DHS Secretary: I Do Not Use Secure Fence Act’s Definition of Operational Control of the Border

Homeland Security Secretary Alejandro Mayorkas testifies before the Senate Appropriations Subcommittee on Homeland Security regarding the 2023 proposed budget estimates for the Department of Homeland Security, on Capitol Hill in Washington, DC, on May 4, 2022. (Photo by NICHOLAS KAMM/AFP via Getty Images)

(CNSNews.com) – DHS Secretary Alejandro Mayorkas said Tuesday that he does not use the Secure Fence Act’s definition when answering whether the Biden administration has operational control of the southern border, because it defines operations control as “preventing all unlawful entries to the United States.”

The secretary also said that the decision to designate drug cartels as foreign terrorist organizations is up to the State Department.

During the Senate Judiciary Committee’s oversight hearing of the Department of Homeland Security, Sen. Lindsey Graham (R-S.C.) asked “Right now, drug cartels are labeled as transnational criminal organizations. Are you aware of that?

MAYORKAS: Yes.

GRAHAM: Foreign terrorist organization designation would mean any group, country that supplies material support to an FTO would be subject to American jurisdiction. Do you support labeling these drug cartels as FTOs under U.S. law?

MAYORKAS: Ranking member Graham, I have heard you speak of this issue as well. I share your view 100 percent that these are ruthless, vicious peddlers –

GRAHAM: Do you support efforts to make them FTOs?

MAYORKAS: This is a decision that rests in the jurisdiction of the Department of State, and it is a difficult question as to where the line between criminality, however vicious, and terrorism is drawn.

GRAHAM: When you kill 70,000 Americans, you have crossed the line, but that’s not your bailey wick. Let’s go to your area. You said on April 22 at a House hearing, you were asked directly, do we have operational control of the southern border right now, yes or no. You said, yes, we do.

Later in that hearing, you said the border was in fact not open. About a week or two ago, March 15th, the Border Patrol chief Mr. Ortiz I think said when asked if DHS has operational control of our entire border, he said, no sir. Do we or don’t we?

MAYORKAS: I’d like to be able to answer that question fully. Ranking member–

GRAHAM: Take your time, but not too long, because I don’t have much time.

MAYORKAS: Let me be clear. Number one, we are intentionally focused on securing the border. Number two, we are equally focused on enforcing our laws to achieve that result. Number three, the Border Patrol agents and all the personnel of the Department of Homeland Security are doing heroic work in that regard.

With respect to the definition of operational control, I do not use the definition that appears in the Secure Fence Act, and the Secure Fence Act provides statutorily that operational control is defined as preventing all unlawful entries to the United States.

By that definition, no administration has ever had operational control. The way I define it is maximizing the resources that we have to deliver the most effective results, and we are indeed doing that. We have for the first time since 2011 increased the number of Border Patrol agents —

GRAHAM: Is it working? Is everything you’re doing working? Is any of it working to stop the poisoning of America or the reduction in a meaningful way of the historic, illegal immigration problem? Right now today, do you believe you have a plan that’s working?

MAYORKAS: Ranking member Graham, I must separate the number of individuals arriving at our border who are claiming relief from the issue of fentanyl that is coming through our ports of entry. That is too often conflated.

GRAHAM: I agree. I agree.

MAYORKAS: We are fundamentally, fundamentally, we are working within a system that is absolutely broken, and there is unanimity.

GRAHAM: Who’s problem is that? Who broke this system that you’re trying to fix? Is it Trump? Is it Trump’s problem?

MAYORKAS: Ranking member Graham, this is our collective problem, and–

GRAHAM: Wait a minute, now. You’ve been DHS secretary, and honest to God, I do like you. I think you’re a very good man. On your watch, Mr. Secretary, we’ve gone from the lowest illegal crossings in December 2020 to all-time highs with over 2 million last fiscal year. On your watch fentanyl is coming in at a pace we’ve never seen. More Americans are dying.

On your watch, more terrorists are coming to the country on the watchlist than any time we’ve been measuring these things, so I’m trying to get some appreciation from you that things are not going well. Your own Border Patrol chief said that we don’t have operational control of the border, and I don’t think it’s a definitional problem.

I think he’s just being really honest with us, so I would like to work with you where I can. You need more money for interdiction. I will work with Senator Durbin to get it to you, but we play around with the problems. We don’t address them.

Mayor Adams went to the border from New York. He’s not exactly a right-wing guy. He said this is a national crisis, and he said basically it’s a disaster. Everybody that goes has a different view – Democrats and Republicans. So what I would like to just get from you is some recognition of where we’re at, and I don’t think where we’re going is going to get us to the promised land.

I asked you back in the last time we were here to give yourself a grade. You gave yourself an A for effort. How would you grade yourself for outcome since we last met?

MAYORKAS: Ranking member Graham, I certainly appreciate and understand the gravity of the challenge that we are facing. It is a very serious challenge. I look forward to working with you with respect to the funding for this department as well as the hope that we can work together to fix the immigration system.