[Senate Hearing 118-133]
[From the U.S. Government Publishing Office]
S. Hrg. 118-133
AFTER APPREHENSION: TRACING DHS RESPONSIBILITIES AFTER TITLE 42
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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
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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
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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.
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\1\ The prepared statement of Senator Sinema appears in the
Appendix on page 39.
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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.
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\1\ The joint prepared statement of Mr. Davies appears in the
Appendix on page 41.
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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.
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\1\ The joint prepared statement of Mr. BeMiller appears in the
Appendix on page 41.
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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.
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\1\ The prepared statement of Mr. Bible appears in the Appendix on
page 49.
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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.
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\1\ The prepared statement of Mr. Davidson appears in the Appendix
on page 56.
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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.]
A P P E N D I X
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