[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 863 Engrossed in House (EH)]

<DOC>
H. Res. 863

                In the House of Representatives, U. S.,

                                                     February 13, 2024.
    Resolved, That Alejandro Nicholas Mayorkas, Secretary of Homeland Security 
of the United States of America, is impeached for high crimes and misdemeanors, 
and that the following articles of impeachment be exhibited to the United States 
Senate:
     Articles of impeachment exhibited by the House of Representatives of the 
United States of America in the name of itself and of the people of the United 
States of America, against Alejandro N. Mayorkas, Secretary of Homeland Security 
of the United States of America, in maintenance and support of its impeachment 
against him for high crimes and misdemeanors.

         article i: willful and systemic refusal to comply with the law

    
    The Constitution provides that the House of Representatives ``shall have the 
sole Power of Impeachment'' and that civil Officers of the United States, 
including the Secretary of Homeland Security, ``shall be removed from Office on 
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and 
Misdemeanors''. In his conduct while Secretary of Homeland Security, Alejandro 
N. Mayorkas, in violation of his oath to support and defend the Constitution of 
the United States against all enemies, foreign and domestic, to bear true faith 
and allegiance to the same, and to well and faithfully discharge the duties of 
his office, has willfully and systemically refused to comply with Federal 
immigration laws, in that:
    Throughout his tenure as Secretary of Homeland Security, Alejandro N. 
Mayorkas has repeatedly violated laws enacted by Congress regarding immigration 
and border security. In large part because of his unlawful conduct, millions of 
aliens have illegally entered the United States on an annual basis with many 
unlawfully remaining in the United States. His refusal to obey the law is not 
only an offense against the separation of powers in the Constitution of the 
United States, it also threatens our national security and has had a dire impact 
on communities across the country. Despite clear evidence that his willful and 
systemic refusal to comply with the law has significantly contributed to 
unprecedented levels of illegal entrants, the increased control of the Southwest 
border by drug cartels, and the imposition of enormous costs on States and 
localities affected by the influx of aliens, Alejandro N. Mayorkas has continued 
in his refusal to comply with the law, and thereby acted to the grave detriment 
of the interests of the United States.
    Alejandro N. Mayorkas engaged in this scheme or course of conduct through 
the following means:
            (1) Alejandro N. Mayorkas willfully refused to comply with the 
        detention mandate set forth in section 235(b)(2)(A) of the Immigration 
        and Nationality Act, requiring that all applicants for admission who are 
        ``not clearly and beyond a doubt entitled to be admitted...shall be 
        detained for a [removal] proceeding...''. Instead of complying with this 
        requirement, Alejandro N. Mayorkas implemented a catch and release 
        scheme, whereby such aliens are unlawfully released, even without 
        effective mechanisms to ensure appearances before the immigration courts 
        for removal proceedings or to ensure removal in the case of aliens 
        ordered removed.
            (2) Alejandro N. Mayorkas willfully refused to comply with the 
        detention mandate set forth in section 235(b)(1)(B)(ii) of such Act, 
        requiring that an alien who is placed into expedited removal proceedings 
        and determined to have a credible fear of persecution ``shall be 
        detained for further consideration of the application for asylum''. 
        Instead of complying with this requirement, Alejandro N. Mayorkas 
        implemented a catch and release scheme, whereby such aliens are 
        unlawfully released, even without effective mechanisms to ensure 
        appearances before the immigration courts for removal proceedings or to 
        ensure removal in the case of aliens ordered removed.
            (3) Alejandro N. Mayorkas willfully refused to comply with the 
        detention set forth in section 235(b)(1)(B)(iii)(IV) of such Act, 
        requiring that an alien who is placed into expedited removal proceedings 
        and determined not to have a credible fear of persecution ``shall be 
        detained...until removed''. Instead of complying with this requirement, 
        Alejandro N. Mayorkas has implemented a catch and release scheme, 
        whereby such aliens are unlawfully released, even without effective 
        mechanisms to ensure appearances before the immigration courts for 
        removal proceedings or to ensure removal in the case of aliens ordered 
        removed.
            (4) Alejandro N. Mayorkas willfully refused to comply with the 
        detention mandate set forth in section 236(c) of such Act, requiring 
        that a criminal alien who is inadmissible or deportable on certain 
        criminal and terrorism-related grounds ``shall [be] take[n] into 
        custody'' when the alien is released from law enforcement custody. 
        Instead of complying with this requirement, Alejandro N. Mayorkas issued 
        ``Guidelines for the Enforcement of Civil Immigration Laws'', which 
        instructs Department of Homeland Security (hereinafter referred to as 
        ``DHS'') officials that the ``fact an individual is a removable 
        noncitizen...should not alone be the basis of an enforcement action 
        against them'' and that DHS ``personnel should not rely on the fact of 
        conviction...alone'', even with respect to aliens subject to mandatory 
        arrest and detention pursuant to section 236(c) of such Act, to take 
        them into custody. In Texas v. United States, 40 F.4th 205 (2022), the 
        United States Court of Appeals for the Fifth Circuit concluded that 
        these guidelines had ``every indication of being `a general policy that 
        is so extreme as to amount to an abdication of...statutory 
        responsibilities''' and that its ``replacement of Congress's statutory 
        mandates with concerns of equity and race is extralegal...[and] plainly 
        outside the bounds of the power conferred by the INA''.
            (5) Alejandro N. Mayorkas willfully refused to comply with the 
        detention mandate set forth in section 241(a)(2) of such Act, requiring 
        that an alien ordered removed ``shall [be] detain[ed]'' during ``the 
        removal period''. Instead of complying with this mandate, Alejandro N. 
        Mayorkas issued ``Guidelines for the Enforcement of Civil Immigration 
        Laws'', which instructs DHS officials that the ``fact an individual is a 
        removable noncitizen...should not alone be the basis of an enforcement 
        action against them'' and that DHS ``personnel should not rely on the 
        fact of conviction...alone'', even with respect to aliens subject to 
        mandatory detention and removal pursuant to section 241(a) of such Act.
            (6) Alejandro N. Mayorkas willfully exceeded his parole authority 
        set forth in section 212(d)(5)(A) of such Act that permits parole to be 
        granted ``only on a case-by-case basis'', temporarily, and ``for urgent 
        humanitarian reasons or significant public benefit'', in that:
                    (A) Alejandro N. Mayorkas paroled aliens en masse in order 
                to release them from mandatory detention, despite the fact that, 
                as the United States Court of Appeals for the Fifth Circuit 
                concluded in Texas v. Biden, 20 F.4th 928 (2021), ``parol[ing] 
                every alien [DHS] cannot detain is the opposite of the `case-by-
                case basis' determinations required by law'' and ``DHS's 
                pretended power to parole aliens while ignoring the limitations 
                Congress imposed on the parole power [is] not nonenforcement; 
                it's misenforcement, suspension of the INA, or both''.
                    (B) Alejandro N. Mayorkas created, re-opened, or expanded a 
                series of categorical parole programs never authorized by 
                Congress for foreign nationals outside of the United States, 
                including for certain Central American minors, Ukrainians, 
                Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, 
                Salvadorans, Guatemalans, and Hondurans, which enabled hundreds 
                of thousands of inadmissible aliens to enter the United States 
                in violation of the laws enacted by Congress.
            (7) Alejandro N. Mayorkas willfully exceeded his release authority 
        set forth in section 236(a) of such Act that permits, in certain 
        circumstances, the release of aliens arrested on an administrative 
        warrant, in that Alejandro N. Mayorkas released aliens arrested without 
        a warrant despite their being subject to a separate applicable mandatory 
        detention requirement set forth in section 235(b)(2) of such Act. 
        Alejandro N. Mayorkas released such aliens by retroactively issuing 
        administrative warrants in an attempt to circumvent section 235(b)(2) of 
        such Act. In Florida v. United States, No. 3:21-cv-1066-TKW-ZCB (N.D. 
        Fla. Mar. 8, 2023), the United States District Court of the Northern 
        District of Florida noted that ``[t]his sleight of hand - using an 
        `arrest' warrant as a de facto `release' warrant - is administrative 
        sophistry at its worst''. In addition, the court concluded that ``what 
        makes DHS's application of [236(a)] in this manner unlawful...is that 
        [235(b)(2)], not [236(a)], governs the detention of applicants for 
        admission whom DHS places in...removal proceedings after inspection''.
    Alejandro N. Mayorkas's willful and systemic refusal to comply with the law 
has had calamitous consequences for the Nation and the people of the United 
States, including:
            (1) During fiscal years 2017 through 2020, an average of about 
        590,000 aliens each fiscal year were encountered as inadmissible aliens 
        at ports of entry on the Southwest border or apprehended between ports 
        of entry. Thereafter, during Alejandro N. Mayorkas's tenure in office, 
        that number skyrocketed to over 1,400,000 in fiscal year 2021, over 
        2,300,000 in fiscal year 2022, and over 2,400,000 in fiscal year 2023. 
        Similarly, during fiscal years 2017 through 2020, an average of 130,000 
        persons who were not turned back or apprehended after making an illegal 
        entry were observed along the border each fiscal year. During Alejandro 
        N. Mayorkas's tenure in office, that number more than trebled to 400,000 
        in fiscal year 2021, 600,000 in fiscal year 2022, and 750,000 in fiscal 
        year 2023.
            (2) American communities both along the Southwest border and across 
        the United States have been devastated by the dramatic growth in illegal 
        entries, the number of aliens unlawfully present, and substantial rise 
        in the number of aliens unlawfully granted parole, creating a fiscal and 
        humanitarian crisis and dramatically degrading the quality of life of 
        the residents of those communities. For instance, since 2022, more than 
        150,000 migrants have gone through New York City's shelter intake 
        system. Indeed, the Mayor of New York City has said that ``we are past 
        our breaking point'' and that ``[t]his issue will destroy New York 
        City''. In fiscal year 2023, New York City spent $1,450,000,000 
        addressing Alejandro N. Mayorkas's migrant crisis, and city officials 
        fear it will spend another $12,000,000,000 over the following three 
        fiscal years, causing painful budget cuts to important city services.
            (3) Alejandro N. Mayorkas's unlawful mass release of apprehended 
        aliens and unlawful mass grant of categorical parole to aliens have 
        enticed an increasing number of aliens to make the dangerous journey to 
        our Southwest border. Consequently, according to the United Nations's 
        International Organization for Migration, the number of migrants 
        intending to illegally cross our border who have perished along the way, 
        either en route to the United States or at the border, almost doubled 
        during the tenure of Alejandro N. Mayorkas as Secretary of Homeland 
        Security, from an average of about 700 a year during the fiscal years 
        2017 through 2020, to an average of about 1,300 a year during the fiscal 
        years 2021 through 2023.
            (4) Alien smuggling organizations have gained tremendous wealth 
        during Alejandro N. Mayorkas's tenure as Secretary of Homeland Security, 
        with their estimated revenues rising from about $500,000,000 in 2018 to 
        approximately $13,000,000,000 in 2022.
            (5) During Alejandro N. Mayorkas's tenure as Secretary of Homeland 
        Security, the immigration court backlog has more than doubled from about 
        1,300,000 cases to over 3,000,000 cases. The exploding backlog is 
        destroying the courts' ability to administer justice and provide 
        appropriate relief in a timeframe that does not run into years or even 
        decades. As Alejandro N. Mayorkas acknowledged, ``those who have a valid 
        claim to asylum...often wait years for a...decision; likewise, 
        noncitizens who will ultimately be found ineligible for asylum or other 
        protection--which occurs in the majority of cases--often have spent many 
        years in the United States prior to being ordered removed''. He noted 
        that of aliens placed in expedited removal proceedings and found to have 
        a credible fear of persecution, and thus referred to immigration judges 
        for removal proceedings, ``significantly fewer than 20 percent...were 
        ultimately granted asylum'' and only ``28 percent of cases decided on 
        their merits are grants of relief''. Alejandro N. Mayorkas also admitted 
        that ``the fact that migrants can wait in the United States for years 
        before being issued a final order denying relief, and that many such 
        individuals are never actually removed, likely incentivizes migrants to 
        make the journey north''.
            (6) During Alejandro N. Mayorkas's tenure as Secretary of Homeland 
        Security, approximately 450,000 unaccompanied alien children have been 
        encountered at the Southwest border, and the vast majority have been 
        released into the United States. As a result, there has been a dramatic 
        upsurge in migrant children being employed in dangerous and exploitative 
        jobs in the United States.
            (7) Alejandro N. Mayorkas's failure to enforce the law, drawing 
        millions of illegal aliens to the Southwest border, has led to the 
        reassignment of U.S. Border Patrol agents from protecting the border 
        from illicit drug trafficking to processing illegal aliens for release. 
        As a result, during Alejandro N. Mayorkas's tenure as Secretary of 
        Homeland Security, the flow of fentanyl across the border and other 
        dangerous drugs, both at and between ports of entry, has increased 
        dramatically. U.S. Customs and Border Protection seized approximately 
        4,800 pounds of fentanyl in fiscal year 2020, approximately 11,200 
        pounds in fiscal year 2021, approximately 14,700 pounds in fiscal year 
        2022, and approximately 27,000 pounds in fiscal year 2023. Over 70,000 
        Americans died from fentanyl poisoning in 2022, and fentanyl is now the 
        number one killer of Americans between the ages of 18 and 45.
            (8) Alejandro N. Mayorkas has degraded public safety by leaving wide 
        swaths of the border effectively unpatrolled as U.S. Border Patrol 
        agents are diverted from guarding the border to processing for unlawful 
        release the heightening waves of apprehended aliens (many who now seek 
        out agents for the purpose of surrendering with the now reasonable 
        expectation of being released and granted work authorization), and 
        Federal Air Marshals are diverted from protecting the flying public to 
        assist in such processing.
            (9) During Alejandro N. Mayorkas's tenure as Secretary of Homeland 
        Security, the U.S. Border Patrol has encountered an increasing number of 
        aliens on the terrorist watch list. In fiscal years 2017 through 2020 
        combined, 11 noncitizens on the terrorist watchlist were caught 
        attempting to cross the Southwest border between ports of entry. That 
        number increased to 15 in fiscal year 2021, 98 in fiscal year 2022, 169 
        in fiscal year 2023, and 49 so far in fiscal year 2024.
    Additionally, in United States v. Texas, 599 U.S. 670 (2023), the United 
States Supreme Court heard a case involving Alejandro N. Mayorkas's refusal to 
comply with certain Federal immigration laws that are at issue in this 
impeachment. The Supreme Court held that States have no standing to seek 
judicial relief to compel Alejandro N. Mayorkas to comply with certain legal 
requirements contained in the Immigration and Nationality Act. However, the 
Supreme Court held that ``even though the federal courts lack Article III 
jurisdiction over this suit, other forums remain open for examining the 
Executive Branch's enforcement policies. For example, Congress possesses an 
array of tools to analyze and influence those policies [and] those are political 
checks for the political process''. One such critical tool for Congress to 
influence the Executive Branch to comply with the immigration laws of the United 
States is impeachment. The dissenting Justice noted, ``The Court holds Texas 
lacks standing to challenge a federal policy that inflicts substantial harm on 
the State and its residents by releasing illegal aliens with criminal 
convictions for serious crimes. In order to reach this conclusion, the 
Court...holds that the only limit on the power of a President to disobey a law 
like the important provision at issue is Congress' power to employ the weapons 
of inter-branch warfare...''. As the dissenting Justice explained, ``Congress 
may wield what the Solicitor General described as `political...tools'--which 
presumably means such things as...impeachment and removal''. Indeed, during oral 
argument, the Justice who authored the majority opinion stated to the Solicitor 
General, ``I think your position is, instead of judicial review, Congress has to 
resort to shutting down the government or impeachment or dramatic steps...''. 
Here, in light of the inability of injured parties to seek judicial relief to 
remedy the refusal of Alejandro N. Mayorkas to comply with Federal immigration 
laws, impeachment is Congress's only viable option.
    In all of this, Alejandro N. Mayorkas willfully and systemically refused to 
comply with the immigration laws, failed to control the border to the detriment 
of national security, compromised public safety, and violated the rule of law 
and separation of powers in the Constitution, to the manifest injury of the 
people of the United States.
    Wherefore Alejandro N. Mayorkas, by such conduct, has demonstrated that he 
will remain a threat to national and border security, the safety of the United 
States people, and the Constitution if allowed to remain in office, and has 
acted in a manner grossly incompatible with his duties and the rule of law. 
Alejandro N. Mayorkas thus warrants impeachment and trial, removal from office, 
and disqualification to hold and enjoy any office of honor, trust, or profit 
under the United States.

                       article ii: breach of public trust

    
    The Constitution provides that the House of Representatives ``shall have the 
sole Power of Impeachment'' and that civil Officers of the United States, 
including the Secretary of Homeland Security, ``shall be removed from Office on 
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and 
Misdemeanors''. In his conduct while Secretary of Homeland Security, Alejandro 
N. Mayorkas, in violation of his oath to well and faithfully discharge the 
duties of his office, has breached the public trust, in that:
    Alejandro N. Mayorkas has knowingly made false statements, and knowingly 
obstructed lawful oversight of the Department of Homeland Security (hereinafter 
referred to as ``DHS''), principally to obfuscate the results of his willful and 
systemic refusal to comply with the law. Alejandro N. Mayorkas engaged in this 
scheme or course of conduct through the following means:
            (1) Alejandro N. Mayorkas knowingly made false statements to 
        Congress that the border is ``secure'', that the border is ``no less 
        secure than it was previously'', that the border is ``closed'', and that 
        DHS has ``operational control'' of the border (as that term is defined 
        in the Secure Fence Act of 2006).
            (2) Alejandro N. Mayorkas knowingly made false statements to 
        Congress regarding the scope and adequacy of the vetting of the 
        thousands of Afghans who were airlifted to the United States and then 
        granted parole following the Taliban takeover of Afghanistan after 
        President Biden's precipitous withdrawal of United States forces.
            (3) Alejandro N. Mayorkas knowingly made false statements that 
        apprehended aliens with no legal basis to remain in the United States 
        were being quickly removed.
            (4) Alejandro N. Mayorkas knowingly made false statements supporting 
        the false narrative that U.S. Border Patrol agents maliciously whipped 
        illegal aliens.
            (5) Alejandro N. Mayorkas failed to comply with multiple subpoenas 
        issued by congressional committees.
            (6) Alejandro N. Mayorkas delayed or denied access of DHS Office of 
        Inspector General (hereinafter referred to as ``OIG'') to DHS records 
        and information, hampering OIG's ability to effectively perform its 
        vital investigations, audits, inspections, and other reviews of agency 
        programs and operations to satisfy the OIG's obligations under section 
        402(b) of title 5, United States Code, in part, to Congress.
    Additionally, in his conduct while Secretary of Homeland Security, Alejandro 
N. Mayorkas has breached the public trust by his willful refusal to fulfill his 
statutory ``duty to control and guard the boundaries and borders of the United 
States against the illegal entry of aliens'' as set forth in section 103(a)(5) 
of the Immigration and Nationality Act. Alejandro N. Mayorkas inherited what his 
first Chief of the U.S. Border Patrol called, ``arguably the most effective 
border security in our nation's history''. Alejandro N. Mayorkas, however, 
proceeded to abandon effective border security initiatives without engaging in 
adequate alternative efforts that would enable DHS to maintain control of the 
border and guard against illegal entry, and despite clear evidence of the 
devastating consequences of his actions, he failed to take action to fulfill his 
statutory duty to control the border. According to his first Chief of the U.S. 
Border Patrol, Alejandro N. Mayorkas ``summarily rejected'' the ``multiple 
options to reduce the illegal entries...through proven programs and 
consequences'' provided by civil service staff at DHS. Despite clear evidence of 
the devastating consequences of his actions, he failed to take action to fulfill 
his statutory duty to control the border, in that, among other things:
            (1) Alejandro N. Mayorkas terminated the Migrant Protection 
        Protocols (hereinafter referred to as ``MPP''). In Texas v. Biden, 20 
        F.4th 928 (2021), the United States Court of Appeals for the Fifth 
        Circuit explained that ``[t]he district court...pointed to evidence that 
        `the termination of MPP has contributed to the current border 
        surge'...(citing DHS's own previous determinations that MPP had curbed 
        the rate of illegal entries)''. The district court had also ``pointed 
        out that the number of `enforcement encounters'--that is, instances 
        where immigration officials encounter immigrants attempting to cross the 
        southern border without documentation--had `skyrocketed' since MPP's 
        termination''.
            (2) Alejandro N. Mayorkas terminated contracts for border wall 
        construction.
            (3) Alejandro N. Mayorkas terminated asylum cooperative agreements 
        that would have equitably shared the burden of complying with 
        international asylum accords.
    In all of this, Alejandro N. Mayorkas breached the public trust by knowingly 
making false statements to Congress and the American people and avoiding lawful 
oversight in order to obscure the devastating consequences of his willful and 
systemic refusal to comply with the law and carry out his statutory duties. He 
has also breached the public trust by willfully refusing to carry out his 
statutory duty to control the border and guard against illegal entry, 
notwithstanding the calamitous consequences of his abdication of that duty.
    Wherefore Alejandro N. Mayorkas, by such conduct, has demonstrated that he 
will remain a threat to national and border security, the safety of the American 
people, and to the Constitution if allowed to remain in office, and has acted in 
a manner grossly incompatible with his duties and the rule of law. Alejandro N. 
Mayorkas thus warrants impeachment and trial, removal from office, and 
disqualification to hold and enjoy any office of honor, trust, or profit under 
the United States.
            Attest:

                                                                          Clerk.