    [Senate Hearing 118-133]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 118-133

        AFTER APPREHENSION: TRACING DHS RESPONSIBILITIES AFTER TITLE 42

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

                                    HEARING

                                   before the

                                SUBCOMMITTEE ON
                  GOVERNMENT OPERATIONS AND BORDER MANAGEMENT

                                     of the

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED EIGHTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               SEPTEMBER 6, 2023

                                   __________

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

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

            GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT

                                 ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
     53-705 PDF          WASHINGTON : 2025

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                       GARY C. PETERS, Michigan, Chairman
    THOMAS R. CARPER, Delaware           RAND PAUL, Kentucky
    MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
    KYRSTEN SINEMA, Arizona              JAMES LANKFORD, Oklahoma
    JACKY ROSEN, Nevada                  MITT ROMNEY, Utah
    ALEX PADILLA, California             RICK SCOTT, Florida
    JON OSSOFF, Georgia                  JOSH HAWLEY, Missouri
    RICHARD BLUMENTHAL, Connecticut      ROGER MARSHALL, Kansas

                       David M. Weinberg, Staff Director
                        Zachary I. Schram, Chief Counsel
               William E. Henderson III, Minority Staff Director
                         Laura W. Kilbride, Chief Clerk
                       Ashley A. Gonzalez, Hearing Clerk

          SUBCOMMITTEE ON GOVERNMENT OPERATIONS AND BORDER MANAGEMENT

                         KRYSTEN SINEMA, Arizona, Chair
    THOMAS R. CARPER, Delaware           JAMES LANKFORD, Oklahoma
    ALEX PADILLA, California             RON JOHNSON, Wisconsin
    RICHARD BLUMENTHAL, Connecticut      MITT ROMNEY, Utah

                       Anthony J. Papian, Staff Director
      James D. Mann, Minority Staff Director and Regulatory Policy Counsel
                      Thomas J. Spino, Subcommittee Clerk
                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Sinema...............................................     1
        Senator Lankford.............................................     2
        Senator Blumenthal...........................................    17
        Senator Carper...............................................    19
        Senator Johnson..............................................    22
        Senator Padilla..............................................    25
    Prepared statements:
        Senator Sinema...............................................    39

                                   WITNESSES
                          Wednesday, September 6, 2023

    Matthew Davies, Executive Director, Admissibility and Passenger
      Programs, Office of Field Operations, U.S. Customs and Border
      Protection.....................................................     4
    David S. BeMiller, Chief, Law Enforcement Operations Directorate,
      U.S. Border Patrol, U.S. Customs and Border Protection.........     6
    Daniel A. Bible, Deputy Executive Associate Director, Enforcement
      and Removal Operations, U.S. Immigration and Customs
      Enforcement....................................................     8
    Andrew Davidson, Acting Deputy Director, U.S. Citizenship and
      Immigration Services...........................................    10

                         Alphabetical List of Witnesses

    BeMiller, David S.:
        Testimony....................................................     6
        Joint prepared statement.....................................    41
    Bible, Daniel A.:
        Testimony....................................................     8
        Prepared statement...........................................    49
    Davidson, Andrew:
        Testimony....................................................    10
        Prepared statement...........................................    56
    Davies, Matthew:
        Testimony....................................................     4
        Joint prepared statement.....................................    41

                                    APPENDIX

    Statements for the Record:
        Church World Service.........................................    62
        Younhg Center for Immigrant Children's Rights................    63
        Women's Refuge Commission....................................    66
    Responses to post-hearing questions for the Record:
        Mr. Davies and Mr. BeMiller..................................    70
        Mr. Bible....................................................    88
        Mr. Davidson.................................................   104

        AFTER APPREHENSION: TRACING DHS RESPONSIBILITIES AFTER TITLE 42

                                  ----------

                          WEDNESDAY, SEPTEMBER 6, 2023

                                         U.S. Senate,
                          Subcommittee on Government Operations
                                          and Border Management
                        of the Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:36 p.m., in
    room 562, Dirksen Senate Office Building, Hon. Kyrsten Sinema,
    chairman of the subcommittee, presiding.
        Present: Senators Sinema [presiding], Carper, Padilla,
    Blumenthal, Lankford, and Johnson.

                 OPENING STATEMENT OF SENATOR SINEMA\1\

        Senator Sinema. The Subcommittee will come to order. I
    welcome Ranking Member Lankford, Members of the Committee, and
    our witnesses. Today, we are examining the Department of
    Homeland Security's (DHS) process for managing migrant arrivals
    at the Southwest border, and how this process has changed after
    Title 42 ended.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Sinema appears in the
    Appendix on page 39.
    ---------------------------------------------------------------------------
        From March 2020 to May 2023, DHS used Title 42 public
    health authorities to quickly expel more than 2.9 million
    migrants from the United States. When the Title 42 authorities
    ended on May 11, 2023, DHS started processing all migrants
    arriving at the Southwest border under regular immigration
    authorities.
        This process is complex, and things like demographics and
    expression of fear all influence how a migrant is processed.
    Because the border is so dynamic, DHS's programs and protocols
    change frequently. Each of the components represented here
    today, Border Patrol, the Office of Field Operations (OFO),
    Enforcement and Removal Operations (ERO), and U.S. Citizenship
    and Immigration Services (USCIS) played pivotal roles in this
    complex process.
        Border Patrol and OFO are on the front lines and are
    responsible for apprehension and initial processing along the
    Southwest border. ERO is responsible for tracking migrants
    during the pendency of their removal proceedings, including
    through detention and alternatives to detention programs.
        USCIS manages credible fear interviews (CFI) and asylum
    applications. Bottleneck or delay at any point in this process
    can have serious impacts on our border management system.
    Delays can cause overcrowding at the U.S. Customs and Border
    Protection (CBP) facilities, which can lead to unsheltered
    releases, also known as street releases in border communities.
        The Tucson sector is currently one of the busiest centers
    in the country for migrant encounters, and the border
    communities in this sector are at high risk for street
    releases. As this Subcommittee has explored in previous
    hearings, street releases caused serious harm to migrants and
    border communities.
        Congress needs to understand this process in order to
    modernize our border management system and keep Arizona
    families safe and secure. My border and immigration proposal
    with Senator Tom Tillis includes several important improvements
    to this process to ensure our border is secure and that
    migrants are treated fairly and humanely.
        Today's hearing gives us an opportunity to learn how this
    process has changed since the end of Title 42 and how these
    changes affect our border management system. I hope the
    information we gather today will motivate others to join us in
    advocating for common sense solutions to our broken border
    policies.
        I look forward to hearing from our witnesses today. Now I
    would like to recognize Ranking Member Lankford for his opening
    statement.

                 OPENING STATEMENT OF SENATOR LANKFORD

        Senator Lankford. Senator Sinema, thank you. Thank you for
    holding this hearing. To our witnesses, thank you, not only for
    being here today, all your preparation for today, your written
    statements that are in, your oral statements that are coming,
    but thanks for your service to the country. It is incredibly
    important.
        Everywhere I travel in Oklahoma, I have someone that stops
    me and asks me, whether it is urban or rural, how is it going
    on the border? What is happening with the system? People are
    concerned.
        There are 6 million people that have been encountering
    coming across our border just in the last 2\1/2\ years, and
    people are exceptionally concerned about that, and they want to
    know what is happening and where things are going.
        This Subcommittee has had several hearings dealing with
    immigration. We have dealt with the General Services
    Administration (GSA's) management of the ports. We have dealt
    with social media and some of the illegal, illicit activities
    that are happening to recruit individuals coming across the
    border. This one in particular I am pretty excited about,
    actually.
        We have not had the opportunity to be able to sit down and
    talk about where is the process. Since the end of Title 42,
    there have been a lot of promises that have been made, but we
    really do not understand the full breadth of the process and
    what actually happens to each individual as they come across
    the border.
        We know bits and pieces of it, but some of the terms are
    new, and some of the terms, quite frankly, there has been a lot
    of working out on. The term rebuttable presumption is a new
    term that is actually out there that everyone is trying to
    figure out, how does this actually work? There were promises
    that there would be a dramatic drop in the number of
    individuals crossing a border illegally. There were for about 6
    weeks or so.
        Then, as just was reported by The Washington Post, we had
    the highest numbers of family crossings in the history of the
    country in August. The numbers have shot back up and have shot
    back up dramatically.
        All of these questions about what is happening, how it is
    happening, most of our questions will focus in on what is the
    process, what actually happens if an individual crosses at a
    port of entry (POE). They are treated one way between the port
    of entry. They are treated different way if at a port of entry
    and they have done CBP One app. They are treated different than
    a person who just shows up with that one.
        There is now parole. There is also what is happening in
    separate with rebuttable presumptions. There is a lot of
    confusion in the process. At the tail end of that, cartels are
    using that confusion to be able to push additional people
    coming across the border. We have to be able to know what is
    happening, what is the process for each of those individuals,
    and what actually happens in a court setting in the days ahead
    for these individuals.
        Today's hearing, we will have the opportunity to be able to
    walk through all of those different scenarios and to be able to
    determine where do things go. A recent report from the USCIS
    ombudsman highlighted some of the backlog issues and to be able
    to raise some questions about how these individuals can be
    vetted.
        There has been different numbers that have come out of
    late, to be able to talk about the quantity of individuals. How
    many we can track and how many we cannot track, those that are
    actually detained, and those that are on the non-detained
    docket, and what happens to those individuals.
        I appreciate everyone coming prepared because we have a lot
    to be able to talk through today and we will try to get to as
    many practical things as we possibly can as we walk through
    this.
        I appreciate the input from every one of you and look
    forward to questions, but I am going to go ahead and promise
    you I am going to flood you with questions for the record as
    well to be able to follow up on it and to be able to gather
    data as well. I appreciate that very much. Thank you, Senator
    Sinema.
        Senator Sinema. Thank you, Ranking Member Lankford. It is
    the practice of this Committee to swear in witnesses, so if you
    would all please stand and raise your right hand. Do you swear
    that the testimony you will give before this Committee will be
    the truth, the whole truth, and nothing but the truth, so help
    you, God?
        Mr. BeMiller. I do.
        Mr. Davies. I do.
        Mr. Bible. I do.
        Mr. Davidson. I do.
        Senator Sinema. Thank you. We will now hear from our
    witnesses. I will ask each of our witnesses to keep their
    remarks to 7 minutes or less. Your full written statements will
    be entered into the hearing record.
        I would like to first introduce our first two witnesses
    representing Customs and Border Protection components, Chief
    David BeMiller and Mr. Matthew Davies, who will be jointly
    delivering CBP's testimony. Chief BeMiller currently serves as
    the Chief of Law Enforcement Operations for the U.S. Border
    Patrol in Washington, DC.
        He is responsible for the oversight of day to day Border
    Patrol operations throughout the United States and in
    international engagements. He serves as the Principal Advisor
    to the Chief of the Border Patrol on Enforcement Operations,
    Personnel, Infrastructure and Technology Requirements.
        Mr. Davies serves as the Executive Director for
    Admissibility and Passenger Programs within the Office of Field
    Operations. In this role, he oversees multiple national level
    programs related to admissibility enforcement and traveler
    facilitation, in addition to serving as a primary point of
    contact for engagement between the travel industry and the
    Office of Field Operations. Welcome, gentlemen. You are
    recognized for 7 minutes.

          TESTIMONY OF MATTHEW DAVIES,\1\ EXECUTIVE DIRECTOR,
         ADMISSIBILITY AND PASSENGER PROGRAMS, OFFICE OF FIELD
             OPERATIONS, U.S. CUSTOMS AND BORDER PROTECTION

        Mr. Davies. Good afternoon, Chair Sinema, Ranking Member
    Lankford, and distinguished Members of the Subcommittee. It is
    an honor to testify today and discuss U.S. Customs and Border
    Protection's operations at our nation's ports of entry since
    the termination of the Title 42 public health order.
    ---------------------------------------------------------------------------
        \1\ The joint prepared statement of Mr. Davies appears in the
    Appendix on page 41.
    ---------------------------------------------------------------------------
        I am proud to represent the more than 30,000 dedicated
    personnel of CBP's Office of Field Operations, who remained on
    the front line through throughout the Coronavirus Disease 2019
    (COVID-19) pandemic, and who work tirelessly every day across
    328 ports of entry to protect our border, our homeland, and our
    communities.
        OFO must balance multiple complex mission sets, including
    the processing of inadmissible persons, facilitating lawful
    trade and travel critical to our nation's economy, and
    protecting our communities from dangerous activities of
    transnational criminal organizations (TCOs).
        Today, I will summarize OFO's current operations for
    processing inadmissible persons and highlight our ongoing
    enforcement and facilitation efforts. OFO's current processing
    procedures for inadmissible persons in the Southwest border
    ports of entry developed from an approach that the Department
    of Homeland Security began implementing last year to manage the
    continued increase in irregular migration, and for OFO to
    ensure performance of our primary security and facilitation
    mission objectives.
        Starting in October 2022, DHS implemented a process
    allowing certain Venezuelan nationals to travel to the United
    States by air to seek parole, which is granted on a case by
    case basis for up to 2 years. This process was expanded in
    January for nationals of Cuba, Nicaragua, and Haiti, along with
    a CBP One application featuring a feature enabling applicants
    to request advance travel authorization (ATA) via the app.
        To receive advance travel authorization, these nationals
    must meet specified criteria to include having a U.S. based
    financial sponsor and clearance CBP's rigorous biometric and
    biographic screening.
        As of July 31st, more than 181,000 Cubans, Haitians,
    Nicaraguans, and Venezuelans have arrived through this process.
    Building on this approach, on May 11th, when the Title 42 order
    ended and CBP resumed applying its full range of immigration
    authorities under Title 8, DHS and the Department of Justice
    (DOJ) implemented a circumvention of lawful pathways (CLP)
    rule, establishing parameters and processes for asylum
    eligibility.
        The rule was implemented in conjunction with a new CBP One
    feature that allows non-citizens seeking to enter the United
    States to submit advanced biographic and biometric information
    and schedule an appointment with a CBP officer at one of eight
    designated ports of entry for appropriate processing
    disposition under Title 8, as determined on a case by case
    basis, considering the totality of circumstances.
        The CBP One app is just one example of how OFO is using
    innovative technologies to enhance the security and efficiency
    of processes at our ports of entry. OFO also continues to
    expand electronic e-file functionality across our operational
    footprint. This initiative allows CBP, U.S. Immigration and
    Customs Enforcement (ICE), and USCIS to share and maintain a
    single immigration case file in a digital environment,
    replacing a paper based process.
        Prior to May 11th, OFO implemented electronic e-file
    processing for notice to appear (NTA) and certain other Title 8
    dispositions throughout the Southwest border field offices,
    including at the eight ports of entry that inspect non-citizens
    with CBP One appointments. In August, 80 percent of the
    amenable, inadmissible population encountered by OFO at the
    Southwest border was processed using an electronic e-file.
        The transition to integrated digital processing platforms
    as part of comprehensive border management operations enables
    OFO to create significant efficiencies for our officers,
    modernize our processes, manage our available operational
    resources, and pursue other mission priorities.
        While OFO continues to address irregular migration
    challenges, we also maintain a persistent focus on national and
    economic security. For example, we continue to combat the
    increasing threat of illicit synthetic drugs, especially
    fentanyl, being trafficked into the United States.
        To date, this fiscal year (FY), CBP has seized
    approximately 24,000 pounds of fentanyl nationwide, with most
    of it, 21,000 pounds, seized at our ports of entry. CBP is
    pursuing several strategic objectives to address this
    significant issue, including expanded partnerships and
    information management to deliver actionable intelligence,
    advancement of data integration and analytics to enhance
    targeting efforts, and focused law enforcement actions to
    disrupt and dismantle illicit synthetic drug networks.
        At the same time, OFO is facilitating growing volumes of
    international travel across all operational environments. In
    July, the number of travelers arriving by air into the United
    States increased approximately 18 percent when compared to the
    same time last year, while pedestrian and passenger vehicle
    traffic at our land, border ports of entry increased by 12 and
    11 percent respectively.
        We also continue to facilitate the flow of trillions of
    dollars in legitimate cargo every year through our ports of
    entry, while enforcing hundreds of trade laws that protect
    American businesses and consumers.
        As part of our planning for the end of Title 42, OFO surged
    resources, technology, and personnel to safely and efficiently
    manage challenges at the ports of entry, while maintaining a
    persistent focus on our other missions, including but not
    limited to interdicting illicit drugs and facilitating the flow
    of legitimate trade and travel to ensure continued national and
    economic security.
        I appreciate the Subcommittee's continued support of our
    mission and our workforce, and I look forward to your
    questions.

       TESTIMONY OF DAVID S. BEMILLER,\1\ CHIEF, LAW ENFORCEMENT
     OPERATIONS DIRECTORATE, U.S. BORDER PATROL, U.S. CUSTOMS AND
                           BORDER PROTECTION

        Mr. BeMiller. Good afternoon, Chairwoman, Sinema, Ranking
    Member Lankford, and distinguished Members of this
    Subcommittee.
    ---------------------------------------------------------------------------
        \1\ The joint prepared statement of Mr. BeMiller appears in the
    Appendix on page 41.
    ---------------------------------------------------------------------------
        It is an honor to testify today on behalf of the U.S.
    Border Patrol to discuss the operations along the Southwest
    border, which--since the termination of Title 42 public health
    order. This past May, the U.S. Border Patrol celebrated its
    99th anniversary.
        As we approach 100 years to this country, much has changed
    in the agency and throughout the world. However, during my 25
    years of service with the U.S. Border Patrol, at least two
    aspects have remained unchanged.
        First, the Border Patrol mission has always been complex,
    demanding, and very dangerous. Second, the ability of our
    workforce to persevere even during the most challenging times,
    it is truly remarkable, and a reflection of the agents' can do
    attitude. There are three areas that I would like to focus on
    today. First, summarizing the Border Patrol's current
    immigration enforcement processes.
        Second, discuss our ongoing border security operations and
    initiatives. Third, highlight how we are addressing anticipated
    operational challenges. First, our immigration enforcement
    processes. While Title 42 was in place, it was part of a
    national effort to prevent the spread of COVID-19. During that
    time, the Border Patrol expelled certain migrants encountered
    between the ports of entry.
        While this aided in the streamlining the return of certain
    individuals, it also led to a higher level of repeat
    encounters. Since Title 42 ended, all migrants interdicted
    between the ports of entry are transported to Border Patrol
    facilities, processed in accordance with Title 8 authorities,
    and appropriate consequences are applied.
        This may include expedited removal and transfer to
    Immigration and Customs Enforcement. As part of our processing
    and intake procedures, the Border Patrol is committed to
    ensuring the health and safety of those in our custody,
    including providing onsite medical care and referrals to local
    medical services when necessary.
        Each Border Patrol sector faces its own unique challenge.
    Regardless of the circumstance or environment in which
    encounters occur, agents will continue to adapt to the ever
    changing threats. Which brings me to my second point, ongoing
    security operations and initiatives.
        In addition to our immigration enforcement duties, the
    Border Patrol maintains a persistent focus on our mission
    objectives aimed at countering sophisticated and ruthless
    transnational criminal organizations. When it comes to
    combating drug trafficking, such as the deadly flow of
    fentanyl, Border Patrol has amplified its efforts to target and
    seize illicit drugs between the ports of entry.
        Recently, during a 2-month intelligence driven operation,
    the Border Patrol seized nearly 2,500 pounds of fentanyl, along
    with thousands of other pounds of dangerous narcotics and
    weapons. These efforts are directed to protect the citizens and
    the communities of the United States.
        Additionally, coordination with our international partners
    information sharing on migration flows and drug trafficking
    activities. This increases our domain awareness and influences
    how the Border Patrol plans and leverages its resources. The
    Border Patrol also collaborates with our many local, State, and
    Federal law enforcement partners to counter illicit activities
    of TCOs that prey on vulnerable migrants.
        All too often, smugglers abandon them in dangerous and life
    threatening situations. To that end, the Border Patrol agents
    regularly conduct rescues and provide emergency medical care to
    those in distress.
        Our agents rescued over 37,000 migrants this fiscal year,
    including nearly 3,000 in August alone. This brings me to my
    third and final point. As we reflect on the past 99 years of
    the Border Patrol's history and as we rise to the current
    operational demands, there are several complexities and
    challenges that I must address as we look forward.
        We must continue to invest in our workforce, provide them
    with the tools to face these extraordinary challenges head on.
    We also can not overlook the importance of our critical
    infrastructure and the significant role our facilities play in
    our law enforcement mission.
        While quick solutions are unlikely, our facilities,
    including our checkpoints, must be modernized to face the
    evolving threats without impacting trade and travel. Last, the
    most significant operational challenge facing the Border Patrol
    is that our agency is increasingly performing detention and
    processing related duties that are outside the scope of Border
    Patrol's frontline mission.
        While we should be focusing our efforts to combat the flow
    of illicit drugs and disruption of TCOs, much of the agent's
    time is spent transporting, processing, and detaining migrants.
    This substantially increases the risk of got away traffic,
    including narcotics, terrorists, and other contraband.
        Border security is national security. In closing, the U.S.
    Border Patrol will not waver from our critical mission and will
    continue to serve and protect the Nation with honor. I am
    grateful for the continued support of Congress and appreciate
    the opportunity to appear today, and I look forward to your
    questions.
        Senator Sinema. Thank you. Our next witness is Mr. Daniel
    Bible. Mr. Bible is the Deputy Executive Associate Director for
    the U.S. Immigration and Customs Enforcement and Removal
    Operations.
        Mr. Bible leads ERO in its mission to protect the homeland
    through the arrest and removal of non-citizens who undermine
    the safety of our communities and the integrity of our
    immigration laws.
        Responsible for a budget of approximately $4.4 billion, Mr.
    Bible directs operations of more than 8,600 employees assigned
    to 25 ERO field offices and headquarters in more than 200
    domestic locations and 25 overseas locations. Welcome, Mr.
    Bible. You were recognized for 7 minutes.

      TESTIMONY OF DANIEL A. BIBLE,\1\ DEPUTY EXECUTIVE ASSOCIATE
    DIRECTOR, ENFORCEMENT AND REMOVAL OPERATIONS, U.S. IMMIGRATION
                        AND CUSTOMS ENFORCEMENT

        Mr. Bible. Chairwoman Sinema, Ranking Member Lankford, and
    distinguished members of the subcommittee, thank you for your
    continued support for the dedicated and hardworking women and
    men of U.S. Immigration and Customs Enforcement and Removal
    Operations.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Bible appears in the Appendix on
    page 49.
    ---------------------------------------------------------------------------
        I am proud to serve beside them, and I am grateful for the
    opportunity to appear before you today. ERO's mission is to
    protect the homeland through the arrest and removal of non-
    citizens who undermine the safety of U.S. communities and the
    integrity of the immigration system. While ERO primarily
    focuses law enforcement activities within the interior of the
    United States, border enforcement efforts during recent years
    have stretched ERO's resources.
        As a result, ERO must carefully balance its resources to
    continue to uphold its mission in the face of changing
    operational conditions and new demands, including significant
    shifts in the post Title 42 environment.
        They are an implementation of the Title 42 public health
    order, ERO worked closely with U.S. Customs and Border
    Protection to support enforcement operations at the Southwest
    border. As CBP conducted Title 42 expulsions at the border, ERO
    conducted Title 42 expulsion flights, while continuing to
    remove amenable noncitizens under Title 8 immigration
    authority. From March 2020 until May 11, 2023, ICE assisted in
    more than 184,000 Title 42 expulsions.
        ERO also provided direct and sustained support for DHS
    efforts to decompress border facilities. In fiscal year 2022,
    approximately 1,000 ERO employees were detailed to the
    Southwest border to process cases and offer transportation for
    non-citizens apprehended by CBP to alternative detention
    locations, ICE facilities, and--as appropriate.
        ICE's bed space inventory is being constrained by the
    increase of detention facility closures, pending litigation,
    and court decisions, and State laws that hinder the use of
    contract facilities.
        However, ICE has taken several steps to align its detention
    capacity with operational needs in the post Title 42
    environment, including increasing resources to release non-
    citizens with positive, credible fear determinations in a safe,
    humane, and timely manner, leveraging alternatives to
    detention, and focusing detention resources on non-citizens who
    are subject to mandatory detention, pose risks to public safety
    or national security, and may be flight risks.
        In the post Title 42 environment, DHS has increased use of
    expedited removal under its Title 8 authority. Once apprehended
    by CBP at the border, or arrested by ICE in the interior of the
    United States, non-citizens subject to expedited removal may be
    detained by ICE. If non-citizens subject to expedited removal
    indicate that they intend to seek asylum or claim fear, they
    are afforded a credible fear interview with USCIS officers
    while in ICE custody.
        If USCIS determines the non-citizen has failed to establish
    credible fear, ICE continues to prepare for expedited removal.
    If USCIS determines that the credible fear has been
    established, the non-citizens are generally released from ICE
    custody.
        Nevertheless, by expediting the review of asylum claims of
    non-citizens and expedited removal proceedings, no matter if
    positive, credible fear findings exist or not, DHS is able to
    provide relief more quickly to those non-citizens who are
    eligible, and to more quickly remove those non-citizens who are
    not.
        Over the past fiscal year, ICE began to operate several
    programs geared toward the fair, humane, and expedited
    processing the family units. In May 2023, ICE announced the
    implementation of the Family Expedited Removal Management
    Initiative (FERM), for family units apprehended at the
    Southwest border who are processed for expedited removal and
    have expressed a fear of persecution or torture.
        Through FERM, certain family unit heads of households are
    placed on alternatives to detention and are closely supervised,
    while the family awaits a credible fear interview. By the end
    of the month, FERM will be operational in 40 cities nationwide.
    Over the past 18 months, ERO has also increased its removal
    flight capacity.
        The number of international charter flights conducted by
    ICE air operations has increased more than twofold in the
    latter half of fiscal year 2023, compared to the first half of
    the fiscal year. Removals via commercial airlines have also
    increased in the post Title 42 environment.
        As of August 12, 2023, ICE has completed 4,282 commercial
    removals, an 85 percent increase from the same period in fiscal
    year 2022. ERO remains committed to protecting the United
    States through the arrest and removal of those non-citizens who
    undermine the safety of U.S. communities and the integrity of
    U.S. immigration laws.
        In preparation for the termination of Title 42 and changes
    in migration trends, ERO took several steps to ensure the
    agency would continue managing all aspects of the immigration
    enforcement process, including providing CBP with logistical
    support at the Southwest border, increasing the agency's
    transportation capacities, developing and operating several
    family focused programs geared toward the fair, humane, and
    expedited processing of family units, increasing the use of
    expedited removal under ICE's Title 8 authority, and
    reinstituting the civil immigration enforcement priorities.
        ERO's efforts to allow agencies to ensure a fair and humane
    immigration systems, while fulfilling its critical national
    security and public safety mission as well. Thank you again for
    inviting me to testify today, and I look forward to your
    questions.
        Senator Sinema. Thank you. Our final witness is Mr. Andrew
    Davidson. Mr. Davidson is the Acting Deputy Director for the
    United States Citizenship and Immigration Services. In his
    permanent role, he serves as a Senior Counselor for
    Humanitarian Programs in the Office of the Director.
        Previously, Mr. Davidson served as the Acting Deputy
    Associate Director of the Refugee Asylum and International
    Operations Directorate, and as the Chief of the Asylum Division
    of the Directorate. Welcome, Mr. Davidson. You are recognized
    for 7 minutes.

     TESTIMONY OF ANDREW DAVIDSON,\1\ ACTING DEPUTY DIRECTOR, U.S.
                  CITIZENSHIP AND IMMIGRATION SERVICES

        Mr. Davidson. Chair Sinema, Ranking Member Lankford,
    Members of the Subcommittee, thank you for the opportunity to
    appear today together with my colleagues from U.S. Customs and
    Border Protection and U.S. Immigration and Customs Enforcement,
    to discuss how the Department of Homeland Security processes
    noncitizen encounters at the Southwest border.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Davidson appears in the Appendix
    on page 56.
    ---------------------------------------------------------------------------
        My name is Andrew Davidson, and I am the Acting Deputy
    Director of U.S. Citizenship and Immigration Services. My
    testimony today will describe the role of USCIS at the
    Southwest border, and particularly how USCIS processes non-
    citizens in CBP and ICE custody, and as operationalized, the
    circumvention of lawful pathways rule.
        USCIS administers the nation's lawful immigration system,
    including the adjudication of affirmative asylum claims and
    applications for refugee status. USCIS employees work shoulder
    to shoulder with their ICE and CBP colleagues, from conducting
    protection screening interviews at DHS facilities, to
    coordinating the national security and public safety issues.
        The USCIS has a proud history of providing immigration
    benefits to eligible individuals from all over the world. These
    benefits support the fundamental values and needs of our
    Nation, be the economic, humanitarian, and otherwise in the
    public interest.
        USCIS delivers these benefits while ever being vigilant for
    those who seek to undermine the integrity of our immigration
    system, or worse, those who seek to do us harm. USCIS is only
    able to accomplish this complex and vital mission through the
    efforts of its thousands of dedicated public servants who each
    day administer a complex immigration system fairly and
    professionally.
        For more than a decade, the steadily rising influx of
    migrants across the Southwest border has resulted in
    significant increases in apprehensions and the numbers of
    noncitizens placed into expedited removal.
        USCIS screens individuals for credible fear, in some
    situations, the part of the expedited removal process, and
    plays an important role in ensuring that potential asylees or
    victims of torture are not improperly returned to their home
    countries in contravention of our laws, while those who are
    found ineligible are expeditiously removed.
        Our specially trained asylum officers conduct screening
    interviews for non-citizens who express a fear of return or
    otherwise express a fear of persecution or torture or indicate
    intention to apply for asylum during the expedited removal
    process.
        The screening interview is conducted to determine whether
    the non-citizen has a credible fear of persecution or torture.
    Non-citizens who meet the credible fear threshold may be
    retained by USCIS for an asylum interview to adjudicate the
    asylum application or may be placed in removal proceedings in
    immigration court where they can apply for asylum or other
    relief or protection. Individuals found not to have a credible
    fear of persecution or torture may request a review of the
    finding by an immigration judge.
        Over the last 10 years, as irregular migration to the
    Southwest border has increased, the number of credible fear
    referrals to USCIS has sharply increased as well. Approximately
    35,000 detained credible fear cases were referred to USCIS in
    fiscal year 2013. USCIS has seen that number more than tripled
    to approximately 107,000 so far in fiscal year 2023, as of
    August 11th.
        About 51,000 of these cases have been received since May
    12, 2023, after the expiration of the Centers for Disease
    Control and Prevention (CDC) Title 42 public health order and
    the return to processing of all non-citizens under long
    standing Title 8 immigration authorities.
        USCIS has pursued a number of strategies to address the
    increased caseload, including significantly expanding
    authorized asylum officer positions, deploying employees who
    have been previously protection trained from across USCIS to
    assist in the credible fear caseload, and maintaining remote
    interview capabilities.
        Our ability to process credible cases timely saves valuable
    DHS detention resources. It enables the entire expedited
    removal process to operate more efficiently. USCIS remains
    strongly committed to supporting the government wide response
    to the migration flows on the Southwest border, including
    ensuring those who seek protection are provided the opportunity
    to have those protection claims heard.
        At the same time, USCIS remains committed to detecting and
    deterring immigration fraud, including within the asylum and
    humanitarian benefits. The Fraud Detection and National
    Security Directorate within USCIS has embedded teams at each of
    the 11 asylum offices.
        These local teams conduct free interview screening, provide
    onsite consultation to asylum officers interviewing applicants,
    analyze trends and large scale fraud schemes, and serve as
    local liaisons to interagency law enforcement partners.
        USCIS continues to lead an asylum fraud working group
    within the interagency, and in recent years, USCIS has
    supported multiple successful criminal prosecutions and
    convictions involving asylum fraud, further demonstrating the
    Department's commitment to ensuring the overall integrity of
    the immigration system.
        Over the last few months, DHS has implemented new measures
    of humanely managing the Southwest border by enforcing our
    immigration laws, while expanding safe, orderly, lawful
    immigration pathways. The comprehensive approach is outlined in
    the DHS six pillar plan. One of the enforcement measures
    implemented is the use of expedited removal.
        To ensure the expedited removal, including the credible
    fear process, is carried out fairly, efficiently, and quickly,
    USCIS work with ICE and CBP to digitize part of the credible
    fear process and reallocated staffing resources so that
    hundreds of additional personnel were available to process
    credible fear interviews.
        Additionally, certain noncitizen populations are now
    processed for exploitative removal while they are at CBP and
    ICE facilities within days or weeks after they are encountered.
    Through these measures, DHS provides relief more quickly to
    those who are eligible and remove those who are not.
        On May 11, 2023, of the circumvention of lawful pathways
    rule took effect. This rule encourages migrants to use lawful,
    safe, and orderly pathways to enter the United States and
    imposes the rebuttal presumption of ineligibility for asylum
    for certain non-citizens who failed to do so.
        The CLP rule provides exemptions for non-citizens from the
    presumption of asylum ineligibility and allows non-citizens to
    rebut the presumption of asylum ineligibility by demonstrating
    exceptionally compelling circumstances.
        When a non-citizen attends a credible fear interview with
    USCIS, an asylum officer will assess whether the non-citizen
    citizen is subject to the CLP rule, and if so, whether an
    exception applies, or the presumption of ineligibility can be
    rebutted.
        USCIS will continue to respond to its rising numbers of
    credible fear referrals by ensuring DHS follows the laws
    written by Congress, swiftly processing non-citizens so they
    may either seek relief before an immigration judge or be
    expeditiously removed. Thank you for the opportunity to
    testify, and I look forward to answering your questions.
        Senator Sinema. Thank you, Mr. Davidson. We will now begin
    the question part of the hearing. Each Member of the committee
    will have 7 minutes, and I recognize myself for 7 minutes.
        My first question is for Chief BeMiller. Now that Title 42
    has ended, Border Patrol is back to regular processing. Can you
    walk us through what happens after a migrant has been
    apprehended, and what elements are covered in the initial
    processing?
        Mr. BeMiller. Yes, thank you for the question. From the
    time of apprehension, the group is identified to be in a
    variety of different categories. One, of single adults, two, of
    unaccompanied children, and three, family units.
        Their initial intake from the field is identified and then
    they are taken to the appropriate locations to be processed.
    Once they are at the facilities, they receive an initial intake
    medical screening, and if they require additional medical
    attention, they are referred to a local hospital for further
    care.
        Their materials and items that they have with them are
    inventoried and put into safekeeping until they are transferred
    out of the facility. Then they enter the processing portion
    where they are screened and records are checked, and then a
    determination of what their immigration pathway will be from
    there.
        They are asked if they claim fear. If they do, they will go
    through one of the credible fear screening processes and turned
    over to ERO for further review. Then anybody that withdraws
    will be returned back to one of the contiguous nations that we
    have, Mexico or Canada.
        Senator Sinema. Thank you. My second question is for Mr.
    Davies. While OFO was operating under Title 42 authorities from
    March 2020 to May 11, 2023, very few migrants were processed at
    ports of entry. Now, ports across the Southwest border process
    over 1,500 migrants a day.
        Most of the migrants processed at ports of entry make an
    appointment on the CBP One app, while others wait in line for
    the chance to be accepted for a walk in appointment. Does the
    advance information received through the app help speed up
    processing time?
        What is the average amount of time it takes to process a
    migrant who schedules an appointment through the CBP One
    appointment app, compared to the average amount of time it
    takes to process a migrant who gets a walk in appointment?
        Mr. Davies. Thank you for the question. As you pointed out,
    CBP One is used as a scheduling tool. We do intake from the
    international boundary line a variety of different individuals.
        For OFO, its legitimate travel in addition to the migrants.
    The use of CBP One with an appointment helps us to identify
    individuals at that limit line who are scheduled and ready to
    be processed.
        The process itself varies at some of our ports. In some,
    the CBP One appointments are sent to our primary inspection
    location, where the use of CBP One actually helps to pre-
    populate some of the data that has been submitted as part of
    the app in the primary inspection, and from there they are
    referred into secondary.
        In other ports of entry, we have established a process
    where they are directly put to secondary from the limit line.
    The benefits of using CBP One in terms of time savings and free
    population of data are fairly minimal in the second
    circumstance.
        Where we really see the savings on our time is the use of
    the electronic e-file, where on average we are saving up to 30
    minutes per case by using the electronic e-file. The total
    average processing time is about 4 hours for us to process a
    notice to appear case. If there are different case
    dispositions, they may take slightly different amounts of time.
        Senator Sinema. Thank you. To follow up, to what extent
    does OFO coordinate with local non-government organizations
    (NGOs) to prioritize walk in appointments for vulnerable
    migrants?
        Mr. Davies. Yes, we have the ability to coordinate locally
    with NGO's and with governments, as was pointed out earlier,
    especially when we talk about releases of individuals into the
    communities. We have that ability. We prefer to recognize
    individuals who have been registered with the CBP One.
        What we really focus on are the individuals that are clear
    to us to being vulnerable. We focus on urgent humanitarian
    concerns, urgent medical emergencies to prioritize, in addition
    to those individuals who are clearly recognizable as
    unaccompanied children to bring in from the line for processing
    and prioritization.
        Senator Sinema. Thank you. Mr. Bible, given the limited
    number of ERO detention beds, most migrants are released on
    alternative detention programs (ATD) rather than held in
    detention. However, migrants with known criminal records or
    affiliations are generally detained. Could you describe the
    process between ERO and other Federal agencies to determine
    whether a migrant should be held in detention or released?
        Mr. Bible. Thank you for the question. Typically, all of
    our detention cases are--people referred to detention are
    determined on a case by case basis. We look at risk of flight,
    potential for being a public safety threat or national security
    threat.
        We also look at mitigating factors out of longevity of time
    within the United States, advanced age, medical conditions that
    might militate toward releasing an individual ATD rather than
    keeping them in detention.
        But primarily, we look at everything on a case by case
    basis and look for those public safety and national security
    threats.
        Senator Sinema. To follow up on that, what happens when
    there are no open beds and ICE must decide how to handle a
    situation with a migrant who has a known criminal history?
        Mr. Bible. If the criminal history rises to the level of
    being a public safety threat, I have not seen in my 25 years
    where we could not find a bed for an individual that has that
    kind of criminality. We will make room.
        Senator Sinema. Thank you. Mr. Davidson, in certain Border
    Patrol sectors, including the Yuma sector, USCIS is conducting
    credible fear interviews inside Border Patrol facilities. As a
    result, migrants are ending up staying in Border Patrol custody
    longer to await those interviews.
        On average, how long do migrants wait for USCIS to conduct
    a credible fear interview in Border Patrol custody after a
    migrant has expressed fear? How does this compare to the
    average wait time for migrants who are released on the
    alternative detention programs?
        Mr. Davidson. Thank you, Senator. It is 2 days from
    referral to interview, and an additional 2 days from the
    interview to service of the decisions. It is 4 days overall in
    CBP custody, which is a record time for USCIS.
        The second question would be related to our FERM program,
    and then through the FERM, which is for families, and they
    referred to us between 6 to 12 days after CBP sends them to the
    destination cities.
        That is the only comparison I have through the FERM
    process. But certainly what--we are processing and
    prioritizing, and CBP custody, it is record times in terms of
    us being able to turn around our decisions. It is 4 days on
    average.
        Senator Sinema. Thank you. I now recognize Ranking Member
    Lankford for his questions.
        Senator Lankford. Thank you. Again, I appreciate all of
    you. This group are not the policymakers. We understand that
    you are the ones that are actually carrying the policy out, and
    so we appreciate the help of knowing what is actually happening
    on the ground, what is the process on this.
        The concern that I have, as well as a lot of other folks
    have, is if I take the previous 12 years, both terms of the
    Obama Administration, all 4 years of the Trump Administration,
    the number of people that illegally crossed the border during
    that previous 12 years equals the number of people that have
    illegally crossed the border in less than 3 years under the
    Biden Administration.
        When people feel this is structurally different, it is
    structurally different. There is something that is really
    changing, that is happening on the policy, that is happening on
    the movement of people.
        Now, this is not me laying blame on all of you. We are
    trying to figure out the, now what? How do we actually figure
    out the process and what actually happens from here? I do know
    there are some folks in DHS that are probably watching and
    monitoring this. Thank you very much for doing that, by the
    way, and for the engagement, and for all of you actually being
    here.
        But I would bring up a couple of things just to the DHS
    folks that are actually tracking all this hearing as well. We
    have made some very specific requests within the numbers in the
    past, to be able to turn those over.
        We have yet to get those in a timely manner. Senator Sinema
    and I have made a request for a special interest alien
    briefing, to be able to get details on that. We have yet to be
    able to get that briefing. Senator Murphy and I have asked for
    additional information about the notice to appear delegation of
    authority that we have asked about.
        We have yet to be able to get that. We have asked for a
    specific briefing on circumvention of lawful pathways, to just
    spend more time with that, because that is entirely new as a
    process. We have yet to get that.
        Again, none of you are responsible for that, but I do want
    to be able to put out, this has been an ongoing frustration
    that we have literally seen as many people cross in less than 3
    years than we have in 12, yet when we ask questions about
    process that are, how is this working, what is happening, how
    do we get numbers, we are not getting those.
        That is why I am really grateful that all of you are here
    to be able to walk through some of the process and what is
    actually happening at this point. I do want to skip to one of
    the questions that we have for Senator Sinema and I, and that
    is in the special interest aliens.
        For individuals that are crossing the border right now, and
    it is by the thousands from Mauritania, what criminal history,
    background information, data do we have on those individuals
    from Mauritania coming into the country? Do we have any
    background information on those individuals?
        Do we have a cooperative agreement with Mauritania to be
    able to get background criminal information? Do we have any of
    that data? I do not know of any. I am asking you all if you all
    know of any. I am seeing the same expression I have. Do you
    know of any criminal history that we are getting on these
    individuals from Mauritania?
        Mr. Davies. No.
        Senator Lankford. No. I do not know of any either on that.
    Currently, this year, so far, just through earlier this year,
    we have had 10,000 individuals that have come from Mauritania.
    The vast majority of those, my understanding is, are released
    somewhere in the country and we do not know hardly anything
    about those individuals.
        We also have a pretty dramatic increase, about 63 percent
    increase of Syrians that are coming in the country. We have had
    almost 15,000 people from China that have come across the
    border that I understand we do not have a criminal history
    exchange with China. With Pakistan, we have 1,000 folks.
        We have over 2,000 folks from Somalia that have come. These
    special interest aliens, we are trying to figure out the
    details of them, and as far as we can tell, they are being
    processed and released in the country, awaiting a hearing in
    the future and we do not have a day to day supervision of those
    individuals. Is that accurate or not accurate? Mr. Bible.
        Mr. Bible. It is accurate that we are not tracking them on
    a day to day basis. Not the totality of them. Some are probably
    on alternative detention where we have more tracking.
        Senator Lankford. For those individuals that are in
    alternatives to detention, how long are they on the alternative
    to detention program for? Is that months? Days? Is that all the
    way up until their hearing? How long are we tracking those
    individuals?
        Mr. Bible. We escalate and de-escalate depending on several
    factors, criminality, compliance with the ATD program, and
    other factors. Our average length of stay on alternative
    detention is approximately 547 days.
        Senator Lankford. OK. Is that 547 days until they are
    hearing time, or what is that trigger at that point?
        Mr. Bible. It depends on, again, the compliance rate and
    community ties. We can de-escalate them off the alternatives
    detention program if those conditions are met. But we can also
    scale it up if they are not complying with the conditions of
    their release.
        Senator Lankford. It is our understanding the vast majority
    of individuals that are in alternatives to detention, it is 3
    or 4 months or less that they are on an alternatives to
    detention program. Is that accurate or not accurate? You are
    saying it is a year and a half, basically, that they are on.
        Mr. Bible. I mean, we did have an increase of individuals
    put on alternatives to detention as they were leaving the
    Southwest border until they reached their destination city
    where they would be enrolled, but where they actually checked
    in and we were starting to monitor them on the non-detained
    docket.
        Senator Lankford. Right. The last numbers that we had in
    that came in from DHS was tracking about 130 days, that people
    were in alternative to detention, and after that, they are not.
        They are significantly longer than that before their actual
    hearing day, if they are doing an asylum request. It is our
    understanding that if they are requesting for instance, New
    York, the next open dates are somewhere in 2033 for that
    hearing time.
        We have a pretty big gap of individuals that have claimed
    credible fear, have gone through the initial screening, have an
    alternative to detention for, let us say, a year and a half for
    the maximum that.
        Most likely, more like 130 days was the last numbers that
    we had. Then the next 8 years, if they are awaiting that
    hearing time in New York. It is shorter in other areas, but in
    New York, and Florida, and multiple areas, it could be 7, 8, 9,
    10 years before they get to that hearing. Is that accurate or
    not accurate?
        Mr. Bible. Right now, we are scheduled out approximately 10
    years, at least in New York City. However, we are working on
    technological solutions to where a non-citizen can update their
    address on our website, request mail out NTA, which will allow
    us to spread out the workload throughout the country and
    throughout our workforce, where we won't have to just rely on
    check-ins directly into the New York city office, which doesn't
    have a fiscal plan to handle that volume.
        Senator Lankford. What I would like to do is I am going to
    come back for a second round of questions here a little bit
    once everybody has gone through, and I want to walk through the
    process. What I want to talk through is the difference between
    an individual at a port of entry that has a CBP One app time
    scheduled, somebody that does not have that, somebody that
    comes between ports of entry, what actually happens to them in
    the process.
        Then once they actually leave the border, they are released
    from the country, what is actually occurring at that point. I
    want to be able to walk through that process and so we can get
    the differences for that individual because there are pretty
    serious concerns.
        It was not that long ago I was at the border, and I was at
    one of the times of gathering the muster for Border Patrol. In
    the muster they were going through standard things, and one of
    the Border Patrol agents asked the question of leadership at
    that point, just this muster, hey, last night or two nights
    ago, we picked up three guys from Nicaragua in camo, in their
    20's, looked like they were military, what happened to them?
        The response was, they were cut loose. We do not have them
    anymore. That kind of dialog that is happening makes a lot of
    questions happen in the whole process to try to figure out, but
    we are trying to figure out how decisions are made when there
    are three guys in camo, clearly military or military age, and
    trying to figure out what happens next to them.
        Obviously, it is a case by case basis, but everybody is
    trying to figure out what that actually looks like from there.
    Senator Blumenthal, you are next for questions.

                OPENING STATEMENT OF SENATOR BLUMENTHAL

        Senator Blumenthal. Thanks a lot, Senator. Thank you all
    for being here and thank you all for your service. Chief
    BeMiller and Executive Director Davies, I was very interested
    in your testimony about fentanyl and Operation Blue Lotus,
    which seems to have been successful in increasing fairly
    drastically the interdiction of fentanyl at the border.
        As I read the numbers here, the rate of interdiction is
    roughly double or more, with 4,781 pounds of fentanyl in just 2
    months, as compared to the 14,700 pounds in fiscal year 2022.
    You talk here about non-intrusive inspection (NII) technology,
    about the sharing and collaboration on information, because the
    vast majority of fentanyl coming into this country is at ports
    of entry where this technology can be employed.
        Could you talk a little bit about the potentials for
    greater use of technology, information sharing? I know you are
    in the middle of Operation Artemis right now. In relation to
    that operation, how these new forms of interdiction can be
    potentially important.
        Mr. Davies. Yes. Thank you for the question, Senator. You
    are right, Operation Blue Lotus, from our perspective, was a
    huge success in terms of increasing the amount of interdiction
    of fentanyl that we saw over just a short period of time.
        I think to your point about NII technology, we know that
    where we are scanning, or I think somewhere around 90 percent
    of the interdictions we receive from our narcotics perspective
    come from non-intrusive inspection scans of a small percentage
    of the vehicles that are actually crossing our border.
        We do not have the existing infrastructure to scan much
    higher rates. We are appreciative that we have received funding
    from Congress. We are working on a plan to actually deploy more
    of our both large scale and small scale non-intrusive
    inspection technologies throughout the Southwest border to
    focus on that.
        But as you pointed out also, Operation Artemis now is kind
    of the next level of the fentanyl fight for us and really
    focusing on not just the interdiction of fentanyl itself, but
    the precursor chemicals, the pill presses, working with our
    international partners on sharing that information, and
    addressing the criminal organizations that are working far
    beyond our borders to start the trans-shipment and movement of
    fentanyl into the United States.
        Senator Blumenthal. How good is the information sharing
    with other law enforcement?
        Mr. Davies. With other law enforcement in the United
    States, I think, is very good. We have a very robust process.
    We are certainly working to increase information sharing across
    our international partners and our international networks. As
    you would expect, there are some international partners that we
    have far better information sharing capabilities with than
    others, but we are continuing working to improve those.
        Senator Blumenthal. Who are the good and who are the bad?
        Mr. Davies. I would rather not divulge that here.
        Senator Blumenthal. OK. I understand fully. Mr. Davidson,
    how important is counsel, that is some kind of legal advice, in
    the interviews that are conducted for the credible fear
    interviews that are conducted?
        Mr. Davidson. It provides due process, Senator. For the
    credible fear process, It is just not an attorney. The statute
    203.30 allows for a non-citizen to choose anyone that person
    wants to consult with, be an attorney, or a religious person,
    or anything.
        Senator Blumenthal. Maybe I was not clear in my question.
    In your experience, and I open this question to others as well,
    a person arriving at the border claiming a credible fear, may
    not speak English, may have no idea what this credible fear
    thing is, the interview, the standard--no experience with any
    sort of objective, impartial justice system before. How
    important is an advocate in explaining the process to that
    individual asylum seeker and in implementing the standard to
    elicit the important facts?
        Mr. Davidson. It is reasonably important, Senator. The
    caveat to that is certainly that my colleagues at CBP and ICE
    also have an orientation process where the orient an individual
    seeking asylum to the credible fear interview itself through
    Form M-444. I think that an attorney can help supplement that
    too as well.
        Certainly, that if an individual wants to seek counsel,
    then we provide access to counsel and ensure that individual
    has counsel, and if he so desires, and so it is an integral
    part of the process.
        Senator Blumenthal. Do you think the numbers in your
    testimony--and I am not sure I understand all of them, but you
    go through some numbers at the end of your testimony about
    different percentages. Do you think those percentages would
    change if more of those asylum seekers had counsel?
        Mr. Davidson. I think that is a fair point to make. I think
    that there is certainly a tendency to have different outcomes
    when there is counsel in certain instances.
        Not in every instance, but certain instances, yes. I think
    that an individual or a non-citizen who had sought counsel for
    a particular case has seen a positive like outcome based on
    their counsel's representation.
        Senator Blumenthal. The general consensus seems to be that
    we do not have enough of the counsel, we do not have enough
    judges. In effect, our justice system, our immigration justice
    system is lacking resources to fairly and effectively process
    those asylum seekers. Am I wrong?
        Mr. Davidson. I do not think that is a wrong statement as a
    generality in terms of our immigration courts being under-
    resourced, DHS, this panel being under-resourced, certainly.
        DHS has painstakingly worked with our advocacy communities
    to ensure that there are groups that are sponsoring their
    attorneys none--for, pro bono work, certainly. We continue to
    advocate with our stakeholders to ensure that there is like low
    cost attorneys provided. If somebody chooses to take that
    option.
        Senator Blumenthal. Thank you. My time has expired. Thank
    you, Madam Chair.
        Senator Sinema. Thank you. Senator Carper, you are
    recognized.

                  OPENING STATEMENT OF SENATOR CARPER

        Senator Carper. Thank you, Senator. Thanks so much. I had a
    chance to, Madam Chair, to say hello to these gentlemen a bit
    earlier before I went to another meeting. We are in and out.
        We are voting on the floor. We have other committees to
    make, so apologize for being not a constant presence in your
    life for these 2 hours. A couple of you have served in the
    military. Anybody in the Navy? Navy salutes Navy. Good to see
    you, welcome.
        Anybody who ever served in the Army? Yes, there you go. I
    think maybe both of you saw a time overseas, and as one who
    actually spent a lot of time in the military, in the Navy, I
    very much value your service, in that role, those of us in
    uniform, and also these roles in uniform.
        I have a couple questions. I hope these have not been
    answered. I do not think they have, but the first one I want to
    ask deals with U.S. Border Patrol agents in the field. U.S.
    Border Patrol agents in the field.
        Again, thanks so much for being here today. The insight you
    shared with us is critical to the communities. It is valuable
    to me, and I think to others as we work to support the
    Department of Homeland Security, and its mission is to maintain
    a safe and secure Southwest border. I have been privileged to
    serve in the Committee.
        Been in the Senate for 22 years. I have been on this
    Committee since it was first founded, created out of, this
    Committee on dealing with government operations. But so,
    anyway, I have a great affection for the department and the men
    and women who serve.
        I think it was that 2 years ago, in 2021, Department of
    Homeland Security announced a new position with U.S. Customs,
    within U.S. Customs and Border Protection, and that is the
    Border Patrol processing coordinators. I do not know if this
    has already been discussed, but it has, forgive me, but I want
    to drill down on it again, if we could.
        These coordinators, as I understand it, assist the CBP
    agents with the care and processing of migrants and allow
    Border Patrol agents to focus on their law enforcement duties
    in the field. Chief BeMiller, can you just expand for us, if
    you will, on the effectiveness of these new processing
    coordinators.
        Presently, is there a sufficient number of processing
    coordinators to allow Border Patrol agents to better resume
    their duties in the field? Go ahead.
        Mr. BeMiller. Thank you, Senator.
        Senator Carper. Welcome.
        Mr. BeMiller. Thank you. Appreciate it. Thank you for the
    question. Absolutely necessary, as are many of our partnerships
    that we work with. The Border Patrol processing coordinators,
    we have almost 1,200 of them to date. Every support we get to
    return a Border Patrol agent back to the line is well received.
        While we have those 1,200 Border Patrol processing
    coordinators, we are still far from returning all of our Border
    Patrol agents back to the line. They are conducting duties, as
    I mentioned in my opening statement, far beyond the scope of
    their responsibilities. We need to get them back to the line.
    They have an important mission, an important role.
        Senator Carper. All right. Thank you. Let me follow it up
    with the question, again of you, Chief BeMiller, also Director
    Davis, if you would.
        Throughout the time I have been in the Senate, I have
    really focused on root causes in this Committee, and frankly,
    in other Committees as well. I guess the symptoms of
    challenges, the problems, but what are the root causes? What
    are we doing about it? What can and should we do about them?
        But we have seen time and time again that there is a
    correlation between the rule of law, corruption, and economic
    opportunity in Central and South American countries, and in the
    migration flows at the U.S. border.
        Chief BeMiller and Director Davies, given the migration
    flow in recent years and the number of migrants crossing at
    different ports of entry along the border, can both of you
    briefly speak as to how your components respond to these
    changes?
        Next, how do you strategically manage resources to ensure
    that efficiency and efficacy are maintained at various ports of
    entry? Chief, would you go first, and then Director Davies.
        Mr. BeMiller. Yes. Thank you again for the question. We
    work with our foreign operation branch and our intelligence
    branch, and with Department of Homeland Security policy, to
    coordinate with our strategic international partners and
    monitor the flow through the Western Hemisphere and around the
    world.
        This information gives us the opportunity to, as I
    mentioned, leverage our resources and deploy them to the
    optimal locations where we predict the traffic would be coming
    between the ports of entry. It is an extremely important
    partnership, and it is just beneficial for our mission.
        Senator Carper. Director Davies, please.
        Mr. Davies. Yes, it is very similar to Chief BeMiller. We
    coordinate with our international partners. Within the Office
    of Field Operations, we actually have several programs, not
    just in the Western Hemisphere but across the globe, with our
    immigration advisory program, our joint security program, and
    our police liaison program that are focused on working with our
    international partners to identify flows, reasons, and to come
    up with solutions that can be implemented to limit the ability
    for people to move through other countries, solely for the
    purpose of exploiting lives, while maintaining the ability for
    people who are seeking protection to be able to come to the
    United States lawfully, to do so.
        Senator Carper. Last question, if I could. In your
    testimony, Chief BeMiller--I am not picking on you, Chief,
    but--and Director Davies. But you both highlight the importance
    of coordination and collaboration within DHS and other Federal
    partners. Chief and Director Davies, as we see highs and lows
    in migration flows along our Southwestern border, to what
    extent do each of you receive regular updates on the primary
    reasons behind influxes in migration? How does this information
    get shared amongst DHS components and help agents do their work
    on the ground? Director Davies.
        Mr. Davies. Yes. Thank you for the question. We do receive
    regular updates. Yes, I would say maybe not quite daily, but
    certainly every week about the flows and some of the reasons.
        I think we share a lot of that information with our
    officers on the front line. Just to be very candid, that the
    reasons do not always make a difference in terms of what kind
    of processing is going to happen or, at the point where they
    are at the ports of entry or in CBP processing, it is too late
    to effect any change in terms of the reasons that people are
    leaving.
        I know that at a broader level, we are trying to work with
    our foreign partners to address some of those root causes, as
    you said. We are tracking those reasons. But from an
    operational perspective, the reasons that people are coming in
    has little impact on what we do operationally.
        Senator Carper. Go ahead, Chief. Same question.
        Mr. BeMiller. Same question, same answer--very similar. We
    do monitor some of the push factors. But again, the intention
    of migrating to the United States does not have an effect on
    the way that we respond. Regardless of their intentions for
    coming here, reasons for fleeing their countries, economic or
    otherwise, we still plan our operations based on the movement
    of individuals crossing through the hemisphere.
        Senator Carper. Good. Madam Chair, could I ask another one
    minute, if I could, just to say a closing thought. The several
    of us on this Committee have been up and down the Central
    America, Latin America for quite a number of times, for quite a
    few years. There is a reason why they want to come up here and
    it is because their lives are, in many cases, miserable.
        One of the things that is making life tough for them is the
    weather, droughts. A lot of folks who used to be able to dry
    and grow coffee and other commodities that are not able to do
    that anymore and make a living. The other one, one of the other
    things that I have noted is, we have gone through two long
    periods of time, like one--Honduras, I remember for a number of
    years, maybe 2 or 3 years, we did not have any Ambassadors,
    Senate confirmed Ambassador in Honduras.
        Right now, we do not have a Senate confirmed Ambassador in
    Colombia and we need Senate confirmed Ambassadors in all those
    countries to help right--and make sure that the folks that are
    leading those countries are behaving and that we are being a
    good partner to them.
        Two points. One, when we have good folks, good candidates
    have been nominated serving these Ambassador positions, we need
    to seriously take them up and get them done and put them to
    work.
        The second thing is the source of drought. I think we have
    a pretty good idea of what is causing it. It is climate change,
    and we are doing a lot about it. We need to continue to do
    that. Thank you, ma'am.
        Senator Sinema. Thank you, Senator Carper. I now recognize
    Senator Johnson.

                  OPENING STATEMENT OF SENATOR JOHNSON

        Senator Johnson. Thank you, Madam Chair. Chief BeMiller,
    you said you were with the U.S. Border Patrol for 25 years?
        Mr. BeMiller. Yes, sir, that is right.
        Senator Johnson. You were with Border Patrol when they used
    to call it apprehensions then, correct? What you do when you
    have encountered----
        Mr. BeMiller. Arrest, apprehension, yes.
        Senator Johnson. You call them apprehensions. You were also
    there probably in 2014, that time period when I know DHS
    Secretary Jeh Johnson said, 1,000 apprehensions a day was a
    really bad day for Border Patrol. Is that true?
        Mr. BeMiller. It is true that he said that, yes.
        Senator Johnson. I think President Obama actually called
    that, when we topped off about 2,000 apprehensions, he called
    that humanitarian crisis. You were there. Did that kind of feel
    like a humanitarian crisis back there, 2,000 people apprehended
    a day?
        Mr. BeMiller. It definitely was a challenge.
        Senator Johnson. When did we shift from calling
    apprehensions to encounters?
        Mr. BeMiller. Thank you for that question and the
    opportunity to clarify it. The difference between an
    apprehension and an encounter particularly came up during Title
    42, because the individuals were not formally brought into
    Border Patrol custody, they were screened and returned
    immediately. That is the difference between----
        Senator Johnson. The last time I was at the border, yes,
    there were some screened and returned, and quite a few--I think
    over 1 million, the figures I saw. But an awful lot were
    processed and dispersed.
        Last time I was at the border, I was told by Border Patrol
    agents that the goal that was given to them was to encounter,
    process, and disperse in 8 hours. Is that basically the goal
    now? Is that what we are doing?
        Mr. BeMiller. As the Chief of Law Enforcement for Border
    Patrol, that is not the guidance or purpose that I direct.
        Senator Johnson. How long are you holding people when you
    encounter them, before they are processed, and dispersed, and
    sent on a plane or a bus to their final destination? What was
    the timeframe there?
        Mr. BeMiller. That is part of the complexity of the
    environment that we are operating in right now. We have people,
    as I mentioned in my opening statement, in our custody for far
    too long. The processing, depending on the pathway that is
    appropriate for them, we have a number of bottlenecks.
    Definitely the bottleneck occurs after processing, waiting----
        Senator Johnson. Do you know the average number of
    encounters during the Biden Administration per day? Do you know
    what the average is?
        Mr. BeMiller. I do not have that number.
        Senator Johnson. Really?
        Mr. BeMiller. Oh, the average per day?
        Senator Johnson. Yes.
        Mr. BeMiller. Right now, it is about 6,500.
        Senator Johnson. It is about 6,000 a day since the
    beginning of the Biden Administration, 6,000 a day. Again, it
    was a humanitarian crisis we were apprehending 2,000 a day. It
    was a bad day, according to Jeh Johnson, when 1,000 people were
    apprehended.
        Now we are averaging for almost the last 2\1/2\ years, over
    6,000 people today. We cannot get Secretary Mayorkas to say
    that is a crisis. When do you say it is a problem? He calls it
    a challenge. I know that in a number of your testimonies, you
    kept talking about efficiency.
        Just sitting here in this sedate hearing setting, it almost
    seems like we have this under control. This is completely out
    of control, is it not? What data do you have, do you keep,
    because they do not share it very readily with us, in terms of
    the number of people who have been encountered, processed,
    dispersed?
        How many people do you know are known got aways? What is
    the estimate of unknown got aways? Do you have that for the
    first 2\1/2\ years of the Biden Administration? Do you have an
    estimate of that? Because I do.
        Mr. BeMiller. I do not have that broken down right now.
        Senator Johnson. Would it surprise you to say about 5
    million people have either been encountered, processed, and
    dispersed, or are known or unknown got aways--5 million people.
    Just put that in perspective, by the way. The population of
    half the States is 5 million or less. Chief BeMiller, do you
    believe that is a crisis? Do you believe that is under control?
        Mr. BeMiller. Not getting too tied up into the semantics of
    the situation, we are in a situation that is pressing our
    resources.
        Senator Johnson. You talked about most of your Border
    Patrol agents are spending most of the time in detention and
    processing, which means we have wide open gaps, for known and
    unknown got aways, for drug trafficking.
        When I was Chairman of this Committee, I went down to
    Southern Command and talked about, we interdicted at most 10
    percent of the drugs. We talk about, yes, we have all these
    fentanyl apprehensions, or confiscation of fentanyl, but we are
    getting a mere fraction of it.
        In manufacturing, 10 percent is called scrap. This is
    completely out of control, and we need to say it is out of
    control. We need to recognize reality here. Senator Blumenthal
    asked, I mean, do you lack resources in terms of processing
    these claims? The reason you lack resources because illegal
    immigration is completely out of control--5 million people.
        Chief BeMiller, what problems are you having recruiting
    people? How many people are retiring even before they are
    eligible for full retirement? I go down to the border. I see
    morale incredibly low levels. Members of the Border Patrol want
    to enforce that law.
        They are not being able to really enforce our law. They are
    processing. They are dispersing. It is not particularly
    satisfying. Can you speak to the level of morale now within
    Border Patrol.
        Mr. BeMiller. Thank you for that again, sir. Yes,
    absolutely. I have been around the country and spoken to
    thousands of Border Patrol agents. The pride that they have in
    the work that they do, they ask only for the tools to be able
    to go out and do that job. They ask for the freedom to go out
    and do their job as well.
        As I mentioned, they are processing far too much. Recently
    we attending a muster with the agents. They need better
    vehicles to get out to the remote areas.
        Senator Johnson. They need control of the border. They need
    Administration who is dedicated to controlling the border. Very
    famous movie, the Sound of Freedom. Talked about the sex
    trafficking of children. I have written letters from Chairman
    of Senate Committees to hold hearings on that depredation. This
    open border policy is facilitating, and you know this, the
    multibillion dollar business model of the human traffickers, of
    the sex traffickers, the drug traffickers. Correct?
        Mr. BeMiller. Absolutely. It is a dangerous and complex
    environment.
        Senator Johnson. Your Border Patrol agents have to, as
    Senator Lankford is talking about, encounter some individuals
    in camouflage, of military age, and they process to disperse
    them, because that is what you are being directed to do by this
    Administration. It is not your fault.
        This is a travesty that is happening in this country. What
    is frustrating for me, having chaired this Committee, held
    probably three dozen hearings on the border, understanding the
    problem, to not be holding hearings--I appreciate this hearing.
    But then to be speaking in such sedate terms. Leading people
    believe that, oh, we have this under control.
        Only 10 years, only--you did not even say only. 10 years
    till the first hearing immigration hearing in New York City--10
    years. It is a completely open border, it is out of control,
    and we need to call it what it is--it is an open border. This
    has to stop. This is not this not what a sovereign country can
    sustain. Thank you, Madam Chair.
        Senator Sinema. Thank you, Senator Johnson. Senator
    Padilla.

                  OPENING STATEMENT OF SENATOR PADILLA

        Senator Padilla. Thank you, Chair Sinema, Ranking Member
    Lankford, for bringing us together today to better understand
    how the immigration enforcement system is functioning post
    Title 42.
        I do want to state that I am glad to have the opportunity
    to speak with witnesses from ICE, CBP, and USCIS yesterday, but
    I think I am not the only Member of this Committee expressing a
    little disappointment that we do not have a chance to speak
    with somebody from DHS headquarters to ask about some of the
    outstanding policy questions, including concerns regarding the
    funding allocations under CBP shelter and services program, a
    concern that I know the chairwoman shares.
        Also note the absence of a representative from DOJ's
    Executive Office of Immigration Review (EOIR), the immigration
    courts, without which we do not have the complete picture of
    how immigrants are processed at the border.
        While I applaud the work of the Biden Administration to
    attempt to rebuild our broken immigration system, I will
    continue to express my serious concerns about some of the more
    recent policy initiatives it has undertaken, particularly that
    of the credible fear interviews while migrants are in CBP
    custody.
        My concern is only compounded by a lack of responsiveness
    to oversight requests that we have made. While I understand
    that the focus of today's hearing is large on operations and
    implementation, I do want to note for the record this
    concerning lack of responsiveness, and I want to reiterate my
    expectation that DHS provide all the requested information and
    answer outstanding questions in a timely manner.
        I believe I speak for all Members of the Committee in that
    regard, particularly as we are being asked to consider
    additional border funding in the supplemental in the very near
    future. But as far as questions for today, let me begin by
    noting CBP and DHS's proactive engagement in operational
    planning with NGO's that provide shelter and services to
    migrants and asylum seekers in Southern California.
        I think this type of coordination is vital to ensure that
    NGO's can efficiently and safely provide services for migrant
    families and adults who are released by CBP to continue with
    their immigration cases. I actually think this model of
    coordination and cooperation should be considered a best
    practice and an expectation moving forward.
        However, I do consider to hear--that coordination and
    information sharing practices between CBP, and NGO's could
    still be improved somewhat, particularly in terms of sharing
    demographic information and linguistic needs information of
    individuals being transferred to NGO's.
        Mr. Davies, can you please explain how CBP coordinates with
    NGO's and local jurisdictions on individuals released from
    custody?
        Mr. Davies. Yes. Thank you for the question, Senator. We do
    engage with local NGO's. I think you are right that we have a
    very good relationship in Southern California. I wish that the
    level of engagement from some of our other locations would be
    as good and robust.
        We are kind of, I do not want to say stuck with the hand or
    dealt sometimes in terms of the partners that we have to rely
    on, because from an OFO perspective, when we are done
    processing, it is our intention to move individuals out of the
    ports of entry so as not to create a safety or security issue
    at the port of entry.
        We do coordinate with them. We do not always have the
    ability to share individual information on the non-citizens who
    are coming through and being moved forward to the NGO's. Some
    of that is from a privacy perspective, as I understand it.
        But I think your point about sharing demographic and
    linguistic, we know that those are challenges for us that we
    face when we talk about having translators available for some
    of the nationalities that we process. I can understand why that
    is important for the NGO's to have as well.
        Senator Padilla. That is why I specified those two
    examples, because that is not personal, identifiable
    information (PII). That just seems to me, unless there is legal
    restrictions that suggests otherwise, helpful information for
    the NGO's trying to assist here and play that supportive role
    for you all.
        Now, you use the terms, working with the hand that we are
    dealt. Is it a policy restriction? Is it equality of NGO
    challenge? Why can't this model of cooperation be expanded and
    replicated in other areas?
        Mr. Davies. Yes. Thank you. Again, I do think that some of
    it has to do with capacity of the NGO's. We have attempted in
    all of our locations across the Southwest border to engage with
    our NGO partners. We understand that there under a large strain
    too, because of the volume coming across. As what we see, is
    that their capacity is strained usually far before CBP's
    capacity is strained. That creates those logistical challenges
    for them and for us.
        Senator Padilla. I understand. Look, getting it on the
    record here is helpful because we have tried to advocate for
    additional funding for them from the Federal Government,
    because at the end what they are doing is playing a supportive
    role to your function in a much more cost effective way than if
    we try to do all this with Federal employees from one agency,
    or department, or another.
        To be specific here, I know my time is running out, the
    impact of shelter providers on CBP's ability to process
    individuals, can you take 30 seconds on that? The NGO's that
    are receiving some of these folks----
        Mr. Davies. Yes, if----
        Senator Padilla. Their capacity to shelter----
        Mr. Davies. If they are not able to receive, if they do not
    have capacity at their shelters, then it means that ultimately
    the individuals that we are releasing from the ports of entry
    may not have somewhere to go. They may not have a bus to get on
    to. They may not have transportation or services available,
    which creates a strain on the local border communities in
    proximity to the ports of entry.
        Senator Padilla. Great. Thank you. The other area I wanted
    to make sure to raise is in the area of criminal prosecution of
    asylum seekers. As we all know, under our existing immigration
    laws, people do have a right to seek asylum in our country
    irrespective of their manner of entry.
        Doesn't mean it is guaranteed, but they can at least seek
    it. Put simply, someone who crosses the border in the desert
    and turns themselves into Border Patrol to seek asylum has just
    as much of a right to do so as someone who walks up to the port
    of entry to present themselves to claim fear.
        I know we are working on incentives to do that at port of
    entry and not in between. But at the same time, this
    Administration has been clear that it intends to impose
    consequences for unlawful entry, including potential
    prosecutions for unlawful entry and reentry. We have been
    trying for a while now to get a clear answer on where the
    Administration stands on referring migrants for prosecution who
    have claimed fear.
        I will address this question to Mr. BeMiller. What is the
    Border Patrol's policy regarding referral of asylum seekers for
    prosecution under USC 1325 or 1326?
        Mr. BeMiller. I would like to actually reverse that just a
    bit, Senator. Anybody can claim asylum, even if they are being
    prosecuted. I think that is an important note to make, that
    regardless of whether they are being pursued for a criminal
    charge, they still have the right and retain the right to claim
    asylum.
        Senator Padilla. OK. Walk me through that process. Among
    the clarity that I am seeking is, is the referral for
    prosecution before or after CBP determines whether someone is
    an asylum seeker, or both.
        Mr. BeMiller. The determination is made at the time of
    interview when they make the claim. So that is determined----
        Senator Padilla. And the criteria for referral?
        Mr. BeMiller. The same as any other asylum claim, which is
    a fear of returning to their country, fear of being injured.
        Senator Padilla. The referrals for prosecution. What is the
    criteria to refer somebody for prosecution?
        Mr. BeMiller. The crime that they committed. Whether they
    have a past criminal record that they are being reinstated for.
    It just depends on the circumstances. If you are trying to get
    at, are individuals targeted for claiming asylum, that is
    absolutely not accurate.
        Senator Padilla. I am just wondering again, what guidance
    field agents have for making that determination of referring
    for prosecution or not.
        Mr. BeMiller. In certain locations for targeted efforts,
    depending on the circumstances, to try to again apply, as you
    mentioned, a consequence to a location that is being exploited
    by the transnational criminal organizations and alien
    smugglers. We may apply a targeted prosecution effort in a
    specific location in order to try to minimize the risk to the
    migrants crossing through that area and try to push back the
    TCOs taking advantage of the vulnerable populations crossing in
    a specific area.
        Now, one additional thing, and again, gets back to the
    beginning of it, is regardless of that, when we take them into
    custody, they still have the same right as anybody else to
    claim asylum.
        Senator Padilla. OK. I will have some follow up questions
    after. Thank you very much. Thank you both.
        Senator Sinema. Thank you, Senator Padilla. We will now
    start a second round of questions. I will grant myself time for
    questions. I am going to pick up where I left off. My next
    question is for the entire panel.
        As we have heard, this is an extremely complex process, and
    a small breakdown can have large effects on the overall
    operation. Where do bottlenecks typically occur in the process
    for each of your organizations? We will start with Mr. Davies
    and then move across the panel.
        Mr. Davies. Thank you. I think for OFO at the ports of
    entry, the biggest bottleneck that we encounter is when it
    comes to release. That is whether the individual is being
    referred for detention with ERO or being released, as was just
    mentioned with the NGO's.
        Making sure that there is a smooth transition and minimal
    amount of time, once we have completed case processing, to move
    those individuals out of our port of entry is imperative for
    us. That is the biggest bottleneck.
        Mr. BeMiller. As far as Border Patrol is concerned, there
    are a number of bottlenecks that occur throughout the entire
    immigration enforcement continuum, starting with--at encounter.
    When large groups enter, 400 or 500, sometimes even 1,000, it
    can create a significant drain on our resources and our
    personnel to extract those individuals out of the field.
        That is probably the first. To the back end of that, our
    turning over to other agencies. Also post processing, waiting
    for available space, waiting for available acceptance is
    probably our biggest bottlenecks.
        Mr. Bible. Thank you for the question. For ERO, our biggest
    bottleneck is obtaining travel documents and actually affecting
    the removal for countries other than Northern Triangle
    countries.
        Mr. Davidson. For USCIS, I think one of our biggest
    bottlenecks is that the--removal process remains a very paper
    based process, and each of the three components have their own
    parts of the credible fear process. We have made great strides
    in being able to digitize parts of that process and make an
    electronic environment end to end. I think we have overcome a
    lot of those bottlenecks to that end, and that is a major and
    significant accomplishment.
        Senator Sinema. Thank you. Chief BeMiller, I would like to
    continue with the discussion on credible fear interviews in
    Border Patrol custody. How many sectors are currently
    participating in the program, and are there plans to expand it
    to other sectors? How does the policy affect operations in the
    sectors that do currently conduct those interviews?
        Mr. BeMiller. Thank you. We have five sectors that are
    currently conducting credible fear interviews. We have tried to
    sample those in Del Rio as well.
        I would say that there is a significant backlog in the time
    of custody (TIC), in our TIC times, raising the overall TIC
    times for Border Patrol in custody. It averages between 9 and
    16 days in custody to completely process them all the way
    through the credible fear interviews process while in Border
    Patrol custody.
        Senator Sinema. Thank you. Mr. Davies, now that OFO has
    increased the number of CBP One appointments at ports across
    the Southwest border, it can take even longer for migrants to
    get a walk in appointment.
        Of course, that can counter-productively incentivize
    migrants to cross between ports. What is the current total
    number of daily CBP One appointments across the Southwest
    border, and how many walk-in appointments are you able to
    accommodate each day?
        Mr. Davies. Across the eight ports of entry where we are
    processing CBP One appointments, we intake--or schedule on a
    daily basis 1,450 appointments. In addition to those, both at
    those same eight locations and at the other locations that do
    not accept CBP One appointments, we generally, on average take
    about 200 other individuals in a day.
        The way that that happens will vary from port to port. In
    some cases, when they have completed all of their appointments
    for the day, they will bring others in from the line. In some
    in some places it will be throughout the day as capacity
    allows, they will bring in individuals who do not have
    appointments.
        Senator Sinema. Thank you. Mr. Davies, most migrants that
    are being processed at ports of entry are making appointments
    through this app, but there are issues with the app. There are
    limited number of languages, which makes it difficult for some
    groups to access the scheduling system.
        When processing walk in appointments, does OFO ask migrants
    why they didn't or weren't able to make a CBP One appointment?
    If so, what are the responses that you most commonly are
    hearing?
        Mr. Davies. We do not, in a systematic way, require our
    officers to ask that information or record it in our system of
    record. We do know anecdotally, because some of our officers do
    ask that question, that typically the answers we get back are
    that they either did not have access to the phone, they may say
    that they were unaware of the process, or as you pointed out,
    they will say that there were issues with a language
    availability in the app itself.
        We are aware of some of those shortcomings. To the ones
    that we have the ability to address, we are working to address
    with constant updates to the app. Thank you.
        Senator Sinema. Thank you. Mr. Davidson, from an
    operational perspective, how has the circumvention of lawful
    pathways rule affected USCIS's work with migrants apprehended
    at the Southwest border? Has it had any significant reduction
    in the number of credible fear interviews the agency is
    conducting?
        Mr. Davidson. Thank you, Senator. It has not have had a
    reduction. It has had an increase in the amount of interviews
    referred to USCIS since May 12. Certainly, the process to
    analyze a credible fear case under the CLP, there is more
    complexities involved. Having to analyze exceptions and then
    the presumption rebuttal. That part has added more time to the
    credible fear process, certainly.
        Senator Sinema. My last question is for the panel. With the
    end of the fiscal year rapidly approaching, we are hearing more
    conversations about what happens if Congress cannot complete
    its work of keeping the government funded.
        How would a government shutdown affect each of your
    components' abilities to make sure that the management border
    systems are functioning? We will start with Mr. Davies and move
    across the panel.
        Mr. Davies. Thank you. I think the biggest impact that a
    government shutdown would have on the Office of Field
    Operations would be the morale of our workforce, because as we
    know, through previous government shutdowns, we would continue
    coming to work and securing our border at our ports of entry,
    but for officers, especially over for a long period of time,
    not having a paycheck to go home to is extremely demoralizing
    and debilitating for our officers many of them may live
    paycheck to paycheck and in places where there are high costs
    of living.
        That to me would be the biggest concern. We had during the
    last government shutdown to go through this process of allowing
    many of our officers to seek outside employment.
        I think that is a dangerous precedent to set, having
    officers working a second job somewhere else just to try to
    make money while they should be focused on our primary law
    enforcement missions. Thank you.
        Senator Sinema. Thank you. I now recognize Senator Lankford
    for continued questions.
        Senator Lankford. Thank you. I want to walk through the
    process, what we have talked about a little bit before, trying
    to just be able to get a handle on it, because the complexities
    are definitely there.
        What we have tried to pursue is, how were the decisions
    made, and what are the documents that DHS has provided to each
    entity on what the criteria is to be able to make a decision on
    this. I am going to kind of run through this briefly here. They
    CBP One app. They say, fill out the app there. They enter the
    port. They are screened for parole or an asylum claim.
        We are trying to figure out some of that process on the
    screening for parole and the asylum claim. Then they find out
    they are screened for parole, they are vetting, they get an
    appointment. They could be turned around and could be paroled
    into the United States. Then eligible for work authorization.
        We understand that if they come through the CBP One app,
    they get parole, they could get the work authorization within
    one month. Let me start there on the initial one. Somebody that
    came in through the port of entry, filled out the CBP One app.
    Is it most common for that individual to get parole at that
    point?
        Mr. Davies. Just to clarify, approximately 90 percent of
    the individuals who show up with the CBP One appointment are
    given a case processing disposition of NTA. They are served a
    notice to appear before an immigration judge, but ultimately as
    a custody disposition, they are paroled out of custody. So,
    yes.
        Senator Lankford. They are paroled out of custody about 90
    percent, you are saying on that. Best we can tell, those
    individuals also seeking an asylum claim, because my
    understanding is they got a one year time period to also seek
    an asylum claim, or they just in parole?
        Mr. Davies. If they applied with CBP One, they are
    generally given a 2-year parole at the port of entry as a
    custody determination while they are in removal proceedings.
        You are correct, they do have the ability to pursue asylum
    while they are in the pendency of those removal proceedings. We
    are not accepting their claim, per se, at the port of entry as
    part of the process.
        Senator Lankford. Where would they make that asylum claim?
    Because the clock is ticking for them to be able to make their
    asylum claim. How would they do that?
        Mr. Davies. I would defer to my colleague from USCIS, but
    there is an ability for them to make that claim eventually in
    front of the immigration judge, if they do not do anything with
    USCIS.
        Senator Lankford. Mr. Davidson.
        Mr. Davidson. If they are in defense of asylum proceedings,
    under Section 240, they would make their claim with the
    immigration judge. If they were in the affirmative asylum
    process with USCIS, and they would make that claim with USCIS.
    Depends on the pathway. But if they are under immigration
    proceedings, they would certainly make it with the courts.
        Senator Lankford. They have a 2-year parole that they are
    given, 90 percent of the folks that fill out the CBP One app.
    At that point, you get a 2-year parole. At what point are they
    having a decision made on their parole and what happens next?
        Or they transition to other visas, or they transition to
    their status? What is happening next? We have had this process
    in place for about 4 months now. We are just trying to figure
    out how it is operating.
        Mr. Davidson. I can state if there were any parole status,
    that they were paroled in but not in immigration proceedings,
    then they would have the ability to file for asylum with USCIS.
        Senator Lankford. But what happens to them? They are in
    parole. They have been given documentation at the border that
    they are in a for parole proceeding. What is happening?
        Mr. Davies. Again, to clarify, the parole document at that
    point is to document the custody determination that they have
    been released. Their actual status is that they are in removal
    proceedings.
        Until there is an outcome with respect to the removal
    proceedings, before you--the fact that their parole has run
    out, at least from an OFO perspective, is largely irrelevant
    because their status in the United States is still that they
    are pending removal proceedings.
        Senator Lankford. But those removal proceeding hearing
    would be when?
        Mr. Davies. They could be several years down the road.
        Mr. Davidson. If determined by the courts, EOIR sets the
    calendar for the removal hearing.
        Senator Lankford. We have an individual that has a 2-year
    parole, but it could be 6 years before they actually get a
    hearing. Those last 4 years, what is their status, other than
    they are in removal? Does anybody know? I don't--so this is
    helpful for us because we are asking the same questions, just
    trying to be able to figure out what the status is for this
    individual.
        It is our understanding as well that if they do CBP One
    app, regardless of where they are from anywhere in the world,
    about 90 percent are actually being paroled. Our understanding
    is within a month that they are getting a work authorization.
    Is that correct or not correct?
        Mr. Davidson. They are eligible for work authorization
    immediately after they are paroled into the United States.
        Senator Lankford. It would not necessarily take a month at
    that point. It could be days.
        Mr. Davidson. We aspire to have them complete certainly in
    30 days. We are working steadfast to make sure that happens. It
    would just require us to be able to analyze that application
    that has been filed and issue them the employment authorization
    document.
        Senator Lankford. OK. Let me ask this question as well. If
    they come to the port without going through the app, they just
    arrive at the port and say, hey, I did not understand the
    language, or I just got in line, or I did not know, but they
    are at the port. They did not do the app at all. What is
    different about their process?
        Mr. Davies. Largely the process is very similar. They have
    to wait until there is capacity, right.
        Senator Lankford. Maybe a couple of days, right?
        Mr. Davies. Once they come in, the numbers for us look a
    bit different, too, in that only roughly about half of the
    people who come in without an appointment are actually given an
    NTA and paroled as a result.
        Senator Lankford. What is the difference there? Why?
        Mr. Davies. We did not have the right information.
    Sometimes it is about the individual circumstances that they
    have presenting. There may be a reason why they did not want to
    submit this CBP One app, but as a result of the case by case
    determination, the officers have determined that they may be
    still put in removal proceedings, but they may be referred for
    detention.
        Senator Lankford. How many of those are actually turned
    around and told, hey, go fill out the app and come back another
    day? Is that happening?
        Mr. Davies. I do not think that that is a significant
    portion of the individuals that we are processing without
    appointments, no.
        Senator Lankford. OK. Of the half that are turned around,
    they are turned around and said, hey, you are you are not
    eligible to be able to come through at all, and they are
    literally turned around and head back to Mexico. Correct?
        Mr. Davies. That could be a subpopulation, yes.
        Senator Lankford. OK. Then the other half that are accepted
    through, they would go through the same process. They would get
    a work authorization immediately within 30 days or less. They
    would be sent for parole for 2 years, or it could be years
    before they get their actual hearing, correct?
        Mr. Davies. Our policy states that if someone without a CBP
    One appointment is processed for removal proceedings, rather
    than having a 2-year parole issued, their parole is issued for
    a period of only one year.
        Senator Lankford. Right. But they are still awaiting--they
    are still going to have a gap, because even the person who was
    given 2 years, may have several years of gap between when their
    parole expires and when their actual hearing occurs. There is
    just a bigger gap. Is there a consequence? Is ICE pursuing
    these individuals that their parole has expired, for instance?
        Mr. Bible. Once the individual shows up at immigration
    offices, they should have reporting requirements. They could be
    placed on alternative detention or just monitored on the non-
    detained docket at that point--on an order of recognizance.
        Senator Lankford. But that would be starting on the first
    days that they are there, that would not be something later a
    year down the road to go pursue those individuals and then put
    them on alternative detention?
        Mr. Bible. The change in their position could be at any
    point when they are checking in to our offices.
        Senator Lankford. OK. The rebuttable presumption kick in on
    this? If they have not filled out the CBP One app, they arrive
    at a port of entry, is there a rebuttable presumption? Where
    does that apply, or does that apply?
        Mr. Davidson. It applies during the asylum interview
    itself, the credible fear interview.
        Senator Lankford. OK. But that would only be if they
    actually request asylum at that point. For 50 percent, they are
    getting paroled. They are not necessarily requesting asylum, or
    they could request it later at their hearing.
        Mr. Davidson. The rebuttable presumption would affect those
    who file or make a credible fear claim, correct. Yes, sir.
        Senator Lankford. But that would be possible, I am going to
    say 3 years from now, when they actually have their hearing,
    let us say. The rebuttable presumption would apply then.
        Mr. Davidson. No, Senator. The rebuttable presumption is
    analyzed during the credible fear process itself. Once CBP
    arrives, refers a case for the credible fear screening, along
    with analyzing the exceptions to----
        Senator Lankford. I am taking this case. They arrive at a
    port of entry. They did not fill out the CBP One app. They are
    in that 50 percent that was given parole. They did not ask for
    asylum at that point. They are released in the country.
        They are just awaiting their hearing at that point. There
    is no challenge. They may challenge for asylum at their hearing
    then and they are going to bring it up then. Would a rebuttable
    presumption then apply at that point?
        Mr. Davidson. That is correct. The rebuttal presumption
    would not apply before the immigration court. The immigration
    judge would be analyzing their asylum claim and then
    withholding of removal and then cap during that claim.
        Senator Lankford. OK. Let me keep going on this because I
    do not want to run us out of time. They are coming between the
    ports of entry. They are out in the open desert area. They
    actually enter at that point.
        Border Patrol is able to encounter them, take them to one
    of the stations to begin the processing. They process and then
    do the fingerprint, do the medical checks, everything else they
    have to be able to do. What happens at that individual then, at
    that point?
        Mr. BeMiller. So, very similar. Again, they would be
    referred to USCIS once processed, and if space is available,
    they might be turned over to ERO.
        Senator Lankford. OK. But that is if they request asylum,
    that USCIS would engage? Is that correct? Or they are,
    basically all of them requesting asylum?
        Mr. BeMiller. USCIS would engage on every case of an asylum
    claim.
        Senator Lankford. OK. But are all of them requesting asylum
    that you are encountering between the ports of entry now? OK,
    of those that are not requesting asylum, what is their
    disposition?
        Mr. BeMiller. They are either withdrawn or provided--some
    of them are prosecuted. It just depends on the circumstances.
        Senator Lankford. When you say withdrawn, help me
    understand what that means.
        Mr. BeMiller. They would actually be processed to return
    back to Mexico from the country that they came. A voluntary
    departure.
        Senator Lankford. A voluntary departure at that point. Our
    understanding is, and this is something Senator Sinema and I
    have tried to track for a while, and it is expedited removal.
        Expedited removal sounds like you are actually removed
    quickly. Our understanding is expedited removal does not
    actually mean you are removed quickly. What is the current
    expedited removal percentage of people that are actually
    removed from that country? Does anyone know?
        Mr. BeMiller. I do not have that information.
        Senator Lankford. I understand it is a pretty small number,
    actually, of those that are declared expedited removal that are
    actually removed from the country. We have been trying to get
    that data and every number that we have had has been a pretty
    low percentage.
        The vast majority of people under expedited removal are
    actually still currently in the country and some have been for
    years, still in the country under ``expedited removal.'' But
    they are not actually removed.
        If that person requests asylum between ports of entry, they
    have been processed in the Border Patrol stations of the side,
    or hard side of the facility, or whatever it may be. They
    requested asylum. USCIS then does the interview at that point,
    is that correct? You are doing that in the stations now?
        Mr. Davidson. We do those interviews virtually, Senator,
    with the assistance of our colleagues at CBP. But you are
    correct, there would be done in those five locations.
        Senator Lankford. If those individuals are deemed to have
    credible fear at that point, then what happens to them?
        Mr. Davidson. If they are deemed to have credible fear,
    then they are issued a notice to appear and put under Section
    240 for removal proceedings. They appear before the immigration
    court.
        Senator Lankford. That is the notice to appear. Then they
    are released in the country. They have a notice to appear. That
    is with ICE, right, at some location, and then a setting--then
    a date has been set after that for a court hearing. Right or
    not right on that?
        Mr. Davidson. ICE would assess the release ability of that
    information. But that is correct, Senator. Then they would have
    a date set by the court for them to appear before their
    hearing.
        Senator Lankford. After they have gotten the check in with
    ICE at that point for the notice to appear. Is that correct or
    not, because I am trying to be able to track just dates and
    what happens here.
        Mr. Davidson. That I defer to ICE----
        Mr. Bible. Yes, typically, when our notice to appear is
    issued, we go into Executive Office of Immigration Review
    Courts and Appeals System (ECAS) and get a court date and a
    time for those individuals, if they are leaving custody.
        Senator Lankford. How long is that typically, before they
    would get that hearing? Currently, where are we on a notice to
    appear?
        Mr. Davidson. The hearings could take years, sir, with
    EOIR.
        Senator Lankford. Question on that. When do they get a work
    authorization? They have requested an asylum request that came
    between ports of entry, requested asylum, been given a notice
    to appear, released into the country. When can they get a work
    authorization?
        Mr. Davidson. They are eligible for a work authorization
    under--if they filed the defense of asylum claim and they are
    before the courts, then they are eligible for a work
    authorization.
        Senator Lankford. How quickly?
        Mr. Davidson. As quickly as they file the application, we
    can process it. Certainly we are averaging around less than 60
    days for defense of asylum employment authorization documents.
        Senator Lankford. OK. What I am trying to figure out is, if
    somebody fills out the CBP One app, goes through that process,
    comes to the port of entry, they are processed through into the
    country, and within 30 days they are going to have a work
    authorization.
        Or they can come between ports of entry, request asylum,
    and within 60 days they will have a work authorization. Either
    one of them, it will be years before they actually have a
    hearing. Am I correct or not correct on that?
        Mr. Bible. In the non-detained setting?
        Senator Lankford. Yes, sir.
        Mr. Bible. That is correct.
        Senator Lankford. Yes, sir. Your non-detainment docket at
    this point. If I am remembering correctly, USCIS has about a
    40,000 person backlog in just the interview process for the
    non-detained docket. Is that correct?
        Mr. Davidson. That is correct, Senator.
        Senator Lankford. My understanding is as well, there is
    another group of folks in the non-detained docket that are not
    in that 40,000 number. That is an unknown number because their
    paperwork has not been processed yet to be able to get into
    that backlog of 40,000.
        Mr. Davidson. I think at this point we are relatively
    caught up in terms of processing cases into the system. I think
    those numbers are pretty static, the 40,000.
        Senator Lankford. 40,000 is the number at this point. How
    long will it take to be able to do the interviews? Because
    those are individuals that typically, I would assume, came
    between ports of entry at some point.
        It was, as Mr. BeMiller talked about before, and wait
    times, when there is 500 people came at once. There is not
    space to be able to actually hold these folks. They were
    released out. There was not an opportunity to be able to do the
    interviews at that point. We have 40,000-ish people in that
    group. How long will it take to be able to identify, find them,
    and be able to do those interviews?
        Mr. Davidson. We know where they are at, because we
    coordinate that with our colleagues at ICE. We coordinate the
    interviews with our colleagues at ICE too for the non-detained
    docket.
        That is a matter of resources, of us being able to divert
    resources that are also interviewing credible fear claims on
    the border, to be able to address the non-detained workload,
    along with their affirmative asylum work.
        We prioritize that work along with our credible fear work,
    which has certainly increased. It is a matter of prioritization
    when we get to those cases.
        Senator Lankford. Give me a guess, how long will that take?
        Mr. Davidson. I cannot give you an answer on that, Senator.
    I would have to get back to you on an average on time to
    process our non-detained docket.
        Senator Lankford. Great. I would make a request just from
    our Committee as well, that any guidance documents that you
    have received on how to make decisions on who to parole, what
    that decision is, if it is 90 percent of folks at some point
    that are paroled, the 10 percent are not paroled.
        There has to be some document that is a guidance to be able
    to make that decision and to be able to know. We have asked for
    those documents over and over again. How were those decisions
    made? Most often we get an answer back from DHS that says the
    officer on the field will make the decision. I would say, I
    know our structure in the Federal Government enough.
        There is some guidance there. It is not just, what did the
    officer have for breakfast that morning and are they feeling it
    today? There is some guidance, but we have received nothing as
    far as guidance and information on how decisions are made. That
    would be really helpful to us to be able to see that process.
        The same thing for USCIS, as you are going through that
    process, it would be helpful for us to be able to see how those
    decisions are actually made and what the criteria is for making
    a decision. I really appreciate all four of you being here, the
    time that you put into preparing for this.
        We have had the opportunity be able to scratch the surface,
    but this is something we have asked for, for a long time. Just
    tell us how decisions are made and what the process is, because
    this is a very new process and we are seeing record numbers of
    people.
        The numbers dropped off dramatically right after Title 42
    change, and then they accelerated again to numbers, as
    Washington Post listed, that literally our country has never
    seen the numbers that were coming in for family units in
    August.
        We have seen this skyrocket. We are trying to understand
    how decisions have been made and what that looks like on the
    ground. Thanks again for your service and we will follow up.
        Senator Sinema. Thank you, Senator Lankford. I neglected to
    have the other three members of the panel answer my question
    around the government shutdown. Before we conclude today, I
    would like to pick up where we left off. Thank you, Mr. Davies,
    for your answer. Chief BeMiller, if you could answer.
        Then Mr. Bible and Mr. Davidson. To refresh you on the
    question, how would a government shutdown affect each of your
    components' abilities to make sure that the border management
    system continues to function?
        Mr. BeMiller. Yes. Thank you again for the question. I
    would have to echo almost everything that Ex. D. Davies
    mentioned. Morale certainly is a problem and we have faced this
    for many years, over and over again.
        There is a weariness with the workforce. Our operators are
    committed to the mission, and they will report to duty. I would
    say, one of the biggest, aside from the morale and the unknown
    of when the next paycheck is coming, our partnerships are
    affected, both, anybody that has, Federal contracts and those
    are all points of concern for us.
        When we are already stretched thin and we are at risk of
    compromised contracts and other things, it is definitely an
    issue for us. Thank you.
        Senator Sinema. Thank you.
        Mr. Bible. Thanks for the question. I too would like to
    echo both of their statements, but to add one more part to
    that. One of the--loss of our support staff during that time.
    They are instrumental in us processing individuals through the
    immigration pathways and doing our job. Typically, those folks
    are not reporting to work if the government shuts down, which
    will impact us greatly. Thank you.
        Mr. Davidson. Recognizing that USCIS is a fee funded
    agency, 96 percent of our agency is funded by fee funds, and it
    still has an impact for us, Senator, because our E-Verify
    program is appropriated. But also, it is the still--the same
    consensus from my colleagues. It has a morale issue on our
    staff of being able to experience a government shutdown or
    having to experience that. Same factor.
        Senator Sinema. Thank you and thank you all. With that, we
    have reached the conclusion of today's hearing. I appreciate
    each of our witnesses for your time and for your testimony. I
    want to thank all my colleagues on the panel for their
    participation. This was a very important and a timely hearing.
        I know there were a lot of questions we did not have an
    opportunity to ask, so, I will submit questions for the record
    so we can continue to examine this critical need, and I know my
    colleagues will as well.
        The hearing record will remain open for 15 days until 5.00
    p.m. on Thursday, September the 21st for the submission of
    statements and questions for the record. With that, our hearing
    is adjourned.
        [Whereupon, at 4:30 p.m., the hearing was adjourned.]

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