[Senate Hearing 115-675]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-675

                    OVERSIGHT OF EFFORTS TO PROTECT
     UNACCOMPANIED ALIEN CHILDREN FROM HUMAN TRAFFICKING AND ABUSE

=======================================================================

                                HEARING

                               BEFORE THE

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 OF THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS


                             SECOND SESSION
                               __________

                            AUGUST 16, 2018
                              __________

        Available via the World Wide Web: http://www.govinfo.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs
        
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
37-328 PDF                 WASHINGTON : 2019                  



        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
               Margaret E. Daum, Minority Staff Director
                     Laura W. Kilbride, Chief Clerk


                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                       ROB PORTMAN, Ohio Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
STEVE DAINES, Montana                MAGGIE HASSAN, New Hampshire

            Andrew Dockham, Staff Director and Chief Counsel
                John Kilvington, Minority Staff Director
                      Kate Kielceski, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Portman..............................................     1
    Senator Carper...............................................     4
    Senator Johnson..............................................     7
    Senator Heitkamp.............................................    21
    Senator Hassan...............................................    23
    Senator McCaskill............................................    25
    Senator Lankford.............................................    28
Prepared statement:
    Senator Portman..............................................    47
    Senator Carper...............................................    51

                               WITNESSES
                       Thursday, August 16, 2018

Richard M. Hudson, Acting Chief, Law Enforcement Operations 
  Directorate, U.S. Border Patrol, U.S. Customs and Border 
  Protection, U.S. Department of Homeland Security...............    10
Robert Guadian, Acting Deputy Assistant Director for Field 
  Operations West, U.S. Immigration and Customs Enforcement, U.S. 
  Department of Homeland Security................................    11
Commander Jonathan D. White, U.S. Public Health Service 
  Commissioned Corps, Federal Health Coordinating Official for 
  the 2018 UAC Reunification Effort, U.S. Department of Health 
  and Human Services.............................................    13
James R. McHenry, Director, Executive Office of Immigration 
  Review, U.S. Department of Justice.............................    15

                     Alphabetical List of Witnesses

Guadian, Robert:
    Testimony....................................................    11
    Joint prepared statement.....................................    54
Hudson, Richard M.:
    Testimony....................................................    10
    Joint prepared statement.....................................    54
McHenry, James R.:
    Testimony....................................................    15
    Prepared statement...........................................    68
White, Commander Jonathan D.:
    Testimony....................................................    13
    Prepared statement...........................................    63

                                APPENDIX

Committee Staff Report and Appendix..............................    72
Johnson Exhibit..................................................   313
Statement submitted for the Record from:
    United States Conference of Catholic Bishops.................   537
Responses to post-hearing questions for the Record from:
    Mr. Hudson and Mr. Guadian...................................   543
    Mr. White....................................................   562
    Mr. McHenry..................................................   581


 
                  OVERSIGHT OF EFFORTS TO PROTECT
 UNACCOMPANIED ALIEN CHILDREN FROM HUMAN TRAFFICKING AND ABUSE

                              ----------                              


                       THURSDAY, AUGUST 16, 2018

                                   U.S. Senate,    
              Permanent Subcommittee on Investigations,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Rob Portman, 
Chairman of the Subcommittee, presiding.
    Present: Senators Portman, Lankford, Johnson, Carper, 
Heitkamp, Peters, Hassan, and McCaskill.

            OPENING STATEMENT OF SENATOR PORTMAN\1\

    Senator Portman. Good morning, everyone. We are here today 
because this Subcommittee is continuing to conduct oversight 
into an issue we have been following actually for more than 3 
years now, going back to 2015. We have an interest in ensuring 
that unaccompanied minors are protected from human trafficking 
and other forms of abuse.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Portman appears in the 
Appendix on page 47.
---------------------------------------------------------------------------
    We also have an interest in ensuring that these children 
appear at their immigration court proceedings, and we care 
about upholding the integrity of our immigration system.
    Let me begin by saying I am concerned that some in the 
Administration and some here in Congress misunderstand the 
scope and purpose of our 3-year investigation and the report we 
are discussing in this hearing.
    I would think that every single member of this panel agrees 
that our broader immigration system is broken. Of course, I am 
not suggesting we all agree on the solutions. The point is that 
is not what this investigation and this report are about.
    In particular, some believe we should be addressing the 
push factors that drive people to come to our borders; in 
particular, the conditions in the Northern Triangle countries 
of Guatemala, El Salvador, and Honduras. These are legitimate 
and very difficult issues, and I know the Ranking Member has 
been very involved in these policies, as I have been and others 
have been, but that is not the focus here today. That is not 
what we are here about.
    We are focused on the very narrow issue of what happens to 
children who have already have come into our country and who 
have been apprehended by our government. We want to ensure they 
are treated appropriately and that they make it to their 
immigration court proceedings. Unfortunately, we have seen 
examples of children placed with sponsors being trafficked, and 
right now, the best information we have is that about 50 
percent of these children do not show up for their immigration 
court proceedings.
    This is not a partisan issue, and let us face it. There is 
plenty of blame to go around.
    The specific, tragic occurrence of children being placed 
with human traffickers that initiated this Subcommittee's 
investigation happened under the Obama Administration. This is 
a systemic problem that has continued under the Trump 
administration. We are interested in solving this problem. We 
want to ensure these kids get proper care, but also expedite 
the enforcement of these cases in a timely and responsible way. 
This is our chance to get this right.
    Since 2012, more than 200,000 children without legal status 
have crossed our borders without a parent or guardian. The law 
calls these children ``unaccompanied alien children'' (UACs). 
These children frequently face significant trauma on their way 
here, and once they are here, as one Department of Health and 
Human Services (HHS) official recently characterized it, they 
are ``in a legal no-man's land.''
    These children are typically apprehended by U.S. Customs 
and Border Protection (CBP) of the Department of Homeland 
Security (DHS). Then, within 72 hours, under law, DHS transfers 
them to an HHS Office of Refugee Resettlement (ORR) facility. 
At this point, HHS becomes responsible for these children's 
care.
    HHS typically places these children with sponsors, which 
can be their parents or other family members, but also 
sometimes other, unrelated adults.
    In 2015, I learned that HHS had placed eight of these 
children with human traffickers. Those traffickers then put 
those children, all minors, into a forced labor situation on an 
egg farm in my home State in Marion, Ohio. The traffickers 
threatened the children and their families with violence and 
death. The children worked for 10 to 12 hours a day as they 
lived in squalor.
    The Subcommittee investigated, and we released a 
comprehensive report in 2016 finding that HHS failed to do 
basic background checks on the traffickers who came forward to 
sponsor these children.
    We also found that no government agency claimed any 
responsibility for these children once the government placed 
them with sponsors, even sponsors who are not the children's 
parents or legal guardians. To this day, that remains the case, 
even though we believe the law gives HHS continuing 
responsibility, especially if they are not placed with a parent 
or legal guardian.
    HHS and DHS promised to do better. They did improve their 
background check process, and I commend them for that. They 
still have not taken responsibility for the welfare of these 
children post-release.
    In February 2016, after our hearing and calls from this 
Subcommittee for better coordination between the agencies, DHS 
and HHS entered into a Memorandum of Agreement (MOA). They 
agreed to create a specific Joint Concept of Operations (JCO), 
to document and improve their processes related to 
unaccompanied children. As part of the Memorandum of Agreement, 
they committed to completing that JCO no later than February 
22, 2017.
    They missed that deadline. Not by a week, not by a month, 
but by more than a year. We held another hearing, and after 
being pressed on why the JCO was still unfinished, the 
Departments promised to complete it by July 30, 2018, a few 
weeks ago. They did finish it on July 31, 17 months later than 
they had committed to do so.
    Unfortunately, the JCO only reiterates on paper the 
insufficient policies that have been in place for years through 
previous Administrations. It is important to put processes on 
paper so that the left hand knows what the right hand is doing, 
and I am glad they did that. The JCO largely reiterates the 
status quo and does little to improve unaccompanied children's 
safety and ensure UACs show up to their immigration court 
proceedings.
    That said, we think it is important that the public see the 
JCO to understand it for themselves. We are working with the 
Departments to get a version of the JCO that is appropriate to 
release, and we are waiting for final sign-off.
    I am not prepared to release it unless the Administration 
agrees that it is appropriate to release it.
    I am disappointed the Departments did not take the 
opportunity in this JCO to address some of the problems we have 
all observed for years and I think are widely acknowledged. 
Unaccompanied children are still crossing our borders. HHS is 
still placing them with sponsors and losing track of them.
    At our last hearing in April, HHS testified that they had 
started calling sponsors 30 days after placement to check on 
the children. I think that is good that they are making these 
calls, which started in 2015 apparently. It is troubling that 
for the 3-month time period from October to December 2017 that 
HHS testified about, they said they ``could not ascertain with 
certainty'' the whereabouts of 1,475 children, and that 28 
children had run away from their sponsors. They argue they have 
no responsibility to know where those children are. Remember, 
that is just one 3-month period.
    We need an update on those children today, how are those 
calls going, what are the results, as well as determining going 
forward what are we going to do about the information we get 
from those calls.
    Yesterday, Senator Carper and I released a report\1\ on the 
problems the Subcommittee has identified with the UAC program. 
It details the lack of progress from HHS and DHS in improving 
programs designed to care for these children, ensure their 
safety, and ensure they appear at their immigration court 
proceedings.
---------------------------------------------------------------------------
    \1\ The report referenced by Senator Portman appears in the 
Appendix on page 72.
---------------------------------------------------------------------------
    Currently, 80,266 UAC cases are pending before the 
immigration courts. More than 8,000 of them have been pending 
for more than 3 years. The longer these children wait, the less 
likely they are to appear at their court proceedings. Today, 53 
percent of unaccompanied children never show up for their court 
proceedings, an increase of about 12 percent since 2016.
    I know this is a difficult situation, and the gentlemen who 
are before us today from the Administration are faced with a 
very difficult task. It is not easy, but these Federal agencies 
have failed to address most of the recommendations for 
improving the UAC program offered by this Subcommittee and the 
Government Accountability Office (GAO) . We need to know why.
    We have a serious problem on our hands. These children are 
at risk for trafficking and abuse. When these children do not 
appear for their hearings, they lose their chance to argue for 
immigration relief, and many remain in this country illegally, 
which undermines our Nation's immigration laws.
    In those cases, the judge usually enters an in absentia 
removal order. We may hear about that today. Most of these 
children are never removed. The best number we have is that 
about 3 percent of UACs are actually deported. The current 
situation is not good for these children or good for our 
immigration system.
    The Subcommittee's report compiles our findings based on 
2\1/2\ years of oversight. I urge you to read it. It addresses 
a wide range of issues, from problems with the JCO to the 
backlog of immigration court cases.
    As I said earlier, there is plenty of blame to go around. I 
am a lot more interested in solving this problem than making 
this into a partisan issue. I hope we will not do that today 
because this is our chance to get this right.
    We are working on legislation, and I wanted to be sure we 
had this hearing first so that we could hear from experts from 
the Administration as we are working on that bipartisan 
legislation.
    I appreciate Senator Carper working closely with me on this 
issue. I look forward to talking with our witnesses today about 
how we can improve this system to ensure these children's 
safety and ensure the integrity of our immigration system. 
Senator Carper.

             OPENING STATEMENT OF SENATOR CARPER\1\

    Senator Carper. Thank you, Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Carper appears in the 
Appendix on page 51.
---------------------------------------------------------------------------
    Let me begin by welcoming our witnesses today, and I want 
to thank our Chairman for holding this hearing. I want to thank 
our staffs. They worked very hard with GAO. We worked with a 
bunch of folks that you work with too in an effort to find the 
solutions to what are some of the most troubling problems 
created by our broken immigration system.
    You are going to hear almost an echo over here when I give 
my opening statement. We have worked very closely on these 
issues and share a lot of the same views on these issues.
    This is the third Permanent Subcommittee on Investigation 
(PSI) hearing on this subject. I am pleased that the two of us 
and our staffs were able to come to some consensus on how to do 
better by the vulnerable children we are going to be discussing 
here today.
    These children come to our country primarily from 
Guatemala, Honduras, and El Salvador, as we know, to escape 
extreme poverty and, in many cases, unspeakable violence at 
home, some of which I have witnessed and what we have witnessed 
ourselves. In too many cases, as this Subcommittee has 
repeatedly highlighted, we are failing in our responsibility to 
protect and properly care for those kids.
    A 2008 law enacted under former President George W. Bush 
clearly places children who arrive at our borders or ports of 
entry (POEs) without a parent or guardian under the care and 
custody of the Department of Health and Human Services. In 
carrying out its responsibilities under this law, HHS must 
place these children in safe homes, offer them mental care and 
other services as they might need, and ensure that they are 
participating in immigration court proceedings.
    But despite the best efforts of this Subcommittee, GAO, and 
others, including those at this table, to diagnose problems and 
recommend solutions that would lead to still better care for 
migrant children, too many of them are still falling through 
the cracks.
    In January 2016, PSI held a hearing examining how Health 
and Human Services had placed eight Central American children 
with sponsors in Ohio who turned out to be human traffickers. 
Our Chairman has already talked about this. As someone who has 
spent a number of years in Ohio, this is one that comes close 
to home for me as well.
    But since then, HHS and the Department of Homeland Security 
have taken steps that should make it less likely that children 
might wind up exploited like those in Ohio were.
    For example, HHS policy now calls for more background 
checks of sponsors while offering more services for children 
who might need help adjusting to their new homes.
    The Department also now requires that all children and 
their sponsors be contacted at least once within the 30-day 
placement so that problems can be detected and referred to 
local authorities. Those are positive steps, but the children 
we are placing in communities across the country are still at 
great risk of abuse and neglect.
    When we last held a hearing on this issue in April, we 
heard reports of children being placed in homes with people 
they do not know who expect them to work to help with living 
expenses. We heard about children, sometimes due to a need to 
send money home or pay debts to smugglers, working sometimes 
all night and unable to stay awake at school the next day. To 
top things off, HHS informed us in their testimony at the time 
that they had actually lost track of about 1,500 children who 
were placed in their care. Dozens more ran away from home or 
were found to have moved in with someone not vetted by HHS at 
all.
    Since that hearing, the Department of Homeland Security and 
HHS have finally completed their work on a document called a 
``Joint Concept of Operations'' that details each Department's 
role and responsibilities in handling and providing care for 
unaccompanied children. The issuance of this document, due I 
believe about a year and a half ago, is welcome and it is 
appreciate. As helpful as it is to finally review it, the 
document fails to solve, as best I can tell, any of the major 
problems this Subcommittee has highlighted since 2015, and that 
the HHS Office of Inspector General (OIG) warned us about it a 
decade ago.
    Let me be clear. A decade is far too long to wait to make 
sure that kids like these in our care are safe. To my surprise, 
actually to my bewilderment, HHS still does not acknowledge its 
role in ensuring the well-being of unaccompanied migrant 
children, despite what I see as a clear mandate from the 
Congress. Unfortunately, as they prepared for today's hearing, 
PSI staff members were repeatedly told by HHS that the 
Department was still studying the relevant statutes and 
consulting its Office of General Counsel (OGC) on what more it 
can do. Still studying. You have to be kidding. Still studying 
after almost a decade.
    At the same time, based on fiscal year (FY) 2017 numbers, 
only about 30 percent of children placed with sponsors are 
receiving follow up care, and HHS only performs home studies in 
about, I think, 7 percent of cases. As we have discovered, this 
lack of attention from HHS or any other agency allows children 
to, in many cases, just disappear.
    Based on the latest data provided by the Department of 
Justice (DOJ), the majority of unaccompanied migrant children--
in fact, just over half--wind up not showing up at all in 
immigration court at some point, and when they do not show up 
for court, they could be automatically ordered removed to their 
home country and lose their chance to make their case for 
asylum.
    Unfortunately, rather than offering solutions to these 
problems and proposing better ways to track and care for 
unaccompanied children, this Administration has decided in 
recent months to take steps that are almost certain to make 
these problems worse.
    The Administration's decision this spring to separate 
parents from their children at our borders created some 2,500 
new unaccompanied children for HHS to care for. A number of 
those children have since been reunited with their families, 
but HHS was forced to release 425 of them or so to non-parental 
sponsors. Another 560 remain in care of HHS.
    There are also concerns that ICE could exploit an 
information-sharing agreement that DHS has struck with HHS not 
to ensure that the homes children are placed in are safe, but 
rather to conduct enforcement actions against sponsors. I find 
this possibility deeply troubling.
    In my State, the U.S. Immigration and Customs Enforcement 
(ICE) activity is run out of the agency's Philadelphia field 
office. According to reports this spring in the Philadelphia 
Inquirer, Philadelphia-based ICE agents appear to be the most 
aggressive in the country, going out of their way to target 
migrants in the region who have no criminal record and who have 
families and deep ties to their communities. If ICE agents in 
Philadelphia or elsewhere are free to target sponsors this 
aggressively, I am concerned that fewer will step forward to 
serve as sponsors, and HHS will end up with even more 
unaccompanied children on its hands.
    In the absence of leadership from the Administration, I 
believe Congress must now come forward with legislation that 
would ensure we are living up to our most basic 
responsibilities to the vulnerable children coming to us for 
help.
    I am pleased, Mr. Chairman, that our staffs have begun 
working on legislation that seeks to make it crystal-clear what 
HHS's responsibilities are in this area. It is imperative that 
we make real progress--real progress--in the coming days so 
that we can introduce legislation that will lead to better 
outcomes for these children and more certainty that they are 
safe from human trafficking, safe from abuse, safe from neglect 
during whatever time they spend in this country of ours.
    In closing, Mr. Chairman, let me just add that, as 
necessary as our draft legislation is, it only solves part of 
the problem. We will not make real progress in stemming the 
tide of migration at our Southern Border and keeping migrant 
children out of harm's way unless we make a long-term 
commitment to the neighbors in Guatemala, Honduras, and El 
Salvador to help address the poverty, crime, and hopelessness 
that plagues those countries.
    Like most of my colleagues on this Committee, I visited all 
three countries and North America multiple times over the 
years. I have met with their leaders and seen on the ground how 
the communities are struggling to deal with challenges that 
would be unimaginable to most Americans. A good number of those 
challenges are fueled by our addiction to drugs, and our past 
interventions in their regional conflicts. As long as these 
challenges go unaddressed, children and other vulnerable 
Central Americans will continue to make the dangerous trip 
across Mexico to our Southern Border.
    A sustained commitment from us, from our partners in the 
region, and from the governments in the Northern Triangle to 
improve the lives of the citizens of Guatemala, Honduras, and 
El Salvador is the smart way--and I think the right way--to 
address the root causes of migration that we see in our 
country.
    My thanks, Mr. Chairman, to you, to our staffs for our 
collective efforts in these issues, a special thanks to GAO, 
and we look forward to hearing from each of you today.
    Thank you.
    Senator Portman. Thank you, Senator Carper.
    Chairman Johnson has asked to submit something for the 
record.\1\ He has another hearing he has to go to. I offer the 
same thing to our other colleagues here, if they are 
interested.
---------------------------------------------------------------------------
    \1\ The information submitted by Senator Johnson appears in the 
Appendix on page 313.
---------------------------------------------------------------------------
    Chairman Johnson.

             OPENING STATEMENT OF CHAIRMAN JOHNSON

    Chairman Johnson. Thank you, Mr. Chairman. I will be pretty 
brief.
    First of all, I really want to thank you and Senator Carper 
for working on this. This is a huge problem. It is one that has 
to be addressed, and you are laying out the reality of the 
situation. I have not read the entire report word for word, but 
what I have looked at, it is a very thorough report. I commend 
you and your staff for doing that.
    The full Committee obviously has been fully engaged in 
border security and fixing our broken legal immigration system. 
I did want to talk about the overall broader problem. This is a 
subset of the problem, but this is not the root cause.
    As Senator Carper was talking about, there is a larger 
problem here, and from my standpoint, a better solution would 
be to reduce, if not stop, the flow, as you mentioned of 
212,000 unaccompanied children coming in from Central America 
and subjecting themselves to real dangers.
    I would hope you agree with me, as you have talked to 
members of the Administration, both the Obama Administration 
and Trump administration, that are dealing with this issue. 
These are people with compassion. We are a very compassionate 
nation. I truly believe that the people I am talking to, 
whether it is at the Secretary level, the deputies, the 
commissioners, or the directors. The top priority is the safety 
of these children. I believe that in my heart.
    We have real problems. The reinterpretation of the Flores 
decision is forcing both Administrations' hands. The Obama 
Administration was opposed to that decision because it forced 
catch-and-release, which is not good, and we do not have the 
time to verify is this really the father, is this really the 
parent of this child. We have created, with these legal 
precedents--we have created some problems that are very 
difficult for the people that we task solving these problems to 
deal with.
    What I would like to introduce into the record is a 
Judicial Watch report obtained by a Freedom of Information Act 
(FOIA) request, Significant Incident Reports that were obtained 
from May 1, 2014, through November 12, 2014. They have made 
public the 688 major Significant Incident Reports (SIRs).
    These are reports, and what I am going to read to you--and 
it is hard to read, but this is what is happening on the 
journey. You are talking about, the enslavement of eight 
individuals in Ohio at that egg farm, totally unacceptable, but 
on the way, the conditions are horrific.
    I apologize for this, but I think people need to understand 
what the real reality is of what you are trying to deal with 
here.
    Day of the incident, June 1, 2014. The youth reported she 
was raped by four different men 2 years ago on a failed attempt 
to enter the United States.
    Incident report from June 2014. During her journey from El 
Salvador to Mexico, on day one, her guide's boss came to the 
warehouse and had two men hold her hands back while he raped 
her. Client states she was raped three times that day by the 
guy's boss and was told that she was his ``mujer,'' which means 
woman.
    August 22, 2014. It was during her second journey that she 
was sexually assaulted and raped by the ``coyote'' guide that 
was escorting her and her sister and several other immigrants. 
She indicated that throughout her journey, she was told about 
his life story and how his 6-year-old daughter was raped and 
murdered by a gang. He told her he was going to do the same 
thing to her, telling things as he was going to tie her up, put 
a cover on her mouth, and rape her. One night during the 
journey, he entered her hotel room and raped her.
    Incident report from August 25, 2014. She disclosed being 
held captive for 15 days during her journey to the United 
States by a coyote's brother. After being sexually abused by 
the coyote's boss, she was transferred to an abandoned home 
with four other girls, where she was sold to various men on a 
daily basis. She reports being sexually abused and bitten for 
15 straight days.
    Report from September 17, 2014. She reports she was tied 
down and beaten by cartel members daily. She stated that--
withheld name--held her at gunpoint and raped her in front of 
other immigrant females.
    Final incident report, October 28, 2014. In Veracruz, 
Mexico, she was raped by the owner of a hotel she and her 
cousins were staying at.
    These are all individual cases here. Amnesty International 
estimated in 2010, 60 percent of young women making that 
journey are raped.
    From Fusion, 2014, they estimate about 80 percent of 
individuals, of women are raped on that journey.
    The solution here, the problem is the people that we are 
incentivizing to come to this country, and the conditions are 
horrific on that journey.
    I would just like to enter that in the record, and thank 
you for the time.
    Senator Portman. Thank you, Mr. Chairman.
    Others like to enter any opening statements? Senator 
McCaskill.
    Senator McCaskill. No, thanks.
    Senator Portman. Senator Heitkamp.
    Senator Heitkamp. No, thanks.
    Senator Portman. OK.
    Alright. We will have the opportunity to have a further 
dialogue later, and given the fact that we have a number of 
Members here, I will make a very short statement after the 
witnesses and then turn it over to you all and then will be 
here for the entire hearing.
    Let us go ahead and call our panel of witnesses for this 
morning's hearing.
    First, we have Richard Hudson. He is the Acting Chief of 
the Law Enforcement Operations of the U.S. Border Patrol of 
U.S. Customs and Border Protection at the Department of 
Homeland Security.
    Second, we have Robert Guadian. He is the Acting Deputy 
Assistant Director for Field Operations West of the U.S. 
Immigration and Customs Enforcement at the U.S. Department of 
Homeland Security.
    Third, we have Commander Jonathan White, who serves with 
the U.S. Public Health Service Commissioned Corps and is the 
Federal Health Coordinating Official for the 2018 UAC 
Reunification Effort at the U.S. Department of Health and Human 
Services.
    Finally, we have James McHenry, who is Director of the 
Executive Office for Immigration Review (EOIR) at the U.S. 
Department of Justice.
    I appreciate all of you being here today, appreciate your 
service, and we look forward to hearing your testimony.
    The rules of this Subcommittee require that all witnesses 
be sworn in. At this time, I would ask you to please stand and 
raise your right hand.
    Do you swear that the testimony you are about to give 
before the Subcommittee will be the truth, the whole truth, and 
nothing by the truth, so help you, God?
    Mr. Hudson. I do.
    Mr. Guadian. I do.
    Mr. White. I do.
    Mr. McHenry. I do.
    Thank you.
    Let the record reflect that the witnesses all answered in 
the affirmative. We will be using a timing system today. All of 
your written testimony will be printed in the record in its 
entirety, and we would ask you to try to limit your oral 
testimony to 5 minutes. We will have a chance to have a 
dialogue once your testimony is completed.
    Mr. Hudson, we will hear from you first.

     TESTIMONY OF RICHARD M. HUDSON,\1\ ACTING CHIEF, LAW 
 ENFORCEMENT OPERATIONS DIRECTORATE, U.S. BORDER PATROL, U.S. 
  CUSTOMS AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND 
                            SECURITY

    Mr. Hudson. Thank you, Chairman.
---------------------------------------------------------------------------
    \1\ The joint prepared statement of Mr. Hudson and Mr. Guadian 
appears in the Appendix on page 54.
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    Chairman Portman, Ranking Member Carper, and distinguished 
Members of the Subcommittee, thank you for the opportunity to 
appear before you today on behalf of U.S. Customs and Border 
Protection.
    I am proud to have served the U.S. Border Patrol and the 
legacy Immigration and Naturalization Service (INS) for just 
short of 24 years, and I look forward to sharing my experience 
with you today.
    Border Patrol's role in the immigration process is to 
apprehend, process, and transfer individuals who illegally 
cross our borders between the ports of entry. Our colleagues 
and the CB Office of Field Operations (OFO) perform similar 
processing roles for those who are determined to be 
inadmissible at ports of entry, while at the same time 
facilitating the legitimate trade and travel that moves through 
the ports each day.
    Today, I would like to discuss the processing of 
unaccompanied alien children, and how this role interacts with 
our partners represented today.
    Between October 1, 2017, and July 31, 2018, more than 
41,000 UACs have been apprehended by the U.S. Border Patrol. An 
additional 7,000 have been deemed inadmissible at our ports of 
entry.
    Since 2014, when we saw the first surge of UACs, CBP has 
encountered nearly 250,000 UACs along the Southwest Border. 
These children arrive at our borders after a difficult and 
dangerous journey, and many have been subjected to abuse at the 
hands of human traffickers, criminals, and opportunists.
    The men and women of CBP treat each of these children with 
the utmost professionalism and compassion and work to ensure 
their welfare while they are in our custody.
    Upon encountering a child at the border, either at or 
between the ports of entry, CBP officers and U.S. Border Patrol 
agents complete initial processing of the child at short-term 
holding facilities. These are not long-term detention 
facilities like those operated by our partners at ICE and HHS. 
They are designed to hold individuals for less than 72 hours.
    However, our facilities meet the standards of the CBP 
Transport, Escort, Detention, and Search (TEDS) policy, and CBP 
complies with the legal requirements of the Flores Settlement 
Agreement.
    During processing, a U.S. BP agent or CBP officer will 
interview each child as well as any adults accompanying the 
child to determine familial relationships. They also review 
available documentation and conduct electronic records check to 
determine such familial relationships.
    When a child lacks lawful immigration status in the United 
States and it is determined the child is not accompanied by a 
parent or legal guardian or if the parent or legal guardian is 
transferred to a criminal detention setting due to criminal 
charges, the child is designated a UAC.
    Pursuant to the requirements of the Trafficking Victims 
Protection Reauthorization Act of 2008 (TVPRA), the child will 
be transferred to the care of the Department of Health and 
Human Services' Office of Refugee Resettlement. If during 
processing risk factors indicate that a UAC is a potential 
victim of human trafficking, CBP immediately notifies U.S. 
Immigration and Customs Enforcement, Homeland Security 
Investigations (HSI). If a U.S. BP agent or CBP officer 
suspects that any member of the group in which the UAC was 
traveling is involved or complicit in the trafficking act, they 
will generally detain all individuals for further processing 
and interviewing by HSI.
    The child is then referred to HHS ORR by way of a separate 
notification via email or telephone call to a case officer.
    At every phase, CBP processes all UACs in accordance with 
applicable laws, regulations, court orders, and policies. We 
are committed to enforcing the law fairly and consistently, but 
above all else, we are committed to the welfare of the people 
we encounter, particularly vulnerable children.
    We will continue to safely and efficiently process and 
transfer all UACs from CBP custody to HHS ORR.
    I am honored to represent the men and women who dedicate 
their lives in support of the Border Patrol's mission and 
protect our great Nation. They have an important and difficult 
job, but one they execute with professionalism, integrity, and 
compassion.
    Thank you for the opportunity to testify today, and I look 
forward to answering your questions. Thank you.
    Senator Portman. Thank you, Chief Hudson. Mr. Guadian.

    TESTIMONY OF ROBERT GUADIAN,\1\ ACTING DEPUTY ASSISTANT 
   DIRECTOR FOR FIELD OPERATIONS WEST, U.S. IMMIGRATION AND 
   CUSTOMS ENFORCEMENT, U.S. DEPARTMENT OF HOMELAND SECURITY

    Mr. Guadian. Chairman Portman, Ranking Member Carper, and 
distinguished Members of the Subcommittee, thank you for this 
opportunity to appear before you today to discuss the 
Department of Homeland Security's critical mission to protect 
the homeland and ensure the integrity of our Nation's 
immigration system through the enforcement of our Country's 
immigration laws, which includes its role in protecting 
unaccompanied alien children from human trafficking and abuse.
---------------------------------------------------------------------------
    \1\ The joint prepared statement of Mr. Guadian and Mr. Hudson 
appears in the Appendix on page 54.
---------------------------------------------------------------------------
    DHS is responsible for the protection and well-being of 
these children for the short time they are in the physical 
custody of DHS. From the time they first come into contact with 
U.S. immigration authorities until they are transferred to the 
care of the Department of Health and Human Services, despite 
the short time these children are in DHS custody, this is a 
responsibility we take very seriously, and we welcome the 
opportunity to discuss our role in this process today.
    Typically, unaccompanied alien children are first 
encountered when presenting themselves to U.S. Customs and 
Border Protection at a port of entry or when apprehended by 
U.S. Border Patrol when attempting to enter the United States 
between POEs. However, U.S. Immigration and Customs Enforcement 
may also apprehend UACs in the interior of the United States 
during immigration enforcement actions.
    Upon encounter, the apprehending agency must determine 
whether a child meets the statutory definition of unaccompanied 
alien child. A UAC is defined by statute as a child who: A, has 
no lawful immigration status in the United States; B, has not 
attained 18 years of age; and C, with respect to whom there is 
no parent or legal guardian in the United States or no parent 
or legal guardian in the United States is available to provide 
care and physical custody.
    Designation of a child as a UAC, which can change over 
time, depending on the circumstances of a particular minor's 
case, does not provide lawful immigration status. However, UACs 
are afforded certain procedural safeguards with respect to 
asylum processing that are not available to other aliens, 
including other minors who are accompanied by a parent or 
guardian.
    Absent exceptional circumstances, once a determination is 
made that the child is indeed a UAC, DHS is then required by 
law to physically transfer the child to Department of Health 
and Human Services, Office of Refugee Resettlement Care within 
72 hours.
    During the brief period UACs are in DHS custody, pending 
transfer to HHS, they are placed into a separate holding area 
apart from adult detainees for their safety.
    Throughout the process, DHS takes great care to ensure UACs 
are treated appropriately and humanely and are safe from 
trafficking and abuse. This includes, among other things, 
screening UACs for indicators of trafficking and/or abuse, 
identifying gang affiliation or criminal activity, and working 
with our partners in HHS to ensure appropriate care and 
protection.
    DHS also facilitates timely placement decisions with HHS, 
which allows for expeditious custody transfer and limits time 
spent in DHS custody.
    On February 19, 2016, DHS and HHS signed a memorandum of 
agreement regarding the care, custody, and transfer of UACs 
between our respective Departments to continue to address the 
needs of UACs. DHS and HHS signed another MOA on April 13, 
2018, to address information exchanges between these 
Departments to enhance cooperation and to put in place 
additional safeguards, including the fingerprinting by ORR of 
all potential sponsors and adult household members. ICE then 
uses fingerprints provided by ORR to complete a check for 
criminal activity to ensure ORR has as much information as 
possible when determining suitability of sponsors, and that the 
UAC will not be placed in a dangerous situation or fall victim 
to trafficking.
    To further ensure that UACs are protected from trafficking 
and abuse and pursuant to the 2016 MOA, DHS and HHS have also 
completed and shared with the Subcommittee a Joint Concept of 
Operation, which memorializes the existing processes and 
procedures in areas where the two Departments have joint 
responsibility. This important document lays out the 
responsibilities of each Department and further delineates 
these responsibilities to the components and agencies within 
DHS and HHS.
    DHS cares deeply about UACs in its custody, takes seriously 
its responsibility to protect them from human smuggling, 
trafficking, and other criminal actions, and is committed to 
working with our partners in HHS to ensure that UACs are 
protected from trafficking and abuse.
    Thank you and I welcome your questions.
    Senator Portman. Commander White, we will hear from you 
now.

TESTIMONY OF COMMANDER JONATHAN D. WHITE,\1\ U.S. PUBLIC HEALTH 
    SERVICE COMMISSIONED CORPS, FEDERAL HEALTH COORDINATING 
OFFICIAL FOR THE 2018 UAC REUNIFICATION EFFORT, U.S. DEPARTMENT 
                  OF HEALTH AND HUMAN SERVICES

    Mr. White. Good morning. Chairman Portman, Ranking Member 
Carper, I would like to thank all of you for the opportunity to 
appear before this Subcommittee on behalf of the Department of 
Health and Human Services. I am Jonathan White. I am a career 
officer in the U.S. Public Health Service Commissioned Corps. I 
have served HHS in three Administrations. I am presently 
assigned to the Office of the Assistant Secretary for 
Preparedness and Response (ASPR) and have previously served as 
the Deputy Director of the Office of Refugee Resettlement over 
the Unaccompanied Alien Children's Program. I am here to 
provide an update on an interagency effort that HHS expects 
will have a positive impact on the work of the UAC program.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. White appears in the Appendix on 
page 63.
---------------------------------------------------------------------------
    HHS has a process for placing UACs with parents or other 
sponsors that is designed to fully comply with the 1997 Flores 
Settlement Agreement, the Homeland Security Act (HSA) of 2002, 
and the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008, and to ensure the care and safety 
of UACs who are referred to ORR.
    The memorandum of agreement with the Department of Homeland 
Security that was signed to become effective on June 7, 2018 is 
an enhancement to HHS policy to require fingerprint background 
checks from parents or other sponsors and other adults who live 
in the household. The MOA improves the process for the two 
Departments to share information about UACs at the time of 
referral from ICE or CPB to ORR while the children are in the 
care and custody of ORR and upon release from ORR care and 
custody. DHS and HHS recognize special attention is required to 
ensure that the transfer, the placement, and the release of 
UACs occurs in a manner that is safe for the minor and the 
communities into which they are released.
    The MOA sets forth a process by which DHS will provide HHS 
with information necessary to conduct suitability assessments 
for sponsors using appropriate Federal, State, and local law 
enforcement and immigration sources.
    Specifically, ORR requires a background check of all 
potential sponsors, including parents and any adults who live 
in their household. Under the MOA, ORR will transmit those 
fingerprints to DHS to perform criminal and immigration status 
checks on ORR's behalf. DHS will then submit those results back 
to ORR.
    The information sharing addressed in the MOA is consistent 
with the requirement of the TVPRA that the Secretaries of DHS 
and HHS develop policies and programs to ensure that 
unaccompanied alien children in the United States are protected 
from traffickers and other persons seeking to victimize or 
otherwise engage such children in criminal, harmful, or 
exploitative activity. In fact, the MOA provides a framework to 
implement the more specific mandate that upon request from the 
Secretary of HHS, the Secretary of DHS shall provide 
information necessary to conduct suitability assessments from 
appropriate Federal, State, and local law enforcement and 
immigration databases.
    The MOA does not address all appropriate coordination 
between DHS and HHS on UAC matters, nor is that the intent of 
it.
    The DHS-HHS MOA of February 2016 called for the 
establishment of a working group comprised of UAC subject-
matter experts from both Departments to address operational 
matters for inclusion in a Joint Concept of Operations. On July 
31 of this year, the agencies completed the JCO, and I would 
like to highlight for you some of the significant matters 
covered in the JCO.
    The JCO provides field guidance and standardization of 
interagency policies, procedures, and guidelines related to the 
processing of UACs who are encountered by DHS, whose care is 
then transferred to HHS, after being placed in removal 
proceedings pursuant to Section 240 of the Immigration and 
Nationality Act (INA).
    The JCO does not take the place of agency policy regarding 
the processing of UACs, nor is it a substitute for legislative 
action, where required. Rather, it is an interagency agreement 
to standardize agency operational relations.
    The JCO memorializes current practices for custody transfer 
and transportation, including the placement into and the 
discharge from ORR custody; immigration processing and influx 
matters; services requirements, such as medical evaluations and 
emergencies and the Flores minimum standards for HHS 
facilities; and the reporting of allegations of abuse.
    Cooperation between DHS and HHS regarding the transport, 
processing, placement, care, and discharge of UACs is 
essential. Both Departments take their roles seriously and work 
closely with interagency and foreign counterparts on a daily 
basis to ensure the fulfillment both of DHS' mission to enforce 
Federal law and HHS' mission to provide care and release 
consistent with the best interest of the child.
    The agencies expect the JCO to be a living document that 
will change as laws, policies, and procedures change. HHS 
believes it is a significant component in the growing array of 
tools the agencies use as we go forward to providing care and 
services to UACs.
    I would like to thank the Senators for their continued 
interest in the Administration's efforts. We have had many 
productive and beneficial meetings discussing this with your 
staff and will continue to assist you in any way we can.
    Thank you for this opportunity to update you on ORR's 
recent efforts in the UACs program and for your ongoing 
commitment to the safety and well-being of UACs.
    I will be happy to answer any questions you may have. Thank 
you.
    Senator Portman. Thank you, Commander White.
    We will now hear from you, Mr. McHenry.

   TESTIMONY OF JAMES R. MCHENRY III,\1\ DIRECTOR, EXECUTIVE 
   OFFICE FOR IMMIGRATION REVIEW, U.S. DEPARTMENT OF JUSTICE

    Mr. McHenry. Thank you, Mr. Chairman.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McHenry appears in the Appendix 
on page 68.
---------------------------------------------------------------------------
    Mr. Chairman, Ranking Member Carper, and other 
distinguished Members of the Subcommittee, thank you for the 
opportunity to speak with you today regarding the Department of 
Justice's role in efforts to protect unaccompanied alien 
children, from human trafficking and abuse. Stopping human 
trafficking and abuse is a top priority for the Department, and 
we welcome this opportunity to talk about the Department's 
efforts in ending this scourge, especially in the broader 
context of illegal immigration.
    Before discussing UAC specifically, though, let me first 
provide information about the Department's anti-trafficking 
work in general, as the Department marshals numerous resources 
across many different components to combat human trafficking 
and abuse.
    Earlier this year, the Attorney General (AG) convened a 
Human Trafficking Summit to emphasize the Department's strong 
commitment to fighting this menace and to discuss ways to build 
on the Department's successes in combating trafficking. In 
fiscal year 2017, the Department secured convictions against 
nearly 500 traffickers, and its prosecution efforts on this 
front continue unabated.
    The Department's efforts to combat trafficking also extend 
beyond criminal prosecutions. For instance, it provides anti-
trafficking training and technical assistance to Federal, 
State, and local law enforcement partners. The Department also 
works with trafficking victims to help ensure their rights are 
respected and to recover any restitution.
    Further in fiscal year 2017, the Department invested more 
than $47 million in programming to combat human trafficking, 
with most funding supporting direct services to survivors.
    The Department has also established policies to ensure that 
UACs in the United States are protected from traffickers and 
other individuals who may seek to harm them. For example, for 
aliens in immigration proceedings, employees of the 
Department's Executive Office for Immigration Review, follow 
established protocols, for referring cases of suspected child 
abuse or human trafficking.
    Additionally, by regulation, immigration proceedings 
involving an abused alien child are closed to the public.
    EOIR also administers the Legal Orientation Program for 
Custodians (LOPC) of UACs, in cooperation with the Department 
of Health and Human Services. The LOPC provides legal 
orientation services to UAC custodians, including information 
regarding a custodian's responsibility to ensure the child's 
appearance at all immigration proceedings and a custodian's 
responsibility to protect the child from mistreatment, 
exploitation, and trafficking.
    In the immigration context, human trafficking often goes 
hand-in-hand with alien smuggling and other schemes to 
facilitate the improper entry of aliens into the United States, 
as both smugglers and traffickers seek to exploit weaknesses in 
border security and enforcement of the immigration laws.
    Consequently, the Department prioritizes criminal 
enforcement of immigration laws passed by Congress. Further, it 
maintains no blanket exemption from criminal prosecution for 
individuals who violate those laws, including and especially 
smugglers and human traffickers.
    Although the Department of Justice generally has no 
operational or logistical role in either the physical care or 
processing of aliens for removal from the United States, 
including UACs, it recognizes that UACs in immigration court 
proceedings are an issue of significant concern. There are over 
80,000 pending UAC cases currently before EOIR, which is 
approximately 11 percent of its overall pending caseload. The 
median time between the filing of a notice to appear (NTA) in a 
UAC case and the first hearing is 161 days. More than 70 
percent of pending UAC cases have been pending for over one 
year, and the median time to complete a UAC case is 465 days. 
Only about 9,600 UAC cases have been completed in immigration 
court through the first three quarters of this fiscal year, 
compared over 135,000 non-UAC cases.
    Further, each month, approximately 580 UACs, or almost 20 a 
day, fail to attend their immigration proceedings, and the rate 
of UAC removal orders issued in absentia has risen 
significantly since fiscal year 2014. Approximately 6,000 to 
7,000 UACs annually have failed to attend their immigration 
court hearings in recent years, and UACs are about twice as 
likely to fail to appear for immigration court as other aliens. 
In short, the data reflects significant concerns with UAC cases 
that we are interested in addressing.
    Our current immigration system faces numerous challenges. 
Issues with UACs in immigration proceedings have added to these 
challenges, as have efforts by traffickers to exploit 
weaknesses in the overall immigration system. Despite these 
challenges, the Department of Justice is unequivocally 
committed to bringing to justice anyone who engages in the 
abominable crime of human trafficking, including the 
trafficking of UACs, and it stands ready to work with Congress 
to strengthen existing laws in order to achieve that goal and 
to address the many challenges facing our immigration system 
today.
    I would be pleased to answer any questions the Subcommittee 
may have.
    Senator Portman. Thank you, Mr. McHenry.
    I think you have made the case well that we need some 
reforms, and some of the numbers you just gave us are shocking, 
including a median of 465 days. That is about 16 months between 
the time someone has given their first notice and the time a 
case is completed and the enormous backlog.
    I am going to use not all of my time here--we each are 
given 7 minutes--because I want to give my colleagues who have 
to go to another hearing an opportunity to ask their questions, 
but let me just say I think the fundamental issue here that we 
are talking about, as important again as these broader 
immigration issues are, is who is responsible when a child 
comes across a border.
    We heard from Chief Hudson that that child is placed 
immediately in some sort of a facility, not for more than 72 
hours.
    We heard from Mr. Guadian that they then go to HHS.
    We heard from Commander White that HHS has these children 
in an HHS-sanctioned facility until they find a sponsor. We 
heard from Mr. McHenry some of the challenges with getting 
those kids to their court proceeding to find out whether they 
have a legitimate claim if they are trying to come into the 
country under asylum. We also heard the system is just not 
working well, that more than half these kids are not even 
showing up for their hearing. That we do have, unfortunately, 
these stories of kids being abused and trafficked.
    I appreciate the fact that we have made some improvements 
in terms of the background checks, as I said earlier. I might 
want to follow up later on the fingerprints and what DHS does 
with those and how we work to ensure that those who are being 
trafficked are dealt with.
    Let me ask you the fundamental question, and I guess this 
most appropriately goes to HHS. DOJ may want to chime in here. 
Do you all believe that you have the authority--and I suppose 
you are going to say the funding as well--to be able to 
continue to take responsibility for these children after they 
leave your care; in other words, the detention facility? Do you 
believe you have the authority to continue to have 
responsibility for these children?
    Mr. White. Thank you, Mr. Chairman.
    HHS does not presently have the authority to exercise 
supervision or oversight of children who are not in the 
physical care and custody of ORR. It certainly does not have 
the appropriations, and I would submit that at present, it is 
not capacitated to do that, particularly with regard to those 
elements of the oversight that require law enforcement 
functions, given that ORR within Administration for Children 
and Families (ACF) and HHS is not a law enforcement agency.
    The answer is we have neither the authorities nor the 
appropriations to exercise that degree of oversight after 
minors exist ORR care.
    Senator Portman. As you know, Commander White, this is 
where we have a difference of opinion. I think I speak for 
Senator Carper and myself at least in saying we believe you do 
have that authority. We believe Congress has given you that 
authority, and by the way, if you do not, who does? You 
actually have the sponsors sign an agreement. Who enforces that 
agreement? Someone has to do that? Why even have an agreement 
with a sponsor if there is no way to enforce it?
    We think you have that responsibility, but if you do not, I 
assume you want Congress to give you that authority; is that 
correct?
    Mr. White. I am not the one to say what we would wish. I 
will say only that we do not have that authority, neither do we 
have the appropriations, which would be--the requirement would 
be considerable----
    Senator Portman. Yes, I understand that.
    Mr. White [continuing]. To create a national child welfare 
system in 50 States.
    Senator Portman. Yes. Additional funding would be required, 
but our issue is when that child leaves your detention facility 
and goes to that sponsor and you have the sponsor sign an 
agreement, who is responsible for enforcing that agreement? Who 
is responsible for ensuring that that kid gets to his or her 
court proceeding? Who is in charge? Who is in charge now?
    Mr. White. The number one responsibility for ensuring that 
the child attends the hearing is the sponsor.
    Senator Portman. How about the welfare of the child?
    Mr. White. The welfare of the child is the responsibility 
of the sponsor. If there are deficiencies in that, that is 
subject to the oversight and authority of the State or local 
child welfare authority that has jurisdiction over where that 
child resides, like any child in any community in America.
    Senator Portman. Yes. We will have a discussion about this, 
but from talking to a number of these State officials and State 
agencies, they do not even know these children are in their 
State. How would they know that? They are not even given notice 
of it often. The kids move, and they do not have responsibility 
under law, in their view.
    We do think Congress has provided that, but this is a gray 
area, clearly, because you all disagree. DOJ disagrees. Would 
you support legislation that clarifies the responsibility and 
authorities as well as providing the necessary funding?
    Mr. White. It is not for me to say what I would support. I 
will say only that, of course, HHS, as always, will execute all 
of its requirements under law, and where we have authorities 
and appropriations, we will execute those faithfully, as we 
always have.
    Senator Portman. Senator Carper.
    Senator Carper. Overnight, your agencies were able to come 
to consensus on a joint statement to the press that, in my 
opinion, makes baseless accusations about the accuracy of the 
report that we released yesterday in the areas that we chose to 
focus on.
    I have to tell you, I was surprised at how quickly you were 
able to agree to the statement in the last 24 hours, given how 
long it took for us to finally receive the Joint Concepts of 
Operations that we are discussing here today.
    That said, I want to take you at your word that you want to 
work with us on this issue, but I am struggling to do that when 
in your joint statement, your testimony, and this JCO, it all 
failed to do what this Subcommittee, the Senate, has been 
asking you to do for years now. That is to take responsibility 
for these kids.
    As my colleagues know, I always try to come to hearings 
like this looking for areas of agreement, not just where do we 
disagree, but where do we agree, where can we work together. 
That might be a little hard to find today, but what you offer 
us that we can work with? What can you offer us that we can 
work with? What can you say the Administration will do going 
forward to respond to our requests that you do more to track 
and care for these kids?
    This is really a question for all of the witnesses. Let me 
start with you, Commander White. What can you offer us?
    Mr. White. Senator, as you know, HHS through ORR's UAC 
program provides excellent care for these children while they 
are in the care and custody of ORR. That custodial relationship 
does end when those children exit ORR care.
    What we have done and what we continue to do is make 
continuous improvements regarding the safety of children, 
regarding the piece of their lives after their time in ORR care 
that we do have an influence in, which is the vetting of 
sponsors.
    There have been tremendous advances in the last 2 years in 
particular in the efforts made within HHS and in partnership 
with our DHS colleagues to ensure that each release to a 
sponsor is safe, including the background checks of parents, of 
other sponsors, and of others that live in the household, 
including the increased steps that we have taken to not only 
verify parentage but verify child safety. Those efforts will 
continue.
    The JCO is the capstone of years of operational improvement 
within HHS and in partnership with DHS. It reflects and 
summarizes those accomplishments over the last few years. That 
effort is ongoing, and I can tell you as a person who has 
worked in the ORR program, never ending. There is a ceaseless 
effort to see what can we do tomorrow to make kids safer than 
they were yesterday. That is on the mind of everybody who works 
in ORR, and we absolutely value working with you on that.
    Senator Carper. Hold it right there. Thank you very much.
    Mr. McHenry, same question. What can you offer us that we 
can work with? What can you say of the Administration going 
forward, going forward to respond to our request that you do 
more to track and care for these kids going forward?
    Mr. McHenry. As I indicated in my opening statement, the 
Department does not have an operational or logistical role in 
the care and custody of UACs, that is primarily with HHS, but 
what we can do--and we are happy to take back any suggestions 
the Subcommittee may have--our area is limited primarily to the 
immigration court process.
    As I indicated, our judges, our court personnel, they have 
protocols to follow if individuals show up, and if there is any 
evidence that they might be trafficked, they follow those 
protocols. We can ensure that the regulations are followed so 
that proceedings are not open, so that people cannot just come 
in if an abused alien child is having a case.
    We can also have our LOPC program, which I alluded to, that 
provides services, meets with the custodians, either in person 
or by telephone, explains to them their responsibilities, which 
includes a responsibility to make sure that children attend 
their hearings and to make sure that the children are safe from 
mistreatment or potential trafficking. Those are the three 
areas that we can offer.
    Senator Carper. Alright. Thanks.
    Mr. Hudson, please. Same question.
    Mr. Hudson. Thank you, Senator.
    I was pleased to hear that the Committee has recognized 
that there is an influx of UACs that are problematic for 
immigration enforcement. We are committed to working with the 
Committee, the full Senate, and Congress at different solutions 
that could help end the illegal immigration that we are seeing 
along the Southern Border.
    Senator Carper. Alright. Thank you. Mr. Guadian.
    Mr. Guadian. Thank you, Senator.
    As you know, Senator, ICE's role in the care of 
unaccompanied children is very narrow under the TVPRA.
    To answer your question on what ICE can offer up, we have 
submitted some legislative proposed reforms to close the 
loopholes in certain legislation to eliminate the push and the 
pull factors that are driving these UACs into our country.
    Thank you.
    Senator Carper. Mr. White, one more question, if I could. 
The Office of Refugee Resettlement is required to contact all 
unaccompanied children and their sponsors 30 days after 
release.
    During the Subcommittee's hearing--back in April--we 
learned that HHS previously lost track of nearly 15 to 100 
children. I do not need to remind you, Commander White, of how 
shocked we were to hear that news at our last hearing.
    What steps has HHS taken to learn more about the location 
and welfare of each of these children?
    Mr. White. There are no lost children. There are some 
families that do not take our call. There is a big difference.
    Our requirement is to have the programs that have provided 
care to the children reach out 30 days after to the sponsor and 
the child and see if there is anything they need or anything 
they can help them with. But it is not mandatory that the 
sponsor or the child take the call. Many immigrant families 
after the children leave ORR care do not want anything more to 
do with us and do not want anything more to do with the systems 
that they have been through.
    Senator Carper. Why do you think that is?
    Mr. White. Senator, many individuals come out of the 
shadows to take their child from us, and some of them return to 
the shadows. These are individuals who are living undocumented 
in the United States in most cases, and they believe they have 
cause to fear us.
    Senator Carper. Alright. My time has expired. Thank you.
    Senator Portman. I am going to take a moment of my time 
that I had left and go to Senator Heitkamp, and we will get 
back to this, Commander White. But your blanket statement that 
there are no lost children is simply inaccurate.
    There are lost children, clearly. I cannot believe that you 
would think that because you do not know where 1,500 were in a 
3-month period between October and December of last year. You 
do know that a couple dozen of these kids actually ran away 
from their sponsors if there are no lost children. Of course, 
there are lost children.
    That is the whole point here. No one is responsible. You 
just made the good point that they do not have to take the 
call. Why do not they have to take the call? What does the 
sponsor agreement mean if they do not have to take a call at 
least, and who enforces that sponsor agreement? Your answer to 
me is going to be nobody. Senator Heitkamp.

             OPENING STATEMENT OF SENATOR HEITKAMP

    Senator Heitkamp. A couple of things, and I do want to get 
into this idea that the children are safe when they are in your 
custody because that is certainly not what we are hearing.
    I want to ask you, Do you want responsibility for these 
kids after they leave? Do you want to have the ability to do 
site visits, make sure that they attend the hearings, and make 
sure that they are followed up on? Do you want that authority?
    We disagree that you do not have it, but I want to know. 
Does HHS want that authority?
    Mr. White. I could not speak for what HHS wants. I can say 
only that we will fully discharge requirements that we have.
    I will note----
    Senator Heitkamp. That is not an answer. We have a gap 
here. If this were a IV-E investigation of a State foster care 
system, they would fail, and you basically would withdraw 
Federal money because there would be inadequate protections for 
kids.
    Now we have this group of children that for whatever 
reason--we can argue about pull factors or push factors. We can 
argue about that, but they are children, and they are in our 
country. The question is, What do we do with them when they are 
in our country?
    I am frustrated, and I think you hear the frustration here, 
because what we hear is not, see no evil, ``We are not going to 
pay any attention to what happens with these kids afterwards, 
and if they do not show up, well, that is just the way it is.''
    I want to explore this idea that you just said that when 
they are in your care, they are safe, that they are protected. 
You cannot have not noticed all of the stories about sexual 
assault on children, about physical inattention, and about 
injections of children without any permission.
    In fact, we had a professional who works at the Boston 
Medical Center. She is the Director of Child and Adolescent 
Psychiatry--said, ``If you are a predator, this a gold mine.''
    I am concerned even beyond what happens with these kids 
when they are out of your custody, and we cannot seem to agree 
on whether you have any responsibility for them. I am concerned 
about what happens to them when they are in your custody. What 
are you doing to follow up on these dramatic and very 
disturbing reports that we are hearing about child sexual 
assault, about physical abuse? Even something like scrubbing a 
toilet with your bare hands. These are all legitimate reports 
that we are hearing over and over again, and for you as an 
official of HHS to come to this hearing and say, ``They are 
well treated,'' tells me you are not taking this information 
seriously.
    There have been 125 reports to law enforcement of child 
sexual assault in detention centers that are run by HHS or at 
least contracted to run by HHS, does not that concern you, 
Commander?
    Mr. White. Ma'am, any allegation of abuse or harm to a 
child in care concerns me and everyone who works in HHS and in 
ORR profoundly.
    It is not the case that we are not taking----
    Senator Heitkamp. You are saying none of this is true?
    Mr. White. No. That is not what I am saying at all.
    Senator Heitkamp. Oh, OK.
    Mr. White. I am saying that the statement that you just 
made that we have done nothing about these is untrue. Let me 
try and pick which one to talk about first. Would it be helpful 
if I talked first about what we do any time there is an 
allegation of sexual assault?
    Senator Heitkamp. You know what would be good is for you to 
backtrack on your original statement that kids in your custody 
are safe, that there is no mismanagement within custody, within 
those facilities of what is happening with these kids. That 
would be the first thing, an acknowledgment that you do have a 
problem.
    Mr. White. My statement that we remain committed to the 
safety of every child in our care and work to effect the safety 
of every child in our care is true.
    Senator Heitkamp. OK. That is not what you said, though. 
What you said is children in your custody are safe.
    Mr. White. Our program exists to keep those children safe, 
and any child----
    Senator Heitkamp. You are failing. That program is failing 
by all accounts. Let us move beyond that, and why do not you 
tell me what you do. Have you withdrawn any kind of contract to 
any of these facilities where these allegations have been 
levied? Have you done any kind of investigation? Are you 
currently reviewing whether you should move children who are in 
facilities where there has actually been criminal charges 
against employees of these facilities, criminal charges brought 
that they sexually assaulted numerous children in these 
facilities? Where are those investigations?
    Mr. White. Yes. There are investigations made by ORR and by 
Federal and State law enforcement and licensure authorities for 
every instance where there is an allegation of abuse against a 
child.
    Senator Heitkamp. Has anyone lost their license, or have 
you removed children from any of these facilities?
    Mr. White. I would have to get back to you on whether 
anyone has lost their license because that is a State question.
    We have absolutely removed every child from a facility 
where there was a credible allegation of abuse while we conduct 
an investigation, every single child.
    Senator Heitkamp. How many children have you removed from 
facilities at HHS because of allegations of sexual or physical 
abuse?
    Mr. White. We would have to get back to you on that at----
    Senator Heitkamp. Yes. Please do.
    Mr. White. When there was an allegation of abuse, one of 
the ones you alluded to of sexual abuse of minors at a 
facility, upon receiving that credible allegation, we removed 
every child out of the facility. That does indeed happen.
    Senator Heitkamp. I can tell you along with the rest of 
America, this sickens me. It sickens me that these children 
have been put in this position and in harm's way, and that we 
in the U.S. Government have responsibility for these children.
    Now let us just move on because I only have about 50 
seconds left.
    We need an answer to the question of whether the Federal 
Government is going to take any responsibility beyond what you 
are doing right now to track and make sure that children are 
safe once they leave detention, and that is really why we are 
here. We cannot get a sense of where are these kids and we keep 
being told, ``Well, they are not missing.''
    I think the Chairman made an excellent point. There are 
lost kids. There are kids we do not know where they are, and we 
have to have some level of responsibility beyond what we are 
seeing here. That is why we are here. We are not the enemy. We 
are just trying to figure out how this system can work better, 
and then all the advocates here who are all children 
advocates--and I hope you are too--can then provide the 
resources, and provide the legislation.
    I think the legislation is there, but certainly do 
something proactively to change this outcome because we cannot 
let this continue. This is wrong, and most of America thinks it 
is wrong as well.
    Senator Portman. Senator Hassan.

              OPENING STATEMENT OF SENATOR HASSAN

    Senator Hassan. Thank you, Mr. Chairman and Ranking Member, 
for this hearing and for following up on this important issue. 
I really appreciate the Subcommittee's continued focus here.
    I want to thank the witnesses for being here today and I 
think I want to start by just echoing what you have heard from 
some of my colleagues.
    Let us be really clear here. If a sponsor is not answering 
a phone call, you do not know where that child is. You cannot 
tell us there is nobody lost if you have not had a conversation 
about whether the sponsor still knows where the child is. One 
of the things that concerns me is I hear the words ``agency by 
agency represented here,'' ``limited responsibility,'' ``not 
our job,'' ``not our focus,'' ``We do not know once X, Y, or Z 
happens.'' That is not acceptable. A siloed response to child 
welfare is not acceptable.
    These children are here, and the American people want to 
know we are doing what we would do for any child to make sure 
they are safe. That requires a level of interagency cooperation 
and a level of cooperation--Federal, State, to local 
government--that is not reflected in your testimony and has not 
been reflected in your actions.
    I want to start, Commander White, with the question about 
our relationships with the States. States can do more to help 
unaccompanied children who have been placed with sponsors if 
the States know that the children had been placed there, such 
as providing child welfare services, the information that kids 
are coming and where they have been placed, and notifying 
school systems that there are now children in their 
jurisdiction who should be attending school.
    But in our last hearing, Assistant Secretary Steven Wagner 
said that the agency usually fails to give States this basic 
information.
    I am a former Governor, and I find that really troubling. I 
am well aware that there are sometimes issues between State and 
Federal Governments with communication, but the reason that the 
agency is cited for this lack of communication is that you do 
not know who to contact in the State. That seems awfully weak 
to me.
    The last hearing we had here, one of the DHS 
representations said, ``Well, I have a great relationship with 
emergency personnel in the State.'' My suggestion might be to 
DHS, pick up the phone and ask them who the child welfare 
person is in the State. Your emergency people will know that.
    In New Hampshire, you can call the Governor's office, 
603-271-2121, and they will tell you who is in charge of child 
welfare agencies in the State.
    What specific steps has HHS taken to get that information? 
Have you reached out to the Governor's offices in States where 
you are placing children? Have you reached out to the Attorneys 
General or to the child welfare agencies that HHS has 
relationships with?
    Mr. White. Thank you, Senator.
    I believe when Acting Assistant Secretary Wagner spoke, he 
was referring to contacts with local government, which is what 
was being explored. I think when he spoke to the difficulty of 
identifying the appropriate office in each case, it would be--
that was about local government.
    Senator Hassan. That actually is not what I think the 
record will show. It was a specific question about States. What 
are you doing to reach out to State governments, notifying them 
when children are coming into their States and where they are 
going so that they could in turn--they have relationships with 
locals--notify the school systems, for instance?
    Mr. White. I will take that back for action, what we have 
provided, as you know, is summary-level information by county 
each month to the States, but we have not provided individual 
notifications to States on each reunification of a child. That 
is correct.
    Senator Hassan. You need to be doing more, and I was given 
a commitment at the last hearing on this issue that you would 
be doing more.
    I would like to see you all stepping up to this because, 
for example, if a sponsor turns out to be a safety risk to a 
child, despite the best efforts of the Federal Government to 
make sure that sponsor is well suited, if that child does not 
come into school and the school knows the child is supposed to 
be, the school can investigate. The school can save a child 
from abuse, neglect, or trauma, but not if they do not know 
that the child is there. It seems to me the very least the 
Federal Government could do is provide that information and 
then follow up on it and make sure it is being distributed.
    Thank you for the commitment today, and I will have my 
office follow up with yours, so that we can actually get some 
specific dates about when we will see a plan for notification 
to States, local governments, and school districts about when 
unaccompanied minors are coming into their jurisdictions, since 
you also have said that those State and local entities have 
responsibility for the safety of these children once they get 
out of HHS's custody.
    I would like to move on to a related issue, which is 
helping to reconnect families after the Trump administration 
forcibly took children away from their parents at the border 
earlier this year.
    I think we all agree that taking children from their 
parents is morally reprehensible and an affront to our American 
values, and pediatricians, psychologists, and health 
professionals have made clear the lasting harm of these forced 
separations.
    Commander White, in testimony before the Senate Judiciary 
Committee last month, you noted that you and others have raised 
concerns about separating parents and children based on--and 
this is a quote--``significant risk of harm to children'' due 
to the ``significant potential for traumatic psychological 
injury,'' also a quote.
    Could you explain what you mean by the significant risk of 
harm and traumatic psychological injury? What does that mean in 
practice, and what is the scientific basis for these concerns?
    Mr. White. Thank you, Senator.
    It is well established in the pediatric psychiatric 
literature as well as in the practice research for child 
welfare and foster care systems that separation of children, 
particularly young children, from their families is a traumatic 
event.
    There is a significant potential for both short-term 
diagnosable psychological illness and long-term psychological 
illness as a result of that traumatic event. That is well 
supported in the scientific literature. That was what I was 
referring to, although I think it is probably well understood 
without being a mental health professional how separating a 
child from their family could cause them injury.
    Senator Hassan. Thank you.
    You noted in your testimony last month that you and 
others--and, this is a quote--``raise concerns about policies 
that would result in separating families.'' What specific 
actions did you or others take to make this argument or to 
prevent separations?
    Mr. White. I participated only in discussions of potential 
policy outcomes, not in any which followed the policy 
announcements.
    We raised concerns through our own leadership. 
Additionally, I communicated these concerns in interagency 
discussions. As a reminder, as I said this in the last 
testimony, our concerns focused both on the best interest of 
the child but also on the operational implications for the 
program and its capacity to serve children. Both of these were 
addressed in our concerns that we shared.
    Senator Hassan. Thank you, and thank you, Mr. Chair, for 
letting me go over a bit.
    I think the best interest of children would be served if 
you all start working together and really lean into this as 
opposed to working in silos and disclaiming responsibility and 
authority.
    Thank you.
    Senator Portman. Senator McCaskill.

             OPENING STATEMENT OF SENATOR MCCASKILL

    Senator McCaskill. Thank you, Mr. Chairman.
    I have had some experience in children that have been 
removed from their families in my years as an assistant 
prosecutor handling criminal cases and then in years as the 
elected prosecutor in Kansas City. I can assure you if a child 
was removed from their family and 6 months later it was 
determined that no one was paying attention to where that child 
was, literally no one, it would be a huge scandal in my State. 
It would be a scandal in all of our States.
    This is about the fourth or fifth time I have been on this 
dais, and no one seems to be worried about the fact that you 
all get to wash your hands of these children.
    You want to talk about catch and release. You are catching 
these children, and then you are releasing them. Everyone goes 
like this, ``Not my problem.''
    I think the thing that really stuck out to me and the 
report that the Committee issued was the finding, and this was 
finding number 14. HHS has a plan to notify State governments 
before placing unaccompanied children previously held in secure 
facilities, but HHS has failed to implement that plan. HHS 
explained it cannot implement the plan because it cannot 
determine who to notify in State government.
    Let me just tell you, Commander. I will make an offer to 
you today. I think my staff can get you a list of agencies and 
phone numbers before close of business tomorrow. Would that be 
helpful?
    Mr. White. I will be glad to convey that. I think there are 
very real questions about----
    Senator McCaskill. No, there are not.
    Mr. White [continuing]. Who are the appropriate----
    Senator McCaskill. No, there are not. Every State has a 
child welfare agency. In Missouri, it is the Missouri 
Department of Social Services, the Children's Division, and 
they are responsible for foster care, for child placement, and 
for monitoring child detention centers. They are responsible 
for the welfare of children who have been separated from their 
families, and they have contacts in every corner of my State.
    There is a hotline that they administer. There are all 
kinds of ways that they can communicate with school systems, 
with local governments, with all the people that are working as 
foster parents. There is a huge network in every single State. 
Because you know what the States do? They take their 
responsibility for having children in their care seriously.
    For some reason, in the Federal Government, we have decided 
a child in the care of the Federal Government, ``Well, they 
will not take our phone calls.'' Are you kidding me? If there 
was someone who was supposed to be watching a child in Missouri 
that had been placed there by the State and they refused to 
take the phone calls of the social worker that was responsible 
for monitoring that home, they would have them--well, not 
always because they are overworked and underpaid. They do not 
do it as thoroughly as they need to, frankly, because their 
budgets have been cut, and they have large caseloads. But that 
is their responsibility, and they acknowledge that it is.
    We cannot get anybody to acknowledge that they have 
responsibility for where these children are and what they are 
doing 30 days after they leave a Federal facility. Somebody is 
going to step up here, or we are going to actually do something 
remarkable. We are going to have a bipartisan bill that lays 
out this responsibility.
    But you could do it now. There is nothing in the law 
preventing you from doing it. Nothing.
    I will get you the list of the 50 agencies. The notion that 
you all said to this Committee that you do not know who to 
contact, that is all anybody needs to know. That is all anybody 
needs to know about how serious you are.
    For you, Mr. McHenry, I know that our Attorney General 
feels very strongly about enforcing immigration law. All of us 
do too. There is not anybody up here who does not want to 
secure the border. We all want to secure the border. But the 
notion that we have 8,000 children who have been on the docket 
for more than 3 years and you have 129 authorized judges that 
have not been hired, if some of the energy that is being 
expended on press conferences and talking about separating kids 
from their parents as a deterrent, if some of that energy would 
be expended on hiring up all of the vacancies that you 
currently have for immigration judges and maybe doing a surge 
capacity to get at this backlog of children, that would be 
really helpful.
    Is there a reason that you are not hiring the 129 positions 
that are currently paid for and in your budget but sit vacant?
    Mr. McHenry. The number is a little bit misleading for a 
couple of reasons. First, our authorization up until March of 
this year was only for 384 judges, and we will fulfill that in 
about 2 weeks.
    The omnibus bill that was passed in March added us another 
100 judges, but we have not filled those. But we expect to 
certainly within the next year.
    Our bigger problem is not hiring. We have gotten the hiring 
process down to as little as 266 days right now. Our bigger 
problem is going to be space and logistics. By the end of this 
year, we will have approximately 426 permanent courtrooms. That 
is less than our authorization. We cannot hire judges until we 
have the courtrooms or until we have the space for them, and we 
cannot procure more space until we get our appropriations.
    Senator McCaskill. That is a fair point, Mr. McHenry.
    But I will tell you when it came time to find space to put 
all these families in detention facilities, the government was 
willing to go to extraordinary lengths. Call in the military. 
Use military bases. Surely we can find a few courtrooms. This 
is not a complicated schematic to find a courtroom.
    Frankly, I have been in a lot of courtrooms that did not 
look like a courtroom. You can make a courtroom, and frankly, 
you can do a lot of this remotely also, if you would have any 
idea where these kids were and if anybody was designating the 
resources to follow up and make sure that these children are 
coming to their hearings.
    Is not it true, Mr. McHenry, if these children have 
lawyers, then--like 80 to 90 percent of them are showing up for 
their hearings?
    Mr. McHenry. We have not done a study on that. I believe--
--
    Senator McCaskill. But there is a study that has been done.
    Mr. McHenry. I believe the contractor who runs our LOPC 
program did a study on that in 2014 and found that they were 10 
percent more likely to appear.
    Senator McCaskill. I disagree with you. I believe the study 
showed that there was a very high attendance rate. Has the 
Department of Justice put out a call for pro bono lawyers to 
represent these children?
    Mr. McHenry. Every respondent who is in proceedings, 
whether they are a child or an adult or a family or whatever, 
receives a pro bono list.
    Moreover, the representation rate for UACs in proceedings 
right now, whose proceedings have been pending for over a year, 
is already 75 percent.
    The vast majority of them whose cases are going on are 
getting representation of some sort.
    Senator McCaskill. Our numbers do not match up. I am going 
to have my staff follow up with your staff to make sure that we 
all are working off the same numbers because my understanding 
is the vast majority of the children do not have lawyers, but 
those that do have lawyers are showing up for court, which all 
goes under the category of this idea that we cannot call them 
or we cannot make them show up.
    They are here. If we have the ability to hold them in 
custody, we certainly have the ability to get them to court. I 
would certainly want to follow up with those things.
    Thank you, Mr. Chairman. I apologize for going a minute 
over.
    Senator Portman. Thank you, Senator. Senator Lankford.

             OPENING STATEMENT OF SENATOR LANKFORD

    Senator Lankford. Thank you, Mr. Chairman.
    Gentlemen, thank you for being here. We obviously have a 
lot of questions and a lot of issues we are trying to be able 
to work our way through and be able to get greater information.
    Let me start with a very basic question: Who is setting the 
standard for the placement for where the children are going?
    Let me give you some basic criteria here. Do they have to 
be legal citizens of the United States when we actually do a 
placement? Do they have to have a background check? Do they 
have to be an immediate relative?
    Some basic things on placement, who sets that standard?
    Mr. White. Senator, that standard is set primarily by 
statute and then by the policies and procedures of ORR, which 
are published online and available.
    Section 2 of the policy manual covers the process for 
vetting of sponsors and release.
    Senator Lankford. OK. Let me back up. Do they have to be a 
legal citizen of the United States to be able to receive one of 
the UACs in their home?
    Mr. White. No, sir.
    Senator Lankford. Is that something done in statute, or is 
that done by ORR?
    Mr. White. I believe that is based on an understanding of 
statute and that it directs us regarding the prioritization of 
sponsors.
    Senator Lankford. You are saying to require that 
individuals are placed into a legal resident of the United 
States would require legislative action? It would not be an ORR 
decision?
    Mr. White. I would have to defer that to general counsel, 
but that is certainly my personal understanding.
    Senator Lankford. Alright. Let me ask the next one. What 
about a background check for each individual in the home where 
they are placed?
    Mr. White. That is required by ORR policy.
    Senator Lankford. OK. But that is not statutory. How 
extensive is the background check for the individuals, and is 
the individual one individual in the home or the individuals in 
the home?
    Mr. White. Every adult in the household has to meet 
background check standards. Those background check standards 
would include a fingerprint background check against the 
National Crime Information Center (NCIC), the Federal Bureau of 
Investigation (FBI), criminal history. It also includes a check 
against State criminal histories. It includes a check against 
the sex offender registries of every State. It includes a check 
against State child abuse and neglect records of every State 
where that person has lived in the last 5 years, and of course, 
it also involves the pretty extensive vetting by the social 
worker's work in the program based on interviews and documents 
received from the sponsor.
    Senator Lankford. OK. What is your best guess on the 
percentage of UACs that are placed in homes where they are not 
legally present in the United States?
    Mr. White. Where the sponsor does not have legal status?
    Senator Lankford. Correct.
    Mr. White. I do not have an exact number, but it will be 
the great majority.
    Senator Lankford. Great majority being 51 percent? Great 
majority being 90 percent? Give me a ball park.
    Mr. White. I do not have such numbers.
    Senator Lankford. OK. Let me ask this, then. If we do not 
know if they have legal status or what that percentage is of 
those that have legal status and those that do not, but you are 
saying they all have completed a background check, that 
background check does not include a legal status requirement?
    Mr. White. There is not a requirement that they have legal 
status; however, the background check process, as revised by 
the MOA, does include DHS providing immigration information 
from its databases to HHS.
    Senator Lankford. OK. Help me connect the dots, then. We do 
know then how many individuals do not have legal status?
    Mr. White. I do not have that number with me.
    Senator Lankford. But that is a known number?
    Mr. White. I would have to go back and see. It is 
historically not something that we have captured in a 
reportable format.
    That may have changed in the months since I left ORR, 
particularly in light of the new MOA.
    Senator Lankford. Does that seem odd to you that we are 
placing children in a home where we do not know if they are 
legally present in the United States or not, or does that seem 
normative?
    Mr. White. No, sir. I think we know in virtually every case 
whether they are lawfully in the United States. What we do not 
have is a reportable aggregated number on that.
    Senator Lankford. That is a number we should have, just to 
be able to get a good feel for that and what that would mean.
    Tell me on a--let us say 30 days later. You talked about 
them taking phone calls or not taking phone calls----
    Mr. White. Right.
    Senator Lankford [continuing]. And engaging with you. 
Within 30 days, do you still have ongoing contact with those 
children that have been placed?
    Mr. White. We would make that contact through the phone 
calls. Where there are any concerns or if we fail to reach any 
children, that does trigger a reporting process to authorities, 
which are typically State and local authorities, which have 
jurisdiction over the child's case.
    Senator Lankford. Let me ask you a question with that. One 
month after that child has been placed, how many of those 
children do we still know where they are living and we still 
have contact with?
    Mr. White. I do not have those numbers with me. I can get 
back to you on that.
    Senator Lankford. What I am trying to figure out is, at 
what point--well, let me ask one more question, and I will do 
the overview with it. How many of these children are showing up 
for their hearings? Take even the first hearing, the UACs that 
are there, the first hearing that they have been asked to show 
up at. What percentage are they arriving at that first hearing?
    Mr. White. I would have to defer to DOJ for that question.
    Senator Lankford. Mr. McHenry.
    Mr. McHenry. We do not track based on individual hearing. 
Proceedings can have multiple hearings----
    Senator Lankford. Right.
    Mr. McHenry [continuing]. And moreover, their presence may 
be waived. In certain circumstances, they may appear by 
telephone or by VTC. We would not have that number.
    Senator Lankford. I am trying to figure out how many that 
we actually know are showing up to hearings or still engaged in 
the process. Do you have a number on that at all?
    Mr. McHenry. The closest estimate we have is our in 
absentia rate, the number who receive an order of removal for 
not showing up at the hearing.
    Senator Lankford. But that is not showing up for anything, 
then?
    Mr. McHenry. That is not showing up for the hearing at 
which the judge issues the order.
    Senator Lankford. Right.
    Mr. McHenry. They may show up at some hearings but not 
others, so maybe it continued, whether they appear or not. 
There is not going to be a rate for individual hearings. The 
closest estimate we can come or the closest metric we can use 
is the in absentia rate.
    Senator Lankford. Which is what for UACs?
    Mr. McHenry. For the last three or four fiscal years, it 
has been about 6,000 to 7,000--annually, it is currently 
running about 580 per month.
    Senator Lankford. What is the percentage on that, then?
    Mr. McHenry. The percentage out of the total number of 
cases is probably slightly less than 10 percent. We have 
roughly 80,000 cases pending, and if we have 7,000 a year----
    Senator Lankford. The 10 percent that are in absentia, 90 
percent that are showing up for those final hearings, or the 
reverse?
    Mr. McHenry. These are pending cases, so they have not had 
a final hearing yet.
    Senator Lankford. If you have been ruled in absentia, then 
they were making a final decision.
    Mr. McHenry. If you are talking about all completed cases--
and it is about 12,000 or 13,000 per year--then it is a little 
over 50 percent who are getting an in absentia order and having 
their case completed that way.
    Senator Lankford. OK. Without showing up.
    What I am trying to figure out is, in going back to some of 
the prior conversation, if they are in foster care in my State 
and they are not showing up for hearings or we do not know 
where they live or they are not answering a phone call, someone 
goes to check on them to be able to find out where are you, why 
are you not showing up for a hearing, and why are you not 
engaged. What I am trying to figure out is, at what point are 
we engaging back to say this individual did not take a phone 
call, did not show up at a hearing, has not answered our phone 
call, someone is checking to find out where are there or are 
they still there. Is that happening?
    Mr. White. If we attempt to make contact with a child or a 
parent and we do not make contact, where there is a concern, we 
make a report. Depending on the nature of the concern, we would 
make that report either to a Federal or State law enforcement 
agency or the child welfare authority that has jurisdiction 
where the child lives.
    Senator Lankford. In that State. Then do we know if the 
State is following up or any individuals or following up or law 
enforcement is?
    Mr. White. We would know more about it if there were a 
Federal law enforcement follow-up. As a reminder, ORR is not a 
law enforcement authority.
    Senator Lankford. Right.
    Mr. White Neither do we have a custodial role once the 
children exit ORR care. We guarantee that children show up for 
their hearing when they are still in ORR care.
    Senator Lankford. But once they are delivered to someone 
else, then that is something else? Someone else has the ball 
then at that point?
    Mr. White. HHS does not have the authority for custody of 
minors after they exit ORR care and custody.
    Senator Lankford. I am still trying to process this because 
TVPRA states this: ``The care and custody of all unaccompanied 
alien children, including the responsibility for their 
detention, where appropriate, shall be the responsibility of 
the Secretary of Health and Human Services.''
    Mr. White. We have neither the authority nor the 
appropriations to provide oversight or control of children who 
exit ORR care and custody. Those minors are assigned a sponsor. 
All of those who remain in the custody of the Federal 
Government are in ORR care and custody, and that is what the 
TVPRA is referring to.
    Senator Lankford. OK.
    Senator Portman. Thanks, Senator Lankford. Those were all 
good questions that deserve an answer.
    I think the summary--Mr. McHenry, correct me if I am 
wrong--in terms of how many unaccompanied kids actually show up 
for a hearing, I think their best number is that it is less 
than half. About 53 percent are not showing up.
    Mr. McHenry. That is correct. If we are looking at 
completed cases, cases that had been finished, that is about 
the current rate right now.
    Senator Portman. Yes. That would be shocking to most 
Americans to find out. About 3 percent of these kids who are 
unaccompanied end up being deported. The rest are either 
granted asylum, otherwise found through some other immigration 
provision to be able to stay in this country, or they are lost 
in the system somewhere. That is one of the issues here. The 
issue is who is responsible for ensuring these kids are not 
abused, and making sure that they are getting the proper care. 
These are vulnerable kids, but also, the integrity of our 
immigration system, and neither one is being accomplished right 
now.
    This notion, we can argue about whether you have authority 
or not. I think it is pretty clear. Senator Lankford talked 
about the TVPRA, which is the more recent legislation, but I 
look at the Flores decision. It goes back to 1997. It says that 
the former INS, where Chief Hudson used to work, had authority 
to take children from sponsors who abuse them. The decision of 
this court was that that was the responsibility of INS in 
addition to the statutory language that was mentioned.
    HHS inherited INS's responsibilities for unaccompanied 
minors under the Homeland Security Act of 2002. Do you agree 
with that, Mr. McHenry?
    Mr. McHenry. Yes. The Homeland Security Act transferred 
most of the enforcement authorities under immigration law to 
DHS.
    Senator Portman. From INS to HHS.
    We do not see this as a really difficult legal issue. We 
think you have the authority and responsibility. We think that 
is clear, but if you disagree with us, I assume you are going 
to be calling on us to write legislation to give you that 
authority because I assume you want it. How else are you going 
to enforce these sponsor agreements?
    Here is a sponsor agreement. It is a page and a half. This 
was required by the Flores decision, and it is very specific as 
to what these sponsors are responsible for, including ensuring 
that these unaccompanied kids get to their hearing. That is 
laid out very clearly here. It is not happening.
    Who is enforcing these agreements today, Mr. White, Mr. 
McHenry? Who is enforcing these agreements?
    Mr. White. We are not a law enforcement agency. When a 
child reenters or care or a sponsor seeks to sponsor a second 
child, any prior history of not fulfilling any term of their 
agreement would definitely affect the decision. A sponsor who 
has not, in the past, lived up to their agreement, this would 
be a factor in determining their suitability to sponsor that 
child again or another child.
    Senator Portman. Nobody is enforcing the agreement is what 
you are saying? All you can do is say if somebody wants to be a 
sponsor again you can look back to see what they have done, but 
nobody is enforcing the agreement.
    At our last hearing, we talked about these calls, and we 
appreciate the fact that at the last hearing, HHS told us what 
it did learn from calls from October to December 2017, a 3-
month period.
    We had a little disagreement earlier when you, Commander 
White, said that there are no lost children. There clearly are. 
Your own testimony said that there were 28 kids who had run 
away, 1,500 kids roughly who--and I quote HHS testimony under 
oath, ``We could not ascertain with certainty,'' end quote, the 
whereabouts of almost 1,500 kids. That is just reality.
    HHS has also told us more recently, it is a legal no-man's 
land. In other words, these kids are in a situation where they 
do not have a legal status. There is no requirement in this 
sponsor agreement that they take the call. You are correct. I 
would assume you would like to see that. Is that true?
    Mr. White. I think post-release services are all voluntary.
    Senator Portman. No, but would you like to see them be 
required to at least take a call from you to find out what is 
happening 30 days later? Why are you making the call if you do 
not want them to take it?
    Mr. White. I would certainly welcome stronger supports for 
children who have been in care and their families.
    Senator Portman. Stronger supports?
    Mr. White. Stronger supports. I would welcome that.
    Senator Portman. Good. You would welcome it. You would 
welcome them taking a call----
    Mr. White. Absolutely.
    Senator Portman [continuing]. Being required to say this is 
the status of the child; this is what is going on.
    Mr. White. I also understand why some parents do not take 
the call, and that that does not necessarily mean that they are 
bad parents or that there is something wrong with that family 
system. I understand the reasons that many parents are 
reluctant to take our call.
    Senator Portman. At the last hearing, HHS told us what it 
had learned, during this one period of 3 months, and we asked 
at that time for updated numbers for this year because it just 
went until December 2017.
    I know staff has indicated to us that you are prepared to 
answer that question today. What are the updated numbers for 
2018? How many UACs or sponsors have we called in 2018? How 
many sponsors have we been able to reach, or how many UACs have 
we been able to reach? How many have agreed to participate in a 
call? How many UACs were still with their sponsors? How many 
had left their sponsors? How many did HHS refer to get help 
from the National Call Center or other resources, including 
going back to Homeland Security? How many UACs were no longer 
living with their sponsors? How many did you get an updated 
address and phone number for? How many had run away? How many 
were you able to, ``ascertain with certainty,'' to use the 
language that was used in the last hearing? Can you tell us 
what the status is this year in 2018 with regard to the calls?
    Mr. White. I do not have those numbers, but we will provide 
them to you, sir.
    Senator Portman. You will provide them?
    Mr. White. We will.
    Senator Portman. When will you provide those, Commander?
    Mr. White. I would have to ask, but I would assume that we 
could provide those to you in a very short timeframe.
    Senator Portman. Short timeframe?
    Mr. White. Yes.
    Senator Portman. I have to be a little skeptical since 
the----
    Mr. White. I do not blame you.
    Senator Portman [continuing]. JCO took 17 months from the 
time you committed to have it to us until you had it to us. Do 
you think you can have it to us within 2 weeks?
    Mr. White. I believe we can. Yes, sir.
    Senator Portman. OK. Two weeks from today, we will 
appreciate getting that information because it is really 
important to know how this system is working or not working. We 
have, obviously, a lot of troubling data from the previous 3-
month period, and we would like to know where we are.
    If it is getting better, that is great. That is what we 
want to see. If, as we probably all suspect, it is not, we have 
to figure something out here.
    Mr. White. We will provide it to you, and we are eager to 
work with you on seeing the best outcomes that we can achieve 
for the children who have been in our care.
    Senator Portman. We talked earlier about the need to deal 
with the push factors. I certainly could not agree more, and 
some of us have been involved in that issue. The fact is, 
though, these children end up coming here, and someone needs to 
take care of them. We need to get them to their court date.
    In terms of getting them to their court date, expediting 
that process, Mr. McHenry, back to you again because you are 
the one who is responsible, I suppose, at DOJ to try to 
expedite this process. You said 8,000 of those cases had been 
pending for more than 3 years; is that correct?
    Mr. McHenry. That is what our current numbers show, yes.
    Senator Portman. Yes. Should we prioritize unaccompanied 
children cases?
    Mr. McHenry. We do in certain circumstances, but there is a 
limitation to them.
    As you know, under the statute, if they file for asylum, 
that has to be adjudicated by the U.S. Citizenship and 
Immigration Services (USCIS) first. They have the initial 
jurisdiction. The immigration case is on hold until USCIS makes 
that determination.
    Additionally, many UACs apply for special immigrant 
juvenile status, which is a multistep process. They have to get 
a dependency order typically from a State.
    Senator Portman. Let us back up for a second on USCIS, 
since we have with us here today, DHS representatives. My 
understanding is that is not where the backlog occurs. In other 
words, they handle their cases in a pretty expedited basis. Am 
I inaccurate about that?
    Mr. McHenry. I would have to defer to them. I do not have 
the numbers.
    Senator Portman. Maybe you can talk a little bit how you do 
that. This is the initial claim of asylum and how much of a 
backlog there is in those cases. Is that the slowdown, as Mr. 
McHenry is suggesting?
    Mr. Hudson. I can speak to the front end of the process. 
Anytime we take anyone into custody and they do have a credible 
fear claim, we clearly document that in all of our paperwork. 
We notify, in the administrative file, ICE, ERO, who then sets 
up the CIS initial screening interviews, and then we refer to 
ERO for more information on that. But we do take that 
information and take that credible fear claim.
    Senator Portman. OK. My time is expiring here, but let me 
just say it would be helpful to have that information. Our 
understanding is that is not where the backlog is, but if that 
is the case we want the agencies to work better together to 
ensure that does not slow us down.
    I think one of the big problems is, Mr. McHenry, you said 
it takes 266 days to hire someone.
    Mr. McHenry. That number is actually going down, as 2 years 
ago, it was an average of 742 days. Now----
    Senator Carper. That is like 2 years.
    Mr. McHenry. Yes.
    Senator Carper. To hire somebody?
    Mr. McHenry. Yes. Our most recent class, though, has 
individuals who were hired in 266 days, and the next class we 
have coming in will be even faster. The number is going down 
considerably.
    Senator Portman. ``Even faster'' is an interesting way to 
talk about taking 266 days to hire somebody. I think most 
people who are listening would think that is crazy, and why can 
we not expedite that?
    If you need help from us--and we are looking at this as 
part of the legislative solution we talked about earlier--we 
want to expedite these. We want to get these judges in place. 
We want to be sure you are up to your fully authorized amount. 
We understand you need some more courthouse space. We want you 
to have that.
    We also think that having 58 courts around the country is 
inadequate. A lot of these courts are not close to where these 
children end up, and that makes it even more difficult to get 
them to their courthouse.
    I would tell you, we used to have a court and a judge in my 
hometown of Cincinnati. We do not anymore. Now it is just in 
Cleveland. That is an issue. That 4-hour drive is an issue.
    I would suggest that we are ready to help on that, and we 
need to do it.
    One final question. If the custody ends, as Commander White 
has said, when the child is placed with a sponsor, who is the 
legal guardian of these children when the child goes, as was 
the case of these eight Guatemalan kids to a trafficker? It is 
not a parent. It is not even a family member, which continues 
to happen today, that kids are given to sponsors who are not 
family members. What is the sponsor's responsibility there? Who 
is the legal guardian of this child? Someone has to be the 
legal guardian of the child. Who is it?
    Mr. White. It is the sponsor who is responsible for the 
emotional and the physical needs of the child.
    Senator Portman. But not the legal guardian?
    Mr. White. The legal guardian is the parent who in some 
cases may also be----
    Senator Portman. You are giving a lot of these kids to 
sponsors who are not parents.
    Mr. White. Ten percent of reunifications go to sponsors who 
are either distant relatives or nonrelatives. They are vetted 
to a higher----
    Senator Portman. An uncle or an aunt is not a legal 
guardian either.
    Mr. White. That is right. Most of these children's legal 
guardian----
    Senator Portman. Or somebody adjudicated to be a legal 
guardian, right, Mr. McHenry?
    Mr. McHenry. Legal guardianship is usually a matter of 
State law, and it would likely vary, depending on the local 
State practices.
    Senator Portman. OK. I just want to make that point. There 
is this legal no-man's land, as HHS has told us, and we need to 
resolve that issue, among others. Being sure these kids are 
properly treated, being sure they have a guardian, being sure 
that they are getting to their court proceedings, that the 
immigration laws are being held up, and the integrity of the 
system, all are important. Senator Carper.
    Senator Carper. Our staffs have been working on drafting 
legislation to enable you, the folks who work with you, and for 
you, to meet their obligations. I think there are moral 
obligations to these kids that have come here.
    Chairman Johnson gave us right at the beginning of the 
hearing--he read an accounting of just horror stories, one 
horror story after the other, after the other. They explain 
pretty well why people give up everything in their home 
countries, to try to travel through difficult, dangerous 
journey to try to get here to face an uncertain future. They do 
live, in many cases, horrific lives in Honduras, Guatemala, and 
El Salvador.
    One of the things that I had focused on and a number of us 
have focused on is what can we do--as we have done in Colombia, 
in helping Colombia, transform a country that was literally 
about to go down 20 years ago to being a prosperous, generally 
successful country today. There is something called the 
Alliance for Prosperity, which we are funding, and we need to 
continue fund in the next budget going forward.
    We are going to write legislation. We are starting on that 
now, as you know, and you can make us an unguided missile or a 
guided missile.
    I am just going to ask you. We will just start with you, 
Chief. This is not really your bailiwick, but you bring a lot 
of expertise and experience into this. Some counsel or advice 
that you would have for us and our staffs as we draft some 
legislation to address some of the concerns that we are hearing 
about again today, what piece of advice do you have for us to 
focus on?
    Mr. Hudson. Thank you for that, and we are committed to 
working with the members in the Senate to look at any 
legislation that would help with border security.
    What I would offer is that we have had a number of court 
decisions and rulings that kind of juxtapose the intent of the 
law against where it actually falls out today, and I think any 
action that could bring some more clarity to some of these 
interpretations would be helpful from an immigration 
enforcement perspective, sir.
    Senator Carper. Give us one more. That is a good one.
    Mr. Hudson. You have the disparate treatment under TVPRA 
for those contiguous country UACs, for example. If you have a 
Mexican UAC or a Canadian UAC in our custody, if they pass the 
trafficking screening test, meaning there is no derogatory 
information and no fear of harm on return, we can return them 
to their native land, if they should so desire and withdraw 
their application.
    That is not so with UACs from noncontiguous countries. We 
are required to put them under TVPRA into 240 proceedings, so 
that is another example, sir.
    Senator Carper. Thank you.
    Mr. Guadian, same question. Make us a guided missile.
    Mr. Guadian. Yes, sir. Thank you Senator, for this 
opportunity.
    I would offer that you close the loophole in the Flores 
agreement for the 20-day release, mandatory release in the 
Flores agreement currently.
    I would also offer and agree with the Chief that the TVPRA 
be amended to make sure that all juveniles are treated the 
same. Just because there is a Mexican juvenile or a Canadian 
juvenile, they should not be treated any differently than 
Central Americans. We can currently, after an initial vetting, 
looking for trafficking signs--we can return those individuals 
to those countries. We currently cannot do that with Central 
American kids. That would eliminate a push-pull factor.
    Senator Carper. Chief, I saw you nodding your head. Do you 
want to comment, please?
    Mr. Hudson. No. I am in full agreement with my partner from 
ERO. Those are the two largest things I think that are 
affecting the process and flow today as we are seeing it from 
the immigration process perspective.
    I think Flores is a complicated matter, and it is before 
the courts today, different machinations of that, but if we 
could hold family units, for example, for the pendency of their 
proceedings together, we would not be putting them on the 
streets where they are having to look for jobs, having to look 
for different avenues of support.
    We could have a determination made by the immigration judge 
whether or not they have a credible fear claim or an asylum 
claim or any other benefit that they may get. But, at this 
point, once they leave our custody, it is difficult, as we have 
pointed out today, to find where any immigration violator may 
be.
    Senator Carper. Alright.
    Commander, Mr. McHenry, briefly respond to what you heard 
from your colleagues at the table. Do you agree with the advice 
that they have given and shared with us or disagree, or would 
you modify it? Just very briefly.
    Mr. White. I do not think I have a comment on any of those 
things.
    I think from our point of view, what would likely be most 
important in looking ahead to legislation is that we think it 
was a wise decision to assign the care of children to a child 
welfare agency, not a law enforcement agency. I would encourage 
you, please do not make us a law enforcement agency.
    Senator Carper. OK. Can you give us more than that? We are 
going to write legislation. We are doing it. Give us more than 
that.
    Mr. White. Law enforcement should be a prerogative of those 
who are trained law enforcement professionals, and care on the 
best interest of the child, that of social workers. To the 
degree that there is interagency authorities being looked at, I 
think it is very important that HHS remain the agency tasked 
with the best interest of the child, rather than to assign it 
enforcement duties.
    I also think it is very important that if we expand the 
role of the government in services to children after they exit 
ORR care that the central focus remain on the best interest of 
the child, and as much as possible on the permanency of 
families.
    When we look at things like enforcing sponsor agreements, 
there needs to be attention to avoiding situations that result 
in separation of children from their families and sponsors 
become their families for matters other than the immediate 
safety of the child. That would be my strong recommendation to 
you.
    Senator Carper. Alright. Thank you.
    Mr. McHenry, keep in mind, in the next couple of weeks, we 
are going to be working on what we call a mini omnibus 
appropriations bill, and it will include probably the 
Department of Defense (DOD), probably the Department of Health 
of Human Services, and in terms of funding, in addition to 
actually working on the authorizing language that we are 
talking about that, but in addition to that, some funding 
shortfalls, some places we ought to be especially mindful of. 
Any advice you have for us there?
    Mr. McHenry. On the operational side, I would defer to my 
colleagues at DHS because they are on the front lines of the 
enforcement.
    Our equities, as you have alluded to, we completely agree 
that we need to increase our adjudicatory capacity, which means 
typically more judges, more space, more resources, and also 
maximize the current capacity. Several members have mentioned 
video teleconferencing, trying to reach out, trying to hold 
hearings in locations, apart from our permanent court sites. We 
certainly welcome any suggestions the Subcommittee may have and 
be happy to work with you through our Office of Legislative 
Affairs.
    Senator Carper. We have three counties in Delaware, 
southern most counties. Sussex County, it is a very large 
county. The county seat is called Georgetown, and there are a 
number of folks there from particularly Guatemala who have come 
over the years. Some are documented; others are not. But when 
folks go from the Georgetown area, Southern Delaware, to a 
courthouse, they go to Philadelphia, which is quite a hike. It 
is not as far as Cincinnati to Cleveland, but it is a pretty 
good hike. If somebody is going to make that hike, a kid is 
going to be out of school or whatever. Maybe out of work, 
whoever is taking them is probably going to give up a day's 
work getting them up there and back.
    The idea of having sufficient judges, be able to hire the 
more expedient way, but also to actually have some courthouses 
that we can go to. We have a State courthouse right in 
Georgetown, where a whole lot of the--if you drew a 10-mile 
diameter circle around that courthouse, you would probably 
accomplish most of the refugees, folks that come to our State.
    But is it feasible for immigration proceedings to take 
place occasionally in a State setting, a State courthouse 
setting, which is right there in the community?
    Mr. McHenry. There are some logistical challenges. We have 
to enter into an agreement with whichever agency, whichever 
body controls the local site. We have to make sure the security 
is correct that the systems are compatible.
    We would also have to coordinate with the Department of 
Homeland Security because they are a party to all of the 
proceedings. They have a right to send an attorney as well to 
make sure that they have somebody available.
    There are other mechanisms we can use. As I mentioned, if 
an individual is represented, their presence can be waived. 
They can move to appear telephonically. There are other ways of 
getting around it, even if VTC does not turn out to be 
feasible. We can certainly take the suggestion and look into 
it.
    Senator Carper. Alright. Thanks very much.
    Senator Portman. Senator Heitkamp.
    Senator Heitkamp. Thank you, Mr. Chairman.
    I want to go back to follow up with you, Commander. I can 
appreciate--and I think we are all appreciative of your 
understanding as a social worker--I think that is your 
training--of what happens with childhood trauma and what the 
long-term ramifications can be, and so I do not mean to be 
harsh. I think that all of us who have watched this are deeply 
concerned.
    I want to get to this issue, not just of what happens when 
they leave, but what is happening when they are in facilities.
    One facility provider basically--if my rough math is right, 
11,000 children have been assigned to Southwest Key over a 
number of facilities, not one facility, but they are obviously 
a large provider.
    The reports coming out of Dallas say that they basically in 
a half-year period have a contract that is worth a half a 
billion dollars that they are being paid, which if you do rough 
math, that is about $45,000 per child. I think that we should 
have some pretty high expectations at $45,000 per child.
    I would love a list of all the contractors that you 
currently have, the number of complaints and the severity of 
the complaints in each one of those cases, what disciplinary 
action has been, and how you are cooperating consistently with 
State authorities, who usually are the licensing authorities. I 
understand that.
    If you can in fact get us where you are at right now with 
contractors and what additional needs you may see, so that we 
can have a better idea.
    I want to comment briefly on Senator Johnson's comment. 
Senator Carper and I have been very engaged in trying to get 
asylum seekers to stay in place and seek asylum where they are, 
and I think that to simply say this is a horrible path forward 
and separating kids, that is the way we are going to provide 
deterrent, I think we have to look at all the reports of people 
saying, ``That is no deterrent for us because the conditions at 
home are just as horrific as the conditions of the journey.'' 
We have to figure this piece out, and it is kind of beyond the 
scope of this hearing.
    I do think that one of the key issues for me is my initial 
question which is does HHS want this responsibility? The way I 
look at the function that you perform and basically who reports 
to you, every State division of children or human services--in 
our case, it is the department of human services which is 
responsible for child welfare in North Dakota--they have an 
ongoing relationship with HHS. It is not unusual for us to ask 
you to perform the functions in a Federal kind of umbrella that 
the States perform in their State foster care programs.
    I think you have to do some soul searching. Are you willing 
to take that responsibility, and if you are willing to take 
that responsibility--let us just get beyond the ``Do you have 
it right now?'' because I think there is a disagreement here. 
But if you are willing to take that responsibility, what do we 
need to provide? That is what I think Senator Carper is getting 
at. How can we in good faith and collectively not file reports 
back and forth for which we respond, but how can we put the 
kids first and decide what we are going to do to fix this 
problem? I would really encourage you to take what we have said 
here back to your supervisors and back to the chain of command 
and say, ``You may not have a choice.'' Rather than resisting 
taking this responsibility, figure out how you are going to 
assume this responsibility and what you need to do it because I 
do not think there is any tolerance up here, certainly with us, 
for not knowing where these kids are. That is just a nonstarter 
for me.
    I want to know where all these kids are. I want to know 
what their status is. I want to know whether they have been 
placed in places that are safe, and we know a lot of these kids 
come here as indentured servants. A lot of these kids are 
required to work to pay off whatever the transportation was if 
they truly were unaccompanied. We cannot be ignoring the 
possibilities here and the possibility of abuse outside the 
system, but we have to rectify the abuse inside the system that 
we all agree you have responsibility for.
    I want to thank you for your acknowledgment of trauma, your 
care of children. I did not mean to be too harsh, but it is 
imperative that we get our arms around this problem and move 
forward with a solution-based evaluation and numbers. Please 
get back to us and let us know what we can do to help you 
perform this function and be better foster parents.
    Thank you, Mr. Chairman.
    Mr. White. Yes, ma'am.
    Senator Portman. Senator McCaskill.
    Senator McCaskill. Yes. I would like to ask both Commander 
White and Mr. McHenry. Mr. McHenry, you have a lot of 
experience around the law. Should not we put in the law that 
there is a requirement that these children be put in touch and 
that the State child welfare agency should be notified when 
they are going to be in their States at a minimum?
    Mr. McHenry. That would be principally an operational 
issue. We are happy to take back any suggestions, but I would 
have to defer to my colleagues as to whether that would make 
sense to them, logistically and operationally.
    Senator McCaskill. Yes. The welfare of these children are 
sometimes--these determinations are made sometimes in adult 
courts, but they are also sometimes made in juvenile courts 
around the country. I know you are operational, and you are 
custodial--and at the border, and you are interior, and you are 
in custody, and then you are done. We have this gaping hole, 
and we need you all to come together.
    We do not always get it right in the Senate or in the 
Congress, and we will get closer to right if you all get 
together and decide where is the best place to cite 
responsibility for continuing oversight of these children once 
they leave secure facilities.
    I too get revved up. I do not think you are doing anything 
other than wanting children to be safe, Commander White. I know 
that, but you have to objectively realize the extreme 
frustration that we are feeling on this side of the table.
    Senator Portman and I had a hearing on this back in 2015, 
and all of these issues were discussed. Nothing happened, and I 
was just as angry at the Obama Administration, frankly, as I am 
frustrated at this Administration over the failure to recognize 
this gaping hole.
    We have to figure out the legal status of these children 
after they leave custody of HHS. If they are not with their 
parents, then who is making the decision on whether or not they 
receive medical procedures? Who is making the decision as to 
whether or not they are actually going to school every day? Who 
is doing that?
    It is such a problem screaming for a solution, and I just 
do not think we are going to be satisfied. Do you have an 
opinion as to who should have legal responsibility for these 
children once they leave HHS's custody, Commander White? Just 
your personal opinion. I am not trying to hold the agency to 
your opinion, but you are experienced in this area. You do have 
background in this area. What do you think would be the most 
efficient and effective way to secure the safety of these kids?
    Mr. White. I do not have a personal opinion. I do believe 
really strongly that there is no way with the existing 
authorities and the existing appropriations that HHS could do 
what you are asking, which is not the same thing as saying it 
could never be done. I think the reason that there have been so 
many conversations between this Subcommittee and our agency is 
that the existing authorities and the existing appropriations 
are far away from what will be required to achieve that result.
    I believe that if it could be solved simply by holding 
HHS's feet to the fire, we would have been there by now because 
I feel this Subcommittee has done that.
    If that is the desire, that will take clarification of 
authorities and very significant appropriations to accomplish 
that goal for the approximately 212,000 minors still under the 
age of 18 who have been in ORR care and who are in the United 
States right now.
    Senator McCaskill. I know the appropriations part is 
important, and I certainly support that.
    I will tell you realistically that the State child welfare 
agencies do not have a choice. They have legal control over 
these kids. It does not matter what they get appropriated. If 
the social worker's casework goes from visiting households of 
50 children to visiting households of 200 or 300 children, that 
is the reality in many States.
    It does not change the fact that someone is legally 
responsible, and so I know the appropriations need to follow, 
but first, we have to have clear legal responsibility. It is 
really important.
    Chief Hudson, briefly, before my time is out, when you 
separated the children from their parents, was there a plan in 
place to have them reunited with their families at the point in 
time they were separated?
    Mr. Hudson. CBP and the Border Patrol only dealt with 
reunifications with regard to those individuals who are in our 
custody. That when they went to the criminal process, they got 
time served, and when they returned back into our custody from 
the courts, the children were still there. There were 
approximately 500 of those reunifications that we were involved 
in.
    The larger reunification effort, we were not involved in 
for the physical reunification. We supported our partners in 
ERO and HHS to continue to evaluate data, to make sure we had 
all the finer points, and it really was revalidation. We had 
the information. It is just checking, dotting the i's and 
crossing the t's.
    Senator McCaskill. I understand that there was a subset 
that you all had direct responsibility for. I guess what I am 
asking you and Mr. Guadian, at the time the decision was made 
to separate children, was there a plan within DHS about 
potential reunification? Because these kids started going all 
over the country in a relatively short period of time, and 
clearly, some of the reunification bumps have been because we 
want to do background checks and we have to get fingerprints 
and all of that. I understand that.
    But were you aware? Did you ever see? Were you ever briefed 
on a plan that these things are being done? If reunification 
occurs either by directive of the government or by directive of 
a court, there is a plan by which this can happen?
    Mr. Hudson. Ma'am, I was never a party to any of those 
discussions, nor have I seen any documents relating to that.
    Senator McCaskill. Mr. Guadian, have you ever seen any 
document such as that or any discussion in your email traffic 
about we are going to do this, but we have planned how we could 
reunify if in fact the decision is made either by courts or by 
directive of the government to get these kids back with their 
families?
    Mr. Guadian. Thank you for that question, Senator.
    As my director has testified previously, ICE has always had 
a plan for reunification at removal. The difference here was 
the quantity.
    The process was at removal----
    Senator McCaskill. Did the agency not know how many 
children were going to be separated? You guys have historical 
data about how many kids are coming across month by month, day 
by day, and week by week. You have known for the last 6 months 
how many children were coming across unaccompanied that were 
being apprehended with their families. I am sure you had some 
idea of the numbers.
    Mr. Guadian. What I can tell you, Senator, is that ICE has 
always had that process where we reunify at removal.
    As far as the kickoff for the zero tolerance plan (ZTP), 
that was a 45-day window. I did not have visibility of the 
numbers of cases that were referred, but what I can tell you is 
that ICE always had a plan to reunify at removal.
    Senator McCaskill. OK. I just do not buy the numbers thing 
because you can pull up the numbers with four or five clicks, 
so you knew the numbers. If there was not a plan in place for 
the kind of numbers you encountered, that lies squarely within 
the responsibility of the Administration not adequately 
planning for it.
    Thank you, Mr. Chairman.
    Senator Portman. Senator Lankford.
    Senator Lankford. Mr. Chairman, thank you.
    I want to be able to follow up on one key area. It seems to 
be the elephant in the room in this conversation. We are having 
a difficult time tracking children in their location after they 
are placed, but we are most often placing them in homes of 
people that have been illegally present in the United States, 
sometimes for years. Those are individuals that, by definition, 
have lived under the radar and separated from the rest of 
society. I am trying to figure this out.
    It seems they were set up for failure at the start if we 
are placing individuals into a home with a sponsor that is 
illegally present in the United States.
    My question on this is trying to have a dialogue. Have we 
set you all up for failure from this based on how it is set up 
and designed?
    Of course, children are going to disappear, and we are 
going to lose track of them if they are in a home of 
individuals or in a group of people or with their family if 
that family is, by definition, trying to disappear within 
society as well and have often done it for a long time. Unless 
I am getting this wrong from the stats that I have seen in the 
past, most of the UACs that are coming are coming and joining a 
family member already here. Is that correct that there is a 
family member already here and that UAC is coming to join them?
    Mr. White. That is correct for the great majority of UACs 
who are discharged to a sponsor out of ORR care. Yes, sir.
    Senator Lankford. Let me ask a simple question. If the 
requirement was that we do not place a UAC with a sponsor that 
is not a legal citizen in the United States, what does that 
change?
    Mr. White. For one thing, it would create a requirement for 
hundreds of thousands of beds over the next couple of years. It 
would mean that for----
    Senator Lankford. Do you think the same number is coming, 
or do you think those UACs are coming because dad or uncle is 
already here in the United States, and someone is saying to a 
14-year-old boy in Guatemala, ``It is time to go to the United 
States and go work with your uncle or with your dad, so we are 
going to pay for a trafficker for you to get there. You are 
going to get there and get checked in and get checked in and 
find him?'' If that is not an opportunity that they have to be 
able to be placed with a sponsor of an uncle or a dad that is 
already here, that they know that is not an opportunity, do you 
think the numbers change, or do you think the numbers just stay 
consistent?
    Mr. White. I would not speculate on how long it would take 
to change or what the change would be. I am simply saying that 
the vast majority of releases, as I have already testified, are 
to sponsors without legal status. We are at 90 percent bed 
capacity today and a record number of beds and two temporary 
in-flux shelter systems set up.
    You asked me what the consequences would be, Senator, and 
the most immediate consequence would be that it would back up 
in the border stations and produce a humanitarian crisis.
    Senator Lankford. Right. You are out of bed space, but the 
alternative is what this Committee is complaining about, is 
releasing people into the country and we lose track of them. We 
are setting you up for failure because you are putting them 
with sponsors that we do not have track of already that are 
already living in the shadows here in the country. It seems to 
be this really odd side-by-side that you are getting griped at 
for losing track of people that by definition, the adult that 
they are with, we already have lost track of.
    What I am trying to figure out is how to be able to solve 
this long term and what are the key solutions of this.
    Mr. McHenry, what happens if we place children only in a 
home with someone who is legally present in the United States 
or a U.S. citizen?
    Mr. McHenry. I would have to defer to my operational 
colleagues. It would not necessarily affect the court 
proceedings because the person would still have a court case.
    In terms of bed space or appropriations or anything like 
that, I would have to defer to my colleagues.
    Senator Lankford. Do we have any numbers at all on the 
percentage of individuals that show up for their court 
proceeding if they were placed with someone who is a legal 
resident or a U.S. citizen versus someone that we do not know 
their legal status?
    Mr. McHenry. That is not something we would track 
necessarily for their immigration hearing. We do not know who 
they are placed with, necessarily. We just know their address 
and where they are supposed to be.
    Senator Lankford. Or where they were when we placed them, 
but not necessarily where they are now?
    Mr. McHenry. Right. They have an obligation to notify the 
court if they do move or if their addresses changes from the 
first one that was provided to us.
    Senator Lankford. How often does that happen that people 
notify the court when they have changed addresses?
    Mr. McHenry. I do not have those statistics in front of me.
    Senator Lankford. I think we are setting you all up for 
failure in this, and that is the grand challenge that I am 
trying to figure out is what happens if we have a very simple 
change. We do not place an unaccompanied minor into a home with 
someone who is not a U.S. citizen and who is not legally 
present in the United States. If that change is made--and I 
understand what you are saying initially. You would have to do 
some advance work and some preparation for that. What happens 
not only with the push factor or literally people in Central 
America saying, ``It is time to go to work in the United 
States. Go join your uncle. Go join your dad that is there?'' 
Because predominantly, the UACs we are talking about are young 
teenager males. Is that correct? These are not 3-year-old young 
ladies and 3-year-old guys. Is that correct?
    Mr. White. Approximately one-third are girls. Approximately 
one-quarter would fit the description of 16- and 17-year-old 
boys.
    Senator Lankford. You are saying a 25 percent total of the 
number that are coming in are 16- or 17-year-olds. How many of 
them are 12 and up, versus 11 and down? Because that has been a 
break point in running our stats.
    Mr. White. It does change over time, and this year, we have 
seen many more who are what we call ``tender age''; that is to 
say, age 12 and under. But that would typically be about 20 
percent of the total who would be under 13.
    Senator Lankford. OK. 13 and up, 80 percent of the people 
that are coming.
    This is something we need to be able to continue this 
conversation on to be able to figure out how we can help 
resolve some things long term.
    Thank you, all.
    Senator Portman. Thank you, Senator Lankford.
    We have zero time left on our vote. We are going to close 
this up. Senator Carper may come back in for a cameo, but I 
just want to say thanks to the Members who attended today, and 
of course, thank you to the witnesses for being here for your 
testimony, for your service, and for appearing again before us 
in the Subcommittee, some of you for the second time.
    We need to repair the immigration systems. There is no 
question about that. Addressing both the push and the pull 
factors, that again was not what this hearing was about. This 
hearing is about the fact that in the meantime, there are 
children here in our country. Those children need to be 
protected. We need to be sure that they are not abused, and 
they are not trafficked.
    This investigation, as you know, was launched by the fact 
that there were children who were given by our government, HHS, 
to traffickers, actually the traffickers that had brought them 
up from Guatemala, unscrupulous. They did abuse these children. 
Eight of them ended up in an egg farm in Marion, Ohio. They 
have now been prosecuted. That is good, but there are other 
cases as well that we know of. We need to be sure we are 
protecting those kids who cross our border.
    We also need to be sure that they show up at their 
immigration court proceeding, and that is a point that I think 
has been made repeatedly today. By the way, that is for their 
own benefit to be able to make their legal case as well as the 
integrity of our immigration system.
    We believe that we have received some commitments from you 
all today that will help us get to the bottom of this. We thank 
you for that. We look forward to getting the additional data 
that we need to understand the nature of the problem better.
    We also appreciate the commitment to help us with the 
legislative solution that Senator Carper and I have talked 
about and others to help solve this problem--Senator Lankford, 
Senator McCaskill.
    We need to be sure that we do address this because we know 
we can do better, as Commander White said. We must do better 
for these children and for our system.
    The hearing record will remain open for 15 days for any 
additional comments or questions from any of the Subcommittee 
Members.
    I said before you came in, Senator Carper, we have no time 
left on the vote, but I thought you might want to have a final 
comment.
    Senator Carper [Presiding.] Yes. I would very much. Thank 
you.
    Thank you again for being here for your testimony.
    I am not altogether satisfied. I think you probably know 
that, but we are grateful that you came. We need to continue to 
engage in a very serious way.
    We are going to write legislation. I think it will have 
bipartisan support, and we are in the midst of an 
appropriations process, which actually has some--can be a help 
in enabling you to do your jobs better.
    I will say this in closing. I always come back to root 
causes. There is a reason why these people are trying to go 
through hell on earth just to get here, and we need to help 
them address those. They can do it; we can help. Alliance for 
Prosperity is really almost a descendent of Plan Colombia, 
which worked. We need to make sure that we stick with it until 
it helps reduce the demand for people to get out of those, in 
some cases, hell holes where they work and live.
    Second thing, we have to do a better job of making sure 
that folks who are interested in trying to get some kind of 
amnesty or to be able to come here under extreme conditions, 
that they can actually apply for that in their countries and 
own embassies, so they do not have to come here to present 
their case. We need to do that.
    The third thing is we are having a hard time establishing 
who has responsibility. This is a shared responsibility. When 
we have these kids here, they have been placed with a sponsor. 
It is a shared responsibility. As a former Governor, it is a 
shared responsibility between some of us--us, you--and it is a 
shared responsibility with States, Governors' offices, and 
offices of child welfare. This is a shared responsibility, and 
we need to make sure that we are calling on others in an 
appropriate way to share this responsibility with us. We have 
to do it all.
    I will close with this. Everything I do, I know I can do 
better. The same is true with this situation. We can do this 
better, and we must.
    Thank you so much.
    With that, I think this hearing is adjourned.
    [Whereupon, at 12:19 p.m., the Subcommittee was adjourned.]

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