Investigation into– Request documents and information from DHS about its catch and release policies and limited use of credible fear interviews

House Committee on Oversight and Accountability Chairman James Comer (R-Ky.) and Congressman Eric Burlison (R-Mo.) are investigating misleading statements made by Department of Homeland Security (DHS) Secretary Alejandro Mayorkas claiming that the vast majority of illegal aliens released from DHS custody passed an initial threshold credible fear screening for asylum. According to DHS’ own data, this statement is misleading and creates a false narrative for how the Biden Administration processes and releases illegal border crossers into the United States. In a letter to Secretary Mayorkas, Chairman Comer and Congressman Burlison are requesting all documents and information about DHS’ catch and release policies and its limited used of credible fear interviews. 

“This is the latest attempt by Secretary Mayorkas to spin the facts about President Biden’s border crisis. Under the Biden Administration’s watch, the Department of Homeland Security has gone back to failed catch and release policies. Only a fraction of those released in the U.S. are even screened for a credible fear. The Oversight Committee will continue to conduct much needed oversight of the Biden Administration’s policies that have created the worst border crisis in American history and hold Secretary Mayorkas and others accountable for their failure to secure the border,” said Chairman Comer.

During a February 18, 2023, interview with Chris Wallace, Secretary Mayorkas implied that the vast majority of illegal aliens who are released from DHS custody first receive and pass a credible fear screening before they are released into the country. However, DHS data contradicts his statements. According to U.S. Customs and Border Protection (CBP) data, more than 140,000 of the 172,116 Title 8 apprehensions made by U.S. Border Patrol agents in December 2022 resulted in an individual’s release into the country. Yet according to U.S. Citizenship and Immigration Services (USCIS), only 5,001 aliens were referred to CBP for credible fear screenings that month. The numbers for other months similarly represent only a fraction of total releases. Because of contradictory data posted on various DHS websites, however, it is impossible to know the extent of DHS’s catch and release policies. 

“Secretary Mayorkas has created the worst border crisis in our nation’s history and his recent comments were an attempt to mislead the American people about his actions. We know that his policies have led to the release of nearly 2 million illegal aliens into the country and the American people deserve to know the full extent of the crisis he has created,” said Congressman Burlison.

Here is the letter:

Dear Secretary Mayorkas:
The Committee on Oversight and Accountability continues to investigate the Biden
Administration’s creation of and failure to resolve the worst border crisis in American history.
You made recent remarks implying that “the vast majority” of illegal aliens released from
Department of Homeland Security (DHS) custody passed an initial threshold credible fear
screening. Your statements misrepresent DHS’s own data and perpetuates an incorrect narrative
about how the Administration processes illegal border crossers for release into the United States.
The Committee requests documents and information to understand DHS policies with respect to
credible fear interviews.

During a February 18, 2023, interview with Chris Wallace,1
you implied that “the vast
majority” of illegal aliens who are released from DHS custody first receive and pass a credible
fear screening before they are released into the country. You stated:
The vast majority of those individuals have not sought to evade law
enforcement, but have actually surrendered themselves to law enforcement
and made a claim for relief under our laws…And so they make their claims,
and the initial threshold for those claims under the law is lower than the
ultimate asylum standard.
While a credible fear screening is what the law would contemplate,2 DHS’s own data contradict
your statements. Only a fraction of the illegal aliens DHS personnel apprehend receive a
credible fear screening prior to being released into the country.
1 Who’s Talking to Chris Wallace? Interview with Alejandro Mayorkas, CNN (Feb. 18, 2023).
2 See 8 U.S.C. § 1225(b)(1)(A)(ii) (“…and the alien indicates either an intention to apply for asylum…or a fear of
persecution, the officer shall refer the alien for an interview by an asylum officer…”); see also 8 U.S.C. §
1225(b)(1)(B)(ii) (“If the officer determines at the time of the interview that an alien has a credible fear of
persecution… the alien shall be detained for further consideration of the application for asylum.”).
The Honorable Alejandro Mayorkas
March 20, 2023

According to U.S. Customs and Border Protection (CBP) data, more than 140,000 of the
172,116 Title 8 apprehensions made by U.S. Border Patrol agents in December 2022 resulted in
an individual’s release into the country.

Yet according to U.S. Citizenship and Immigration
Services (USCIS), only 5,001 aliens were referred to that component for credible fear screenings
that month.

The numbers for other months similarly represent only a fraction of total releases.
Because of contradictory data posted on various DHS websites, however, it is impossible to
know the extent of DHS’s catch and release policies. But it is clear, that instead of referring
illegal aliens to USCIS for a credible fear screening, your policy in most circumstances is to
simply release illegal aliens into the country.

To assist the Committee in understanding DHS’s catch and release policies and its
limited use of credible fear interviews, please provide the following documents and information,
covering the time period January 20, 2021 to the present, as soon as possible but not later than
April 3, 2023:

1. All documents and communications regarding the number of illegal aliens encountered at
   the border and processed under Title 8 who indicated an intent to apply for asylum or
   expressed a fear of persecution in the event of their return;
2. All documents and communications regarding the number of illegal aliens identified in
   response to request number 1 who were referred for a credible fear screening;
3. All documents and communications related to the number of illegal aliens identified in
   response to request number 2 who received a positive credible fear determination;
4. All documents and communications related to the number of illegal aliens identified in
   response to request number 3 disaggregated by whether they were detained during the
   pendency of any application for asylum, paroled into the United States, released with a
   Notice to Appear, released on recognizance, or released with instructions to report to U.S.
   Immigration and Customs Enforcement (ICE) for further processing (Notice to Report);
5. All documents and communications related to the number of illegal aliens identified in
   response to request number 2 who received a negative credible fear determination;
   3 Custody and Transfer Statistics FY2023, U.S. CUSTOMS AND BORDER PROTECTION (U.S. Border PatrolDispositions and Transfers Dec. 2022), available at https://www.cbp.gov/newsroom/stats/custody-and-transferstatistics.
   4 Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions 2022, U.S. CITIZENSHIP AND
   IMMIGRATION SERVICES (Time period 12/1/2022-12/15/2022 and 12/16/2022-12/31/2022), available at
   https://www.uscis.gov/sites/default/files/document/reports/Congressional_Semi-Monthly_
   Credible_and%20Reasonable_Fear_Report%20-%20Dec%2016%202021%20to%20Dec%2031%202022.csv.
   The Honorable Alejandro Mayorkas
   March 20, 2023
   Page 3 of 3
6. All documents and communications related to the number of illegal aliens identified in
   response to request number 5, disaggregated by whether they were removed from the
   United States, paroled into the United States, released with a Notice to Appear, released
   on recognizance, or released with instructions to report to ICE for further processing
   (Notice to Report);
7. All documents and communications regarding the number of illegal aliens encountered at
   the border and processed under Title 8 who did not indicate an intent to apply for asylum
   or did not express a fear of persecution in the event of their return;
8. All documents and communications regarding the number of illegal aliens identified in
   response to request number 7 disaggregated by whether they were removed from the
   United States, paroled into the United States, released with a Notice to Appear, released
   on recognizance, or released with instructions to report to ICE for further processing
   (Notice to Report);
9. All documents and communications regarding the number of illegal aliens encountered at
   the border and processed under Title 8 who were referred to the Department of Justice for
   prosecution for a violation of 8 U.S.C. § 1325 (improper entry by alien) or 8 U.S.C. §
   1326 (reentry of removed aliens).
   To arrange for the delivery of responsive documents or ask any related follow-up
   questions, please contact Committee on Oversight and Accountability Majority Staff at (202)
   225-5074. Attached are instructions for producing the documents and information to the
   Committee.
   The Committee on Oversight and Accountability is the principal oversight committee of
   the U.S. House of Representatives and has broad authority to investigate “any matter” at “any
   time” under House Rule X. Thank you in advance for your cooperation with this inquiry.
   Sincerely,

Eric Burlison James Comer
Member of Congress Chairman
Committee on Oversight and Accountability
cc: The Honorable Jamie Raskin, Ranking Member
Committee on Oversight and Accountability