Statutes of Liberty: April Madness — DHS Secretary Alejandro Mayorkas Continues to Ruin My Bracket

This sponsored column is by James Montana, Esq., Doran Shemin, Esq. and Laura Lorenzo, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

In one of our recent columns (A cry for help if there ever was one. – Ed.), we suggested that DHS Secretary Alejandro Mayorkas’ days were numbered. So far, Secretary Mayorkas has kept his post. We want to explain why we think he has rough sailing ahead, and, in the course of doing so, offer some information about what’s going on at the U.S.-Mexico border.

Mayorkas is an old immigration hand. When he became DHS Secretary, wise observers described his elevation as a signal that the Biden Administration intended to return to normalcy.

Returning to normalcy only works, as a policy, in normal times. Unfortunately for Mayorkas, these are not normal times at the U.S.-Mexico border. The number of unaccompanied minors apprehended at the border (typically from El Salvador, Guatemala and Honduras) is setting new records, and the numbers are expected to increase over the next six months.

So, it’s a crisis. Crises force people — even bureaucratic infighters — to take a position. Mayorkas has accordingly found a position, and it is much more dovish on irregular migration than we would have expected. His recent statement to Congress lays out his position in a straightforward way:

1. DHS is set to encounter more irregular migration at the U.S. border this year than it has for at least twenty years.
2. DHS is receiving so many unaccompanied minors that it cannot always transfer them to the care of the Department of Health and Human Services.
3. DHS continues to use its Title 42 pandemic authority to expel single adult asylum seekers. (Title 42 empowers the President to take actions to protect public health, and, under color of Title 42, U.S. Customs and Border Protection (CBP) is expelling immigrants on the basis of the COVID-19 pandemic.)
4. The Trump Administration released one — no, several — live ferrets into the immigration machinery, and it’s taking time to sort that out.
5. Root causes of migration in Central America need to be addressed.

That’s all well and good, but the effectiveness of these arguments will diminish over time. The use of Title 42, in particular, is going to become increasingly untenable as the coronavirus pandemic recedes; and if the Administration does not stop using Title 42, we predict with confidence that a sympathetic federal judge will, at some point, force it to do so.

If Mayorkas’ approach fails, and unaccompanied minors continue to strain federal resources at the border, what will the Biden Administration do? Our prediction is that the Administration will do what past Presidential administrations have done, right and left: shoot the messenger. James predicts by September.

We don’t envy Mayorkas’ problems, and we wish him every success in administering U.S. law fairly and humanely. But he has a tough job. There’s only one tougher job at DHS right now: ICE Director. No one, it seems, wants the position.

As always, we would love to hear your thoughts and we will do our best to respond.