[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 863 Received in Senate (RDS)]

<DOC>
118th CONGRESS
  2d Session
H. RES. 863


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 16, 2024

                                Received

_______________________________________________________________________

                               RESOLUTION


 
Impeaching Alejandro Nicholas Mayorkas, Secretary of Homeland Security, 
                   for high crimes and misdemeanors.

    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.
                                  MIKE JOHNSON,

                               Speaker of the House of Representatives.

            Attest:

                                             KEVIN F. MCCUMBER,

                                                                 Clerk.