Mayorkas' Actions: Lawful Or Legal Loophole?

Republicans have accused Homeland Security Secretary Alejandro Mayorkas of breaking the law, specifically by failing to comply with immigration law and breaching the public trust. Mayorkas has been under investigation by the House Committee on Homeland Security and faced impeachment proceedings, with critics arguing that he has ignored laws passed by Congress, disregarded court orders, and implemented policies that have negatively impacted communities across the nation. However, legal and immigration experts counter these claims, suggesting that Mayorkas is being targeted for policy differences rather than illegal activity. The outcome of the impeachment efforts remains uncertain, with Democratic senators showing little interest in the matter.

Mayorkas's alleged refusal to detain migrants

Homeland Security Secretary Alejandro Mayorkas has been accused of breaking the law by refusing to detain migrants. The Immigration and Nationality Act (INA) states that the secretary's duty is "to control and guard the boundaries and borders of the United States against the illegal entry of aliens" (8 USC § 1103).

Mayorkas has been accused of willfully refusing to comply with the detention mandate set forth in the INA, which requires that all applicants for admission who are not clearly entitled to be admitted must be detained for a removal proceeding. Instead, Mayorkas has been accused of implementing a "catch and release" scheme, whereby such aliens are unlawfully released.

The House Judiciary Committee has subpoenaed Mayorkas to hand over documents on nine migrants suspected of committing crimes, including the rape of a disabled teenage girl and the assault of two NYPD officers. The committee has accused Mayorkas of deliberately dragging his feet and failing to provide the requested information.

Mayorkas has also been accused of abandoning effective border security initiatives and failing to take action to fulfill his statutory duty to control the border. This includes his intentional decision to sabotage the "Remain in Mexico" policy, also known as the Migrant Protection Protocols, which was based on a statutory requirement under the INA.

However, immigration law experts argue that Mayorkas is being targeted for using immigration statutes in ways that differ little from his predecessors. They claim that the case against Mayorkas is based on policy differences rather than illegal activity. The Biden administration has tried to limit the use of detention, using electronic monitoring and requiring people to appear in court at a later date instead.

Furthermore, the detention requirement has never been fully met due to a lack of resources, and no administration has detained every migrant who crosses the border. Mayorkas's use of parole programs to admit migrants who might not otherwise qualify under immigration law is also not unlawful and has been used by previous administrations.

Alleged endangerment of children

In August 2024, a report by the Department of Homeland Security's (DHS) Inspector General revealed that the agency may have lost track of over 250,000 unaccompanied children and failed to notify other agencies in certain cases. The report stated that the DHS's failure to issue court notices to these children limited the ability to monitor their location and status, leaving them vulnerable to trafficking, exploitation, or forced labor.

In response to the report, Senator Josh Hawley sent a letter to DHS Secretary Alejandro Mayorkas, demanding answers to several questions, including the whereabouts of the missing children, the reasons for the failure to provide court notices, and the steps being taken to track down and ensure the safety of these children.

The issue of the missing children is part of a larger debate about Mayorkas's handling of immigration policy and the security of the southern border. Critics, including Congresswoman Laurel Lee, have accused Mayorkas of willfully endangering children by failing to repatriate unaccompanied alien children (UACs) to their home countries, as required by the Trafficking Victims Protection Reauthorization Act (TVPRA).

According to Lee, more than 430,000 UACs have crossed the southern border under Mayorkas's watch, and the Biden administration has failed to ensure that these children are placed in safe homes with vetted sponsors. A Florida grand jury found that the administration did not coordinate with state officials when moving unaccompanied children to Florida, instead dropping them off via planes in the middle of the night and leaving them with largely unvetted sponsors.

The Biden administration's use of parole programs for certain nationalities has also been criticised as a way to subvert immigration laws and create unlawful mass immigration programs. However, Mayorkas and immigration law experts have defended these programs as a way to redirect migrant flows and argued that they do not violate the law.

While the debate around Mayorkas's actions continues, the issue of missing and endangered migrant children remains a pressing concern, with calls for increased accountability and action to protect those at risk.

Alleged failure to uphold anti-discrimination laws

There are allegations that Alejandro Mayorkas, the Homeland Security Secretary, has failed to uphold anti-discrimination laws. Mayorkas has a duty to prohibit discrimination in DHS hiring based on race, colour, religion, sex, or national origin, as per Title VII of the Civil Rights Act of 1964.

However, it is unclear whether Mayorkas has broken the law in this regard. While some sources claim that Mayorkas is guilty of malfeasance and a fundamental rejection of a basic statutory duty, others argue that the accusations amount to nothing more than policy differences and a smokescreen.

Legal experts and past secretaries of homeland security have noted that nothing Mayorkas is accused of rises to the level of high crimes or misdemeanors, which is the standard for impeachment laid out in the Constitution.

The outcome of the impeachment attempt remains uncertain, with the vote expected to be tight.

Alleged abuse of parole authority

The House Republicans' impeachment case against Alejandro Mayorkas, the Homeland Security Secretary, includes the allegation that he abused his parole authority. Mayorkas is accused of creating, reopening, or expanding categorical parole programs for foreign nationals, including Central American minors, Ukrainians, Venezuelans, Cubans, and more, without authorisation from Congress. This enabled hundreds of thousands of inadmissible aliens to enter the United States, violating the laws enacted by Congress.

The parole authority provides limited presidential authority to admit foreigners into the country without a visa in exceptional cases. While Congress has clarified that parole is not authorisation for presidents to create their own immigration programs, it has been abused by presidents in the past as a diplomatic tool.

However, the abuse under President Biden is argued to be unprecedented. Mayorkas has used his parole powers to admit refugees, asylees, displaced Afghans, economic migrants, and other population groups for "humanitarian" or "public interest" reasons.

Despite the accusations, legal and immigration experts have countered that Mayorkas is being targeted for policy differences and that his use of parole is not unlawful. They argue that parole is a law enacted by Congress and that it is flexible by design. Mayorkas is doing what previous administrations have done, which is to decide that certain groups merit a special exercise of welcoming into the United States.

Furthermore, the use of parole can be seen as an attempt to redirect migrant flows away from illegal border crossings. It is one of the few policy tools available to the administration to manage the influx of migrants and redirect them through legal avenues.

Alleged failure to uphold border security

The case for the impeachment of Alejandro Mayorkas, the Homeland Security Secretary, rests on the claim that he has broken the law by refusing to enforce immigration statutes. Mayorkas is accused of failing to uphold border security, endangering children, and violating the public trust.

Firstly, Mayorkas is accused of intentionally failing to secure the homeland, threatening the safety of communities across the nation. This accusation includes the claim that he has ignored laws passed by Congress and disregarded court orders. For example, Mayorkas is charged with flouting the Immigration and Nationality Act (INA), which states that the secretary's duty is "to control and guard the boundaries and borders of the United States against the illegal entry of aliens" (8 USC § 1103). Mayorkas is also accused of willfully refusing to comply with the detention mandate set forth in section 235(b)(2)(A) of the INA, which requires that all applicants for admission who are not clearly entitled to be admitted shall be detained for a removal proceeding.

Mayorkas is also accused of endangering children by failing to comply with the Trafficking Victims Protection Reauthorization Act (TVPRA). Under this Act, the Department of Homeland Security (DHS) is required to work with the Department of Health and Human Services to develop policies to ensure that unaccompanied alien children are safely repatriated to their country of origin or last habitual residence. Mayorkas has been accused of not repatriating these children and of failing to ensure they are placed in safe homes with vetted sponsors. A Florida grand jury found that the Biden administration does not coordinate with Florida state officials when unaccompanied children are moved to the state, and a New York Times report revealed that the administration has lost track of approximately 85,000 unaccompanied children.

In addition, Mayorkas has been accused of violating the public trust by lying to Congress and saying that the border is secure. He has also been criticised for his handling of the Remain in Mexico policy, which requires migrants to wait in Mexico while their asylum cases are processed in the US. Republicans argue that the Biden administration did not act in good faith to restore this policy, even though it was court-ordered.

However, legal experts and past secretaries of homeland security have noted that Mayorkas's actions do not rise to the level of high crimes and misdemeanors, the standard for impeachment laid out in the Constitution. They argue that the president and his administration have wide latitude to control the border, and Mayorkas has not exceeded those authorities. For example, while the INA states that deportable migrants "shall be detained", it also gives Mayorkas the legal authority to determine which migrants to prioritise for detention, given limited bed space and long backlogs in immigration courts.

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