It was a revealing moment in an otherwise predictable show of vague deflections that has become the kind of performance art required for Cabinet nominees to make it through the Senate confirmation gauntlet.
Alejandro Mayorkas, Joe Biden’s nominee to lead the Department of Homeland Security, was asked Tuesday what message he wanted to send to the thousands of immigrants traveling in a caravan through Central America in hopes that a new president would welcome them into the United States and turn the page on President Trump’s restrictive immigration policies that sought to keep them out.
Changes to Trump’s border policies “cannot be accomplished with a flick of a switch on day one,” said Mayorkas, who would become the first Latino and first immigrant to head the agency. “It will take time to build the infrastructure capacity so we can enforce our laws.”
But what Mayorkas means by enforcing U.S. immigration laws is far different from the Trump administration’s definition. Each member of any caravan attempting to cross into the United States would be evaluated separately on whether their case for asylum meets the law’s definition, he told the Senate Homeland Security Committee. This is a dramatic shift from Trump’s policy that aimed to prevent the large groups travelling from Central America from crossing into the United States at all.
Biden has promised a swift reversal of Trump’s policies of cracking down on illegal immigration and his efforts to fulfill a 2016 campaign promise to build a massive, sprawling wall along the U.S.-Mexico border. During his first days in office, Biden will ask Congress to provide a pathway to citizenship for an estimated 11 million immigrants already in the country illegally. Biden also will announce plans to pause wall construction until further review and new protections for immigrants who were brought to the U.S. as children and are beneficiaries of the Deferred Action of Childhood Arrivals, or DACA, policy, one of 15 executive actions Biden will announce after being sworn into office Wednesday.
Mayorkas, who served as deputy DHS secretary under President Obama, faced questions about his ability to lead the massive agency responsible for border security, immigration enforcement, cybersecurity and counterterrorism, less than two weeks after the U.S. Capitol was breached by a mob of Trump supporters who broke through doors and threatened lawmakers.
He promised to do everything he can to prevent such a violent attack from happening on his watch and to gather information on extremist threats in “an apolitical, nonpartisan way.”
But Mayorkas, 61, first must be confirmed by the Senate, something Biden wanted to fast-track. That hope looked far less likely after his initial confirmation hearing Tuesday.
Sen. Josh Hawley, a Republican from Missouri, announced Tuesday that he would place a hold on Mayorkas’ nomination, a parliamentary procedure that can delay but not outright block his confirmation.
Because the Senate is split 50-50 between Democrats and Republicans, with incoming Vice President Kamala Harris presumably breaking any tie votes, Mayorkas’ confirmation is likely only a matter of time. But Republicans can stall the nomination for weeks while focusing on vulnerabilities in Mayorkas’ record -- or policy differences with the news administration.
“I cannot consent to skip the standard vetting process and fast-track this nomination when so many questions remain unanswered,” Hawley said in a statement issued after Tuesday’s hearing.
Mayorkas readily shot down one pointed GOP line of questioning: He pledged not to try to abolish the Immigration and Customs Enforcement agency, countering what has become a rallying cry for some liberal opponents of Trump’s immigration policies.
But the first-generation Cuban was far more circumspect in his answers to most of the questions from Republicans, responding that he would study the existing policies before announcing a change, including the pandemic-era restrictions put in place by Trump that allows officials to immediately deport most illegal immigrants arriving at the southern border.
Throughout the hearing, Mayorkas highlighted his Cuban and Jewish heritage. “My father and mother brought me to this country to escape communism,” he told the committee. “I was raised to appreciate each day what this country has meant to our family,” he said, later explaining that he is particularly sensitive to anti-Semitism because his mother lost to relatives during the Holocaust.
Hawley’s objections to Mayorkas policy responses wasn’t the only source of Republican skepticism. Sen. Rob Portman, Ohio moderate who will serve as the committee’s ranking GOP member, questioned the nominee’s handling of an investor visa program during his time leading the U.S. Citizenship and Immigration Services agency, a division of DHS, during the Obama administration.
When Mayorkas was up for a promotion at DHS back in 2013, every Republican senator boycotted his confirmation hearing and voted against him. Mayorkas was confirmed by Democrats on a straight party-line vote.
At the time, Mayorkas was under investigation by the DHS Inspector General John Roth, a respected watchdog appointed by Obama to help clean up the department. Roth issued his final report in 2015, finding that Mayorkas improperly intervened to help the business interests of prominent Democrats, including some with ties to then-Senate Majority Leader Harry Reid, Hillary Clinton’s brother Anthony Rodham, and former DNC chief and Virginia governor Terry McAuliffe.
Mayorkas defended his intervention Tuesday, arguing that it was not providing preferential treatment but simply a good faith effort to improve the investor visa program that was supposed to help create U.S. jobs but instead had long been plagued by problems. Mayorkas said the three specific cases the IG report focused on were a tiny fraction of the hundreds that were handled at the request of senators and House members. “It is my job to become involved, to learn the problems that an agency confronts and to fix them,” he testified. “And that’s what I did in this case, and the many cases that came before me.”
Republicans, however, remain highly critical of the intervention, which Roth characterized as creating an appearance of improper preferential treatment for powerful Democrats. The IG report also noted the unusually large number of whistleblowers who came forward to complain both about Mayorkas intervention in the cases as well as his aggressive leadership style.
“Mr. Roth told me the report holds up today, and he continues to stand behind it,” Portman noted.
Other Republicans directly involved in investigating the complaints against Mayorkas, dating back to 2012, said Mayorkas’ role made problems with the EB-5 visa program worse.
“For years, including during Mr. Mayorkas’ tenure at DHS, the EB-5 program was susceptible to fraud and abuse. But rather than fixing those issues, the IG found that Mr. Mayorkas gave preferential treatment to some visa applicants over others,” Sen. Chuck Grassley, an Iowa Republican, told RealClearPolitics in a statement. “The IG noted that this favoritism prompted an unusually broad array of whistleblower complaints. That brand of leadership isn’t good for agency culture or the security of our nation.”
Sen. Mitt Romney, the only Republican to vote to impeach Trump in early 2020, was one of Mayorkas’ toughest critics during Tuesday’s hearing. Romney told the nominee he was disappointed in his responses to an earlier question about the lessons he learned from the IG investigation – that he did not pledge to recuse himself from future interventions that could be viewed as political favoritism.
“Is that not the appropriate action to take when something has the very distinct appearance of political favoritism?” Romney asked.
“For me to recuse myself from the program in its entirety would have been for me to abdicate my responsibility,” Mayorkas replied.
That response earned an even sharper rebuke from Romney.
“Oh, of course. I’m only suggesting with regard to when an individual who happens to be a leading Democrat would call you, that that meant, ‘Holy cow, I gotta step back.’”
Mayorkas then attempted to refine his response. He argued that, on one hand, he thought it was important to be “responsive” to lawmakers’ requests to intervene in certain cases but acknowledged that he and other officials instituted “guardrails” to better protect against “the appearance of” favoritism after the IG report’s findings.
“I did in fact learn, senator, how to better guard against that perception,” Mayorkas responded. “And I agree with you 100% that it is our obligation to guard against that perception so there is trust and confidence in the decision-making of government leaders.”