Federal court blocks Biden rule limiting asylum

A federal judge Tuesday blocked a new Biden administration rule that limited access to asylum, issuing a decision that will take effect in two weeks.

The ruling from a federal judge in California is a major loss for the Biden administration, which imposed new restrictions on asylum-seekers, including that they must first seek the protections if offered in another country along their route to the U.S. 

The rule, finalized in May, also limits the ability to seek asylum between ports of entry. 

In blocking the rule, U.S. District Court Judge Jon Tigar repeatedly referenced U.S. asylum law, writing that the new policy undermines the clear intent of Congress in establishing a safe haven for those fleeing persecution and danger.

“Requiring noncitizens to present at ports of entry effectively [constitutes] a categorical ban on migrants who use a method of entry explicitly authorized by Congress,” Tigar wrote in the ruling.

“Conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress,” he added later.

The suit stems from a challenge led by the American Civil Liberties Union (ACLU), though the policy also generated lawsuits from GOP-led states.

“The ruling is a victory, but each day the Biden administration prolongs the fight over its illegal ban, many people fleeing persecution and seeking safe harbor for their families are instead left in grave danger,” Katrina Eiland, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case, said in a statement. 

“The promise of America is to serve as a beacon of freedom and hope, and the administration can and should do better to fulfill this promise, rather than perpetuate cruel and ineffective policies that betray it.”

The Department of Homeland Security (DHS), which promulgated the rule, did not immediately respond to a request for comment, though the Department of Justice is expected to appeal the ruling.

“We strongly disagree with today’s ruling and are confident that the Circumvention of Lawful Pathways rule is lawful,” DHS Secretary Alejandro Mayorkas said in a statement, referencing the formal title of the rule.

He noted the Department of Justice will appeal the decision and seek a stay pending appeal. 

“Because the district court temporarily stayed its decision, today’s ruling does not change anything immediately.  It does not limit our ability to deliver consequences for unlawful entry. Do not believe the lies of smugglers. Those who fail to use one of the many lawful pathways we have expanded will be presumed ineligible for asylum and, if they do not have a basis to remain, will be subject to prompt removal, a minimum five-year bar on admission, and potential criminal prosecution for unlawful reentry,” he said.

The rule had prompted howls from critics who argued DHS was turning to policies strikingly similar to those proposed under former President Trump. While the Biden rule had some mechanisms for migrants to fight determinations that they were ineligible for asylum, like the Trump-era third country transit ban it effectively blocked asylum for those who did not first seek it along their route.

Immigration advocates have argued few other countries have functional asylum systems to offer such protections.

But in some regard, DHS appeared to have reservations about the rule.

“To be clear, this was not our first preference or even our second,” a senior administration official told reporters when previewing the policy in February.

The court’s ruling follows the decision by the Biden administration to lift Title 42, another Trump-era policy that used the pandemic as a rationale for expelling migrants without letting them seek asylum — another contravention of asylum law.

Border crossings have dipped since the rescission of Title 42, a factor the administration credits both to the new limitations on asylum as well as the creation of new parole programs for Cubans, Haitians, Venezuelans and Nicaraguans that allows temporary admittance to the country.

Updated at 4:39 p.m.

Gaetz introduces legislation to end ‘unqualified’ birthright citizenship  

Rep. Matt Gaetz (R-Fla.) introduced a bill Tuesday that would end “unqualified” birthright citizenship for children whose parents are not themselves U.S. citizens.

The legislation, titled the “End Birthright Citizenship Fraud Act of 2023,” would amend the Immigration and Nationality Act “to reflect the original intent of the 14th Amendment’s ‘subject to the jurisdiction thereof’ clause,” according to a statement on the measure

The 14th Amendment grants citizenship to all “born or naturalized in the United States, and subject to the jurisdiction thereof.”  

The amendment was passed in 1866, shortly after the Civil War, to ensure citizenship and equal rights for formerly enslaved people.

The 1898 Supreme Court case United States v. Wong Kim Ark upheld the idea the 14th Amendment applies to children regardless of their parents’ immigration status.  

Birthright citizenship has become a favored target of hard-line conservatives. Former President Trump, who toyed with moving against it during his time in office, has pledged to end it on his first day in office if he returns to the White House, though experts say a president would lack that legal authority on their own.

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If passed, Gaetz’s legislation would deny automatic citizenship at birth to children born in the U.S. to parents who are not U.S. citizens, while “excluding aliens lawfully admitted as refugees or permanent residents or performing active services in the U.S. Armed Forces.” 

The bill claims birthright citizenship has "enabled an entire black market," citing estimates of 33,000 births to women on tourist visas annually, and "hundreds of thousands more" born to undocumented immigrants or those on temporary visas, "many of whom have misrepresented the purpose of their trip to avoid scrutiny."

It is not clear if the removal of birthright citizenship can happen through legislation. 

“Birthright citizenship has been grossly misapplied for decades, recently becoming a loophole for illegal aliens to fraudulently abuse our immigration system,” Gaetz said in a statement, adding that his bill shows “American citizenship is a privilege — not an automatic right to be co-opted by illegal aliens."

The Florida Republican, a member of the House Judiciary Committee, said the bill will “preserve the sanctity of American citizenship” and ensure citizenship is something that is “earned” from legal migration to the U.S.  

The bill comes as the Judiciary Committee is slated to question Homeland Secretary Alejandro Mayorkas on Wednesday regarding the agency’s operations and immigration in particular.  

Mayorkas says administration to announce plans to address expected border surge

Homeland Security Secretary Alejandro Mayorkas says the Biden administration is getting ready to announce a new border security plan to handle an expected surge of migrants when pandemic-era immigration restrictions lift May 11.

“I think next week we’ll have more to say about our preparation and some of the things we are going to be doing,” Mayorkas told reporters at the Department of Homeland Security headquarters on Thursday.

President Biden has come under steady fire from Republican lawmakers over his administration’s handling of the border. This week, Sen. Roger Marshall (R-Kan.) filed a vote of no confidence resolution against Mayorkas, saying his handling of the border is negligent.

“I stand at the ready to receive articles of impeachment from the House and conduct an impeachment trial in this body,” Marshall said at a Judiciary Committee hearing Tuesday. “But in the meantime, I think the Senate must show our colleagues in the House that we’ve had enough of the failures from the Department of Homeland Security and believe that the secretary is not fit to faithfully carry out the duties of his office.”

Illegal border crossings are expected to increase significantly starting in May once pandemic-era rules on immigration expire, most notably Title 42, which allows the U.S. to quickly turn away undocumented migrants without allowing them to seek asylum in the interest of public health.

“We’re certainly going to see numbers higher than we’re seeing today,” Border Patrol Commissioner Troy Miller said in a hearing Wednesday.

Miller cited U.N. statistics that an estimated 660,000 migrants are traveling through Mexico right now. He said the number of border crossings could nearly double to about 10,000 per day.

Mayorkas did not disclose what the new plan would be, but he said the department would prepare with additional bed space in migrant facilities.

Nearly 2 million migrants have been turned back from the border using Title 42. The Biden administration has come under fire from Democrats and activists who have said the measure does not provide border crossers with their right to seek asylum in the U.S.

The administration has attempted to overturn Title 42 in the past but ran into roadblocks in federal court and opposition from Republican lawmakers in border states. With the coronavirus pandemic officially over, the administration no longer expects any legal challenges.

Mayorkas said the department is considering a new rule to more easily deny asylum claims. Migrants who have not applied for asylum in other countries on their way to the U.S. or have crossed the border illegally would not be eligible for asylum. 

The rule is in the public comment period, and Mayorkas said Tuesday that there is not a specific date for implementation as of now.

Mayorkas was questioned by House and Senate lawmakers this week in hearings that saw him receive harsh criticism and some personal attacks.

Much of the criticism was focused on reports that a significant number of child migrants were placed with sponsors who forced them to work, sometimes through the night, at dangerous factories.

Immigration is expected to be a major issue in the 2024 election; Biden is expected to announce his reelection campaign in the coming days.

House Republicans turn southern border into second campus

Republicans are turning the U.S.-Mexico border into something of an extension campus for the House of Representatives.

A two-week recess kicked off a flurry of hearings and visits to the border by multiple GOP-led House committees, with more in the works.

Republicans are looking to place blame on the Biden administration for drug trafficking, national security and the humanitarian crisis as migrant encounters at the southern border remain near record highs.

And they think being on location will help build up public disapproval of Democratic policies.

Speaker Kevin McCarthy (R-Calif.) on Thursday visited the border in Cochise County, Ariz., with four freshman House Republicans who flipped Democratic-held seats in 2022: Reps. Juan Ciscomani (Ariz.), Lori Chavez-DeRemer (Ore.), Jen Kiggans (Va.), and Derrick Van Orden (Wis.).

Speaking from the property of a rancher with the border fence in the background — the location found by GPS coordinates rather than an address —  McCarthy said the GOP activity at the border is aimed at forcing Democrats to pay attention.

“The new majority in Congress, we're gonna fight to fix this problem. No longer will the Democrats be able to ignore the issue and act like it's not happening,” McCarthy said. “We will have hearings on the border. It’s the responsibility of all members to attend. Those who come to testify will come from both sides of the aisle.”

The House Energy and Commerce Committee investigations and health subcommittees held a joint field hearing in McAllen, Texas, on Wednesday, arguing President Biden’s border policies have contributed to a public health crisis with fentanyl deaths.

Next Thursday, the House Judiciary Committee will hold a hearing near the border in Yuma, Ariz. 

Members of the House Homeland Security Committee will go to El Paso, Texas, next week as part of a “border boot camp,” with a focus on educating freshman members on daily operations of Customs and Border Protection and the Texas Department of Public Safety, according to a committee source. It plans to hold a hearing at the border in March.

Rep. Mark Green (R-Tenn.), the new chair of the Homeland Security Committee, wants to hire full-time staff members based on the U.S.-Mexico border. After being selected as chair last month, he told reporters that those staffers will be “sending us real time updates” on issues at the border.

The House Oversight and Reform Committee, which held a hearing in Washington about the border earlier this month, also plans to travel south for oversight activity in the future.

Border hawks are pleased to see Republicans there in person.

“It's really common sense. It's what leaders do. They go to the heart of the crisis, whether it's a hurricane or tornado, a terrorist attack, it doesn't matter,” Mark Morgan, the former chief operating officer and acting commissioner of U.S. Customs and Border Protection during the Trump administration, told The Hill. “When you physically see it up close and personal, it changes your understanding. It changes your perspective.”

Morgan, who is now a visiting fellow at the conservative Heritage Foundation, talked about the emotional impact of seeing in person Border Patrol agents interact with migrants. And he criticized White House press secretary Karine Jean-Pierre for commenting last year that “it’s not like somebody walks over” the border.

“That is exactly what they do all day long,” Morgan said. "Had she spent 30 seconds at the border — 30 seconds — she would have seen … It would have changed her understanding; it would have changed her perception.”

But Democrats see the activities as little more than publicity stunts.

Rep. Raúl Grijalva (D-Ariz.), whose district encompasses parts of Cochise County, paid his own visit to the border Thursday and criticized the tenor of Republicans' focus on the border.

"I don't see this thing as serious, what McCarthy's doing, parachuting in, doing the photo-op, hanging out with the one rancher and Sheriff [Dannels], taking their word as Bible and moving on,” Grijalva told The Hill on Thursday.

Cochise County Sheriff Mark Dannels is a favorite witness on border issues for the GOP and a frequent guest on Fox News, but he has been accused by Democrats and immigration advocates of espousing an anti-immigrant agenda.

"I would have gone to the cities and the communities that are on the border. I would have him go and sit down with the people in Douglas, sit down with the people in Nogales, sit down with the people in San Luis and Somerton, sit down with the people in Naco, sit down with the people in Sasabe, sit down with the people that do business on that border, sit down with the families that have been there multi-generationally, sit down with them and talk about their needs and their perception of the border," Grijalva said. 

A White House spokesman on Wednesday dismissed McCarthy’s trip, saying “House Republicans should spend less time on partisan publicity stunts and more time working on solutions.”

And House Judiciary Committee Democrats will not attend next week’s hearing in Yuma.

Ranking member Jerry Nadler (D-N.Y.) and Immigration Integrity, Security, and Enforcement subcommittee ranking member Pramila Jayapal (D-Wash.) said in a joint statement Thursday that there was “no consultation” with Democrats on the hearing, and that many Democratic members had already committed to other congressional delegation trips.

They called it “a brazen act of political grandstanding,” adding, “as a result, Democrats, who have been to the border regularly the last few years, will not attend next week’s performative hearing. Additionally, Judiciary Democrats will conduct their own trip to the border next month where we will hear from the community and government officials on the ground."

The House Judiciary GOP said in a tweet that was “FAKE NEWS,” and Republicans had been in consultation with Democrats for weeks about the trip — sharing a video of comments from Chair Jim Jordan (R-Ohio) in the committee’s first meeting to make the minority aware of a planned trip to the border that week.

"They're just scared to face the harsh realities of the #BidenBorderCrisis,” the committee tweeted.

Also looming over the in-person border activities is the potential impeachment of Homeland Security Secretary Alejandro Mayorkas. Those calling for his impeachment argue that he has not achieved “operational control.”

McCarthy has not committed to impeaching Mayorkas, saying that impeachment will not be “political.” But in November, he called on Mayorkas to resign or face House GOP investigations — warning that it could lead to impeachment. 

But even as they try to draw attention to the border and take aim at Democrats, Republicans face internal disagreement over legislation to address immigration issues. GOP leaders had planned to quickly bring to the House floor a bill that would allow the Homeland Security secretary to turn away migrants in order to achieve “operational control” at the border. 

Objections from moderates like Rep. Tony Gonzales (R-Texas) over the legislation being “anti-immigrant” derailed that plan. 

Republicans are now working on border and immigration legislation that will go through a normal committee process.

“We've got a lot of ideas inside Congress. It’s different than the Congress before,” McCarthy said at the border Thursday. “We're just not going to write the bill and put it onto the floor. We're going to listen to the people that are on the border. We're going to listen to border agents. We want the very best ideas.”

Rafael Bernal contributed.

McCarthy tells Mayorkas to ‘stop lying’ about border

Speaker Kevin McCarthy (R-Calif.) took aim at Homeland Security Secretary Alejandro Mayorkas during a visit to the U.S.-Mexico border on Thursday, fueling an argument that could help lay the groundwork for a potential impeachment.

“This has got to stop. And it starts with the Secretary of Homeland. Stop lying to the American public. Tell them the truth what's happening, and change back the regulation that we had before so our border can be secure,” McCarthy said in a press conference from Cochise County, Ariz., with the border fence in the background.

McCarthy did not specify what he thought Mayorkas lied about, but Republicans have repeatedly dinged him for testifying in a congressional hearing last year that the border is secure.

The issue of whether there is “operational control” at the border is central to the argument from hard-line conservative House Republicans that Mayorkas should be impeached.

That term refers to the Secure Fence Act of 2006, a law that says operational control of the border means prevention “of all unlawful entries” to the United States.

McCarthy has not endorsed impeaching Mayorkas, but in November called on him to resign, saying that House GOP investigations will determine whether they can open an impeachment inquiry.

“What has changed from President Trump to President Biden? There has been no legislation change, but why has the border — why has this region gone from 66,000 people come across to 250,000?” McCarthy said.

The press conference took place on the private property of a rancher.

“His family has found 14 dead bodies on his ranch in just the last couple years,” McCarthy said. "Those are human bodies. He tells the story of his grandson smelling the body. That is different from a dead cow.”

“Why is that happening? Because the administration's policies that is allowing it to happen,” McCarthy said. “When you look at the gaps in the wall. Why are they there? Why are these lights wired but not working? Because we got a new president that said to stop it. We paid for the metal to go up but it's stored far away. There's gaps that allow it to come in. That’s wrong.”

The trip marks McCarthy’s first visit to the border as Speaker. He was accompanied by four freshman House Republicans who flipped Democratic-held seats in 2022: Rep. Juan Ciscomani (Ariz.), whose district includes parts of Cochise County; Lori Chavez-DeRemer (Ore.), Jen Kiggans (Va.), and Derrick Van Orden (Wis.).

“There are two people that can really have an immediate impact on the situation in this country, and that's President Biden and Secretary Mayorkas,” Ciscomani said. “They both have failed, and they have shown no interest in fixing this issue. So I invite him here to the border to see what we saw today. Talk to the people that we talked to today and realize what impact this is having in our communities.”

Ciscomani said that the purpose of the trip was not to discuss immigration reform, but to discuss border security.

“These are two different issues and we need to deal with them separately,” Ciscomani said.

McCarthy to lead congressional delegation to southern border

Speaker Kevin McCarthy (R-Calif.) is leading a congressional delegation to the southern border on Thursday, marking his first visit to the border since winning the gavel last month.

Republican Reps. Juan Ciscomani (Ariz.), Lori Chavez-DeRemer (Ore.), Jen Kiggans (Va.) and Derrick Van Orden (Wis.) — all first-term lawmakers — will accompany McCarthy on the trip. The group will be traveling within the Border Patrol's Tucson Sector, and they will be briefed and receive an aerial tour from U.S. Customs and Border Protection, according to McCarthy.

Ciscomani delivered the Republicans' State of the Union response in Spanish last week.

The trip comes a little more than one month after McCarthy won the Speakership in a 15-ballot election that forced him to give up a number of concessions to shore up support among the party’s right flank, including a floor vote on border legislation.

McCarthy made securing the border a key part of his agenda during the midterm elections, and in the lead-up to the Speaker race. In November, shortly after the midterms, McCarthy traveled to El Paso, Texas, and called on Homeland Security Secretary Alejandro Mayorkas to resign over his handling of the southern border — a gesture toward conservative Republicans who had been pushing for impeachment.

House Majority Leader Steve Scalise (R-La.) in December said the Border Safety and Security Act would pass in the first two weeks of the new Congress, but it has not yet come to the floor because of disagreements within the party.

The legislation would allow Mayorkas to turn away migrants in an effort to reach "operational control" at the border. Some lawmakers, however, have raised concerns about the limits it would place on asylum.

Some Republicans have been adamant about impeaching Mayorkas. Earlier this month, GOP lawmakers filed a second bill to impeach the secretary. Rep. Andy Biggs (R-Ariz.) called Mayorkas the “chief architect of the migration and drug invasion at our southern border.”

McCarthy has on a number of occasions said he will not use impeachment for political purposes, vowing to launch an inquiry if a reason presents itself. He reiterated that stance last week.

“We will never use impeachment for political reasons. It's just not going to happen,” McCarthy said during a press conference when asked about a potential timeline for impeachment. “That doesn't mean if something rises to the level [of] impeachment, we would not do it.”

Last week, the Department of Homeland Security hired a law firm to help respond to a potential impeachment of Mayorkas.

Senate stares down immigration fight

A bipartisan group of senators attempting to craft an immigration compromise have an arduous task ahead of them: finding a deal that can attract the support of Democrats, moderate Republicans and the hard-line conservatives who have newfound power and influence in the House. 

Ten senators last week visited multiple spots along the border for an up-close look at the issues consuming the immigration system. President Biden also traveled to El Paso, Texas, the epicenter of what members on both sides of the aisle describe as a crisis. 

Despite that agreement, lawmakers must navigate the tricky contours of the politics of immigration — an issue that’s famously difficult to get agreement on while also serving as a key talking point in recent presidential elections.

That’s not deterring talks among those in the Senate, however.

"This is going to take months to potentially get to something that we could get the support in the House. We can't simply, because it’s politically difficult, say we can't touch it this Congress," Sen. Thom Tillis (R-N.C.), one of those that made the border trip, told The Hill. 

Tillis and Sen. Kyrsten Sinema (I-Ariz.), who was also among those at the border last week, made a last-minute attempt last year to win support for a narrow proposal that would have allocated tens of billions of dollars to border security and processing asylum requests while also handing "Dreamers" — those brought to the U.S. as children without authorization — a long-awaited path to citizenship.

But that push — which consisted of a framework and not a bill — was too little, too late.  

Tillis and Sinema’s attempt at bipartisan compromise may have been the last chance for the foreseeable future for Congress to take action, despite both parties in Congress and the White House acknowledging the problem. 

Any deal that could emerge from the Senate — meaning with the support of at least nine Senate Republicans — would likely earn resistance from far-right members of the GOP-controlled House.

“It's harder because the politics have gotten even harder for Republicans to get to ‘yes,’” said Alex Conant, who served as press secretary for Sen. Marco Rubio (R-Fla.) during the “Gang of Eight” immigration fight in 2013. “You look at the political fallout for those involved in the 2013 deal, and how a lot of Republicans have been able to use immigration to win nominations since then, it's an issue that Republicans are very wary of getting on the wrong side of.”

Since the 2013 comprehensive immigration reform package failed, the politics of the topic has only hardened on the right and the voices have gotten louder. Adding to the troubles is that members are heading into a presidential election cycle and are hesitant to deliver any wins for Biden, especially on a topic that matters this much to the base. 

Many House Republicans made immigration a central issue and some are already talking about impeaching Homeland Security Secretary Alejandro Mayorkas. Rep. Pat Fallon (R-Texas) filed articles of impeachment against the secretary last week. 

And on Wednesday, Rep. Andy Biggs (R-Ariz.) and Sen. J.D. Vance (R-Ohio) sent a letter pressing Mayorkas for answers about border issues, writing that “administration cannot continue its erosion of the southern border and its mass-parole of migrants into our country.”

“It’s been a steep hill — steep and tall — for 40 years. That’s why nothing’s gotten done. So this is just a different dynamic,” said Tillis, who blamed the “talking heads” in part for scuttling his efforts with Sinema last year. “I don’t think it’s fair to blame this Congress. This Congress could be the first one since leisure suits were popular to do something on immigration.”

Tillis, who has become a key player in bipartisan negotiations on myriad topics in the past two years, said he is expected to discuss a path to passage of immigration reform with Speaker Kevin McCarthy (R-Calif.) and House Freedom Caucus members. 

Some political observers believe the impetus for a deal could be simple: The situation at the border now is worse than it was a decade ago as monthly encounters with migrants are near record highs.

One Senate GOP aide added that the road to a bipartisan, bicameral deal is “difficult but not impossible.” 

“Details will really matter, though,” the aide said. “At the very least, it’s good to finally see a substantive bipartisan acknowledgement that there’s actually a problem at the border.”

Legislation that passes muster with both chambers, however, would need to overcome another complicating factor in the House: McCarthy, as part of the deals he struck to become Speaker, empowered a far-right contingent of his party and handed them an easier procedural avenue to oust him, just as they did former Speaker John Boehner (R-Ohio) in 2015 — two years after Boehner refused to bring the “Gang of Eight” bill to the floor for a vote. 

“I don't think it's this,” one conservative Senate aide told The Hill about McCarthy’s lack of willingness to complicate his standing as Speaker over a Senate-negotiated immigration bill. 

“What [former President Trump] showed was you can run on a pretty hard-line immigration stance and win on it,” the aide continued. “I don't think they get there without something Democrats can't stomach.”

For now, all eyes are on the Senate to see how it proceeds, though it all comes down to what McCarthy and House conservatives could accept.

“Now we have a gavel,” Tillis said. “And when you have a gavel, you have to govern.”

GOP divided in rush to impeach Mayorkas

Tensions are rising in the GOP House over how to tackle a topic many back enthusiastically: impeaching Department of Homeland Security (DHS) Secretary Alejandro Mayorkas.

Republicans are largely unified in opposition to the secretary, but while some want to go full bore right away, others see fast-track impeachment as a mistake, warning that it's important to build their case before the public.

“We made the argument that impeachment was rushed — the second impeachment — and I think that's not who we are as a party,” said Rep. Michael McCaul (R-Texas), a former prosecutor, in reference to the second impeachment of former President Trump.

McCaul said it's the committees of jurisdiction that should be leading the inquiry.

“We need to have hearings on this and we need to gather evidence and facts and, look, do I think the guy has done a terrible job? Yes,“ McCaul said. “Do I think he's been derelict in his responsibilities? Yes. But we need to get all this together, and do it in a methodical way.”

In some corners, Republicans are lining up at the chance to impeach Mayorkas.

After Rep. Pat Fallon (R-Texas) filed articles of impeachment against the secretary this week, Rep. Andy Biggs (R-Ariz.) quickly pledged his own resolution while suggesting he was the one who had actually taken the impeachment action first.

“I was the first Member of Congress to introduce impeachment articles against DHS Secretary Alejandro Mayorkas in 2021,” Biggs wrote on Twitter. “I will reintroduce these articles with even more justification very soon.”

Balancing the different interests will be another challenge for Speaker Kevin McCarthy (R-Calif.), who has signaled he supports a deliberate approach.

“House Republicans will investigate every order, every action. And every failure will determine whether we can begin impeachment inquiry,” he said in November, during a trip to the border.

Twenty lawmakers have signed on to Fallon’s resolution. While he said he doesn't want to preclude any investigation, Fallon wants to prompt his colleagues to start them immediately. 

“I think it's of vital import to get the ball rolling immediately. Because this is an emergency. This is break glass. This is something that we can't just sit around any longer and say, ‘Well, we'll do it in a month, we'll take it up in four months.’ Let's take it up right now,” he told The Hill.

Building a case for Mayorkas’s impeachment may not be as easy as some of his critics think.

For example, Fallon argues that Mayorkas lied to Congress in two different appearances, when saying both that the Biden administration has maintained operational control of the border and that the border is secure. 

Both points are largely a matter of opinion; impeachment statutes are typically reserved for “high crimes and misdemeanors.”

“Impeachment is a very serious topic, and it's one where the facts need to lead you to the results, not have a predetermined decision,” said Rep. Tony Gonzales (R), who represents the Texas district with the longest shared border with Mexico.

Homeland Security officials, so far, have not assigned staff to deal with potential impeachment inquiries.

“Secretary Mayorkas is proud to advance the noble mission of this Department, support its extraordinary workforce, and serve the American people.  The Department will continue our work to enforce our laws and secure our border, while building a safe, orderly, and humane immigration system," said Marsha Espinosa, a spokesperson for DHS.

“Members of Congress can do better than point the finger at someone else; they should come to the table and work on solutions for our broken system and outdated laws, which they have not updated in over 40 years,” she added.

Ultimately, Republicans who support impeachment and those who oppose it will have to make their case to McCarthy and his leadership team, who will weigh the costs and benefits of spending political capital on a historic measure with scant chances in the Senate.

Impeaching Mayorkas in the House would require a majority vote. In the Senate, a two-thirds majority would be necessary to win a conviction — a high bar.

Only one Cabinet member has been impeached in history — former President Grant’s secretary of war, William Belknap, who was accused of taking kickbacks from a contractor he appointed to run the trader post in Fort Sill, Okla. Belknap resigned before facing an almost-certain Senate conviction, a fate that's unlikely to play out with Mayorkas.

Other Republicans who spoke with The Hill stressed the need to go through the proper oversight channels, rather than leap into impeachment.

House Homeland Security Committee Chairman Mark Green (R-Tenn.), whose panel would be among those with jurisdiction over Mayorkas’s impeachment, was animated when he spoke about the opportunity to remove the DHS chief, pushing their own coming investigation.

“We're going to hold him accountable. That's what we're going to do. We're going to have hearings and dig into what I would say is dereliction of duty,” he said.

“All I can speak about is what we're going to do in the committee and that is a five-phased approach of tackling the fight.”

Rep. Chip Roy (R-Texas) said the GOP needed to handle the matter in “the appropriate way.”

“I've been very public about my belief that he has violated his oath, that he has undermined our ability to defend our country,” he said.

“But I'm on the House Judiciary Committee in the majority now and so I'm going to talk to [Chair] Jim [Jordan] (R-Ohio) and talk to people on that committee to make sure that we're going through this and looking at it in the appropriate way.” 

Rep. Dan Crenshaw (R-Texas), who was initially by McCarthy’s side for the November border trip as he stressed an eventual inquiry, has signed onto Fallon’s resolution as a co-sponsor, saying he believes Cabinet secretaries can be impeached over their policies.

“People argue about this legally, you can impeach a president because you just don't like his policies. In theory that could be considered a high crime or misdemeanor according to the current legal analysis,” he said.

“I just decided I agree with Fallon. That's basically as simple as I can put it.”

Texas Republican files articles of impeachment against Mayorkas

A Texas Republican has filed articles of impeachment against Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, wasting little time in the new Congress to act on a GOP priority leadership has said would come after thorough investigation.

Rep. Pat Fallon (R-Texas) filed the paperwork for the resolution on Jan. 3, the first day of the 118th Congress, though with delays in securing a House Speaker, the document was officially filed late Monday.

The resolution claims Mayorkas “engaged in a pattern of conduct that is incompatible with his duties,” complaining that he has failed to maintain operational control over the border.

The resolution comes amid a busy week in the Biden administration. President Biden visited the border over the weekend for the first time since taking office, pledging to deliver more resources to the officers who patrol the region.

And Mayorkas is in Mexico this week, meeting with officials there on a variety of issues, including the shared migration agreement rolled out by the Biden administration last week.

Mayorkas is also due to discuss coordination on transnational crime with Mexican authorities.

Fallon’s resolution won’t move without further action from GOP leadership, but it would otherwise jump-start a process House Speaker Kevin McCarthy (R-Calif.) has treaded carefully on.

“House Republicans will investigate every order, every action and every failure will determine whether we can begin impeachment inquiry,” McCarthy said at a press conference in El Paso, Texas, in November.

Still, impeachment charges against Mayorkas were all but certain under Republican control of the House, as the DHS secretary has been a constant foil for the party during the Biden administration.

Republicans claim that under Biden, the DHS has dismantled the border security apparatus built under former President Trump, leading to border chaos.

The primary basis for the articles of impeachment is the claim that Mayorkas lied to Congress — a case they back by pointing to two instances in which the secretary told lawmakers he believed the Southern border was under control.

“His willful actions erode our immigration system, undermine border patrol morale, and imperil American national security. He must be removed from office,” Fallon said in a release.

DHS said Tuesday that Mayorkas has no plans to resign and argued that the grounds for impeachment pointed to by the GOP were both inaccurate and failed to meet the standards to qualify as high crimes and misdemeanors.

“Secretary Mayorkas is proud to advance the noble mission of this Department, support its extraordinary workforce, and serve the American people. The Department will continue our work to enforce our laws and secure our border, while building a safe, orderly, and humane immigration system,” Assistant Secretary for Public Affairs Marsha Espinosa said in a statement.

“Members of Congress can do better than point the finger at someone else; they should come to the table and work on solutions for our broken system and outdated laws, which they have not updated in over 40 years.”

Most border and immigration analysts agree that increased migration due to security, economic and governance conditions in the Western Hemisphere is the primary reason for the high number of migrants encountered at the border.

Attorney General Merrick Garland, left, and Homeland Security Secretary Alejandro Mayorkas speak before a meeting with President Joe Biden and Mexican President Andres Manuel Lopez Obrador at the National Palace in Mexico City, Mexico, Monday, Jan. 9, 2023. (AP Photo/Andrew Harnik)

And Mayorkas has taken flak both from the right and the left, as the DHS has maintained many of the Trump administration's border policies, which immigrant advocates say violate human rights.

Still, Republicans see the border as a winning issue for them, and Mayorkas is the Biden administration's face on that issue.

Mayorkas, the first Latino to ever hold that post, has often butted heads with congressional Republicans at oversight hearings.

In April, Mayorkas clashed with Republicans on the House Judiciary Committee, including a notable exchange with Rep. Matt Gaetz (R-Fla.) over the agency's record on deportations from the interior of the country.

That combative exchange could set the tone for impeachment proceedings.

The potential for a political circus is concerning for Republicans fresh off a nationally televised Speaker's race that highlighted divisions in the party.

Some Republicans have expressed reservations about going after Mayorkas without careful study. 

“You’ve got to build a case. You need the facts, evidence before you indict,” Rep. Michael McCaul (R-Texas).

“Has he been derelict in his responsibilities? I think so,” he added.

—Updated at 5:15 p.m.

McCarthy calls on DHS Secretary Mayorkas to resign, threatens impeachment inquiry

House Minority Leader Kevin McCarthy (R-Calif.) called on Homeland Security Secretary Alejandro Mayorkas to resign over his handling of the U.S.-Mexico border, saying that GOP lawmakers will consider impeachment next year if he does not step down.

“If Secretary Mayorkas does not resign, House Republicans will investigate, every order, every action and every failure will determine whether we can begin impeachment inquiry,” McCarthy said at a press conference in El Paso, Texas, on Tuesday.

McCarthy cited the Department of Homeland Security head's statements to Congress that the border is under control, record border crossing numbers and his ending of the "Remain in Mexico" asylum policy instituted during the Trump administration as reasons for resignation.

“Our country may never recover from Secretary Mayorkas’s dereliction of duty,” McCarthy said.

The comments from the minority leader are his strongest words on impeachment to date, but they fall short of a promise to bring up articles against Mayorkas.

McCarthy was nominated by House Republicans to serve as Speaker in the next Congress last week during a closed-door vote.

But he still faces opposition from hard-line conservatives, who called on him to be more aggressive on topics including the impeachment of Biden administration officials and President Biden himself.

Rep. Andy Biggs (R-Ariz.), the former chairman of the House Freedom Caucus, mounted a last-minute protest challenge to McCarthy for Speaker, citing the minority leader's lack of commitment to impeach Mayorkas. Biggs has previously introduced articles of impeachment against the administration official. He won 31 votes in the secret-ballot House Republican Conference meeting, while McCarthy received 188.

McCarthy needs support from a majority of those voting for a Speaker candidate on the House floor on Jan. 3 in order to be elected to the post.

But Republicans won a narrow majority in the 2022 midterms, and McCarthy has little wiggle room for error on that vote. A few Republicans, including Biggs, have indicated that they will not vote for him.

The press conference with other House GOP members came after a day of touring the U.S.-Mexico border and meeting with border officials.

McCarthy said that Republican Reps. Jim Jordan (Ohio) and James Comer (Ky.), the likely chairs of the House Judiciary and Oversight Committees next year, “have my complete support to investigate the collapse of our border, and the shutdown of ICE enforcement.”

“Leader McCarthy is right. Americans deserve accountability for the unprecedented crisis on the southwest border. Republicans will hold Secretary Mayorkas accountable for his failure to enforce immigration law and secure the border through all means necessary,” Jordan, who would oversee impeachment proceedings if they occurred, said in a statement distributed during the press conference.

Republicans made a pledge to investigate the Biden administration’s border and migration policies a key part of their midterm campaign message, and Comer has long said he will hold hearings about the border. House Minority Whip Steve Scalise (R-La.) joked in September that the House GOP would give Mayorkas a reserved parking spot because he would be testifying so often.

Mayorkas, who has no plans to resign, pushed back on Congress in a statement issued shortly after McCarthy's speech.

“Secretary Mayorkas is proud to advance the noble mission of this Department, support its extraordinary workforce, and serve the American people. The Department will continue our work to enforce our laws and secure our border, while building a safe, orderly, and humane immigration system,” the Department of Homeland Security said in a statement.

“Members of Congress can do better than point the finger at someone else; they should come to the table and work on solutions for our broken system and outdated laws, which have not been overhauled in over 40 years,” the statement continued. 

In appearances before Congress last week, Mayorkas maintained that the border is under control, but he acknowledged that the fiscal year ending in September showed that a record 1.7 million migrants attempted to cross the Southwest border.

“The entire hemisphere is suffering a migration crisis. We are seeing unprecedented movement of people from country to country,” he said.

He also pledged to look for new ways to restrict immigration now that a federal court has struck down Title 42, which allowed the agency to quickly expel migrants without seeking asylum due to public health concerns.

Mayorkas said the department is currently evaluating how to expel Venezuelans at the border, a group that makes up a large part of migrants coming to America given the political and economic instability there.

The latest calls for Mayorkas to resign come shortly after U.S. Customs and Border Protection Commissioner Chris Magnus resigned from his position after being asked to do so by President Biden.

McCarthy first appeared to open the door to impeachment of Mayorkas at another press conference in April. 

“This is his moment in time to do his job. But at any time if someone is derelict in their job, there is always the option of impeaching somebody,” McCarthy said at an April press conference in Eagle Pass, Texas.

But he later tamped down expectations for impeachment, saying that he does not want the procedure to be political as he claimed Democrats' impeachment of former President Trump was. McCarthy reiterated that sentiment on Tuesday in El Paso.

“We never do impeachment for political purposes. We’re having investigation,” McCarthy said. 

“We know exactly what Secretary Mayorkas has done. We've watched across this nation, something that’s never happened before. We watched him time and again before committee say this border is secure, and we can't find one border agent who agrees with him,” McCarthy said. “So we will investigate. If investigation leads to impeachment inquiry, we will follow through.”

Rebecca Beitsch contributed.