DHS Secretary Mayorkas has violated oath of office, must be impeached, Heritage Foundation argues

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Rep. Andy Biggs on calls to impeach Secretary Mayorkas: ‘We cannot go another two years’

Member of House Oversight and Judiciary committees member Rep. Andy Biggs, R-Ariz., says he expects the Judiciary Committee to discuss the rising number of ‘gotaways’ and new parole programs this week.

EXCLUSIVE: Secretary of Homeland Security Alejandro Mayorkas has violated his oath of office and must be impeached, according to a new report first seen by Fox News Digital.

The Heritage Foundation, a prominent conservative think tank based in Washington, D.C., released the blistering assessment of Mayorkas' tenure as Republican lawmakers introduce articles of impeachment for him and investigate his handling of the nation's borders.

According to the report's authors — Lora Ries, Steven Bradbury and Hans von Spakovsky — such actions from Congress are exactly what should happen.

"By his policy decisions and misconduct as secretary of homeland security, [Mayorkas] has violated his oath of office, abused the powers of his office, and betrayed the trust of the American people," the report states. "As a direct result of his actions, the U.S. has become gripped by an unprecedented border, national security, and illegal immigration catastrophe."

Homeland Security Secretary Alejandro Mayorkas speaks during the U.S. Conference of Mayors 91st Winter Meeting on Jan. 19, 2023, in Washington, D.C. (Drew Angerer/Getty Images)

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"For these violations, abuses, depredations, and betrayals," the paper continues, "Secretary Mayorkas deserves to be impeached, removed from office, and disqualified from holding any further office of honor, trust, or profit under the United States."

It has been more than a century since a cabinet secretary has been impeached. However, Heritage argues that precedent should be broken because Mayorkas is, they claim:

• Deliberately defying and contravening the laws he's charged with faithfully executing
• Abusing his power by, among other conduct, enticing illegal immigrants to enter the U.S. across the southern border
• Betraying the trust of the American people by lying to them and Congress about the border crisis.

"I don't think we've ever had until now a cabinet official in charge of a major department come in and say I can waive requirements of the law and actually direct my personnel to violate laws they're supposed to be enforcing," von Spakovsky told Fox News Digital. "Mayorkas is responsible for some of the most outrageous conduct we've ever seen by a cabinet official. That kind of behavior warrants impeachment."

Homeland Security Secretary Alejandro Mayorkas and Rep. Andy Biggs (Johan Ordonez/AFP via Getty Images | Tom Williams/CQ-Roll Call, Inc via Getty Images)

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The report shines a spotlight on the ongoing crisis at the nation's southern border. Since Mayorkas took the helm at the Department of Homeland Security (DHS), there has been a sharp rise in the number of people who have crossed the southern border illegally. The figure reached a record 2.38 million illegal crossings encountered by U.S. authorities in fiscal year 2022 (which ended Sept. 30) and a record 251,487 just in December, the latest month for which data's available, according to U.S. Customs and Border Protection. There has been over 200,000 such migrant encounters for 10 months straight.

"Mayorkas doesn't think anyone should be denied entry," said von Spakovsky. "He believes his job is to bring as many aliens into the country as he can, no matter what federal immigration law requires him to do."

In May, Fox News host Bret Baier asked Mayorkas in an interview whether it was "the objective of the Biden administration to reduce, sharply reduce the total number of illegal immigrants coming across the southern border."

Mayorkas responded, "It is the objective of the Biden administration to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system."

The Heritage report details how Mayorkas has "violated" the law by directing DHS to "mass-parole" illegal immigrants into the U.S. when federal law says migrants seeking entry into the U.S. should be granted parole temporarily and "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit."

Homeland Security Secretary Alejandro Mayorkas testifies before the House Appropriations Subcommittee on Homeland Security in Washington, D.C., April 27, 2022. (Stefani Reynolds/AFP)

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Mayorkas "refers to most migrants as asylum seekers, but he has the data and knows most people here aren't genuine asylum seekers," Ries told Fox News Digital. "He's encouraging asylum fraud."

Under U.S. law, in order to receive asylum, individuals leaving their own country are supposed to show past persecution or well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion. However, the Heritage authors argue that, with the encouragement of Mayorkas' words and policies, the system is being exploited by millions of economic migrants who may be fleeing hardship but do not meet the bar of asylum.

Soaring asylum cases have led to a record years-long backlog in U.S. immigration courts.

Due to an overwhelming number of illegal immigrants entering the country, well over 50% of agents are often pulled off guarding the 1,954-mile U.S.-Mexico border to process, care for, and transfer migrants, leaving huge gaps for cartels and smugglers to exploit, according to former top border security officials.

The result, Heritage warns, is a national security threat and humanitarian crisis.

Under Mayorkas, about 1.2 million illegal immigrant "gotaways" are known to have evaded U.S. authorities, according to border agents. Experts are especially concerned about this group since Border Patrol encountered 98 migrants on the Terrorist Screening Dataset between the legal ports of entry in fiscal year 2022. The first three months of fiscal year 2023 have already encountered 38. By comparison, the figures were 16 and three for fiscal years 2021 and 2020, respectively.

Migrant families wade through shallow waters after being delivered by smugglers on small inflatable rafts on U.S. soil in Roma, Texas, on March 24, 2021. (AP Photo/Dario Lopez-Mills)

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Beyond security, Heritage outlines how Mexican cartels have used the border crisis to push drugs and human trafficking operations into the U.S., noting the victims are often children and young adults.

Last month, in a highly public case, an illegal immigrant was charged in the rape and murder of a 20-year-old with autism.

The Heritage report argues such outcomes are the results of purposeful policy decisions by Mayorkas that are often in contravention to written law.

"He's ignored laws, outright violated laws, lied, subjected his own officers and employees to grave danger — it absolutely merits impeachment," said Ries. "He's created threats to national security, public safety, and public health. And he's completely lost the trust of the American people."

An entire section of the report focuses on an alleged "betrayal of the public trust," listing several examples of Mayorkas telling Congress and the country that the border is secure despite the ongoing border crisis. 

The report also says Mayorkas "withheld" and misrepresented" information in several cases. Most notoriously, the DHS chief in 2021 promoted the narrative that border agents on horseback were whipping Haitian migrants trying to enter the U.S. after being told that no whipping took place. 

Homeland Security Secretary Alejandro Mayorkas testifies before the House Judiciary Committee, on Capitol Hill, April 28, 2022. (AP Photo/Evan Vucci)

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"The administration didn't want bad optics, so they came up with this bogus story," said Ries. "Mayorkas has yet to apologize for lying. It created incredible damage for his own employees."

Fox News Digital reached out to the Department of Homeland Security seeking comment for this story.

"Secretary Mayorkas is proud to advance the noble mission of this department, support its extraordinary workforce, and serve the American people," a DHS spokesperson told Fox News Digital. "The department will continue our work to enforce our laws and secure our border, while building a safe, orderly, and humane immigration system."

The spokesperson also referred Fox News Digital to a recent DHS press release, touting how illegal border crossings between ports of entry have dropped since President Biden last month announced "additional border enforcement measures to limit illegal immigration." 

According to Ries, however, the changes were a "shell game" not reducing the numbers but shifting them from Border Patrol agents between ports of entry to officials at the ports.

Critics have argued the efforts to impeach Mayorkas is politically motivated and not constitutionally sound, claiming it is based on accusations of dereliction of duty to target political opponents rather than the legal threshold of "high crimes and misdemeanors" described in the Constitution.

"The Republicans who support his impeachment know full well that they cannot succeed in removing him by a two-thirds Senate vote. But they still want to impeach him, in order to highlight the alleged failures of this administration in controlling the southern border," legal expert Alan Dershowitz wrote in a New York Daily News op-ed over the weekend. "They may have enough Republican votes to achieve this unconstitutional political goal, despite the fact that some Republican moderates seem unwilling to go along with this charade … Both parties are willing to weaponize the constitutional criteria for impeachment in order to achieve political benefits."

Mara Salvatrucha, or MS-13, gang members wait to be escorted upon their arrival at the maximum-security jail in Zacatecoluca, El Salvador, Oct. 12, 2017. (Reuters/Jose Cabezas)

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When asked to respond to such claims, von Spakovsky argued the case against Mayorkas has nothing to do with politics.

"You can't impeach someone because of policy differences — that's political and not grounds for impeachment," he said. "You impeach someone for breaking their oath of office to enforce the laws for which their department is responsible. No one can in any way deny that Mayorkas has been blatantly violating immigration law."

"They can claim it's political," he continued. "But I think we make a very careful case. It's Mayorkas' job to enforce the laws whether he likes them or not."

The report notes various authorities that have deemed failure to carry out the duties of one's office and "behaving in a manner grossly incompatible with the proper functions and purpose of the office" as constitutional grounds for impeachment, among others.

Heritage's report came after Republican lawmakers last week filed a second resolution in less than a month that would impeach Mayorkas.

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Despite such efforts, however, at least one Heritage author sees the GOP actually going soft on securing the border now that the midterm elections are over and doesn't want Mayorkas to slide as a result.

"We wanted to explain why this is warranted for Mayorkas to be impeached — to remind people of the lies he's told, the laws he's violated, and the damage he's caused to the country and will continue to be caused if he remains secretary," Ries told Fox News Digital.