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What Questions the Incoming DHS Secretary Should be Asked

On Tuesday, January 19, President-elect Joe Biden’s nominee for Secretary of Homeland Security, Alejandro Mayorkas, will be sworn in before the Senate Homeland Security and Government Affairs Committee to be questioned about his plans and intentions for DHS. Mayorkas is no stranger to this process; he was previously confirmed by the Senate to be director of U.S. Citizenship and Immigration Services and later deputy secretary of DHS under the Obama administration. But the decimation of the department under the Trump administration, which has had six heads in the last four years, only two of whom were Senate-confirmed, and two of which were ruled by federal courts to have been illegally named to their “acting” positions. Not to mention the acting heads of most of the major operational entities at the department, including Immigration and Customs Enforcement, which never had a Senate-confirmed director, and Customs and Border Protection, which has had an acting commissioner for a year and a half.

Further, the extensive changes to immigration policy, process, and operations at the border under the Trump administration will represent a significant undertaking to review and determine what to keep and what to unwind. All of these issues make this possibly the most significant confirmation of a Homeland Security secretary since Tom Ridge was named in 2003. While Mayorkas comes to the job with the most experience and understanding of the department and its issues of any previous nominee, Senators would be right to ask some serious questions about what he will do with what he is inheriting. Among the most pressing:

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  • What will he do with the existing delegations and redelegations of authority and lines of succession that have allowed so many positions to be filled for too long by “acting” officials or “senior officials performing the duties of”?

    Mayorkas, if confirmed, would have the authority to reconsider the entire line of succession for the position, and pull back authorities that were seemingly delegated far down or away in the department and its agencies. The most recent “shuck and jive” by departing acting Secretary Chad Wolf, who retreated back to his actual position of undersecretary of policy, strategy and plans, in having his successor, FEMA Administrator Pete Gaynor, delegate back to him, in his undersecretary role, the authority to “ratify” all actions he took while he was purportedly the acting secretary. This is an extreme example of the ways in which the ordinary policy-making and approval processes at the department have been undermined.

  • How will he fill the positions of the heads of the immigration agencies: USCIS, ICE, and CBP and what will he do to provide oversight and accountability, as well as coordination, among them?

    Under the Trump administration these agencies, in particular ICE and CBP have “had the shackles taken off” as a former acting ICE director famously said, has led to charges of vast abuses of immigrants in the system, deaths of immigrants in CBP and ICE custody, extreme measures such as family separation and a significant emphasis on the harshest elements of enforcement for “deterrence” sake. USCIS has made significant changes in its adjudications policy, resulting in large increases in backlogs and far fewer immigrants and nonimmigrants being admitted. So, whom Biden names to lead these agencies will send a significant signal about the direction the new administration wants to go—a signal to the agencies themselves, not just the public. Further, given the rotating door at the top of the department, these agencies seemed to have little to no coordination among or between them, so understanding what changes Mayorkas might make to the structure and reporting at the department is also important.

  • How will the department go about reviewing and reversing or revising the hundreds of immigration policies and programs done by the Trump administration?

    Given that the Trump administration had taken more than 400 actions, and is continuing to do so right up until noon on January 20, what will be Mayorkas’ priorities, and how will he decide how and when to make changes? How quickly can this get done? This will be top of mind for many immigration advocates, members of Congress, and the public

  • How will he manage the several crises that are going on right now that fall under DHS’s purview?

    In the last year we have dealt with a major public health emergency, which DHS has partial responsibility under law for coordinating along with the Department of Health and Human Services, a major security breach into U.S. government computer networks by Russia, public concern and doubt about the security of the recently completed election, an increase in migrants coming to the U.S.-Mexico border, and one of the longest and most deadly hurricane seasons in memory. Any one of these crises would tax an incoming secretary, but they are all happening right now. With a department missing much of its leadership, how he intends to oversee and manage those challenges should be a big topic of conversation.

These are just the big areas that will need to be covered in this hearing. Mayorkas’ answers will give great insight into how the Biden administration intends to differentiate its DHS from that under Trump. Hopefully, Mayorkas is up to the task.

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