Mayorkas keeps on rolling. Some Republicans in the Senate are demanding a trial on the Feb. 13 House impeachment charges, which appear to lack any trace of the required evidence of “high crimes and misdemeanors” and will almost certainly fail. President Biden described this charade as a “blatant act of unconstitutional partisanship that has targeted an honorable public servant in order to play petty political games.”
Buried underneath Mayorkas’s trial, however, is the deeper story of why this country can’t solve the border mess. It’s a tale in which Democrats bear nearly as much responsibility as Republicans for the inability to fix a system that is plainly broken. This account is drawn from sources in and out of government who have worked closely with Mayorkas as the train wreck of impeachment approached.
The president started on Inauguration Day wanting to be the anti-Trump on immigration. After four years of cruel scenes at the border, Biden wanted to signal change — and to respond to Hispanic voters who had helped elect him.
Biden unfortunately threw the baby out with the bathwater. He announced a 100-day moratorium on deportations that was quickly overturned in court. He disdained physical barriers along the border that might resemble President Donald Trump’s notorious “wall.” And he shied from policies that recalled Trump’s border-closing “Remain in Mexico” stance. Politically, immigration was a loser; Biden mostly kept his distance.
That spelled trouble for Mayorkas. He took the job of running Homeland Security in 2021 knowing that a new legislative framework was needed — but unlikely to pass a sharply divided Congress. That meant DHS, lacking the necessary statutory authority or resources, would inevitably struggle with migrants claiming asylum status so they could get jobs in the United States while the overburdened system took five to seven years to process their claims.
DHS was a “catcher’s mitt,” as one of Mayorkas’s aides put it. By the time migrants arrived at the border, it was too late for good solutions. The asylum system, with its low bar of requiring only a show of “credible fear” to enter the country, leaned in favor of admitting people, and DHS officials told me that about 75 percent of such claimants get initial waivers. When their cases are finally heard by immigration judges, they said, only about 20 percent are approved.
Migrants couldn’t be blamed for crossing a broken fence. Illegal entry offered jobs and decent housing — and escape from terrible conditions back home. And it made business sense: Migrants who paid smugglers as much as $10,000 could be cleared as refugees to work in the United States for at least five years while waiting for a hearing, all the while sending money home to needy relatives. That represented a net gain for them, but it has overwhelmed some of the U.S. cities and states where they arrived.
“The fundamental problem we have is that our laws and funding shortfalls do not allow the U.S. government to screen and return people rapidly who come here as economic migrants and do not have legitimate asylum claims,” Susan Rice, who worked with Mayorkas on immigration issues when she headed Biden’s domestic policy council, told me.
Mayorkas and Rice wanted a new approach of stopping the flow before it got to the border. Biden favored it, too, in principle. But his administration didn’t get the job done, and it’s a case study in how good ideas get overwhelmed by inertia and interagency disputes.
Mayorkas urged the State Department back in 2021 to create what became known as “safe mobility centers” abroad where migrants could make their asylum claims — and get quick judgments that wouldn’t require an endless judicial review. The State Department agreed in principle, and last May promised to create 100 such centers. Nearly a year later, there are just four — in Colombia, Costa Rica, Ecuador and Guatemala. They’ve helped stem flows from those countries, but migrant numbers from other places have surged.
The State Department, to be blunt, had other priorities than migration. Foreign Service officers don’t get points for helping DHS.
That was true for the Justice Department, too. Administration officials say Mayorkas made more than a dozen requests for Justice to prosecute more cases under Sections 1325 and 1326 of the Immigration and Nationality Act, which impose criminal penalties of up to six months for those crossing the border illegally and up to 20 years for those making repeated crossings. “It’s fair to say that [the] DOJ was not prioritizing prosecution of people who made multiple attempts,” said a former senior administration official.
Vice President Harris was given the politically thankless task of curbing refugee flows from Central America. During a June 2021 visit to Guatemala, she said bluntly: “I want to be clear to folks in this region who are thinking about making that dangerous trek to the United States-Mexico border: Do not come. Do not come.” It was the right policy statement, but Harris was attacked by pro-immigration groups and the White House basically left her hanging. That might have been the moment the air began to go out of Harris’s vice presidency.
The Democrats misfired partly because, when Biden took office, border security was still predominantly a red-state issue, seemingly with little upside for Democrats. That began to change last year, when migrants began streaming into Democratic cities such as Denver, Chicago and New York. But in the administration’s early months, the burden fell on Mayorkas.
An early test came in March 2021, when thousands of unaccompanied children began overwhelming crowded Border Patrol stations. The Department of Health and Human Services was responsible for caring for these minors. But HHS Secretary Xavier Becerra, the first Latino to head the agency, was wary when told to increase the 8-to-1 ratio of children for each HHS counselor, so that more children could leave the crowded and dangerous border stations.
Becerra’s initial response was to request that the president put it in writing, remembered one participant in a White House meeting with him on the subject. At the next meeting, a “calmly indignant” Mayorkas told Biden that Homeland’s ratio of children to supervisors was 175 to 1. Biden ordered Becerra to increase the HHS ratio to 12 to 1; Becerra agreed, “if you’re willing to take the risk,” a participant remembers.
Biden said he would, but some attendees thought he was peeved at his HHS secretary. Rice scribbled a note to Mayorkas at one meeting in which Becerra was on the hot seat. “Don’t save him,” she advised, according to someone who read it. But Mayorkas took on the problem, sending hundreds of Homeland employees to help take care of the unaccompanied minors at HHS facilities.
Jeff Nesbit, a spokesman for HHS, responded: “We worked quickly, in partnership with DHS, but under any circumstances you can’t stand up licensed child-care beds overnight, much less in the middle of a pandemic. We continue to work closely with colleagues at DHS and across the federal government to serve children referred to our care.”
A former Biden administration official involved in immigration policy confirmed that there was “a little tension” between Biden and the two Cabinet secretaries over the issue, but he said HHS is now handling 10,000 to 20,000 unaccompanied children a month, compared with less than 1,000 a month at the beginning of 2021.
Some progressive Democrats have talked themselves into what seems an untenable position about migration issues over the past decade, sometimes sounding as though they believed that the very existence of a border — and a system of controls, including deportation — was unjust and immoral. Mayorkas encountered that impasse when he spoke last May at a gathering of the American Immigration Lawyers Association.
The secretary laid out an all-too-typical hypothetical situation in which a migrant who entered the United States and received an asylum waiver, worked here until the backlogged courts could hear his claim and was finally rejected — and given a deportation order. “What are we supposed to do?” Mayorkas asked.
“There was dead silence,” remembers one person who attended. Then one of the immigration advocates responded, “The system is unfair.” That seemed to mean that empathy for the migrant should trump the law.
This insistence on expanded rights for migrants is expressed in a new summary of “Humane Solutions That Work” published this week by the National Immigrant Justice Center. It argued against a “punitive, enforcement-oriented approach to immigration policy” that “demonizes people seeking safety and a better life.”
The terrible irony of Mayorkas’s saga is that Congress came very close this year to doing what he thought back in 2021 was impossible: passing a sensible reform of immigration law that provides clearer legal standards and more resources so that the United States can have, at once, a humane policy and a secure border. This bipartisan compromise was scuttled at the 11th hour after Donald Trump signaled that he preferred no reform to one crafted during Biden’s presidency.
The impeachment of Mayorkas quickly followed. Mayorkas seemed unfazed last weekend as he made the rounds at the Munich Security Conference. Jamie Gorelick, a former deputy attorney general who is a friend and former law partner of Mayorkas, sums up the arc of the secretary’s story this way: “You have to admire his dedication to doing the hardest job in Washington with severely limited authorities and resources, only to face hypocritical charges by those who could fix this in a minute.”
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