Mayorkas seeks to go on offense over border at testy hearing

Homeland Security Secretary Alejandro Mayorkas in back-to-back hearings shifted from offense to defense Wednesday, saying the department was gearing up to handle increased migration levels and warning of tougher consequences for those who repeatedly cross the border illegally.

Mayorkas, facing criticism from Republicans on two panels, said the Department of Homeland Security (DHS) was preparing for the reopening of the asylum system largely blocked by Title 42, the border policy initially launched by the Trump administration.

The Centers for Disease Control and Prevention has ordered Title 42 to be lifted on May 23, and the administration has faced a political storm over the issue, with Republicans seizing on the border as a midterm issue and some vulnerable Democrats pressing for the White House to reverse course.

“We expect migration levels to increase as smugglers seek to take advantage of and profit from vulnerable migrants,” Mayorkas said in his testimony.

“We will continue to enforce our immigration laws. After Title 42 is lifted, non-citizens will be processed pursuant to Title 8, which provides that individuals who cross the border without legal authorization are processed for removal and, if unable to establish a legal basis to remain in the United States, promptly removed from the country,” Mayorkas said, repeating the line in hearings before both a House appropriations subcommittee and the House Homeland Security Committee. 

The Biden administration on Tuesday laid out a more detailed look at its plan for responding to the end of Title 42.

Some of that is largely logistical: surging housing, medical care and transportation resources to the border while also increasing the number of personnel who can both process asylum-seekers and begin deportation of those with no legal basis to remain in the U.S.

Mayorkas called deportations one of the main pillars of the plan and said DHS would be “employing our authorities to effect those removals as swiftly as possible.”

But the plan also includes coordinating with states and nonprofits, targeting smuggling organizations and ramping up programs that seek to stem migration within Central America.

Democrats and the administration both highlighted concerns over an influx at the border — even while noting that Title 42 directly contravenes asylum law, which provides the right to a hearing for such claims.

“Even though this authority is legally premised on the mitigation of public health risks, there can be no denying that it has also helped [U.S. Customs and Border Protection] manage the border by reducing the number of people that require processing,” said Rep. Lucille Roybal-Allard (D-Calif.), chair of the appropriations subcommittee where Mayorkas appeared.

“But that is not a legally sufficient reason to continue it. And it would fly in the face of the legal due process rights of migrants,” she added.

DHS said in March it was preparing for three tiers of potential spring migration, including that daily border crossings could reach a high of 18,000 a day, which would be a record-setting figure.

“There is no question if we encounter 18,000 people in a single day that will seriously strain our capabilities. I just need to be clear in that regard,” Mayorkas said.

Republicans fresh from a caucus trip to the border argued the lifting of Title 42 could harm border security and that people being given their legal right to seek asylum from harm would encourage more migration.

“If that tool goes away, it has the potential to profoundly impact border security operations,” Rep. Chuck Fleischmann (R-Tenn.) said of Title 42. 

“We cannot manage our way out of this crisis with more processing capability or increase the ability of nongovernmental organizations to address the near-term humanitarian needs,” he said. “Many migrants our agents encounter are given a notice to appear and sent on their way into the interior of the United States to await a court date, often years into the future. It only encourages more people to come.”

In his second appearance before the House Homeland Security Committee, Republicans asked fewer questions of Mayorkas, but several offered monologues laying into the secretary.

Rep. Michael McCaul (R-Texas), a former chair of the committee, got emotional, choking up while telling Mayorkas it was difficult to relay his disappointment over his job performance after the two worked well together under the Obama administration.

“I must say, sir, with all due respect, I am disappointed,” McCaul said.

Rep. Clay Higgins (R-La.) spent 4 1/2 minutes trying to goad Mayorkas into saying he had done a bad job managing the border.

Rep. Michael Guest (R-Miss.) accused Mayorkas of being a liar, lamenting conditions at the border and saying that during a recent trip there border agents said they felt abandoned. 

After his line of questioning, committee Chair Bennie Thompson (D-Miss.) reminded members that “decorum was the order of the day.”

“I’m not questioning anybody’s questions,” he said, but calling Mayorkas a liar was “out of order.”

Rep. Eric Swalwell (D-Calif.) also came to Mayorkas’s defense, accusing Republicans of politics and theatrics.

“Border politics are pretty easy, right? You can pander to grievances, scare Americans, demonize men and women who left everything behind, carrying nothing going to a place they don’t know, make them the enemy, really fire Americans up. It’s really easy to demonize and weaponize that issue; it’s a lot harder to solve it,” he said. 

The hearing could be just a taste of what Mayorkas may face tomorrow in a House Judiciary Committee hearing, where ranking member Rep. Jim Jordan (R-Ohio) has outlined a strategy for grilling him.

In some cases, Mayorkas appeared to miss opportunities to defend the administration or score messaging points.

A GOP-led suit has scored a temporary restraining order that appears to block DHS from implementing its plan to prepare for a border surge related to Title 42. The full text of the order has not yet been released.

But when asked by Fleischmann whether the suit from Republican-led states would hamstring DHS – something experts expect could very well be the case – Mayorkas did not directly answer the question.

He also talked around a question from Roybal-Allard asking whether he agreed with Title 42, speaking about the CDC order rather than attacking the policy. 

But he also effectively pushed back on claims from Rep. Dan Bishop (R-N.C.) that Americans could be “murdered, raped and killed” by migrants who enter the country.

Mayorkas pointed to an administrative directive to focus on deporting those who have committed serious crimes.

“We are taking a tougher stand on criminals who have entered this country illegally and the data suggests that we are more focused on public safety threats, true public safety threat to the homeland, than the prior administration was and in fact we have removed more aggravated felons in one year than the prior administration did,” he said. 

He also pointed to data of those who were expelled across the border under Trump’s Remain in Mexico program – noting 1,500 people were murdered, raped, tortured, or were the victims of other serious crimes after being returned.

Mayorkas was also left to defend Biden’s decision to end other Trump policies, including to end construction of Trump’s border wall. 

But Republicans wanted answers about how the administration would deal with a remaining $2.5 billion appropriated for the wall that have not yet been spent.

DHS has outlined that some of the funds will be used to clean up construction sites where the wall is only partially built and poses a safety hazard. They are also planning to mitigate environmental damage from construction. But it’s not clear those projects will entirely drain the funds.

“We are well aware of our responsibility to spend the funds that have been appropriated to the wall and we are undertaking an analysis of how most effectively to do so while honoring the president’s commitment,” Mayorkas said in response to a question from Rep. Kay Granger (R-Texas).

“We are dedicated to spending those funds in a way that enhances safety and security.”