”) would lead to disaster. In May 2023 Mayorkas and Attorney General Merrick Garland wrote that 2022’s “Mayorkas Plan” would:

  • “[U]nduly impede DHS’s ability to fulfill its critical and varied missions”;
  • “[I]ncentivize an increasing number of migrants to [come illegally to] the United States and further increase the likelihood of sustained high encounter rates”;
  • “[E]ncourage migrants to make a dangerous journey to the SWB [southwest border]”;
  • Result in “those who have a valid claim to asylum ... hav[ing] to [maybe] wait years for their claims to be granted, while individuals who will ultimately be found ineligible for protection may [be able to] spend years [here] before being ordered removed”;
  • “[O]verwhelm[] the Departments’ ability to effectively process, detain, and remove, as appropriate, the migrants encountered”;
  • “[U]ndermin[e] the Departments’ ability to safely, effectively, and humanely enforce and administer U.S. immigration law”;
  • Result in illegal aliens “once processed ... be[ing] released into local communities that are already at or near their capacity to absorb them”;
  • “[R]esult in potentially dangerous overcrowding at CBP [U.S. Customs and Border Protection] facilities [with] attendant risks to public safety, health, and welfare”; and
  • “[P]lace additional pressure on States [and] local communities ... both along the border and in the interior of the United States”.

So, the 2022 Mayorkas Plan didn’t secure our borders. What to do? Mayorkas (and Garland) rolled out what you could call Mayorkas Plan B — the “Circumvention of Lawful Pathways” (CLAP) rule, which promised to:

  • “discourage irregular migration by encouraging migrants to use lawful, safe, and orderly pathways and allowing for swift returns of migrants who bypass such pathways, even after the termination of the Title 42 public health Order”;

  • “incentivize[] migrants to use lawful, safe, and orderly means … to enter the United States to seek asylum and other forms of protection”; and

  • “build[] upon ongoing efforts to share the responsibility of providing asylum and other forms of protection to eligible migrants with the United States’ regional partners”.

But then, this week, Secretary Mayorkas warned that adhering to his own earlier, and highly self-touted, Mayorkas Plan B also hadn't worked. Mayorkas and Attorney General Garland wrote that since implementing the CLAP:

  • “[H]igh levels of migration … have ultimately proved persistent even in the face of [the CLAP], as evidenced by the migration patterns witnessed in December 2023.”

  • “[E]ncounter levels increased through the fall of 2023, and December 2023 saw the highest levels of encounters between [ports of entry] POEs in history, including a surge in which border encounters between POEs exceeded 10,000 for three consecutive days and averaged more than 8,000 a day for the month.”

Even worse, “DHS projects that, absent … policy changes … irregular migration will once again increase”. What would happen then?

  • “Without [policy changes], the anticipated increase in migration will … worsen significant strains on resources already experienced by the Departments and communities across the United States.”

  • “At increased levels of encounters and without a change in policy, most non-Mexicans processed for expedited removal … would likely establish a credible fear and remain in the United States for the foreseeable future despite the fact that most of them will not ultimately be granted asylum … [This] scenario … would likely continue to incentivize an increasing number of migrants to journey to the United States and further increase the likelihood of sustained high encounter rates.”

  • Absent [policy changes], these harmful results are especially likely … [referring to] large-scale releases pending … removal proceedings … [that] 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.”

  • “Absent [policy] changes … recent encounter trends … indicate a risk of further exceeding the Departments’ capacity to effectively process, detain, and remove, as appropriate, the noncitizens encountered, and exacerbating perceived incentives to migrate now.”

Uh oh. What to do? Well, Mayorkas and Garland have just rolled out Mayorkas Plan C, the “Securing the Border” rule, in conjunction with President Biden’s “Presidential Proclamation on Securing the Border”. Secretary Mayorkas says that, this time, his Plan C is full of “[t]ough measures” to “speed our ability to deliver consequences” and is “yet another step the Administration has taken within its existing authorities to deter irregular migration”. Plan C promises that, along with President Biden’s Proclamation, it “will realign incentives at the southern border … . by improving DHS’s ability to place into expedited removal the majority of noncitizens who are amenable to such processing; to avoid large-scale releases of such individuals pending … removal proceedings; and to allow for swift resolution of their cases and, where appropriate, removal”.

As my colleague Andrew Arthur has written in evaluating Plan C, it’s “likely too riddled with exceptions to do much good”. What to do then? Well, I would venture a guess that Secretary Mayorkas has a Plan D in reserve: Wait for President Biden to be reelected and then snag a lucrative job in the private sector.