The U.S. House Committee on Homeland Security, led by Chairman Mark E. Green (R-Tenn.), recently published an interim report as a part of its oversight investigation into U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas. The report lays out the committee’s case that Secretary Mayorkas should be charged with dereliction of duty, highlighting the department’s overall failures at the Southwest border.
Before taking office, the secretary of Homeland Security must swear an oath to “well and faithfully discharge the duties of the office on which I am about to enter”. Section 103(a)(5) of the Immigration and Nationality Act (INA) bestows the DHS secretary with “the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens”.
The release of this report follows the Homeland Security Committee’s hearing on whether Biden administration policies have advanced cartel crime across the border and into the interior of the United States. Committee Chairman Green has said his committee plans to turn its findings on Secretary Mayorkas’ actions over to the House Judiciary Committee, which has jurisdiction to formally launch impeachment proceedings.
In its report, the House Homeland Security Committee stated that, “Over the past two years, Mayorkas has repeatedly ignored or refused to enforce immigration laws passed by Congress, ended commonsense, effective border security policies, implemented an open-borders agenda that has spread millions of illegal aliens throughout the United States, and continuously misled Congress and the American people about his actions and the nature of the border crisis sparked by his policies.” What follows is a 110-page discussion of each instance the committee has documented Secretary Mayorkas ignoring, abusing, or failing to enforce laws or court orders; of actions Secretary Mayorkas has taken to encourage or facilitate illegal immigration into the United States; and of false or dishonest statements the secretary has made publically or to Congress since January 2021.
The report focused heavily on the Biden administration’s violations and abuses of law. Most importantly, the committee reiterated that the Biden administration has abused the parole statute through its creation of numerous parole programs. Secretary Mayorkas has used these never-authorized parole programs to allow hundreds of thousands of inadmissible aliens to enter and work in the United States, circumventing both the eligibility and numerical limits set by Congress at the expense of the legal immigration system.
As my colleagues at the Center have written about extensively, the language of the parole statute, section 212(d)(5) of the INA, provides DHS officials very limited authority to bring aliens into the United States temporarily, on a “case-by-case” basis, for “urgent humanitarian or significant public benefit” reasons. The committee described Mayorkas’ actions as “wantonly” flouting “the statute’s clear language by granting parole to hundreds of thousands of illegal aliens, creating and maintaining parole programs for certain nationality groups ... as a means to relieve the Biden administration from the embarrassing optics of overcrowded Border Patrol facilities”.
The report also chastised DHS for flouting the mandatory detention and removal requirements of sections 235, 236(c), and 237 of the INA. Section 235(b)(1) of the INA establishes the procedure for “expedited removal”, which requires Border Patrol to detain and remove any illegal alien attempting to enter the United States without a visa or other proper immigration documents. Specifically, this section provides that an alien “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed”. Section 235(b)(1)(B) also states that if an asylum officer finds an alien’s credible fear claim to be valid, “the alien shall be detained for further consideration of the application for asylum.” Additionally, section 236(c) requires DHS to detain certain criminal aliens, while section 237 requires DHS to remove (i.e. deport) certain aliens, including certain criminals, terrorists, and status violators.
Numerous Biden administration policies, including, but not limited to Secretary Mayorkas’ September 2021 memorandum titled “Guidelines for the Enforcement of Civil Immigration Law” , however, ignore these requirements. Instead, the policies set up new criteria for DHS officers to apply when considering initiating an enforcement action against an alien with no lawful immigration status.
Finally, the committee’s report highlighted a handful of startling statistics that demonstrate the extent of the chaos on the border, including:
- More than 5.45 million encounters at the Southwest border since January 2021, with total nationwide encounters of more than 6.45 million.
- More than 1.5 million known “got-aways” recorded by CBP since FY 2021, which brings total recorded illegal crossings since January 2021 to at least 7.5 million (“got-aways” is a term used by CBP to describe individuals that they detected crossing the border illegally but were unable to apprehend).
- More than 97,500 arrests by CBP of individuals with criminal convictions or those with outstanding warrants.
- 241 individuals on the Terrorist Screening Data Set (TSDS) have been caught between border ports of entry on the northern and southern borders since FY 2021, compared to just 14 individuals on the TSDS caught between ports of entry from FY 2017-2020.
- Individuals from over 160 countries have been encountered in the border region.
- From March 2021 to January 2023, DHS improperly released over 600,000 inadmissible aliens into the United States without issuing notices to appear (i.e. immigration court dates).
The report concluded that, “on top of these failures to uphold the law and fulfill his oath of office, Mayorkas has willfully undermined ... the separation of powers,” stating that, “He has rejected his responsibility to enforce the laws passed by Congress, and has refused to respect rulings by the federal judiciary.”
While there is no specific definition of “dereliction of duty” as applied to cabinet members, the committee pointed to other areas of law to provide guidance on this standard, and specifically cited the standards in the Manual for Courts-Martial for determining whether a person “has been derelict in the performance of his or her duties”. Under this standard, “A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person’s duties or when that person performs them in a culpably inefficient manner.”
House Republicans face an uphill battle to secure enough votes to impeach Secretary Mayorkas. If impeached, Secretary Mayorkas will be only the second cabinet secretary ever impeached in American history. William Belknap, who served as a secretary of war during President Ulysses Grant’s administration, was impeached in 1876 for corruption, but was acquitted by the Senate.