Read the Articles of Impeachment Against Alejandro N. Mayorkas

1

The Constitution gives Congress the power to impeach and remove officials who are found to have committed “treason, bribery or other high crimes and misdemeanors.” Democrats and many legal experts argue that Mr. Mayorkas’s actions do not meet this standard. He would be the first sitting cabinet secretary to be impeached.

2

This introductory language laying out the articles of impeachment is identical to sentences that appear in impeachment resolutions against past presidents and the only other cabinet member to be impeached: William K. Belknap, the secretary of war under President Ulysses S. Grant, who resigned just before the House impeached him after uncovering ample evidence of corruption.

3

There is little argument that Mr. Mayorkas has presided over the unlawful entry into the United States of millions of migrants who have been allowed to stay in the country without authorization. The question is whether that amounts to a constitutional crime on his part. Republicans argue that it does, while many of the conservative legal scholars who have criticized this impeachment say it does not.

4

Republicans’ central accusation against Mr. Mayorkas is that he failed to enforce the laws he is charged with implementing. It is an unusual use of the impeachment power, which in the past has been used against presidents or officials who are accused of offenses. Examples include the charge against former President Donald J. Trump for inciting insurrection on Jan. 6, 2021, or those against Mr. Belknap, who was found to have accepted kickbacks, among other corrupt actions.

5

“Shall be detained” language appears periodically in the Immigration and Nationality Act, which Republicans point to as evidence that Mr. Mayorkas violated the law mandating the detention of migrants. But the statute gives the president and the homeland security secretary broad discretion to prioritize who is detained and explicit power to grant parole, which allows migrants to live and work temporarily in the country. The Biden administration and many others have used these authorities, especially when there is a shortage of detention space and backlogs in the immigration courts that make detaining all — or even most — unauthorized entrants impossible.

6

Part of the difficulty of complying with detention mandates is that backlogs in the system quickly overload available resources. At its peak, the detention system could hold about 55,000 migrants. That was in 2019, when the Trump administration was criticized for detaining them in overcrowded, unsanitary and dangerous conditions. Currently, applying for asylum can take years. A bipartisan deal in the Senate, which Mr. Mayorkas helped broker, seeks to reduce that timeline to no longer than six months. But Republicans have turned against it, most likely dooming its chances.

7

“Catch and release” has become Republicans’ preferred term to describe the practice of allowing migrants into the United States pending their court appearances. Republicans argue that the administration cannot guarantee that migrants, once released,show up again for their court dates or comply with removal orders.

8

The delay in deporting people often comes down to resources, including not only a lack of available detention space, but also putting migrants on flights to their home countries.

9

During their brief impeachment proceedings, Republicans on the House Homeland Security Committee featured witness testimony from a mother whose daughter was killed by a migrant who was allowed to enter the United States despite having ties to the Salvadoran gang known as MS-13.

10

In this case, Texas and Louisiana sued Mr. Mayorkas over policies that they said undermined federal law ordering that certain migrants “shall” be detained. The indictment quotes from the 2022 appeals court ruling that was eventually challenged before the Supreme Court, which ruled 8 to 1 last year that the states lacked the standing to challenge Mr. Mayorkas’s policy.

11

The focus on the guidelines Mr. Mayorkas issued in 2021 — particularly as it applies to migrants with a criminal record — has been a major rallying cry for Republicans as they charge Mr. Mayorkas with willfully undermining laws and endangering the United States. The guidelines are an exercise of discretionary authority that has been employed by multiple administrations to prioritize the deportations of migrants with the most serious criminal records.

12

This is referring to group-based parole programs that the administration has set up to let people fleeing war-torn countries, like Afghanistan and Ukraine, or certain economically ravaged countries to live and work in the United States temporarily. The Biden administration has expanded the number of such programs available, which House Republicans argue is an abuse of the president’s power under immigration law to parole people into the country on humanitarian or public benefit grounds. But the practice is not new. Presidents Trump, Barack Obama and George W. Bush also put in place group-based parole programs to assist certain categories of migrants.

13

This goes to the heart of the discretionary authority that successive administrations have employed to prioritize which migrants should be first in line for removal. Mr. Mayorkas’s 2021 guidelines laid out a strategy similar to those of previous administrations, which prioritized using limited resources to deport the most dangerous migrants before those with lesser or older offenses on their records.

14

Earlier in the Biden administration, some migrants were released into the country with notices to report to immigration enforcement officers — a practice that led to a lawsuit in Florida, referred to as part of this charge. The department eventually replaced the practice by paroling migrants into the country with some alternative to detention, such as an ankle bracelet or a phone to check in with the authorities. In recent months, the department has switched to another practice, of issuing notices to appear in court, instead of using parole authority.Republicans say these are all means of skirting statutory mandates to detain migrants, as well as negative court rulings. Democrats say they are necessary crowd control maneuvers to alleviate pressure on Customs and Border Patrol processing centers.

15

The strain that the migrant surge has put on cities, including those run by Democrats, has put pressure on President Biden to take more proactive steps to crack down on border crossings. Mr. Biden has said that he needs Congress to pass legislation to give him the tools to shut down the border.

16

Republicans have blamed Mr. Mayorkas for fatalities at the border. Democrats have countered that the casualties are regrettable evidence of the desperation of migrants trying to cross the border and an argument in favor of Mr. Mayorkas’s efforts to deal with them humanely.

17

Republicans and Democrats have agreed that the standard for migrants claiming a credible fear of persecution if returned to their home countries needs to be changed to ensure that fewer frivolous asylum claims are made. The bipartisan Senate deal would raise the bar for claiming such a fear and seek to reduce the processing time for asylum applicants to no more than six months.

18

Republicans have frequently blamed Mr. Mayorkas for the fentanyl epidemic. Democrats have countered by pointing out that the Biden administration has seized more fentanyl than the past administration. And data shows that the bulk of fentanyl is seized at ports of entry, where most migrants cross legally — not between ports of entry, where the bulk of unlawful migration is taking place.

19

Republicans have highlighted episodes of the department reassigning federal officials to assist with border processing to charge that Mr. Mayorkas is intentionally leaving the country exposed to danger. Democrats have argued that it is evidence the department needs more resources to hire adequate personnel to deal with the migrant surges.

20

Republicans have interpreted this part of the ruling, as well as a dissenting opinion from Justice Samuel A. Alito Jr. that suggested the court’s ruling meant “withholding funds, impeachment and removal” were the only tools left to Congress to force the department to uphold the law, as the court rolling out the red carpet for this impeachment inquiry. Democrats have argued that Congress has plenty of other tools, such as their ability to make laws regarding enforcement, to improve border security.

21

Republicans say this charge stems from a five-part investigation they conducted into Mr. Mayorkas’s border policies before they started impeachment proceedings. They say they requested documents Mr. Mayorkas never produced. The Department of Homeland Security maintains that they have provided tens of thousands of pages of documents to the panel, in compliance with the requests.

The two sides have also disputed whether Mr. Mayorkas was given adequate opportunity to testify in the panel’s impeachment proceedings, which lasted less than a month. The panel never subpoenaed Mr. Mayorkas for his testimony and rescinded an invitation to have him testify in person when the two sides ran into a scheduling dispute.

22

Mr. Mayorkas testified that the Afghan arrivals go through a painstaking vetting process. In the report that accompanies these charges, Republicans point to inspector general findings that the department did not always have all the required data, and therefore probably let people into the country who had not been fully vetted.

23

This charge goes back to a hearing in 2022 when Mr. Mayorkas testified that his agency had “operational control” of the border. Republicans accuse him of lying, citing the 2006 Secure Fence Act, which defines operational control as the absence of any unlawful crossings of migrants or drugs, which no administration has ever achieved.

Mr. Mayorkas has since explained that he was referring to a lower standard used under Border Patrol policy, which defines operational control as “the ability to detect, respond and interdict border penetrations in areas deemed as high priority.”

24

Republicans have accused Mr. Mayorkas of promoting in a series of public appearance a narrative that Border Patrol agents whipped migrants trying to cross the Texas border, though a review of the episode found thatwhipping had not occurred. Mr. Mayorkas later corrected the record to reflect the findings of the review.

25

This is a reference to Trump-era policy more commonly known as Remain in Mexico, which required many migrants to wait on the Mexican side of the border for their immigration court dates. The Biden administration ended the practice in 2021, one of many moves Republicans cite as having contributed to a surge of migration that followed.

26

Democrats and immigration experts have pointed to this provision as evidence of the overreach of the impeachment articles against Mr. Mayorkas. Asylum cooperative agreements are not under the purview of the Department of Homeland Security, but the State Department — meaning it was Secretary of State Antony J. Blinken and not Mr. Mayorkas who terminated them.