[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
THE BORDER CRISIS: IS THE LAW BEING
FAITHFULLY EXECUTED?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION INTEGRITY,
SECURITY, AND ENFORCEMENT
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, JUNE 7, 2023
__________
Serial No. 118-25
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-733 WASHINGTON : 2023
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COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
KEN BUCK, Colorado Member
MATT GAETZ, Florida ZOE LOFGREN, California
MIKE JOHNSON, Louisiana SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
TOM McCLINTOCK, California HENRY C. ``HANK'' JOHNSON, Jr.,
TOM TIFFANY, Wisconsin Georgia
THOMAS MASSIE, Kentucky ADAM SCHIFF, California
CHIP ROY, Texas ERIC SWALWELL, California
DAN BISHOP, North Carolina TED LIEU, California
VICTORIA SPARTZ, Indiana PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin J. LUIS CORREA, California
CLIFF BENTZ, Oregon MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia JOE NEGUSE, Colorado
LANCE GOODEN, Texas LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama DEBORAH ROSS, North Carolina
KEVIN KILEY, California CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming GLENN IVEY, Maryland
NATHANIEL MORAN, Texas Vacant
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
------
SUBCOMMITTEE ON IMMIGRATION INTEGRITY, SECURITY,
AND ENFORCEMENT
TOM McCLINTOCK, California, Chair
KEN BUCK, Colorado PRAMILA JAYAPAL, Washington,
ANDY BIGGS, Arizona Ranking Member
TOM TIFFANY, Wisconsin ZOE LOFGREN, California
CHIP ROY, Texas J. LUIS CORREA, California
VICTORIA SPARTZ, Indiana VERONICA ESCOBAR, Texas
JEFF VAN DREW, New Jersey SHEILA JACKSON LEE, Texas
TROY NEHLS, Texas DEBORAH ROSS, North Carolina
BARRY MOORE, Alabama ERIC SWALWELL, California
WESLEY HUNT, Texas
CHRISTOPHER HIXON, Majority Staff Director
AMY RUTKIN, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Wednesday, June 7, 2023
Page
OPENING STATEMENTS
The Honorable Tom McClintock, Chair of the Subcommittee on
Immigration Integrity, Security, and Enforcement from the State
of California.................................................. 1
The Honorable Pramila Jayapal, Ranking Member of the Subcommittee
on Immigration Integrity, Security, and Enforcement from the
State of Washington............................................ 3
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 4
WITNESSES
The Hon. Chad Wolf, Executive Director and Chief Strategy
Officer, America First Policy Institute
Oral Testimony................................................. 7
Prepared Testimony............................................. 10
Aaron Reichlin-Melnick, Policy Director, American Immigration
Council
Oral Testimony................................................. 21
Prepared Testimony............................................. 23
Joseph Edlow, Managing Member, The Edlow Group
Oral Testimony................................................. 35
Prepared Testimony............................................. 37
Steve Bradbury, Distinguished Fellow, The Heritage Foundation
Oral Testimony................................................. 40
Prepared Testimony............................................. 51
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on
Immigration Integrity, Security, and Enforcement are listed
below.......................................................... 00
Materials submitted by the Honorable Jeff Van Drew, a Member of
the Subcommittee on Immigration Integrity, Security, and
Enforcement from the State of New Jersey, for the record
An articles entitled, ``Influx of migrants in Massachusetts
continues to overwhelm state resources--and more may be
on the way,'' May 10, 2023, The Boston Globe
An articles entitled, ``1,500 Miles From The Southern Border,
Immigration Fight Disrupts Michigan Town,'' Sept. 14,
2021, NPR
An articles entitled, ``City of Portland, social services
organizations overwhelmed by surging number of asylum
seekers,'' Jan. 26, 2022, News Center Maine
An articles entitled, ``Like NYC, Chatanooga, Tenn.
overwhelmed by migrant surge from Texas,'' Aug. 16, 2022,
New York Post
A case document entitled, ``Third Presentment of the Twenty-First
Statewide Grand JuryRegarding Unaccompanied Alien Children
(UAC),'' Mar. 29, 2023, Supreme Court of Florida, submitted by
the Honorable Tom Tiffany, a Member of the Subcommittee on
Immigration Integrity, Security, and Enforcement from the State
of Wisconsin, for the record
Materials submitted by the Honorable Pramila Jayapal, Ranking
Member of the Subcommittee on Immigration Integrity, Security,
and Enforcement from the State of Washington, for the record
A decision entitled, ``Legality of Service of Acting
Secretary of Homeland Security and Service of Senior
Official Performing the Duties of the Deputy Secretary of
Homeland Security,'' Aug. 14, 2020, U.S. Government
Accountability Office (GAO)
A memorandum opinion, Casa de Maryland v. Chad Wolf, Sept.
11, 2020, United States District Court for the District
of Maryland
A memorandum & order, Batalla Vidal v. Wolf, State of New
York v. Trump, Nov. 14, 2020, United States District
Court of Eastern, New York
A statement from the Church World Service (CWS)
A statement from Human Rights First, Jun. 7, 2023
A letter from Chad Mizelle, Senior Official Performing the Duties
of the General Counsel of the Department of Homeland Security,
Aug. 17,2020, submitted by the Honorable Tom McClintock, Chair
of the Subcommittee on Immigration Integrity, Security, and
Enforcement from the State of California, for the record
An article entitled, ``Listen to Children Who've Just Been
Separated From Their Parents at the Border,'' June 18, 2018,
ProPublica, submitted by the Honorable Veronica Escobar, Member
of the Subcommittee on Immigration Integrity, Security, and
Enforcement from the State of Texas, for the record
QUESTIONS AND RESPONSES FOR THE RECORD
Materials submitted by the Honorable Tom McClintock, Chair of the
Subcommittee on Immigration Integrity, Security, and
Enforcement from the State of California, for the record
Questions and responses from Steven G. Bradbury,
Distinguished Fellow, The Heritage Foundation
Questions for Joseph Edlow, Managing Member, The Edlow Group
Questions and responses from the Hon. Chad Wolf, Executive
Director and Chief Strategy Officer, America First Policy
Institute
THE BORDER CRISIS: IS THE LAW BEING FAITHFULLY EXECUTED?
----------
Wednesday, June 7, 2023
House of Representatives
Subcommittee on Immigration Integrity, Security,
and Enforcement
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 2 p.m., in
Room 2141, Rayburn House Office Building, Hon. Tom McClintock
[Chair of the Subcommittee] presiding.
Present: Representatives McClintock, Buck, Biggs, Tiffany,
Roy, Van Drew, Nehls, Moore, Hunt, Jayapal, Lofgren, Correa,
Escobar, Jackson Lee, Ross, Swalwell, and Nadler.
Mr. McClintock. The Subcommittee will come to order.
Without objection, the Chair will be authorized to declare
a recess at any time.
The Subcommittee convenes today to examine the enforcement
of our immigration laws. Prior to inauguration day, the border
was secure. The laws were being enforced. The border wall was
nearing completion. The Remain in Mexico policy had slowed
illegal immigration to a trickle, and court ordered
deportations were being enforced.
Of course, all that changed when the new administration
took office and immediately canceled the border wall, ended the
Remain in Mexico policy, and ordered ICE to stop enforcing
deportation orders.
Since then, we have seen more than two million illegal
immigrants deliberately released into this country, a
population the size of the entire State of Nebraska. Meanwhile,
more than million and a half known gotaways have also entered
illegally, an additional population the size of Hawaii.
Our previous hearings have documented the unfolding human
tragedy of the border crisis. For Americans, it means
classrooms flooded with non-English-speaking students,
hospitals overwhelmed with illegal immigrants demanding care,
fentanyl poisoning our young people, catastrophic strains on
the social safety net meant to help Americans in need, criminal
cartels and their affiliated gangs introduced into our
communities, working wages suppressed by a flood of cheap
illegal labor. Now we observe the irony of officials in so-
called sanctuary cities, like New York and Chicago, and
sanctuary States, like California, warning that they cannot
handle this influx.
For the illegal immigrants, it means a harrowing ordeal
subjecting them to exploitation by the criminal cartels,
including sex trafficking, drug trafficking, and labor
trafficking, even of small children. Many arrive in physical
distress, destitute, and deeply in debt to their human
smugglers. Thousands never make it. They die horrific deaths
along the way.
Well, now we raise the question why. Clearly our
immigration laws are not being enforced by this administration.
That fact is self-evident when we compare this administration
to the last one.
The law specifically provides that any asylum claimant
shall be detained while their claim is heard. This is now
routinely ignored.
The law specifically provides that parole is to be granted
only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit. This law is now being ignored,
while parole is granted en masse to release many tens of
thousands of immigrants illegally into our country.
The law requires deportation orders to be enforced, yet,
despite record numbers of illegal entries, we see the lowest
rate of deportations in our history with more than a million
deportation orders simply ignored.
Federal courts have ordered this administration to enforce
the law, yet time and again the administration seems reluctant
to do so. Without enforcement, there is no immigration law.
Without immigration law, there are no borders, and, without
borders, we have no country.
This crisis now reaches into every community and
constitutes a clear and present danger to our national
sovereignty, prosperity, and security.
We Americans have always prided ourselves as being a Nation
of laws and not of men, and yet it appears that our immigration
laws are now routinely ignored, altered, or perverted by the
whims of individuals within this administration. It's important
in the inquiry today that we separate out policy differences
from actual violations of law. The Founders anticipated that
foolish people would sometimes occupy the offices of our
government, and they left it to voters to correct
maladministration at the ballot box. Lincoln put it this way:
The voters are everything. If the voters get their back sides
too close to the fire, they'll just have to sit on the blisters
awhile.
Mayor Eric Adams of New York City seems to be a poster
child for this phenomenon.
The more troubling question arises if this unprecedented
illegal migration results not from incompetence and folly, but
rather from a deliberate and calculated violation and
subversion of the laws of the land.
We need to determine what laws have allowed this calamity
to befall our Nation. As the Legislative Branch of government,
it's our duty to correct them. We also need to determine what
laws are being willfully violated by those commanded to
faithfully execute them. In that case, we need to identify who
is responsible and what remedies are available within our
system of checks and balances.
With that, I am now pleased to recognize the Ranking Member
for her opening statement.
Ms. Jayapal. Thank you, Mr. Chair.
Well, another week, another immigration hearing on the
border. After using harmful rhetoric and fearmongering that
ending the Title 42 public health policy would result in a high
number of migrants coming to the border, we have seen a month
where border numbers are down over 70 percent from their peak.
As Politico put it, it is, quote: ``The migrant crisis that
still hasn't arrived.''
Unable to stoke media fears any further around the end of
Title 42, it appears that my Republican colleagues have shifted
their focus to the next attention-grabbing headline, laying the
groundwork for the impeachment of Secretary Mayorkis.
Despite this being our fifth immigration hearing in about
five months, the majority is yet to call any witness from the
current administration to testify before this Committee. It is
no surprise that my colleagues have shifted to discussing if
Secretary Mayorkis should be impeached. After all, extreme MAGA
Republican Representative Marjorie Taylor Greene said just last
week, in exchange for voting for the debt limit deal, she
wanted some, quote, ``sides and desserts.'' Her, quote,
``beautiful dessert'' was that--and this is a quote from her:
``Somebody needs to be impeached.'' She specifically singled
out Secretary Mayorkis as the, quote, ``lowest-hanging fruit.''
Of course, my colleagues jumped at the chance to cater to
the extreme MAGA Republicans in their party, and before the
vote on the debt ceiling had even occurred, they noticed this
hearing.
According to a report from CNN just a few weeks ago, the
Chair of this Committee, which would be tasked with launching
impeachment proceedings, and GOP leadership have an
understanding that the impeachment of Mayorkis is inevitable.
According to the article, quote: ``It is not a matter of if; it
is a matter of when.''
Anyone who tuned into last April's Judiciary Committee
hearing where Secretary Mayorkis testified as part of his
oversight duties would not be at all surprised. Republicans on
this Committee made their intentions quite clear. Mr. Johnson
of Louisiana stated that Secretary Mayorkis had committed,
quote, ``impeachable offenses.'' He went on to say, quote: ``My
advice to you is to begin your search for a different career
very soon because there will be an election.''
Mr. Biggs of Arizona stated: ``You should be impeached.''
Earlier this year, Mr. Biggs followed through on that
statement and became the second Republican to file Articles of
Impeachment against Secretary Mayorkis. That resolution is
cosponsored by multiple Members of this Committee, including
Mr. Gaetz and Mr. Nehls.
Mr. Roy of Texas, who is not one of those cosponsors, even
has a 13-page memo from October 2021 entitled, ``Case for
Impeachment of Secretary Mayorkis.''
Representative Ben Cline from Virginia, who serves on the
Full Committee, told CNN that he has communicated to Chair
Jordan that, quote: ``We need to start the process as soon as
possible.''
Last, when our Chair, Mr. Jordan, was asked in an interview
in October of last year if the Secretary should be impeached,
he said: ``Mayorkis deserves it.'' More recently, he said:
``The Committee thinks it is,'' quote, ``warranted.''
Now, of course, the idea of impeaching the Secretary is
ridiculous. You do not impeach a Cabinet Secretary over policy
disagreements. The border is not, quote, ``open.'' No
administration has ever had complete, quote, ``operational
control of the border, detained every asylum seeker, or not
used parole in some form.''
As a former Chair of the House Committee on Homeland
Security, Chair McCaul of Texas said: ``Well, we talk a lot
about operational control, and that's having a better
understanding of who's coming in and who's leaving and what
that threat really is. We're never really going to get that.''
The Biden Administration is continuing to try to clean up
the mess left by the previous administration. They're putting
forward real workable solutions to manage migration and expand
legal pathways. On top of the parole programs created by the
Biden Administration earlier this year, the administration
announced the creation of additional legal pathways that are
intended to relieve pressure at the border.
Now, it's not all perfect. In fact, some of my colleagues
would argue that some of the administration's policies are too
heavy-handed. Recently, the administration put forward a
regulation which limits asylum, something many people within
our Democratic Caucus are justifiably concerned about.
Unfortunately, today's hearing appears to be the start of a
sad new chapter for this Committee. Certainly, I look forward
to hearing from all our witnesses today and the perspectives
they bring on this issue.
I yield back.
Mr. McClintock. The gentlelady leads back.
The Chair notes the presence of the Ranking Member of the
Full Committee, Mr. Nadler, and recognizes him for an opening
statement.
Mr. Nadler. Thank you, Mr. Chair.
Mr. Chair, it took just over five months, but the day that
so many of my Republican colleagues have waited for has finally
arrived. Today Judiciary Republicans are laying the groundwork
to impeach the Homeland Security Secretary Alejandro Mayorkis.
To be clear, they do not allege wrongdoing or malfeasance
of any kind. They are simply catering to the most extreme
Members of their caucus who have demanded impeachment of
somebody, anybody, as the price of their support for the
Speaker. They have decided to make their first target Secretary
Mayorkis. Why? Because they have policy disagreements. No
matter how much they may dislike him, that is not a basis for
impeachment.
Republicans are so desperate to begin impeachment, however,
that they're evening jockeying for position on who gets to take
the lead. Today's hearing, just like the first immigration
hearing we held, appears to be the latest spat in the ongoing
turf war between Chair Jordan and Chair Green of the Homeland
Security Committee.
Just a couple of weeks ago, Homeland Security noted that
they are taking a lead role in building the case for
impeachment through a quote, ``five-phase accountability plan
before handing it off to the Judiciary Committee.''
In furtherance of this plan, just this morning, they
noticed the Full Committee hearing entitled, quote, ``Open
Borders, Closed Case: Secretary Mayorkis Dereliction of Duty on
the Border Crisis.'' Not to be outdone, Chair Jordan raced to
announce this hearing to ensure that we beat the Homeland
Security Committee by a few days.
This is not a serious process. As Ranking Member Jayapal
noted, we have still not had a single government witness come
before the Committee on the issue of immigration. Instead, my
Republican colleagues continue to hide behind the use of
transcribed interviews to talk to agency officials, seemingly
afraid to have public hearings. Despite all the evidence to the
contrary, we are still hearing the same claims that we heard at
our first immigration hearing this year, that the southern
border is open, that President Biden and Secretary Mayorkis
opened it deliberately, that it is mostly migrants who are
smuggling drugs across our southern border.
Yet, as my colleagues and I have discussed for months, none
of these statements are true. Far from having an open border,
the Biden Administration used Title 42 to expel migrants with
no due process for significantly longer than many of my
colleagues on the committee felt was appropriate.
The administration also has recently enacted a new asylum
regulation that we are concerned limits access to asylum. That
regulation even earned the administration rare praise from
Chair Jordan. These are not the policies of an open border.
They are the opposite.
My Republican colleagues have not once let facts get in the
way of their Fox News talking points, certainly not the fact
that encounters at the border have plummeted by 70 percent in
recent weeks, thanks to new policies put in place.
There is a lot that the Biden Administration is doing with
immigration that I support. For example, the use of parole,
expansion of legal pathways, revamping of the refugee program,
and opening new regional processing centers in the hemisphere
are all positive steps to repairing a broken immigration
system.
There are some policies I do not like, but that is the
point: We have policy disagreements.
You do not impeach a Cabinet Secretary because you do not
like his policies. You work to pass legislation. You conduct
oversight. You try to work in a constructive manner to convince
your colleagues that you have the better argument. We need to
work in bipartisan way to fix the immigration system, not just
messaging bills that have no chance of being enacted into law
and embark on a purely political impeachment process.
I would note that we now know for certain that the
Republicans' extreme, cruel, and unworkable border bill cannot
pass the Senate. As part of the time agreement to ensure that
we did not default for the first time in history, Senate
Republicans demanded a vote on H.R. 2, the Republicans' border
bill. The bill got 46 ``yes'' votes and 51 ``no'' votes,
encountering bipartisan opposition. That bill is a nonstarter.
Are my colleagues on the other side ready to sit down and
discuss how we move forward with bipartisan immigration
legislation?
As I noted in our first hearing, Judiciary Committee
Democrats stand ready to work on meaningful solutions to
serious problems. Unfortunately, instead, it appears that the
next side show is beginning today. Make no mistake, as the
Ranking Member noted, it is clear that Chair Jordan and Members
of the Committee have already made up their minds. Instead of
serious solutions to solve complex problems, we will simply
engage in more political theater.
I look forward to hearing from our witnesses today, and I
yield back the balance of my time.
Mr. McClintock. All right. Just to put my Democratic
colleagues at ease, administration witnesses could be called by
the Committee Democrats. To date, they have chosen not to do
so. I believe Mr. Mayorkis is scheduled to appear before the
Full Committee in late July. It is a very, very big leap for
merely asking why our laws are not being enforced to advocating
something like impeachment.
I would remind my friends that they are not our teachers.
I, for one, would not seek to invent grounds for impeachment as
the majority--or the former majority did in several
proceedings. We're here to ask a very simple question: Why are
our laws not being enforced?
Now, I will introduce today's witnesses.
The Honorable Chad Wolf is the Executive Director and Chief
Strategy Officer at America First Policy Institute. He's also
Chair of the Center for Homeland Security and Immigration at
AFPI. Secretary Wolf was the Acting Secretary of the Department
of Homeland Security. He's also a veteran of both Capitol Hill
and the private sector. Secretary Wolf is a recipient of the
U.S. Secretary of Transportation 9/11 Medal, the U.S. Secretary
of Homeland Security Distinguished Service Medal, and the
National Intelligence Distinguished Service Medal.
Mr. Joseph Edlow is the founder of the Edlow Group, a
visiting fellow at the Heritage Foundation, and a former Acting
Director of U.S. Citizenship and Immigration Services. Prior to
that he served as the USCIS Chief Counsel and a Deputy
Assistant Attorney General in the Office of Legal Policy at the
Department of Justice. He is a veteran of Capitol Hill, serving
as counsel on this Subcommittee and counsel to Congressman Raul
Labrador. He began his immigration-related career as a trial
attorney in the Baltimore Immigration Court. Mr. Edlow has a
J.D. from the Case Western Reserve University School of Law and
completed his undergraduate degree at Brandeis University in
Waltham, Massachusetts.
Mr. Steven Bradbury is a distinguished fellow at the
Heritage Foundation and was the general counsel of the U.S.
Department of Transportation from November 2017-January 2021,
where he oversaw all of DOT's rulemaking and enforcement
actions. He is also Acting Deputy Secretary of Transportation
and briefly served as the Acting Secretary of Transportation.
He was the Principal Deputy and Acting Assistant Attorney
General for the Office of Legal Counsel at the U.S. Department
of Justice during the George W. Bush Administration. Mr.
Bradbury is a veteran of private practice and served as a clerk
on the Supreme Court of the United States, as well as on the
U.S. Court of Appeals for the D.C. Circuit. He earned a J.D. at
Michigan Law School and a B.A. from Stanford University.
Finally, Mr. Aaron Reichlin-Melnick is currently the Policy
Director at the American Immigration Council, where he has also
served as Policy Counsel and a staff attorney. Prior to that,
he was a justice fellow in the Immigrant Justice Corps and the
Legal Aid Society in New York. He earned a J.D. from Georgetown
University Law Center and a B.A. from Brandeis University.
I'd like to welcome all our witnesses today and thank them
for appearing here. We'll begin by swearing you in.
Would you please rise and raise your right hand.
Do you swear or affirm, under penalty of perjury, that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record reflect the witnesses have answered in the
affirmative. Thank you.
Please be seated.
Please know that your written testimony will be entered in
the record in its entirety. Accordingly, we would ask that you
summarize your testimony in five minutes.
Mr. Wolf, we'll begin with you.
STATEMENT OF THE HON. CHAD WOLF
Mr. Wolf. Chair McClintock, Ranking Member Jayapal, thank
you for the opportunity to testify today.
Today's hearing is titled, ``The Border Crisis: Is the Law
Being Faithfully Executed?'' Unfortunately, the answer by any
objective measure or metric is a resounding no. I understand
the difficulty and the complexity of running the Department of
Homeland Security, so I do not say this lightly. The U.S.
Constitution requires the administration to, quote, ``take care
that the immigration and border security laws be faithfully
executed.''
It is clear to me and to millions of Americans that the
Biden Administration has failed to do so.
Today's border security system is unrecognizable from the
America First policies of the Trump Administration or even what
was in place during the administrations of Presidents Clinton,
Bush, or Obama.
In all candor, the Biden Administration is the first
administration of either political party to deliberately take
steps to diminish the security along our southern border.
Therefore, it is my opinion that new leadership is needed at
the department.
In contrast, under President Trump's leadership, the
department established the most secure southern border in my
lifetime by building the most advanced border wall system,
reaching historic diplomatic agreements with Nations, and
putting in place across-the-board policies that deterred
illegal immigration, disrupted the Mexican cartels,
disincentivized the deadly flow of fentanyl, and enforced the
laws enacted by Congress.
I think the results are clear. During the Trump
Administration, fraudulent asylum claims declined, those who
qualified for humanitarian relief faster. Lives were saved as
migrants stopped taking that dangerous journey North when they
realized they would not be allowed and released into American
communities.
In stark contrast, today we see a border not only in chaos
but in crisis because the Biden Administration has dismantled
all the proven policies. Recommendations and concerns by career
Border Patrol experts were ignored, and political correctness
and rank ideology supplemented common sense and adherence to
our immigration laws.
To be clear, these laws did not change between the Trump
Administration and the Biden Administration, just the decision
by this one not to follow those laws. They have embraced
destructive and unlawful policies that have made American
communities dangerous and have enriched the Mexican drug
cartels.
Here are a few examples:
Nationwide catch and release. The Biden Administration has
intentionally decided to ignore its legal mandate to detain
illegal aliens or to make them wait in Mexico throughout their
immigration court proceedings, and a Federal District Judge has
struck down this practice.
DHS was then unable to process the volumes of illegal
aliens fast enough under this catch-and-release scheme, so it
resorted to issuing Notices to Report. These are essentially an
honor system document that asks illegal aliens to self-report
to a local ICE office when they reach their final destination.
Again, the courts have blocked the implementation of this
practice.
Next, a de facto amnesty. On day one, the Biden
Administration issued a 100-day deportation freeze on all
illegal aliens, including those with criminal convictions. Let
me say that again: Including those with criminal convictions.
Again, a Federal judge has blocked the nullification of this
interior enforcement.
Another de facto amnesty of this administration is when the
DHS Secretary's enforcement priorities exempt 99 percent of
illegal aliens from the threat of deportation, including the
declaration that being here unlawfully is no longer grounds for
removal.
Perhaps the most egregious example of violating the law is
the unlawful use of parole authority. The INA could not be
clearer that parole is a remarkably narrow authority and only
allowable on a case-by-case basis. The numerous unlawful
categorical parole programs that the department has implemented
are not new, safe, or legal pathways, but a diversion of
illegal aliens between ports of entry to ports of entry.
It is very clear that the current administration is lying
to the American people about the severity of the problem, so
here's the reality. Large-scale catch-and-release policy has
resulted in more than 4.5 million illegal aliens, including 1.5
million gotaways, being allowed into American communities. That
is a population larger than every major U.S. city, except for
New York City. There have been more than 200 known or suspected
terrorists apprehended at the southern border in the last two
years, compared to just 11 during the four-years of the Trump
Administration. The border is effectively controlled by the
Mexican cartels who crave these open border policies to further
their business model. More migrants have been found dead in the
desert or have drowned in the river during the journey than
ever before. According to The New York Times, the Biden
Administration has lost contact with more than 85,000 children
after releasing them to sponsors here in the U.S.
These are the results of a process that the administration
calls safe, orderly, and humane. To whom exactly? Not to the
migrants being abused, extorted, or dying along the journey,
not to the American communities that have been overrun, and not
to Border Patrol officers who have been assaulted. Instead, the
processes that have been created over the last two years can be
more accurately described as dangerous, corrupt, and inhumane.
These policies are unlawful, and this is a crisis by design.
Thank you. Look forward to the questions.
[The prepared statement of the Hon. Wolf follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. Thank you for your testimony.
Next is Mr. Reichlin-Melnick.
STATEMENT OF AARON REICHLIN-MELNICK
Mr. Reichlin-Melnick. Chair McClintock, Ranking Member
Jayapal, and distinguished Members of the Subcommittee. My name
is Aaron Reichlin-Melnick, and I'm Policy Director at the
American Immigration Council, a nonprofit organization
dedicated to the belief that immigrants are part of our
national fabric and to ensuring that the United States provides
a fair process for all immigrants, including those seeking
protection.
I'm grateful for the opportunity to be here today to help
provide some perspective on the complicated reality of the
application of immigration law at the border.
At the council, we have long brought attention through
research, advocacy, and litigation to ways in which the
Executive Branch carries out immigration enforcement. We are
intimately familiar with the complex legal and practical
considerations involved in the processing of migrants and have
brought successful litigation against both Democratic and
Republican Administrations to ensure that DHS is following the
law.
The Constitution charges the President with faithfully
executing the laws. Unfortunately, for the President, Congress
often passes law which impose competing legal requirements on
the Executive Branch. Some laws are easier to execute than
others, especially in a world of limited resources. These
challenges are readily apparent for immigration enforcement.
As Justice Kavanaugh noted at oral arguments in Texas v.
U.S. last November, there are never enough resources to detain
every person who should be detained, arrest every person who
should be arrested, or prosecute every person who's violated
the law.
Because of this hard reality, immigration officials have
always been imbued with broad legal authority and with broad
discretion in carrying out immigration enforcement. None other
than Justice Scalia said in 1999 that, at each stage of the
removal process, the Executive has the discretion to abandon
the endeavor.
At the border, these countervailing concerns are critical.
CBP officers are charged with simultaneously carrying out
enforcement laws and humanitarian laws such as asylum, and not
every person can be treated the same. There is no one-size-
fits-all legal process for migrants. For example, the options
available for processing a single adult arriving from Mexico
arriving alone are different than those available for
processing an asylum seeker from Cuba arriving with a baby.
Some people can be rapidly issued an order of removal and
deported. Others may require a full asylum screening, which
takes time and resources.
Beyond the law, Congressional appropriations are finite, so
there are logistical limits that are just as important as legal
mandates. The use of detention is a perfect example of this.
Despite laws which on their face seemly mandate detention,
Congress has never provided sufficient resources to detain
every person who might be subject to mandatory detention. As a
result, if there are 10 people who the law says should be
detained and only five ICE detention beds available, CBP must
by necessity release the other five. Thus, immigration
officials under Republican and Democratic Administrations alike
have released some migrants, because, while a single law might
suggest they be detained, the laws in total provide alternate
options.
These limitations apply to all administrations. For
example, data produced by the Department of Homeland Security
revealed that over 1.1 million migrants were released under the
Trump Administration in total, including over 500,000 released
at the border by CBP. Like today, these releases do not
represent a failure to execute the law; rather, they are a
natural and lawful byproduct of competing legal and logistical
considerations that all law enforcement agencies grapple with.
Faced with a growing global displacement crisis, the Biden
Administration has undoubtedly struggled to manage with the
resources they have. This struggle is not unique to the Biden
Administration, nor is it a sign of administration undermining
the law. Instead, it is a result of outdated laws and a funding
model that is badly out of balance. There are two million cases
in the immigration court backlog, yet today we spend $8 on
immigration enforcement for every $1 we spend on immigration
adjudication.
The last administration spent $15 billion on a border wall.
That's enough to pay for 17.5 years of the current immigration
court budget. So, it's not a surprise then that the system is
not functioning as designed and that it takes years for the
government to determine who qualifies for asylum and who does
not.
Moving forward, I urge Congress to undertake the difficult
challenge of updating our immigration laws and providing enough
resources to our adjudication systems to ensure that chaos at
the border becomes a thing of the past. Congress cannot tell
the Executive Branch to do three things, give them enough money
to do none of them adequately, and then blame the Executive if
it doesn't like the result.
Thank you. I look forward to your questions.
[The prepared statement of Mr. Reichlin-Melnick follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. Thank you very much.
Next is Mr. Edlow.
STATEMENT OF JOSEPH EDLOW
Mr. Edlow. Thank you.
Chair McClintock, Ranking Member Jayapal, and distinguished
Members of this Subcommittee, thank you for the opportunity to
present testimony regarding the ongoing crisis threatening the
integrity of our immigration system.
As this Committee explores the underlying causes of the
crisis, the question posed today can be answered only with a
resounding no. The Biden Administration has seen fit to ignore
the law, instead favoring poorly conceived and poorly executed
policy decisions. Their actions, through Executive Orders,
departmental memos, and rules, upend the INA and Congressional
intent, have eroded our immigration system, and propelled the
crisis to current levels.
Section 102 of the INA charges the Secretary of Homeland
Security with administration and enforcement of the act and
further vests in the Secretary the power and duty to control
and guard the boundaries and borders of the United States
against the illegal entry of aliens. The massive number of
encounters recorded by CBP, the small number of alien removals
by ICE, and the ever-increasing USCIS backlog, however,
suggests that this Secretary has failed to faithfully execute
the laws entrusted to him.
The sharp rise in unlawful entries and attempts along the
Southwest border provide a critical litmus test of the crisis's
scope, but it's an outgrowth of the departmental actions.
Additionally, media often focuses on the border to the
detriment of the other actions and inaction by ICE and USCIS,
which we must also focus on.
Since day one of the administration, the department has
taken aggressive action to undermine immigration enforcement.
Nowhere is that clearer than Secretary Mayorkis' September 30,
2021, memorandum which outlined the appropriate instances in
which DHS was authorized to take action against aliens either
unlawfully present or lawfully present but removable.
Secretary Mayorkis outlined three main buckets for removal:
Threats to national security, threats to public safety, and
threats to border security. While in theory this would seem to
encompass many aliens, in reality, the numerous carve-outs,
loose definitions, and required factors for consideration made
it nearly impossible for ICE to move forward with most
enforcement actions. These poorly defined categories gave even
some of the most serious of criminal aliens a free pass in the
interest of equity.
This and other memos sought to redefine immigration
enforcement by creating fictional priorities with no basis in
law. Categorical prosecutorial discretion is not discretion at
all. The department's failure to enforce the full INA in the
name of prioritization and discretion is a dereliction of duty.
So, too, the department's regulatory agenda seeks to upend
the credible fear process in the name of orderly processing.
Starting with the presumption that every economic migrant is
entitled to protection, in 2022, DHS issued an interim and
final rule on credible fear screening. Under the new process, a
positive credible fear determination by an asylum officer will
lead to a nonadversarial asylum interview before another DHS
asylum officer. This impermissibly changes the process and
undermines Congressional action by shifting adjudication
authority from DOJ to DHS.
Even more concerning, written summary of the original
credible fear interview doubles as an alien's asylum
application rendering the requirement that an alien file one
moot. This shifts the burden and also provides a path for fraud
and renders anti-asylum fraud measures moot.
A second final rule issued last month appears to be tough
on illegal border crossers making them eligible for asylum.
However, the number of exceptions and the easily rebuttable
presumption belie its stated purpose. This rule will have the
opposite effect as it will ultimately incentivize aliens to
make the dangerous trek northward with families in tow.
I would be remiss to not mention parole abuse. Regardless
of the plain language of the statute limiting parole to case-
by-case matters, parole has become a favorite tool of this
administration. While first used as an alternative to
detention, parole programs have subsequently played a large
role in artificially decreasing border numbers. The expanded
categorical parole programs that we're seeing now are wholly
unlawful.
Last, vast number of pending matters presently before USCIS
will only increase if border prioritization for adjudicators is
not stopped. While the agency claims to want to reduce this
number, actions speak louder than words. It was recently
reported that USCIS adjudicators were being shifted from their
assigned work to support operations along the Southwest border.
The Biden Administration has taken many measures in the
past 2.5 years aimed at addressing the border crisis. However,
it appears that no one thought to simply enforce the law as it
is written. Instead, the department has, through its own
actions, created the worst border crisis in American history.
A return to the rule of law is the only cure at this point,
and it is incumbent on Congress to use its oversight and
lawmaking authority to repair the damage done by the
department.
Thank you. I looked forward to your question.
[The prepared statement of Mr. Edlow follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. Great. Thank you for your testimony.
Finally, Mr. Bradbury.
STATEMENT OF STEVE BRADBURY
Mr. Bradbury. Thank you.
Chair McClintock, Ranking Member Jayapal, Mr. Nadler, and
distinguished Members of the Committee. Far from faithfully
carrying out its enforcement duties, the Biden Administration,
with Secretary Mayorkis at the point, is flagrantly violating
numerous provisions of our immigration laws, laws critical to
the safety and security of the American people.
Here are some specific examples of the Secretary's
violations of law. The use of parole to release tens of
thousands of inadmissible aliens en masse into the U.S. each
month violates INA's Section 212's express restrictions on
parole, and it unlawfully circumvents the established
procedures for refugee admissions under Section 207.
Further, because of lax vetting at our ports and an
overstretched border force, there's no way to know how many of
the millions allowed into the U.S., let alone the huge volume
of gotaways who have evaded our Border Patrol, fall within the
categories of dangerous aliens prohibited entry under Section
212.
Secretary Mayorkis has also ignored the mandatory detention
and removal requirements of INA Section 235, and his directions
to ICE not to take enforcement action against most deportable
aliens defies Section 237. Under his watch, deportations have
fallen to historic lows, while illegal immigration is at a
record high.
In recent months, DHS has shifted to a new process equally
unlawful of pre-registering aliens outside the U.S. for fast-
track entry and release using the CBP One mobile app. This CBP
One escort service is a shell game. It's a device for funneling
the flow of illegal immigration through our ports of entry
instead of between them. Meanwhile, unlawful entry overall
remains unabated.
The claim that illegal border crossings have fallen 70
percent is a manipulated, distorted figure. It's a comparison
to the highest week in the history of our country for illegal
crossings, the week before the Title 41 program ended, when
10,000 illegals were encountered at the border. That's the
comparison that gets to the 70-percent figure. It's false.
In sum, the Secretary is asserting power to overturn the
laws Congress has enacted and replace them with new immigration
pathways, as he calls them, of his own design, entirely new
visa-like pipelines through which is streaming into our country
an ever-rising flood of illegal immigration. This is a vast
usurpation of law and of Congressional power by the Executive.
These policies cannot be justified as an exercise of
enforcement discretion.
Secretary Mayorkis' own actions have caused the crisis, and
he's refused to employ the full scope of resources available to
him, shuttering detention facilities, ending cooperation with
border States, and abandoning the Remain in Mexico program. Not
to be overlooked, he has also flouted his statutory duty as
Secretary to protect the most vulnerable of migrant children
from the scourge of human trafficking and abuse.
Together these violations of law have produced a colossal
humanitarian disaster and a catastrophe for America. The
victims include a sea of vulnerable migrants caught up in the
horrendous grip of the cartels, the exploited children who are
enslaved and abused within our own neighborhoods, and the
everyday Americans across our land whose communities are
ravaged by violence and crime, strained to the breaking point
by unforeseen economic burdens, and infested with fentanyl.
It's a grim picture for sure but one the American people must
see.
We should all be grateful to you, Mr. Chair, for shining a
bright light on these violations of law.
Thank you.
[The prepared statement of Mr. Bradbury follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. McClintock. Thank you.
We'll now proceed to questions from the Members.
We'll begin under the five-minute rule with Mr. Biggs.
Mr. Biggs. Thank you, Mr. Chair.
I have to go fast because I think there's just so much that
Secretary Mayorkis is responsible for and culpable for.
So, I will start with you, Mr. Bradbury. At the direction
of Secretary Mayorkis, DHS has released and continues to
release tens of thousands of aliens every month into the U.S.
through mass parole and now categorical parole.
Is this a violation of law?
Mr. Bradbury. Yes, it violates INA Section 212(d)(5)(A).
Mr. Biggs. Secretary Mayorkis is also mass paroling aliens
he himself characterizes as refugees or asylum seekers without
demonstrating that there are compelling reasons requiring that
particular alien may be admitted by parole rather than going
through the USRAP process for refugee admissions.
Is that a violation of law?
Mr. Bradbury. Yes.
Mr. Biggs. What law?
Mr. Bradbury. It's a violation of INA Section 212(d)(5)(B).
Mr. Biggs. Because he's not conducting adequate
individualized vetting of the huge volume of mass-released
aliens, there's simply no way of knowing how many of the
millions of aliens Mayorkis has released into the U.S. fall
into these categories of dangerous aliens.
Is that a violation of law?
Mr. Bradbury. Yes, of Section 212(a).
Mr. Biggs. Secretary Mayorkis has instituted, as you've
talked about and all of you have mentioned as the CBP One,
preregistration, trying to funnel these illegal migrants to the
U.S. ports of entry along our southern border.
Is that a violation of law?
Mr. Bradbury. Yes, of 212, of 235, and I would say of 207.
Mr. Biggs. All right. So, what's happened here, of course,
is that just in this past week the U.S. Court of Appeals for
the Eleventh Circuit halted two DHS efforts to release massive
members of illegal migrants into the U.S. on parole.
So, this is what one of the judges said, this opinion right
here, that what--his violations of the law. Secretary Mayorkis'
violations of the law are, quote, akin to posting a flashing,
``Come in, we're open sign'' on the southern border. The
unprecedented surge of aliens that have started arriving at the
Southwest border almost immediately after President Biden took
office, that has continued unabated over the past two years,
was a predictable consequence of these actions. Indeed former--
and I'll say ``former''--former Border Patrol Chief Raul Ortiz
credibly testified based on his experience that, ``there have
been increases in migration when there are no consequences and
migrant populations believe they will be released into the
country,'' close quote. I won't go into the additional case as
well.
I'm going to ask Mr. Wolf this question. We've established
that Secretary Mayorkis has engaged in conduct that violates
his oath of office and the law. My question for you is, do you
believe Secretary Mayorkis is violating the law intentionally,
willfully, or is it just some oversight on his part?
Mr. Wolf. So, I'm going to have to guess. I think it's all
the above. I think they know exactly what they're doing;
``they'' being the department. This construct that they have
put in place is not by happenstance or by chance. It's by
design, and I think it's been very clear over the last two
years.
So, everything that's going on at the border and the crisis
that we see unfolding there was completely predictable, and we
had talked to the incoming administration about some of the
challenges that we had in the Trump Administration and warned
them that, if they did half of what was campaigned on during
2020, that they would see a crisis at the border. So,
presumably they knew that; presumably they heard that. Yet,
they still went for it.
Mr. Biggs. The Secretary of the new administration heard
that, incoming Secretary. Right?
Mr. Wolf. Numerous briefings, again, mainly with transition
staff.
Mr. Biggs. OK. Mr. Edlow, I wanted to ask you this
question, and it's related to testimony we heard yesterday
about what's going on at the border and the impact on Border
Patrol agents and morale, et cetera.
What are you hearing about what's going on because of the
arrangements of this Secretary?
Mr. Edlow. Sir, I've heard that morale is at an all-time
low throughout Border Patrol and throughout other enforcement
entities. I've spoken to some people who have been at the
border recently. They've seen that exact same thing, that
people are just very unhappy. They don't know whether they
should be doing the job or whether they are supposed to be
ignoring the law. A lot of it's being run by memos that are--or
just oral guidance being passed on.
Mr. Biggs. I'm going to ask you the same question that I
asked, and this is with regards to Secretary Mayorkis, and that
is, do you believe that what he's doing is intentional,
willful, or is it just he's just an incompetent buffoon and
can't learn his lessons?
Mr. Edlow. I don't think he's incompetent, Congressman.
Looking at the memos, looking at the departmental actions, the
regulatory actions, this is all part and parcel of an
intentional action.
Mr. Biggs. Yes, I agree with that, and I think it's long
past time for him to be impeached.
I yield back.
Mr. McClintock. The Chair recognizes the gentlelady from
Washington State, Ms. Jayapal for five minutes.
Ms. Jayapal. Thank you. Thank you, Mr. Chair.
Clearly, there is an agenda here, and it is about
impeaching Secretary Mayorkis.
I want to take a step back and just say that it is quite
stunning to have some of the witnesses here today that have the
audacity to come before this Subcommittee and attack the
current Homeland Security Secretary.
Mr. Wolf, who was Chief of Staff to Secretary Kirstjen
Nielsen, was a key architect of the universally panned by
majorities of Americans across the political spectrum, that
very cruel and unlawful family separation that was perpetuated
by the Trump Administration. Further, according to a Federal
judge and the Government Accountability Office, Mr. Wolf served
unlawfully as the Acting Homeland Security Secretary.
Mr. Edlow, as Acting Director of U.S. Citizenship and
Immigration Services, helped to run that agency into the
ground, to the point that it almost had to furlough over 13,000
USCIS employees. On his watch, USCIS also ignored the Supreme
Court's decision in June 2020 stating that the Trump
Administration's attempt to rescind DACA was unlawful, holding
new DACA applications at processing facilities even after the
Supreme Court mandate was formally entered.
These are the witnesses that the majority brings to this
Subcommittee to discuss if, quote, ``the laws are being
faithfully executed''? Forgive my skepticism or, more bluntly,
give me a break.
Mr. Reichlin-Melnick, let me turn to you. I want to discuss
mandatory detention. As discussed in your testimony, Section
235(b)(1)(B) of the Immigration and Nationality Act states that
if an officer determines an individual has credible fear of
persecution, that person, quote, ``shall be detained for
further consideration of the application for asylum.''
That makes it sound like asylum seekers must be detained.
Can you explain why all asylum seekers are, in fact, not
detained?
Mr. Reichlin-Melnick. Thank you, Congresswoman.
I think the main reason is resource based, though there's
both resource and legal authorities I should note. The biggest
issue here is resources. For example, if 50,000 asylum seekers
show up at the border in any given month and every one of them
asks for protection, there are not 50,000 detention beds. Even
in 2019 when detention was at its highest, there were 55,000
detention beds, and that year 891,000 were encountered by the
Border Patrol. If even half of those were seeking asylum, it
would not have been physically possible to detain all of them,
which is why, under the Trump Administration, hundreds of
thousands of asylum seekers were released straight to court
without going through the credible fear process.
So, at the end of the day, it is a resource issue. I will
also note it is a legal issue because there are always
exceptions to mandatory detention because Congress, generally
speaking, can't enforce the Executive to enforce the law in
certain circumstances where that is literally impossible.
Ms. Jayapal. Has any administration, Democratic,
Republican, ever been able to detain every single individual as
required by the section of the Immigration and Nationality Act?
Mr. Reichlin-Melnick. No. In fact, when Congress first
passed that provision in 1996, there were actually fewer than
10,000 detention beds, and this is at a time when there were
routinely 1.6-1.7 million Border Patrol apprehensions a year.
So, it was not possible when Congress passed the law. It's not
been possible anytime over the last 27 years. It's still not
possible today.
Ms. Jayapal. It's correct, isn't it, that even at our
highest levels of detention under the Trump Administration, it
was never close?
Mr. Reichlin-Melnick. That's right. In 2019, the Trump
Administration maxed out detention beds, about 55,000 in August
2019. That month, there were more than 55,000 people who
arrived. We also have to note that the average time that a
person spent in detention was over a month, so the average
detention bed in ICE detention only turned over about 10.7
times a year. So, there was a max capacity that they could
hold, even at 55,000 beds, of less than a half a million, and
that year about 900,000 people showed up. So, that's why the
Trump Administration, in fact, released hundreds of thousands
of people.
Ms. Jayapal. So, that's a lot of numbers. Let me just ask
you bluntly. Many of my colleagues on the other side of the
aisle like to claim the Trump Administration ended what they
call catch and release and detained all asylum seekers or sent
them back to Mexico.
Let me just ask you again, is that accurate? Just a simple
``yes'' or ``no'' answer is fine. If not, you've already given
us some of the reasons, but is that accurate?
Mr. Reichlin-Melnick. It's not accurate. Even in 2020,
after Title 42 went into effect, several thousand people were
released according to data from DHS.
Ms. Jayapal. From your testimony, it appears there's a
detailed chart which shows that the Trump Administration
released over 500,000 migrants at the border during his four
years as President. Is that correct?
Mr. Reichlin-Melnick. That is correct. That's directly from
the border, and additional were released--were held in ICE
detention and then released.
Ms. Jayapal. Thank you.
Mr. Chair, I yield back.
Mr. McClintock. The gentlelady's time has expired.
Mr. Van Drew.
Mr. Van Drew. Thank you, Mr. Chair.
Thank you all for being here today.
There's a very, very old saying of wisdom: You reap what
you sow. God help us what we have reaped. It all started with
the sanctuary cities, and they were wonderful. Everybody loved
them. They were--not everybody, for God's sake. All these big
city mayors and other folks thought, yes, this is a great idea
to have sanctuary cities. Not so much anymore. We don't even
know what to do in our big cities. From Portland, Maine, to San
Francisco, California, the lack of leadership at having these
sanctuary cities is now creating huge problems that even
Democrats will recognize.
What else? What else is it that we've reaped? Well, we've
done catch and release all throughout our Nation. Then the
people who are listening here who are not in this room, but are
around literally the country, they know that around the country
there are people being released. We're paying for
transportation. We're paying for healthcare. We're paying for a
great deal of things that we don't even take care of our own
people in the United States of America well enough.
Mr. Reichlin-Melnick, I respect you, but you said that
immigration is part of the fabric of the United States of
America. It is, legal immigration. I don't understand what is
so difficult to understand about the difference of legal and
illegal. Illegal means it's not true.
We talk about Mr. Mayorkis, and you could spend an hour and
a half on his case. What I remember, I remember asking him when
he was under oath--and behind him was almost like a green
screen, one of these screens--and I said: ``Is everything OK at
the border? Is everything good? Do we have our borders
intact?'' He said: ``Absolutely, Congressman.''
You looked at the pictures, you looked at the video, and
you saw little kids being thrown over to try to get them into
the United States, so that these adults would also be able to
make their way in. You saw huge lines. You saw disease. You
heard about fentanyl coming into our country, which it has.
What are we doing to our country, man? Seriously. Sit down and
think about this. What are we doing to the United States of
America?
We used--no more, no more do we immediately expedite people
back when you can. No more do we have Remain in Mexico. We
misuse asylum for things it was never to be used for. Asylum
doesn't mean, gee, I don't like where I live, and I don't make
as much money as I would like, and it's a little bit tough
going. I feel bad for those people. I feel bad for most of the
world. If that's going to be our standard, then let's open
every border everywhere in the United States of America and
accept every human being who doesn't like their country, if you
really want to do it if you think that's right.
We talked about impeaching Mayorkis. Well, you know what?
He didn't tell the truth under the oath. He committed perjury.
That alone really truly means something. He should be
impeached. You're supposed to tell the truth or, for God's
sake, at least want to tell the truth, try to tell the truth.
No more Title 42, and we didn't do a damn thing to try and
save it, change it, or make it more applicable if it wasn't
good the way that it was. What's happening to these children
and babies, not only in our families, not only our children
that are dying of fentanyl, the kids that are being brought
across and now are beholden to the drug cartel forever, and the
drug cartels establishing facilities, establishing a presence
in the United States of America.
This is all true. Nobody is making this up. The statistics
show it. We know we have millions upon millions, upon millions.
What is it? Five million-plus?
Just some articles I would like for the record: ``Influx of
migrants in Massachusetts Continues to Overwhelm State
Resources,'' Boston.com. ``1,500 Miles from the Southern
Border, Immigration Fight Disrupts Michigan Town.'' ``Portland
Overwhelmed By Growing Number of Asylum Seekers'' in the
newscentermaine.com. ``Chattanooga, TN, Overwhelmed By Migrant
Surge from Texas.'' California decides unannounced illegal
immigrant arrivals aren't so much fun, aren't so easy, and
maybe it's not such a good idea to have sanctuary cities after
all.
Come on. Everybody, let's really look at this in the eye
and see what we've got here. We are out of control. Yes, we
should review our immigration laws, and we should make them
better. Yes, we should do more work.
I want to ask Mr. Wolf a question, and I'm going to ask it
really quickly--
Mr. McClintock. No.
Mr. Van Drew. No, I'm not. Sorry.
Mr. McClintock. The gentleman's time has expired.
Mr. Van Drew. Man, I'm mad, and I'm tired of it. How about
that? That's how I'm going to end.
Thank you, Mr. Chair.
Mr. McClintock. The Chair recognizes the Ranking Member,
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chair.
I want to followup on the Ranking Member's comment earlier
and just note, not only did Mr. Wolf serve unlawfully as Acting
Homeland Security Secretary and as the Chief Architect of the
Unlawful Family Separation policy which literally kidnapped
children from their parents, he also unlawfully defied a
Congressional subpoena in September 2020 and refused to testify
before the House Homeland Security Committee.
It is just shocking that my Republican colleagues who claim
to believe so strongly in Congressional oversight would invite
a witness who has so brazenly violated the law and so
flagrantly violates our authority.
Mr. Reichlin-Melnick, I want to turn to you to discuss the
issue of parole. Use of parole has become a big topic among my
Republican colleagues. Can you discuss the history of parole
and its bipartisan use over the last 70-plus years, and where's
the authority for the Executive Branch to use parole?
Mr. Reichlin-Melnick. Parole has been part of the
immigration law since 1952, so it has been around for decades.
For many years, especially prior to the passage of the Refugee
Act, parole was the primary way by which the U.S. admitted
refugees. So, for example, from 1962-1969, more than 690,000
people came to the United States under parole from Cuba through
various different parole programs.
Since then, Republican and Democratic Administrations alike
have used parole to allow people to come to the United States
in various categories that fit the national interest. These
have been nearly every Presidential Administration, including
the Bush Administration, the Obama Administration, and even
under the Trump Administration, tens of thousands of people
were admitted under various parole programs that were then
extant when he took office.
Mr. Nadler. Some have criticized the Biden Administration
for its use of parole saying it's not being done on a case-by-
case basis.
Would you agree with that statement? If not, why not?
Mr. Reichlin-Melnick. I don't agree with that statement for
the primary reason that they misunderstand what ``case by
case'' means. A case-by-case adjudication just means taking
every application on its own. It doesn't mean that you can only
give it to a few people. In fact, in 1996 when Congress passed
IRA, IRA which included the case-by-case requirement, the
Congress actually rejected an amendment which would have made
parole into a much more narrower program.
I think the best example of this is to sort of look at this
as a metaphor. If I want to create a scholarship program, and I
say this scholarship program is open to every child whose
parents earn less than $100,000 who can show compelling need
for it, that is case by case because each student has to
individually show that they have a compelling need whereas if
it just said this program is open to every person who earns
less than $100,000, that would be categorical. There would be
no case by case involved.
Mr. Nadler. So, it appears that the administration is
merely saying that certain categories of people are eligible to
be considered for parole. Is that correct?
Mr. Reichlin-Melnick. That's right. I think very similarly
the wet-foot/dry-foot parole program that ran from 1995-2017,
under which about 40,000 Cubans came in through the border,
that was also a similar circumstance.
Mr. Nadler. They still undergo a case-by-case determination
to see if parole is appropriate?
Mr. Reichlin-Melnick. That's right. Every parole memo has
required it to be case by case.
Mr. Nadler. Both Republican and Democratic Administrations
have made use of categorical parole programs in the past?
Mr. Reichlin-Melnick. Well, I wouldn't call them
categorical, but I would say parole programs that were open to
certain individuals based on, for example, their nationality or
their job.
Mr. Nadler. Did the Trump Administration use parole?
Mr. Reichlin-Melnick. Yes. I think the most prominent one
is the Military Families Parole in Place program which operated
under the Trump Administration.
Mr. Nadler. Now, the Trump Administration continued the use
of parole as part of the Cuban Family Reunification Parole
program. That sounds like a categorical program that my
colleagues on the other side of the aisle have complained
about.
Mr. Reichlin-Melnick. Yes. Cuba has in particular had
multiple parole programs in use for their nationals over the
last 20 years.
Mr. Nadler. Is this parole program similar to other family
reunification parole programs recently announced by the Biden
Administration for Colombia, El Salvador, Guatemala, and
Honduras?
Mr. Reichlin-Melnick. My understanding, per DHS'
announcements last week, is that the new parole programs will
be virtually the same as the Cuban Family Reunification Parole
program.
Mr. Nadler. Can you explain how those programs work? Who's
eligible? Are these still granted parole on a case-by-case
basis as the law requires?
Mr. Reichlin-Melnick. Yes.
So, the family reunification parole programs are open to
individuals from certain countries who have family members who
have pending immigrant visa applications already. So, they have
been approved for a visa, but they are just in a backlog.
So there, if those individuals are invited to apply for the
program from the National Visa Center, then they have to submit
an application. They have to go through a vetting process. Then
it is the exercise of discretion of the United States to
determine whether or not to admit the person through this
parole program.
Mr. Nadler. Thank you. I yield back.
Mr. McClintock. Mr. Tiffany.
Mr. Tiffany. Mr. Reichlin-Melnick, so the expansion of
parole is legal?
Mr. Reichlin-Melnick. In my opinion, yes.
Mr. Tiffany. Mr. Wolf, it says you served unlawfully. You
want to share with us whether you served this country
unlawfully?
Mr. Wolf. So, I've spent seven and a half years with the
Department of Homeland Security. I was there shortly after 9/11
when they stood it up. I was there all four years during the
Trump Administration. I've held eight executive positions at
the department, including an assistant secretary position, an
undersecretary position confirmed by the U.S. Senate, a deputy
chief of staff position, a chief of staff position, and an
acting secretary position.
I've been to the border dozens and dozens and dozens of
times. I've talked to the men and women of the Border Patrol,
ICE agents, and USCIS personnel.
So, my expertise in this, whether you want to call me an
acting secretary, you want to call me a dogcatcher, my
expertise is what it is. I was also very proudly part of an
administration that actually secured the border, put policies
in place to bring back the rule of law and to secure the
border.
Mr. Tiffany. So, we just heard that the Trump
Administration paroled people into this country.
Did you parole over a million people into this country
during the Trump years?
Mr. Wolf. No, we did not.
Mr. Tiffany. Mr. Bradbury, I believe we have the largest
human trafficking operation perhaps in the history of the world
that is going on at this point.
Do you think the American people are aware of the role of
NGO's driving these, running the pipeline to our border?
Mr. Bradbury. No. I think that role has been sort of
surreptitiously concealed by the way the administration has
handled this. They are contracting with nongovernmental
organizations to transport illegal aliens from the border to
every district in the country.
Mr. Tiffany. Do you think some people that donate to some
of these sometimes faith-based organizations, NGO's, do you
think they're aware that their money is being used as an
accessory for human exploitation and trafficking?
Mr. Bradbury. I seriously doubt most people are aware. They
should be.
Mr. Tiffany. Yes. I urge people that contribute to faith-
based organizations, you should ask them.
In fact, I would say to you, Mr. Chair, I think we should
have the head of Catholic Charities come before this Committee
and explain what they're doing down on the border to facilitate
this illegal immigration that's going on in this country.
Great work has been done by many of these faith-based
organizations. I think the American people should fully
understand what's going on there.
Mr. Bradbury, recent Florida lawsuits against the Biden
Administration have shed considerable light on DHS, but also
the Office of Refugee Resettlement and what they're doing.
Can you briefly explain how the NGO's and ORR are
facilitating this unprecedented human trafficking, especially
of migrant children?
Mr. Bradbury. Well, of course, under the Trafficking Victim
Protection Reauthorization Act there are special duties, that
the Secretary of Homeland Security has to ensure that migrant
children who are brought into the country not from Mexico, but
from other countries--are placed with guardians in a way
through HHS that ensures that they're not abused, they don't
become the victims of sex trafficking or forced labor.
Unfortunately, we know that this is happening.
Mr. Tiffany. Are you familiar with the--yes, it is
happening. Are you familiar with the--let's see here--the Third
Presentment of the Twenty-First statewide Grand Jury in Florida
where they talked about trafficking children?
Mr. Bradbury. I'm not. I'm sorry.
Mr. Tiffany. I'd like to enter this into the record, if we
may, Mr. Chair.
Everyone should read this about the horrific human
trafficking that's going on that the State of Florida has
identified.
Mr. Tiffany. Have the court orders been followed by this
Administration when they've been told they need to follow the
law, Mr. Wolf?
Mr. Wolf. In several instances they have not.
Mr. Tiffany. So, Mr. Chair, I would just close with this.
We heard from the other side that these are just policy
differences that we have between the two sides.
Tell that to Erin Rachwal from Pewaukee, Wisconsin, who was
here a couple months ago. Remember her? Remember her son took,
I think it was like a Percocet pill, something like that, Mr.
Chair? Died in his dorm room.
Tell that to Kayla Hamilton's mother. She was just here in
the last month, wasn't she, Mr. Chair? Strangled to death,
autistic young woman, by someone who was here illegally.
Tell that to all the angel families out there.
I urge everyone here--a Democrat candidate for President
just was at the border in the last couple days in Yuma,
Arizona, and stood with farmers and said this cannot go on.
I urge Democrats who are of good faith across the United
States of America to join us in supporting the Secure the
Border Act. You can do that. It turns out there actually is a
Presidential candidate you can follow if this issue is
important to you to secure the border. You do have a candidate
that will help us do it.
Yield back.
Mr. McClintock. The gentleman's time has expired.
Ms. Jayapal. Mr. Chair?
Mr. McClintock. The Ranking Member has a unanimous consent
request.
Ms. Jayapal. Thank you, Mr. Chair.
I ask unanimous consent to enter into the record two
district court decisions and a decision from the U.S.
Government Accountability Office stating that Mr. Wolf served
unlawfully as Acting Secretary of Homeland Security.
Mr. McClintock. Well, you've lived down to all my
expectations, my dear friend. Your ad hominem attacks have
become quite common here. I will not--
Ms. Jayapal. Mr. Chair--
Mr. McClintock. I will not object.
Ms. Jayapal. Mr. Chair, since you--
Mr. McClintock. There ain't no objection.
Ms. Jayapal. Since you did reference my behavior, I would
like to say that was a unanimous consent request to enter into
the record factual documents. This is not a matter of opinion.
This is a matter of fact.
Thank you, Mr. Chair.
Mr. McClintock. Without objection, we will enter them into
the record.
Mr. McClintock. Ms. Lofgren.
Ms. Lofgren. I think it looks to me that this hearing has
been held to come up with some rationale for an impeachment of
the Secretary for doing his job.
If the Congress--it's never been the case that every single
person who's entered the United States without inspection is
incarcerated. It's never happened.
If that's what the Congress wants to do, they ought to look
in the mirror, because the estimate is it would cost $35.7
billion to do that, and the Trump Administration requests 3.1
billion for detention.
So, we have the Immigration and Nationality Act, which is a
law, but the appropriations process, that yields a bill, that's
also the law. So, it is impossible to accomplish something,
Congress needs to address that itself.
Getting back to the issue of parole, which I think is very
interesting, that's been a part of the law for a very long
time. I was thinking about its use, and sometimes its use
depends on what's happening in the world.
I remember when Saigon fell, hundreds of thousands of
Vietnamese fled communism. They had been our allies in the war.
The bulk of them were admitted using parole authority. It was
case by case, but it was a class of people who were escaping
from communism.
Is that correct, Mr. Melnick?
Mr. Reichlin-Melnick. That's right. I believe the ultimate
total is about 360,000 Indochinese came following the fall of
Vietnam.
Ms. Lofgren. Thinking back on other uses--and again, it's
categories, that you look at each case within a broad category.
We have tended, and I think appropriately so, to want to
protect people who are fleeing from communism.
If you take a look at the Cuban Family Reunification Parole
Program, those were people who had applications made for family
members who were suffering under the yoke of communism. One by
one, there was a determination on whether they should be given
advanced parole to escape from that communist regime and join
mainly American spouses.
Is that correct, Mr. Melnick?
Mr. Reichlin-Melnick. That's right. Parole has often been
in fact a response to Cuba, because of course with Cuba, they
do not accept deportations. So, we have had very little option
for when Cubans arrived at our borders but to parole them in.
We have created multiple parole programs under the Clinton
Administration, the Bush Administration, and prior
administrations for Cubans in particular.
Ms. Lofgren. We have individuals even today, we have
totalitarian regimes in Central America, including communist
regimes in El Salvador and in Venezuela, and people are fleeing
from communist oppression.
Now, not every person who's leaving that's the reason. So,
it has to be case by case. You would agree with me that what's
going on in Venezuela is a communist-like totalitarian regime,
is it not?
Mr. Reichlin-Melnick. Venezuela and Nicaragua both, which I
believe is what you were referring to, are both countries as
well that do not accept, generally speaking, the returns of
their nationals. One in four people have left Venezuela in the
last decade.
Ms. Lofgren. So, if we were looking at it on a case-by-case
basis of people who were fleeing those regimes, it would really
be in keeping with the proud tradition of this country of
helping people who are fleeing from communist oppression.
Wouldn't that be correct?
Mr. Reichlin-Melnick. I believe so, yes.
Ms. Lofgren. I just wanted to mention one other thing.
There was parole in place for certain military families. As
I recall, that was really stimulated by an American soldier who
was killed in Afghanistan, and then his mother was going to be
deported along with his wife. People, especially in the
veteran's community, became outraged at that, the mother of
this soldier who died for our country would be removed,
wouldn't even be able to visit the grave of her son.
I think every recent administration, including the Trump
Administration, has utilized the parole authority to take a
look at the family members of American soldiers.
So, isn't that case, that this has been the modern
tradition?
Mr. Reichlin-Melnick. That's right. Since 2010, the
military family Parole in Place program has been in effect.
Twenty thousand people under the Trump Administration were
paroled in under that program--or, sorry, were granted parole
in place under that program. Crucially, in 2020, in the
National Defense Authorization Act, Congress said it was the
sense of Congress that this program was valid and lawful.
Ms. Lofgren. My time is up. I yield back.
Mr. McClintock. The gentlelady's time has expired.
Without objection, the Chair would ask unanimous consent to
include in the record the Homeland Security letter, August 17,
2020, refuting claims that Acting Secretary Wolf was acting or
was appointed unlawfully, and providing the legal justification
for his appointment. Without objection.
Mr. McClintock. The Chair now recognizes Mr. Roy for five
minutes.
Mr. Roy. I thank the Chair.
Mr. Reichlin-Melnick, let me ask you a question.
Is Joe Manchin, the Senator from West Virginia, is he is
racist?
Mr. Reichlin-Melnick. I can't comment on that.
Mr. Roy. OK. What about Mark Kelly from Arizona?
Mr. Reichlin-Melnick. Similarly, cannot comment on that.
Mr. Roy. Maggie Hassan, Senator from New Hampshire?
Mr. Reichlin-Melnick. Also, cannot comment.
Mr. Roy. OK. Can't comment on their being a racist or not.
How about Senator Raphael Warnock from Georgia.
Mr. Reichlin-Melnick. Similarly, I'm not familiar.
Mr. Roy. OK. How about Catherine Cortez Masto from Nevada?
Mr. Reichlin-Melnick. Likewise, Mr. Roy.
Mr. Roy. OK. Can't comment on whether they're racist or
not?
Mr. Reichlin-Melnick. I don't have an opinion as to the
matter.
Mr. Roy. OK. Because you called me a racist, and you called
me a racist because I said that Title 42 should be enforced--
something, by the way, that this administration did to the tune
of over a million people.
Mr. Reichlin-Melnick. I believe it's about 2.5 million
people actually.
Mr. Roy. Right. So, this administration is racist?
Mr. Reichlin-Melnick. I believe this administration has
made a number of failures on the racial justice front.
Mr. Roy. So, the Biden Administration is racist?
Mr. Reichlin-Melnick. I can't comment as to the
administration in general.
Mr. Roy. Interesting. Good to know. Good to know the Biden
Administration is racist and get that on the record.
The fact is, people who want to enforce Title 42 believe
that there was a reason that Title 42 was put in place, but
they also recognize that Title 42 is, in fact, a band-aid on a
very broken system where the laws were not being enforced
otherwise. To throw around words like racist--let me ask you a
question.
Is my friend Henry Cuellar, is he a racist?
Mr. Reichlin-Melnick. I can't comment on that.
Mr. Roy. Right, because Henry Cuellar said the border
community is very concerned about Title 42 being lifted. This
message of lifting Title 42 is going straight to criminal
organizations.
He stood up and said that Title 42 should be enforced. The
administration stood up. The Senators I just listed said that
Title 42 should have stayed in place.
Now, my personal view is that Title 42 wasn't the thing
that needed to stay in place, that what ought to be in place is
an actual border security that secures the border.
Mr. Wolf, in your position at the head of the Department of
Homeland Security, notwithstanding what my colleagues want to
throw around with the ad hominem attacks, you were, in fact,
charged with securing the homeland, right, that was actually
your task securing the homeland at the Department of Homeland
Security?
Mr. Wolf. Yes. That's correct.
Mr. Roy. Right. Did you do that?
Mr. Wolf. Yes.
Mr. Roy. Right. Is the current administration securing the
homeland?
Mr. Wolf. No.
Mr. Roy. No. In any measure, in any way, shape, or form, is
the current Secretary of Homeland Security carrying out his
duty faithfully under the Constitution to secure the homeland
of the United States?
Mr. Wolf. He is not. As I've outlined in my written
testimony and oral testimony, there's numerous instances where
he is not faithfully executing the law as written.
Mr. Roy. I thank you, Secretary Wolf.
What I would say is, if you go back to April 2022, in a
Judiciary Committee hearing, I read word for word the statutory
definition of operational control under the Secure Fence Act. I
read it sitting right over here. There was a chart.
I put up the chart, I put up the text, and the text says,
``Operational control'' means the prevention of all unlawful
entries into the United States, including entries by
terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband.
I asked Secretary Mayorkas, ``Do you have operational
control?'' His response was,
I do. And, Congressman, I think the Secretary of Homeland
Security would have said the same thing in 2020 and 2019.
In March 2023, however, at a Senate hearing, Secretary Mayorkas
said,
With respect to the definition of operational control, I do not
use the definition that appears in the Secure Fence Act, and
the Secure Fence Act provides statutorily that operational
control is defined as preventing all unlawful entries to the
United States. By that definition, no administration has ever
had operational control.
Just two weeks prior, United States Border Patrol Chief
Raul Ortiz answered, ``No, sir,'' when asked by Homeland
Security Chair Mark Green, ``Does DHS have operational control
of the entire southwest border?''
So, the United States Border Patrol Chief Raul Ortiz says
we do not have operational control of the border. He answered
straight up truthfully, ``No, sir.''
Why was it that the Secretary of Homeland Security, when I
asked him that question, he said, ``Yes, we have operational
control''? He said, ``I do,'' to be more precise. Then in the
Senate he comes back and says,
Oh, but no, I'm sorry, if you use that definition, you know the
one in the statute, no, no one has ever had operational
control.
What is your response to that, and how would you
characterize having operational control of the border, as you
would say in the previous administration, compared to current?
Mr. Wolf. Well, I would certainly talk about my time in the
Trump Administration. If I were to get asked that question,
whether we had operational control, the answer was, no, we did
not. Neither was the border secure. I think words matter here.
Those are very definitive statements.
I always talked about how we were making the border more
secure, or it was the most secure in our lifetime. To say that
you have complete operational control, to say that the border
is closed, to say that it is secure, you're hiding the ball
from the American people. You're not being transparent. It's
for a purpose, I think you can only guess a political purpose.
It also defies what the men and women of the Border Patrol
and others are doing down there. When they see their political
leadership make these sorts of statements, it's so bad it's
hard to find words. They don't know what to think. Because they
are on the line. They are on that border every single day,
watching the hundreds of thousands of individuals walk past
them that they have to process. They see that someone is saying
that this border is secure. Or you see the 200 known or
suspected terrorists that have come across this border in the
last two years, that somehow that border is closed, it's
secure, I don't understand it.
Mr. Roy. Yes. Kind of like accusing people of whipping
migrants at the border.
I yield back.
Mr. McClintock. I'm sorry. Your time's up.
Mr. Correa.
Mr. Correa. Thank you, Mr. Chair.
Mr. Melnick, is the Secretary doing his job, Mr. Mayorkas?
Before you answer that, let me just say that General Kelly,
former Secretary of Homeland Security, heard him say a couple
of times that border security does not end or begin at the
border. Today, as you look at the world, it's pretty safe to
say, post-COVID, economies around the world are devastated. The
only real game in town is the United States. Our economy, world
record low unemployment rate, shortage of workers. Even China,
I must say, is struggling to get back on their feet
economically.
We have a worldwide refugee crisis.
[Chart.]
Mr. Correa. If you look at this chart behind me from the
U.N. Refugee Agency, it shows the number of displaced people
just in the Americas alone. You can see countries across the
region struggling.
It's not a U.S. problem, it's a regional problem. Mexico is
dealing with this problem. Canada is dealing with this problem.
Guatemala is feeling the effects and, of course, Europe.
Further South, Colombia. If you look at this chart,
Colombia is really struggling.
I must say, refugees are braving that trip North, perilous
situation.
I want to show you the picture of a little girl struggling
to continue North through the Darien Gap. This little girl lost
her mother, and another refugee going North is trying to help
her survive.
If refugees are willing to do this, you can imagine the
challenges at home.
Let me say, Title 42, we all talk about Title 42, I have to
remind folks here, Title 42, the party in charge in Congress
today, House of Representatives, voted to end the COVID-19
pandemic, and by operation of law they lifted Title 42.
Let me repeat. Party in charge voted to lift Title 42. Let
me say, I agree with them. Title 42 should not be an
immigration tool, but a health issue.
The administration has taken steps to prepare for Title
42's lifting. I was at the border numerous times before Title
42 was lifted. I would ask those officers in green and blue,
``Are you ready?'' They would tell me, ``We're as ready as can
be.''
It wasn't just CBP. It was DHS, State Department, and the
administration who did a pretty good job in anticipation of the
lifting of Title 42.
In fact, if you look at the next chart, these are the
numbers reported publicly by Border Patrol Chief Raul Ortiz:
Fifty percent drop, 50 percent drop in the encounters after 42
was lifted. Unexpected.
It's not over, folks. The world is still suffering from
major economic challenges, and these numbers may be temporary.
The fact of the matter is, we've got to focus on getting
economies around the world back on their feet, and we also have
to focus on the other issue, which is immigration reform.
Whether you like it or not, America is a massive draw, a
big draw for workers from around the world. Fifty percent of
our farm workers are undocumented. Every time one of those
undocumented goes to a farm, to a ranch, they find a job.
We are also part of the problem, meaning we must pass
immigration reform. Otherwise, we'll continue to be in the same
situation.
Mr. Melnick, I asked you earlier, is the Secretary doing
the job? We hear about operational control of the border. Was
does that mean?
Mr. Reichlin-Melnick. There's a colloquial definition of
operational control, which I think is--and then there's a legal
statutory definition under the Secure Fence Act of 2006. As Mr.
Wolf just noted, it's not anything that any administration has
ever reached. In fact, the way Congress wrote the statute, it
is physically impossible for any administration to ever get
operational control.
Mr. Correa. So, when we ask is there operational control at
the border, the answer is there never has been operational
control at the border.
Mr. Reichlin-Melnick. Statutorily, no. There are obviously
opinions that some people may have as to their own views from a
colloquial sense. Under the statutory definition, no, no
administration has ever had it and none ever will.
Mr. Correa. A political conclusion based on the times?
Mr. Reichlin-Melnick. Again, the reality is the job of DHS
Secretary is extraordinarily complicated and difficult,
especially today with more people arriving from countries
further away, as you noted with Colombia and other migrants
coming.
Under the Trump Administration, three out of every four
migrants arriving came from four countries, Mexico, Guatemala,
Honduras, and El Salvador. Today, in Fiscal Year 2023, less
than half came from those countries. That is a hugely challenge
for any Presidential administration, regardless of party.
Mr. Correa. Thank you, Mr. Chair. I yield.
Mr. McClintock. Mr. Moore.
Mr. Moore. Thank you, Mr. Chair.
I appreciate the witnesses being here today.
I've said it before, and I'll say it again: A controlled
border is a compassionate border. We had Sheriff Daniels
actually testify here in this Committee, and he said in four
decades, Mr. Wolf, that he had never seen the border as secure
as it was in 2018 and never as broken as it is now.
So, tell me, in just a few months, 24-25 months, what
changed dramatically, and what do you think the reason we're
having such an influx of encounters and others cross the
border?
Mr. Wolf. Well, I think easy answer, Congressman, is
everything. Everything changed. It started really from day one
of this administration where they had a very successful border
security regime in place that we had perfected over four years.
We didn't get everything right the first time. Over four years,
we put a regime in place that held individuals accountable for
illegally breaking the law, that got those who needed those
asylum protections under U.S. law, we got them those
protections quicker than they have ever gotten before.
This administration, for a variety of different reasons,
said, ``No, we don't like it.'' So, what did they do? They
stopped border wall construction, which I should just mention,
when you talk about operational control, that's actually in the
Secure Fence Act.
So, Congress back in 2006 thought that you would gain
operational control by putting physical infrastructure along
the border. Nevertheless.
You would also--they tore done MPP, or the Remain in Mexico
Program, our asylum cooperative agreements, and the list goes
on and on and on.
So, it doesn't take a rocket scientist to figure out what
happens when you tear down those programs. You had the former
Chief of the Border Patrol telling the administration at the
time: This is what's going to happen when you tear down these
programs and you don't put other deterrent immigration border
security programs in place. This is what's going to happen.
Mr. Moore. So, they gave them a heads-up, they said this is
what's going to happen if you undo policies in place?
Mr. Wolf. I think numerous individuals did, yes.
Mr. Moore. I say if you've got a water leak, you don't turn
the pressure on to the house. It seems like in a lot of ways,
we had some problems with immigration, and we have turned a
tremendous amount of pressure on our border agents. Really now
they're concierge. They're not really agents. They're there,
but they're just processing people through, and they can't keep
up.
Mr. Bradbury, I've heard that people South of the border
are paying the cartel from four to five, six thousand just
South of the border. Syrians were 20,000. Russians were paying
19,000, and I think Chinese nationals were paying $80,000.
The administration, in my opinion, has basically created
twofold for people coming across the border. That's why I say
it's compassionate to have it controlled. Because you're either
a drug mule, you're trafficking heroin, cocaine, or fentanyl.
You're wearing carpet shoes. That's how you pay your passage
into this country. Or you become an indentured servant, and you
make installment payments.
Have you heard that as well?
Mr. Bradbury. Yes, from some of the experts on immigration
in the Heritage Center, of course, border security. What I
understand is the cartels really effectively control our border
at this point, certainly everything up to the border.
Mr. Moore. So, the operational control is actually--the
cartel has operational control. It's not us.
Mr. Bradbury. Yes, more likely that than our government.
They are making as much or more money off human trafficking now
than the drug trafficking.
Mr. Moore. That's my understanding.
So, Mr. Edlow, I've got one question for you as well, sir.
Considering this administration, do you think they're using
the prosecutorial discretion correctly?
Mr. Edlow. I do not. My colleague up here talked about how
Justice Scalia in an opinion talked about prosecutorial
discretion and how that is something that is useful and that
every prosecutor and every police agency has. That is true.
However, it is done on a case-by-case basis. We're back to
talking about case-by-case bases.
A prosecutorial discretion done as a categorical
prosecutorial discretion is not actual discretion. That's
categorically saying we're not going to go after a group of
people. That's not a case-by-case determination. When Justice
Scalia was talking about it, he was talking about at any stage
in the process for an individual, not for a group of people.
Mr. Moore. Mr. Melnick, does your organization plan on
suing the Biden Administration?
Mr. Reichlin-Melnick. We have sued the Biden
Administration, as we have sued every administration going back
30 years.
Mr. Moore. Thank you.
With that, Mr. Chair, I yield back.
Mr. McClintock. Ms. Escobar.
Ms. Escobar. Thank you, Mr. Chair.
I'd like to inform the witnesses that I am the only Member
of Congress on this Subcommittee that actually lives on the
border. I represent El Paso, Texas. I'm a third-generation
border resident. My children are fourth-generation border
residents.
I don't live hundreds of miles from the border. I live on
the border literally. Nobody wants an orderly immigration
process more than those of us who have built our lives on the
border.
I'll tell you one way we're not going to get there. It's
with performative hearings such as these.
If we truly want to address our Nation's immigration
challenge and opportunity, we would do that through reasonable
legislation, through compromise, and through comprehensive
immigration reform.
I'd like to invite all my colleagues on this Subcommittee
to look at a bipartisan immigration bill, the Dignity Act, that
my colleague Maria Elvira Salazar and I introduced. That would
be a first--a good way to begin talking about this.
Instead, here we are engaging in what is my Republican
colleagues' first step in impeaching Secretary Mayorkas, not
because of any reason that they have laid out, but simply
because this is Speaker McCarthy's gift to the extremists in
his conference.
Let's look realistically at the numbers.
Mr. Reichlin-Melnick, thank you so much, because the
American Immigration Council actually has produced this great
chart. I've altered it a little bit.
[Chart.]
Ms. Escobar. What I'd like for the public, for the American
public and our panelists to note is that actually numbers
started increasing long before President Biden took office,
long before the election even. There was only one time when
there was a precipitous drop in immigration, in apprehension,
and that was right when COVID-19 hits. That's when the border
was shut down.
The chart that the American Immigration Council put
together shows--and, Mr. Reichlin-Melnick, I believe you got
these numbers directly from the Department of Homeland
Security--and it demonstrates that not any of the deterrence
measures that were put forth by the Trump Administration
actually deterred immigration. COVID did, but shortly after the
border was reopened those numbers started climbing right back
up.
That would tell us that we should be acting together in a
bipartisan way on reasonable solutions. Instead, again, here we
are focused on performance.
Mr. Chair, I'd like unanimous consent to enter into the
record a ProPublica article about family separation.
Mr. McClintock. Yes. Without objection.
Ms. Escobar. I'd actually like to play the audio included
in this article.
Mr. McClintock. You're welcome to do with your time as you
please.
Ms. Escobar. OK. All right. Well, I'll play it from my
phone.
[Audio recording played.]
Ms. Escobar. Mr. Wolf, do you recognize this audio?
Mr. Wolf. I recall that audio, yes.
Ms. Escobar. You were working at DHS at the time that this
audio was taken. Is that correct?
Mr. Wolf. I was at the department, yes.
Ms. Escobar. This is audio from the horrific Trump
Administration policy of separating children from their parents
at the border, a policy that has caused immeasurable trauma on
children.
Mr. Wolf, was Ms. Nielsen, when she was the Secretary and
implemented this horrific policy, did the Republican Party
attempt to impeach her?
Mr. Wolf. So, I would disagree with the premise of that
question.
Ms. Escobar. Is that yes or no? No?
Mr. Wolf. It's not a policy.
Ms. Escobar. So, I will reclaim my time.
No, the Republican Party never tried to impeach her, nor
did they try to impeach you, despite the fact that you were an
architect of this policy, despite the fact that you were in
place when the insurrectionists took over our Capitol.
You resigned because of the illegitimacy of the acting
secretary role that you were playing on behalf of the Trump
Administration, yet no one tried to impeach you.
I yield back.
Mr. McClintock. The gentlelady's time has expired. Since
that was an ad hominem attack, I'll give Mr. Wolf--
Mr. Wolf. Can I respond to that?
Mr. McClintock. Yes.
Mr. Wolf. So, I think it's a useful conversation. So, let's
talk about children. Let's talk about protecting children.
Let's talk about the 360,000 children that have come across
this border in the last two years.
Mr. Nadler. Point of order. On whose time is he speaking?
Mr. McClintock. She made an attack on him.
Mr. Nadler. Point of order. On whose time is Mr. Wolf
speaking?
Mr. McClintock. Ms. Escobar's time.
Mr. Nadler. Ms. Escobar yielded back her time.
Ms. Escobar. I yielded back.
Mr. Nadler. She yielded back her time.
Mr. McClintock. She made an ad hominem attack on Mr. Wolf,
and I thought it was important to give him an opportunity to
respond.
Mr. Nadler. She yielded back her time. He can speak on
someone else's time.
Mr. McClintock. I will recognize the gentleman's point well
taken and proceed to Mr. Nehls.
Mr. Nadler. Thank you.
Mr. Nehls. Thank you, Mr. Chair.
I just want everybody in this room to know, everybody,
every Member on this panel, this Committee, to know that I'm
the only one, I'm the only one that has arrested an illegal
alien, that has been deported six previous times, for killing
one of my senior citizens when I was sheriff of Fort Bend
County, Texas. I just want everybody to know that.
All right. I have several different things I would like to
discuss in my five minutes.
Mr. Melnick, I'm paraphrasing some of your testimony. You
said that in to effectively execute our immigration laws
Congress must provide additional resources. Is that correct?
Mr. Reichlin-Melnick. That's right, especially when it
comes to adjudication with a two million case backlog. We are
not funding the immigration courts enough.
Mr. Nehls. Today, I believe--I'll paraphrase again--I'm
here to talk about complicated reality of enforcing immigration
laws at the border.
Mr. Reichlin-Melnick. That's right.
Mr. Nehls. What's complicated about 212(f)?
Mr. Reichlin-Melnick. Well, 212(f), in particular, is quite
complicated because it cannot be applied to the border to turn
away asylum seekers. The Trump Administration tried that in
fall of 2018. That was struck down by a court in California,
upheld by the Ninth Circuit, and the Supreme Court declined to
overturn that decision.
Mr. Nehls. We talk a lot about Title 42, and we talk about
that Title 42 went away. It's my understanding--anybody on the
panel can pipe in if you would like--Title 42 dealt with the
COVID, the pandemic, public health emergency. Is that right?
Mr. Reichlin-Melnick. That's right. Title 42 was a CDC
policy invoked in March 2020 when the pandemic hit.
Mr. Nehls. Yes. When I look at 212(f)--and I guess I'm just
a simple man--when I look at 212(f), it's been around since, I
guess, 1956. It's been used many, many times. Actually, 1952.
Every President since 1981 has used it at least once. Trump
used it. They beat up on Trump when he did his little travel
ban, but the Supreme Court upheld that and said he can do that,
and he did.
It's been used by Trump. He used it in the first week of
office. Obama used it 19 times, Bush used it six, Clinton used
it 12, Bush before used it once, Reagan used it five times.
When you look at what that 212(f) is, this is it. Everybody
takes a look at it. Let me read it. Section 212(f) of the INA:
Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental
to the interests of the United States, he may by proclamation,
and for such period as he deems necessary, suspend the entry of
all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any
restrictions that he may deem appropriate.
It was used several times, 69 times in the past several years,
dating back to 1980.
Mr. Wolf, how do you feel about 212(f)? Instead of
providing all these resources and asking for more support, why
can't we just say let's get 212(f), the Supreme Court has ruled
that Trump used it when he had his travel ban, let's just shut
down the border, use 212(f), until we can get some operational
control?
Mr. Wolf. Well, Congressman, the Trump Administration,
particularly when we talked about the travel restrictions, used
212(f) effectively to make sure that we got more information
sharing than we ever got from basically every other country
around the world.
Look, I think the conversation that I continue to hear is
we need more resources, and we need Congress to fix this
crisis, and that is just not correct.
This administration has all the authority and all the power
that it needs to secure the border today. I know that because
we did it during the Trump Administration.
It wasn't perfect. I'm not saying that it was. We did it
effectively, and it became the most secure border in our
lifetime.
So, they can talk about more resources. You can talk about
how it's difficult and how it's hard and how we don't have
enough resources. That does not mean that you exempt whole
classes of individuals from law or you categorically parole
individuals into the country.
If all these individuals that they are paroling in really
need asylum protections, why aren't they bringing them in as
asylees or refugees? They're bringing them in as parolees.
Mr. Nehls. Yes. I've gotten 10 seconds. Thank you, Mr.
Wolf.
I will say this. Donald Trump has been the best President
in my lifetime. When he comes back in 2024, 212(f) needs to be
used. We need to shut down our southern border until we have
operational control and save America.
I yield back.
Mr. McClintock. Ms. Jackson Lee.
Ms. Jackson-Lee. I thank the Chair.
I have a lot of friends in this room, and some are all on
one side and many are on the other side. I have heard some
shocking things in here that will literally take my breath
away, adding to the Canadian fires, literally take my breath
away.
Someone offered up the Catholic Charities. The Republicans
are known to introduce legislation and try to pass legislation
to penalize the Pope, Catholic Charities, and other nonprofits
for simply doing what the scriptures in their faith tell them
to do.
In addition, the kind of self-righteous testimony that I've
heard--and it is not ad hominem of anybody, I've said it
generically--is unbelievable. It is simply unbelievable.
I've been on Homeland Security since 9/11, helped create
the Committee and the department. I could turn around and blame
the victims who jumped out of the building. That's how
outrageous this testimony has been.
As it relates to Title 42, since it was lifted the number
of unlawful crossings at the southwest border has dropped
nearly 65 percent per the Biden Administration. The
administration in the last two fiscal years, DHS has seized
more fentanyl and arrested more criminals for committing crimes
related to fentanyl and precursor chemicals than any previous
five years combined. Fentanyl seizures are even higher in
Fiscal Year 2023. I really don't know what you're talking
about.
The administration has strategically placed more than
24,000 Border Patrol agents, officers, thousands of troops, and
contractors, to the concern of many various positions, and over
a thousand asylum officers along the border.
Let me be very clear. The Chair of this Committee said, as
it relates to the impeachment of the Secretary, it's not a
matter of if, it's a matter of when.
Someone tell me how we're going to, in a bipartisan way, do
the job that the American people want us to do. We are all
concerned.
The misrepresentation of what Border Patrol agents are
saying, I don't know what you all are hearing. When I go, they
are both collegial, congenial, factual, compassionate, and
reasonable. They love their job. They believe that a lot of
work is being done by Congress to give them resources. Someone
just said they need no resources.
When there are issues that need to be addressed, we do need
to address them in a bipartisan way, as opposed to
condemnation.
For every visit you've been to the border, I've probably
doubled it. I've walked the streets and seen the despair. I've
been in the nonprofits. Yes, I have seen the horrors of the
Trump Administration snatching children away from their parents
and the complete disconnect that the children got in only
months of separation when they tried to reunite them and the
children were looking in shock at the mother and would not even
go to the parent. That's how dysfunctional they had become.
I have a short time, Mr. Reichlin-Melnick. I know you have
three names, but forgive me. Give me just a quick snippet of
the fact that the world has changed with the amount of
migration and people moving, i.e., Venezuela, and it is
enormous. Just quickly, because I have another question quickly
for you.
Mr. Reichlin-Melnick. Yes. This is the big difference
between the Biden Administration and the Trump Administration,
is who is coming.
The Trump Administration, it was mostly Mexicans and
Central Americans. Now, we are seeing far greater flows from
other parts of the Western Hemisphere, in particular,
Venezuela, Cuba, and Nicaragua, which pose very different
challenges to processing.
Ms. Jackson-Lee. For those who say we're doing nothing, I
know that the American Immigration Council has done some work
on this.
Can you discuss what you found as it relates to arrests by
Customs and Border Protection of individuals trafficking
fentanyl?
Can you quickly distinguish--there is something called
human smuggling, which is what the bulk of activity is going on
with the cartels and the smugglers. It is different from human
trafficking. I am a champion against human trafficking.
Please explain the fentanyl issue that you've been able to
determine and how smuggling and trafficking is different, and
how it is human snuggling that is going on at the border, and
that the administration has its hand on trafficking, yes, sir.
Let me say Reichlin-Melnick. Thank you.
Mr. Reichlin-Melnick. Yes, really quickly, smuggling is
usually people pay a smuggler to smuggle themselves.
Trafficking is people who are being trafficked involuntarily,
against their own will.
When it comes to fentanyl, I think there I look to what the
law enforcement agencies say. CBP, ICE, his, the DEA, and the
FBI all say the overwhelming majority of hard drugs, such as
fentanyl, come into the U.S. at ports of entry, smuggled
usually in passenger cars and most often by U.S. citizens.
Ms. Jackson-Lee. They're catching them?
Mr. Reichlin-Melnick. The fentanyl seizures have increased
every year, and I believe the deployment of nonintrusive
inspection technology increases year by year.
Mr. McClintock. The gentlelady's time has expired.
Mr. Hunt.
Ms. Jackson-Lee. Thank you. I yield back, Mr. Chair.
Mr. Hunt. We are a Nation of laws, or we are not a Nation
at all. We already have laws on the books that can prevent the
catastrophic border crisis that we are seeing every single day
today.
We know they work. Do you know how we know they work?
Because they worked under President Trump. They worked because
he and his administration--and you, Mr. Wolf--chose to enforce
those laws.
Now, is this merely a failure to act, or is this
intentional?
President Biden and Mayorkas act as if their hands are
tied, like nothing can be done to fix this border crisis.
Interestingly enough, almost every policy this administration
has attempted to implement has been roughly a failure. Biden's
Afghan withdrawal, Biden's foreign policy, Biden's economic
agendas, failures.
Except for the border crisis. The border crisis is their
only success. I say that because they have successfully created
a chaotic situation to carry out a radical agenda. Problem.
Reaction. Solution.
The administration created this problem, listened to the
reaction, and I suspect they will present a solution. That
solution, ladies and gentlemen, in the future will be an
attempt at mass amnesty. There, I said it.
The real solution would have been to prevent this crisis
from happening in the first place. The Biden Administration
could have done just that if we'd have kept simple laws on the
books and enforced the laws of this country. Simple as that.
Do you know that over 200 people on the terrorist watch
list have been arrested at the border since President Biden
took office? That should be terrifying for you to hear. That's
just the ones that we know of. How many have escaped into the
interior of the United States?
Now, I served my country in combat, and I was actually a
West Point cadet when 9/11 happened. My classmates and I stood
about 60 miles North, just up the Hudson River, New York City,
and watched 3,000 innocent lives evaporate from our world in 90
minutes. My fear is that, with our porous border, another 9/11
is imminent, and it will happen because this administration
won't fulfill its basic responsibility, which is to secure our
homeland.
The Biden Administration is making a deliberate choice to
not secure our border. Do you know how I know this is a fact?
Because three years ago we weren't having this conversation.
My first question is for you, Mr. Wolf. What has changed
between these administrations that has caused this crisis to
explode to what we've seen lately?
Mr. Wolf. It's the intentional destruction of a lot of
effective policies that were put in place during the Trump
Administration. Happy to name those one by one by one.
We've heard a lot of talk about detention capability. What
I will say is, yes, it's difficult, it's hard to detain
individuals. If you actually want to remove individuals from
this country, you need to detain them. Under the Biden
Administration, they have removed the lowest number of
individuals in, I would say, decades, 39,000 removals of
criminal illegal aliens. That is a drop of over 62 percent from
Fiscal Year 2020, which was during COVID.
So, there's a lot of different policies that they have
decided to tear down, very effective policies, and they did
that without any analysis. They did it because they didn't like
it. They didn't like the President. They didn't like whoever at
the time. Forget about whether they were actually protecting
Americans or they were protecting American communities.
I think lost in this whole discussion is what is best for
Americans on our border security policy, our immigration
policy. It's not what is best for illegal aliens. It's what is
best for Americans. That should be our first duty.
Yes, we need to make sure that those that are coming here
seeking protections, that qualify for our protections under
law, get those protections. Absolutely. We need to think about
Americans first, and I think that's where this administration
is falling short.
Mr. Hunt. Another question for you, sir. If you were
running the Department of Homeland Security right now the same
way that Secretary Mayorkas is doing right now, what do you
think President Trump would have done to your job?
Mr. Wolf. I would no longer be there.
Mr. Hunt. I kind of tend to agree with you on that, sir.
I want people to understand this. We've had over six
million people, illegal aliens, enter our country since Biden's
taken office--six million. We have conceded our border to the
cartels. Fentanyl has killed enough Americans--enough fentanyl
has poured into this country to kill every single American five
times. We have sworn enemies on the terrorist watch list in the
United States, and we don't even know where they are.
If President Biden does not secure this border, we're going
to have another 9/11. That's how serious this is. We must do
our job and protect the American citizens.
Thank you all for being here, and God bless you.
Mr. McClintock. Thank you.
Ms. Ross.
Ms. Ross. Thank you, Mr. Chair.
I just want to do a little reset here. To be very clear,
President Biden inherited a disaster of a border from former
President Trump. We all watched it on TV aghast. He did it in
the middle of a global pandemic.
Now, the Biden Administration is not perfect, and I'm not
here to defend every single thing that they've done. What they
have done is work to correct course, to tighten security, while
also expanding pathways to legal immigration.
These have been good faith attempts to enforce the law,
which former President Trump rarely tried to do in a way that
helped our immigration policy.
It was the Trump Administration that allowed unaccompanied
children to cruelly be held in detention far longer than
allowed by the law. It was his administration that designed and
boasted about family separation. It was his administration that
wasted resources illegally on inefficient enforcement
mechanisms like the construction of the border wall.
Countless reports have demonstrated how the militarization
of border security increases the number of unauthorized
immigrants who remain in the United States because it disrupts
historically circular-flowing migration and results in a net
undocumented inflow.
This hearing is yet another example of my Republican
colleagues' preference for partisan political hearings over
engaging in good faith discussions about solutions that could
actually work. There are bipartisan proposals for this on both
the House and Senate side, yet we've had zero hearings on
those.
As we've heard in the days after Title 42 ended, Border
Patrol encounters have gone down. So, it is particularly ironic
that we are having this hearing now. Now is the time that we
should be working together on solutions.
We need legislation that enhances border security. Several
of us recently visited the border, and we got lots of great
suggestions about how to do that from the people who deal with
this every single day.
We also need legislation that expands pathways to legal
residency and citizenship and strengthens our economy.
You might have seen me step out briefly about a half an
hour ago to meet with the home builders from North Carolina.
One of their priorities for their legislative agenda is
comprehensive immigration reform. Same priority for most of the
businesses in my district in North Carolina, same priority for
the agricultural community, same priority for the hospitality
industry. Yet, we haven't had one hearing on doing that.
For two sessions of Congress, I've introduced bipartisan,
bicameral legislation to help people who came to this country
legally as dependents of visa holders. Because we have such a
broken immigration system, they're being forced to self-deport
and leave their families and the only country that they know
because this Congress does not have the will to take that bill
up.
Now, to the credit of the last Congress, it passed the
House in two different vehicles.
We have a broken immigration system on many levels. It is
time to get about the business of having hearings on real
legislation that will solve real problems and help real people.
Thank you, Mr. Chair, and I yield back.
Mr. McClintock. Thank you.
Mr. Wolf, when you were Acting DHS Secretary the border was
secure, was it not, for all intents and purposes?
Mr. Wolf. We worked every day to secure it, every day,
every week, every month.
Mr. McClintock. We had reached a very low number of illegal
border crossings, had we not?
Mr. Wolf. I think by a number of different metrics, and
that's certainly one, the number of apprehensions fell.
Mr. McClintock. Since then, of course, we have seen a mass
migration of unprecedented proportions, millions and millions
flooding into the country.
Were there changes in law that occurred to account for
this, or is it entirely a matter of not enforcing the law?
Mr. Wolf. There's been no changes in law that I'm aware of.
Mr. McClintock. Mr. Edlow, there have been a lot of
instances now when the administration's been called out by the
courts for failing to enforce the law. What's been the
administration's response to these court orders?
Mr. Edlow. Well, with the exception of the September 30
memo, which was enjoined and vacated in June 2022, to the
extent that the administration has been able to get around the
court orders, they have.
Mr. McClintock. Has anybody challenged them on that in
court?
Mr. Edlow. Some States have challenged them, yes.
Mr. McClintock. Has any court come back and issued a
criminal contempt citation for failing to--
Mr. Edlow. Not that I'm aware.
Mr. McClintock. Are there any pending?
Mr. Edlow. I couldn't answer that, sir.
Mr. McClintock. All right.
Mr. Wolf, any thoughts on that?
Mr. Bradbury?
Mr. Bradbury. I don't believe there are any pending.
Obviously, Mr. Chair, it is difficult for a court to impose
contempt.
Mr. McClintock. Right. What I'm trying to do is determine
the difference between simple maladministration and deliberate
violation of law. I think that's a very bright line that we
need to define.
We spoke of detention. I think Mr. Reichlin-Melnick made a
very good point. You've have ten illegal aliens, you have beds
to detain five, what do you do with the other five?
Is that what's actually going on, Mr. Wolf?
Mr. Wolf. So, not only should you be detaining, but if
you're unable to detain, then you can certainly have them wait,
such as what we did under MPP.
I think that's an interesting point that was missed in this
whole debate. We started talking about detention and how that's
never achievable. I'm not here saying that you can detain
everyone, but there is another option that Congress in the INA
tells you to do. So, if you can't do that, then you can hold
them in a third country, as we did under the Migrant Protection
Protocols. Again, interesting that was not brought up.
So, there are other ways that you can enforce the law. This
idea that if you can't detain them, that simply they're
released into American communities, is not the law, and we
shouldn't pretend that it is. Yet, that is what is occurring,
what's been occurring for the last several years.
Mr. McClintock. Well, is this actually a violation of law
or is it just a very poor decision?
Mr. Wolf. I would say it's both.
Mr. McClintock. Mr. Edlow, I'm told that all the capacity
that we have right now isn't being used, and yet illegal aliens
are being released into the country.
Mr. Edlow. I don't believe it is being used, Congressman.
For the most part there are more interest right now in--it was
in paroling people, and now it's giving notices to appear at
the border and letting people go along their way. There is not
an interest in detaining as far as I can see.
Mr. McClintock. Let's talk about parole authority. Congress
did tighten the criteria for paroles back in the mid-1990's
precisely because it was being abused in the manner that Mr.
Reichlin-Melnick outlined.
Is it true that 20,000 mass paroles were done under the
Trump Administration, Mr. Wolf?
Mr. Wolf. So, there are a number of parole programs that we
administered, obviously, that we began--or we continued to
administer that was going on during the Obama Administration
and the like. Again, the important point here is, are you
trying to secure the border, and are you trying to hold people
accountable, and are you trying to get them the protections
they need?
So, as they parole people into the United States, there's
no asylum protections for them. They're not in asylum
proceedings. So, if they truly need asylum, why aren't they
being put into asylum proceedings? Instead, they're simply
paroling them into the country to, again, have this status for
a year, perhaps even two years at a time. It doesn't make any
sense. It's a little smoke and mirrors of what the
administration is trying to do at the border.
Mr. McClintock. OK. Asylum hearings are designed to be
adversarial in nature. They're presided over by immigration
judges bound by the law. How does that differ from the
administration's replacement of this process with USCIS asylum
officers?
Mr. Bradbury?
Mr. Bradbury. Well, it's completely different now because
they're reviewing their own appeals of their own decisions.
It's not an adversarial process.
Mr. McClintock. Is there a provision of law that gives them
this authority?
Mr. Bradbury. No. It's in violation of Section 103 of the
INA. It's the Attorney General and the immigration judges that
have to hear those appeals.
Mr. McClintock. Well, I see my time has expired.
I see Mr. Swalwell has arrived, so I recognize him for five
minutes.
Mr. Swalwell. Why is this hearing happening within the same
week that we just learned that the Department of Homeland
Security announces the average daily unlawful border crossings
are down sharply relative to the period before Title 42 ended?
We're seeing record number of fentanyl being seized by Border
Patrol--seized, not getting passed them but successes because
our law enforcement are doing their job and showing up every
day. We don't congratulate them. Instead, we use that as a
political tool to try and hit the Biden Administration.
Why is this hearing happening? It's because it's a part of
a corrupt bargain, a dirty deal that allows Speaker McCarthy to
stay in power. He's on an installment plan. He's got to pay an
installment every week. He's got to give Tucker Carlson the
January 6th sensitive police footage. He has to put Marjorie
Taylor Greene on the Committee of Homeland Security, even
though she said January 6th was a 1776 for our country and she
goes and visits the terrorists of January 6th at the D.C. jail
and dishonors the police officers. Another installment is we
have to defund the effort to help Ukraine to satisfy the Putin
bloc that is across the aisle.
This is an installment that Ms. Taylor Greene openly
admitted when she said she's voting for the crazy idea that we
pay America's bills to lift the debt ceiling because she's
going to get some dessert out of it. That's what she said. She
said: ``I'm going to get some dessert out of this shit
sandwich.''
Those are her words. This is her dessert. We all have to
sit here for her dessert.
Mr. McClintock. The gentleman will suspend for a moment.
The gentleman is warned not to use vulgarities in this
Committee room, and the gentleman is warned to restrain from
making attacks on the motivations of Members.
Ms. Jayapal. Mr. Chair, point of order.
Mr. McClintock. The gentlemen will proceed in order.
Mr. Swalwell. Mr. Chair, I apologize for quoting your
colleague.
Mr. McClintock. Point of order. The gentlelady will State
the point of order.
Mr. Swalwell. No, no, Chair. I apologize for quoting your
colleague. I won't quote her again if that's offensive to you.
Mr. McClintock. You will refrain from questioning the
motives of Members.
Mr. Swalwell. So, we're here because that was a promise
that my colleague told the public was made, that we get to
impeach Mayorkis. So, this is the predicate to bring
impeachment proceedings against the Secretary of Homeland
Security who just announced last week that daily unlawful
border crossings are down sharply.
Look, Kevin McCarthy may have the title of Speaker, but
it's clear to me, because of this hearing today, he doesn't
have the job. The job is by the person who's getting her
dessert here today.
I also think, Chair, it's quite rich that the title of
today's hearing is whether the law is being faithfully executed
because your principal witness was declared to have been an
unlawful Acting Secretary of Homeland Security and, on
September 17, 2020, failed to honor his own subpoena, which
puts him in good company because the Chair of our Committee is
400 days in to not honoring his own subpoena. We're calling
this hearing a question of whether the laws are being
faithfully executed with a witness who didn't honor a subpoena
Chaired by a Committee Chair who did not honor his subpoena,
very rich.
So my question, Mr. Reichlin-Melnick, is, considering that
border crossings are down, we're trying our best with a party
that doesn't want competence at the border--they want chaos;
they want to declare there's open borders to try and incite
people to come to the United States--do you see grounds at all,
any predicate that would summarize why an impeachment of
Secretary Mayorkis would be justified?
Mr. Reichlin-Melnick. Congressman, I'm not an expert on
impeachment, but what I do know is that it's been 33 years
since we last updated our illegal immigration laws and 27 years
since we last updated our asylum laws.
We are operating a 20th century system, a system that in
some cases came around before the worldwide web, and it's not a
surprise that in, a 21st century global displacement crisis,
the United States is struggling very hard to keep up.
So, I think what this shows is that we need to fix and
update our laws, give the system the resources it needs to
work, and ensure that the DHS can actually carry out the laws
in a way that today in many ways it struggles with.
Mr. Swalwell. Thank you.
I think the summary here is people want competence, they
don't want chaos, on immigration, on the debt ceiling, on
anything else.
I yield back.
Mr. McClintock. Thank you.
I think they also would like civility.
This concludes today's hearing. I want to thank allour
witnesses for appearing before the Committee. I want to
apologize on behalf of the Committee for the ad hominem attacks
that were directed at several of our guests today.
Without objections, all Members will have five legislative
days to submit additional written questions for the witnesses
or additional materials for the record. I know I will have
quite a few.
Without objection, the hearing is adjourned.
[Whereupon, at 4:04 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on Immigration Integrity, Security, and
Enforcement can be found at the following links: https://
docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=116066.
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