Mayorkas Tells Lawmakers Border is Secure

DHS secretary grilled by House Judiciary GOP

By Robert Law on May 2, 2022

Department of Homeland Security (DHS) Secretary Alejandro Mayorkas appeared before the House Judiciary Committee last week for an oversight hearing and it was a doozy. The embattled secretary had to expect the hearing would be contentious in light of the letter he received days before signed by 133 House GOP members, including leadership, that Andrew Arthur described as “ripping [Mayorkas’] handling of the Southwest border”. For those expecting fireworks between the GOP minority and Biden’s top immigration deputy, the hearing did not disappoint.

Border Crisis. Predictably, Republicans aimed most of their questions at the crisis on the southern border. In his opening remarks, Ranking Member Jim Jordan quoted Mayorkas from last year telling supporters that, “The border is secure and we’re executing our plan.” Jordan then contrasted that statement with U.S. Customs and Border Protection’s (CBP) own data showing over 200,000 "encounters" in March, a 22-year high, as well as already 1.06 million encounters thus far in fiscal year 2022.

Democrats, notably Chairman Jerry Nadler, came to Mayorkas’s defense by claiming that the border numbers are high because of recidivism from those quickly turned away under Title 42’s public health emergency authority. While it is true that the encounters data includes some individual aliens apprehended multiple times, that has always been the case with the monthly figures. There is simply no amount of double-or-triple counting of an alien that could add up to the border figures that set monthly records pretty much every month of the Biden administration.

In light of the historic, and ongoing, border crisis, it was remarkable that under oath Secretary Mayorkas insisted that no such crisis exists. When asked by Rep. Michael Guest, “Are you testifying as you sit here today that the Southwest border is secure?”, Mayorkas replied, “Yes, I am.” At another point in the hearing, Mayorkas went further, proclaiming that DHS has “operational control of the southern border”. While the word “secure” could be open to some interpretation, “operational control” is a statutory term with an unambiguous definition. Under section 2(a) of the "Secure Fence Act of 2006", Congress defined “operational control” 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.” This definition was read out loud to Mayorkas before his response, making it all the more remarkable that he claims to have fulfilled that edict.

Another refrain oft-used by Mayorkas and the committee Democrats was to blame the Trump administration for the border crisis. This is nonsense, as the Trump administration established policies like the Migrant Protection Protocols (MPP or Remain in Mexico) and the Asylum Cooperative Agreements (ACAs) that made the southern border the most secure it had ever been. Republican Rep. Burgess Owens used some of his time to refute this narrative, succinctly stating to the DHS secretary, “You did not inherit this system, you created it.”

Interior Enforcement. Several Republicans pressed Secretary Mayorkas on his dismantling of immigration enforcement in the interior of the country. Immigration subcommittee Ranking Member Tom McClintock pointed out that Mayorkas has directed U.S. Immigration and Customs Enforcement (ICE) that unlawful presence is not grounds for removal, a statement inconsistent with U.S. immigration law. McClintock further noted that there are more ICE agents and the Department of Justice has more immigration judges than there were in 2012 and yet Biden’s DHS is removing fewer aliens.

Andrew Arthur underscored this point back in February, noting that removals fell by more than 70 percent under the Biden administration in fiscal year 2021. Rep. Matt Gaetz continued this line of inquiry by stating to Mayorkas, “You have the lowest deportation rate in the history of DHS.” Strangely, Mayorkas refuted that statement by claiming “Your data is misleading.” The problem for Secretary Mayorkas is that the data relied on by the GOP members was produced by ICE itself.

Mayorkas struggled throughout his back-and-forth with Rep. Gaetz. When the congressman noted that 1.2 million aliens had final orders of removal but remained in the country, he asked how many ICE agents are needed to remove all of them. The secretary initially responded that “comprehensive immigration reform” is needed, code for amnesty. When pressed, Mayorkas then claimed, without evidence, that some aliens with final orders of removal have not received due process. In fact, aliens with a final order of removal have received robust due process, including the potential for multiple layers of appeal.

Another area of focus was the Biden administration’s increased use of alternatives to detention (ATD) rather than detaining aliens for the pendency of their immigration hearings, as required by law. Mayorkas highlighted ATD as a superior option to detention, but demurred when asked if American taxpayers are on the hook for the cost of transporting aliens apprehended at the border into the interior. The DHS secretary’s professed value in ATD came one day after Fox News published a leaked ICE report that found that ATD has “little value”, is of “significant expense”, and inevitably results in a high number of enrolled illegal aliens absconding.

USCIS. Another area where Mayorkas and committee Democrats sought to deflect blame was the work of U.S. Citizenship and Immigration Services (USCIS), the agency responsible for administering the nation’s lawful immigration system. Immigration subcommittee Chairwoman Zoe Lofgren claimed the Trump administration “dismantled USCIS” and Secretary Mayorkas falsely claimed that “employees were furloughed”. In fact, not a single USCIS employee was furloughed, and before the pandemic the agency was staffed at its highest level ever thanks to hiring surges that occurred during the Trump administration.

Having worked at USCIS during the Trump administration, I can state that we actually inherited a financially troubled agency that was losing money every day. It was this factor combined with receipts (and fees) drying up due to the global shutdown caused by Covid-19 that caused a large number of USCIS employees to receive furlough notices. But the furloughs never materialized because we imposed severe belt-tightening measures, got out of costly legacy contracts, and imposed a hiring freeze.

As a fee-funded agency, USCIS is required by law to revise its fees every two years. The Obama administration waited six years before pursuing a fee rule, meaning that applications and petitions were charged less than the true cost of adjudication. During his testimony, Mayorkas repeatedly discussed a forthcoming fee rule and its importance to USCIS while failing to acknowledge that he neglected to adjust the fees during his tenure as the USCIS director under Obama.

The Trump administration did develop a fee rule that would have actually recouped the true costs of adjudication, but “immigrant rights” advocates and a friendly judge blocked its implementation despite our fully complying with the Administrative Procedure Act. Thus, the agency continues to lose money every day, though the resumption of fees coming in as the country has reopened is keeping USCIS afloat, for now.

Lastly, Mayorkas highlighted two unlawful categorical parole programs, one for Afghan evacuees and the other for Ukrainians, as administration accomplishments. The former resulted from the Biden administration’s disastrous withdrawal from Kabul, with the decision to allow roughly 70,000 un-vetted and visa-less Afghans into the country. Despite the Defense Department watchdog’s chilling indictment of Afghan vetting, Mayorkas converted the “parole” status of the evacuees to amnesty-lite in the form of Temporary Protected Status. More recently, Mayorkas announced the “Uniting 4 Ukraine” program, which he described in testimony as “humanitarian parole”. As I explained in a Townhall op-ed, “Uniting 4 Ukraine” is actually a family reunification program that exploits the secretary’s parole authority to allow otherwise ineligible Ukrainians to enter the country.

Rep. Darryl Issa said it best when he told Mayorkas, “Your job is to enforce the laws on the books.” Yet, as the DHS secretary made clear throughout his testimony, the Biden administration intends to continue operating an immigration system it prefers, regardless of existing immigration laws and numerical limits.

It is clear that if Republicans retake the House (as most are predicting), Secretary Mayorkas should expect far more frequent invitations to testify.