[Congressional Record Volume 167, Number 53 (Monday, March 22, 2021)]
[Senate]
[Pages S1675-S1679]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMMIGRATION

  Mr. PORTMAN. Mr. President, I thank the majority leader, and I thank 
the Presiding Officer for allowing me to speak this evening.
  I just returned from the southern border and want to give a brief 
report and talk about some potential ways forward to deal with what is 
happening on the Mexican border. I went with Secretary of Homeland 
Security Mayorkas and also with the chair of the Homeland Security 
Committee, my colleague from Michigan, and also with my colleague from 
West Virginia and my colleague from Connecticut, who are the chairs and 
ranking members of the Senate Homeland Security Appropriations 
Committee. We had a bipartisan group and those of us who were involved 
on the authorizing side and on the appropriations side.
  You probably heard that the situation is bad, and it is. There is a 
record number of unaccompanied children coming to our border today, 
being let in, and ending up in Border Patrol detention facilities.
  Just yesterday, CBP reported that there were more than 15,500 
unaccompanied kids in Federal custody. That is a record. But it is not 
just children. More than 100,000 migrants were apprehended in February 
alone. This is a 15-year record, representing a 28-percent increase 
just since January. All the numbers from March look even higher. We 
won't know the final numbers for another couple of weeks, but the point 
is, it is getting worse, not better.
  These numbers, by the way, are worse than the previous two surges at 
our southern border--both the 2014 surge, we all remember, during the 
Obama administration and the 2019 surge during the Trump 
administration. And, by the way, we have yet to

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reach the predicted peak because that normally would happen in April 
and May. In fact, the Secretary of Homeland Security, Alejandro 
Mayorkas, who was with us on this trip, said that he believes this will 
be the worst year in 20 years for unlawful entry into the United 
States.
  However, the numbers only tell part of the story. This is also a 
humanitarian crisis. Migrants often face violence, sickness, and tough 
terrain on their dangerous journey north--predominantly, those from the 
Northern Triangle countries of Guatemala, Honduras, El Salvador. Many 
are abused by the smugglers who charge them large amounts of money and 
bring them.
  Unfortunately, this is a crisis that could have been avoided. On day 
one, the Biden administration issued five Executive orders to overturn 
Trump policies and since has taken more than a half dozen additional 
actions to dismantle policies from the previous administration.
  These included a 100-day pause on all deportations; no longer using 
the COVID-19 healthcare emergency under title 42 of the United States 
Code to turn away unaccompanied children and some families; suspending 
the construction of the border fence and technologies, such as sensors 
and scanners used by the Trump administration to help our overworked 
Border Patrol agents secure key stretches of our southern border; and 
abandoning the migrant protection protocols, also known as ``Remain in 
Mexico,'' which required some asylum seekers at the southern border to 
remain in Mexico rather than in the United States while their claim for 
asylum is being processed; and, of course, proposing an amnesty bill on 
day one.
  The administration has every right to do that, but it creates a 
disincentive to push back on new migrants coming in who are trying to 
get into the United States before that amnesty might become law. It 
certainly does unless you also make it clear that you don't qualify for 
amnesty unless you are already here. And I think that is an important 
message that I hope will be part of any future discussions about any 
kind of an amnesty bill so it doesn't encourage more people to come.
  The Biden administration took these and other actions that 
incentivize people to head north but then said: Please don't come yet. 
We are not ready for you.
  It was no surprise that didn't work. An unprecedented number of 
children and families came to take advantage of the new policies. As I 
heard on the southern border over the last few days, actions speak 
louder than words. And the actions of the new administration were 
clear.
  These abrupt moves to dismantle the immigration policies that were 
working to provide a disincentive for unlawful migrations hit the green 
light to a lot of people seeking a better life, but it also gave the 
smugglers and the human trafficking groups in the Northern Triangle and 
in Mexico the ability to convince more families and more children to 
take the dangerous trip north. It gave them a narrative, and, of 
course, they used it to their full advantage. That has overwhelmed 
Border Patrol and our immigration system, in general, unequipped to 
handle the surge.
  I heard directly from Border Patrol agents about how the current 
surge of unaccompanied kids is draining resources and endangering not 
just those vulnerable kids but the security of our own border
  It was stunning to see people who unlawfully crossed the border 
during a ride-along patrol I joined on Thursday night. People just kept 
coming. The Border Patrol told me they are seeing an increase of about 
150 to 200 percent of illegal entries in the El Paso sector, with many 
illegal crossers escaping into the United States because they have not 
apprehended them.
  Just as concerning, they told me unaccompanied children and families 
are being used by the smugglers as a distraction so the smugglers can 
more easily move dangerous and illicit substances across the border 
into our communities.
  While the Border Patrol is busy processing the kids and the families, 
which takes a while, the smugglers move. In fact, Customs and Border 
Protection has reported an increase of 360 percent in seizures of the 
deadly synthetic opioid fentanyl, which is 50 times deadlier than 
heroin.
  There is no question that more of this is now coming across the 
border. It is already resulting in a surge of overdose deaths, by the 
way, over the past year during the COVID-19 pandemic. In my home State 
of Ohio and around the country, it looks like, sadly, we are in for a 
record year of overdose and overdose deaths, primarily from fentanyl 
and fentanyl being mixed with other drugs.
  Fentanyl used to come from China directly, mostly through our mail 
system. Now, increasingly, it is coming from Mexico, since we passed 
legislation here to stop it coming through our mail system.
  Down at the border, I also had the opportunity to visit with the 
facilities where they are currently holding unaccompanied kids. These 
children are being kept in tightly packed facilities, supervised by 
overworked Border Patrol agents, law enforcement, who should be out in 
the field.
  Due to a lack of space for children in the Department of Health and 
Human Services facilities, Border Patrol is having to detain 
unaccompanied kids for an average of about 137 hours, nearly double the 
72-hour limit required by law.
  I am concerned about the well-being of these kids, as we all are, 
because when the system gets overwhelmed, people, and especially the 
kids, suffer. And the processing system right now is overwhelmed; it is 
overcrowded; it is irresponsible. It is a situation you would never 
want your own children to be in. Not only are these children crammed 
into the facilities that are, by their own rules and regulations, 
overcrowded, there is no testing for COVID-19 in these facilities. 
Current policy is going to result in tens of thousands more children 
being released into our communities, waiting for their immigration 
court cases.
  During previous surges at the border that overwhelmed our immigration 
system, HHS stopped doing background checks on sponsors for 
unaccompanied kids, and many fell into the custody of abusive human 
traffickers. In 2014, for example, HHS placed Guatemalan children with 
criminals who put the children into forced labor on an egg farm in my 
home State of Ohio, where they were forced to live and work in squalid 
conditions.
  It is an issue I have worked a long time on. Between 2015 and to 
2020, as chair of the Permanent Subcommittee on Investigations, I led 
three bipartisan reports and hearings across two administrations that 
found repeated failures by the Federal Government to ensure the well-
being of these vulnerable children once they were handed off to 
sponsors, as well as the fundamental refusal by HHS to accept that they 
were responsible for the welfare of these kids they placed with adults 
who are not their legal parent or guardian.
  Obviously, we are going to see a lot more pressure to get these kids 
out to as many sponsors as quickly as possible, and, again, I believe 
we are going to have some of these problems.
  Last week, I introduced bipartisan legislation called the 
Responsibility for Unaccompanied Minors Act that will direct the 
Federal Government to meet the stringent requirements necessary to 
ensure children are not abused or exploited by their sponsors; that 
they show up for their asylum hearings to determine their eligibility 
to stay in the United States. These are necessary steps to address the 
current crisis at our border and safeguard these children.
  By the way, on the debate as to whether to call the chaos at the 
border a crisis or not, when I was on the border talking to Border 
Patrol agents, one of them told me, although he believes it is a 
crisis, that he is fine not calling it a crisis now because he knows it 
is going to get much worse, and he wants to have something to call it 
then. He wants to see, like all Americans, concrete actions and a 
change of course at the border, much more than having a debate about 
words. By the way, we should all sympathize with those migrants who 
want a better life for their families. I sympathize with them. I am 
sure we all do.

  There are millions of people around the world who want to come to our 
country. We have a legal immigration system that accepts a million 
people a

[[Page S1677]]

year. In addition to that, we accept refugees and those who apply for 
asylum. At the end of the day, those individuals coming to our southern 
border right now are making a rational choice to come to the border 
based on policy decisions by the Biden administration. What we need is 
a legal, orderly, and proper system to be sure the people follow the 
rules.
  The bottom line is, what I saw at the border is unsustainable, and, 
unfortunately, it is going to get worse. We are working against the 
clock to try to find a way forward.
  When the Biden administration changed the rules and dismantled the 
existing provisions that were keeping people from coming across the 
border, they could have put their own policies in place to try to deal 
with what everybody predicted was a surge that was coming. They didn't. 
More to the point, even if they weren't going to put their own policies 
in place, they should surely have waited until they had the facilities 
ready to handle the surge. They didn't. That is why you see this 
terrible overcrowding at Border Patrol detention facilities, holding 
these kids much longer than they should, and why you see HHS not having 
the beds prepared that they should have.
  By the way, some have said the Trump administration dismantled the 
asylum system. Well, because of the rules they had in place, there were 
very few people coming to apply for asylum. The facility I saw, which 
was a modern facility built just last year with $48 million of our 
taxpayer money, was built to try to deal with the next surge. 
Unfortunately, it is not big enough, and, again, it is overcrowded, so 
you have kids sleeping on the floor on thin foam mattresses with only a 
space blanket. None of them have been checked for COVID. They are 
living not 6 feet apart, as we are required to do here with social 
distancing, but inches apart and together.
  It is one thing to say we are going to change all these policies. It 
is another thing to say we are not going to put anything in its place 
or because that is OK--we are OK to have a surge come--at least to be 
prepared for that surge, and that is not what is happening.
  I believe there is a path forward for the Biden administration and 
the Congress to address this crisis in the short term; then work on 
medium- and long-term solutions to lower the risk of future surges.
  Here is what I would propose. First and foremost, the Biden 
administration should recommit to enforcing our immigration laws by 
providing overwhelmed Border Patrol agents and our Immigration and 
Customs the help they need to be able to ensure they can get what they 
need to be able to enforce the law. That means better pay for our 
Border Patrol. It also means better overtime provisions. We have 
legislation to do that.
  It also means ensuring that they have the tools they need to be able 
to protect the country. That means not stopping construction of the 
fence, which, by the way, is almost done. In the El Paso sector, I 
think there is 150 miles of fence totally--in total, 124 miles is 
already done. The parts that are not done, unfortunately, are some of 
the gates, so you have gaps. Border Patrol are very frustrated by this 
because they literally have to have people at the gaps because they 
can't monitor them as they can with the fence because with the fence, 
it takes people a while to get over the fence. With monitoring devices, 
which are, to me, more important even than the fence itself, they are 
able to do their jobs.
  They are also being told they can't continue the technology, so 
although there is 124 miles of fencing, there is much less technology 
than that. Yet they have been stopped from doing that as well.
  Let's give them what they need to be able to do their jobs. They are 
in an impossible situation. I am not talking about a new fence or a new 
wall, but at least for the part that has already been appropriated by 
Congress, let's complete it. Let's not leave these gaps.
  I literally saw the supplies they have. Construction material is on 
the ground, and the Border Patrol agents told me--these are rank-and-
file Border Patrol agents: This is bad for morale. We see this stuff 
right there. If that could be put up to take the place of the temporary 
fencing migrants are able to simply push over or walk through, that 
would make our jobs much easier.
  No. 2, the asylum system needs to be changed immediately. Now, with a 
backlog of 1.2 million asylum seekers, they are waiting several years 
for court hearings to find out if they are qualified. During that time, 
they are living in the United States and often vanishing into the 
United States. We know from the data we have--and, by the way, the data 
is not very good on this--that only about half of them, maybe more or 
maybe less, are even showing up for their court cases. We know this 
because, for about 48 percent of those who are seeking asylum, there 
are now removal orders out for them for not showing up for their 
hearings. So about half of them have removal orders to be removed from 
the country because they haven't shown up for their hearings. Remember, 
this is a 1.2 million-person backlog, so it may be 3, 4, 5, 6 years 
before they get to their court cases. Is there any wonder some of these 
people are not showing up?
  Finally, at the very end of the process, after you go through all the 
adjudication, guess what the percentage of success would be for someone 
to achieve an asylum status: only 15 percent--15 percent--have a 
successful claim. So people are being told to go into the country and 
await their court cases, and 1.2 million people are doing that. It 
takes several years for that to happen. At the end of the day, only 15 
percent will get asylum.
  Yet, again, many are not being removed even though there is a removal 
order out on them because the immigration system is overwhelmed, so 
they are focusing on those who have a criminal record, which I 
understand. This means, if you don't have a criminal record and you are 
in the United States, you know that it is unlikely you will actually be 
removed even if there is a removal order for you.
  So one policy change would be to simply resume a practice that was 
started in the last administration as a pilot and ended in November 
2020. It is called the Prompt Asylum Claim Review process. An efficient 
and timely determination of who is eligible for asylum and who is not 
would really help. It would enable us to start reducing the number of 
migrants being held in custody and deter migrants who do not have a 
valid claim.
  You might say: Why not start with the 1.2 million backlog? That would 
be great. We should do that as well. We need more immigration judges. 
We need more lawyers involved in the process, on both sides, 
representing those who have the claim and representing the government. 
That would be good, but in the meantime, these rapid adjudications on 
the border with due process would have the effect of deterring the next 
migrant. Think about it. If you are just dealing with the last person 
on the list, the person who comes in most recently gets more of a 
deterrent than if you are dealing with the person who came in 4 or 5 
years ago because they think: Well, if I get up there and make my claim 
and come into the United States and go out into one of the communities 
represented in this body, it will be 4 or 5 years before my court case 
comes up. Perhaps there will be amnesty during that period or something 
else or perhaps I will just stay.
  If you come to the border and you seek amnesty--you seek asylum--your 
claim will be adjudicated immediately, and you may receive asylum or 
you may not. Again, 15 percent is the number now. That is the best 
number we have, and that is from 2019. We don't have the numbers from 
2020 yet Most think that is about what it will be.

  I think this is a good system. I don't know why it was ended in the 
Trump administration back in November. It shouldn't have been. I hope 
the new administration will take it up.
  As part of this, my colleagues from Texas and Arizona, Senator Cornyn 
and Senator Sinema, have suggested we stand up multiple regional 
processing centers to rapidly and fairly conduct asylum cases in one 
location. I support that. I think this idea is consistent with what I 
am talking about to discourage illegal immigration and to ensure that 
we have a quick decision with regard to asylum. Have all the Federal 
Agencies together--Border Patrol, Customs and Border Protection, ICE, 
the Justice Department, HHS--everybody together in one place, and 
quickly

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make these decisions so that people aren't held for a long period of 
time, so they can have the decision made.
  I think it is worth the funding because it will be expensive. It will 
be expensive to hire the new immigration judges to have the system set 
up, but it is well worth it, in my view.
  Third, to deal with the asylum process, the Biden administration 
should look at the new Migrant Protection Protocols or ``Remain in 
Mexico'' policy. ``Remain in Mexico'' allowed us to keep our detention 
center populations down in the United States and asylum seekers close 
to the immigration courts while officials sorted out the claims. 
Getting rid of the policy served only to overcrowd our temporary 
housing and sent a lot more people into the interior, awaiting a 
hearing by an immigration judge.
  There are concerns about ``Remain in Mexico'' in terms of the 
conditions at some of the camps in Mexico. Although nongovernmental 
organizations play a substantial role there already, perhaps for those 
who are still in that process--and there are probably 45,000 people who 
are still in that process; there were initially maybe less, but, 
initially, there were about 75,000 people--a lot of people have just 
gone home because they don't want to remain in Mexico for their asylum 
claim. They would rather go back to their home in Northern Triangle 
countries--Guatemala, Honduras, El Salvador--but for those who are 
there, perhaps there should be more oversight of those camps and more 
Federal funding provided through the U.N. High Commissioner for 
Refugees, HCR, and others to ensure those conditions are better.
  What the Biden administration is doing now is saying ``We are going 
to stop the program,'' and they are bringing people over the border. I 
saw this, the processing center. About 350 or 450 people a day are 
leaving the ``Remain in Mexico,'' the Migrant Protection Protocols 
Program, and coming into the United States. Those people are given the 
ability to come into the interior, so they are coming into communities 
in the United States.
  One thing you would hope they would get would be a notice as they go 
through the processing that says: Here is your court date. You have to 
show up at this court date.
  What we have learned in the last several days or what I learned down 
at the border is that they are not being given those court dates. They 
are given a piece of paper that has 24 ICE offices in the major 
metropolitan areas in America, and they are told: We don't know where 
you are going to end up. We don't know where you are going. You are 
welcome in the United States, but wherever you are going, please check 
into the ICE office in your region.
  My hope is we can at least get a system together where we don't, 
again, dismantle a program until we have something in its place to 
ensure people are going to their court dates to be able to have the 
asylum claims dealt with.
  On my trip to the border, I asked a reporter to come with me to the 
border wall because I believe it is important that the public know what 
is going on. I was surprised to learn that was the first time this 
reporter or other reporters had been able to kind of see what was going 
on for quite a while. They haven't been able to come into any of the 
detention facilities, including the processing center I talked about 
earlier, where the kids are crammed into--100 kids crammed into 1 room. 
I think the press should be able to see that because I think that will 
provide more transparency for all of us.
  My constituents don't know what is going on at the border, in part 
because the media haven't had that level of access. I know we have to 
protect the confidentiality of individual migrants, and I get that. I 
think that should be done. I think it can be done, but also by letting 
the media have that access, we would be able to have more transparency 
about the realities of what is going on along the border.
  So, fourth, I think the Biden administration should invest in 
finishing the work on the fence, as I said, but they should also work 
to enact something that is even more important than a fence, and that 
is to relieve the magnet. This is going to involve Congress.
  We did pass an immigration bill in this body with a strong provision 
called E-Verify several years ago. It basically says that for 
employers, there will be a sanction if you hire somebody who is not 
legal. The difference between E-Verify and some of the earlier programs 
that attempted to do that unsuccessfully is that E-Verify lets us use 
the new technologies we now have to ensure that fraudulent documents 
that are often used can be determined to be fraudulent. In other words, 
you can use technology--facial recognition and so on--to ensure that 
the employer knows for sure whether the person is legal or not.
  Again, this requires some Federal funding. Some of that software for 
small businesses, in particular, may be expensive, but to have an E-
Verify Program that says you mandatorily--by the way, it is not 
mandatory right now either. It doesn't have the technology. It is not 
mandatory. You have to make it mandatory and say: If you want to hire 
somebody, you have to run them through the system. Make it as easy as 
possible to use the technology.
  In talking to the migrants I met--and my colleagues have spoken to 
many people who have come to this country, and I am sure they have had 
the same experience--when I asked them why they are coming here, they 
all have the same answer, basically, with slight variations, which is, 
as one guy told me from Guatemala, he can make 10 times as much money 
here. He cares about his family and their future. The economy is much 
better here, but that is because he knows he can get a job probably 
with a document, either a driver's license or a Social Security card 
that will be fraudulent, but he can buy it for 25 bucks. So we need a 
system here to stop the magnet.

  Don't put the Border Patrol and all of those involved--the 
immigration system is in such an impossible position that we have a 
wide-open system here where anybody can come and work.
  Let's do E-Verify. That is more important to me than any other 
enforcement tool that we have. Federal Reserve economists found that 
States that mandate the use of E-Verify reduce the number of likely 
unauthorized immigrants who stay in that State. Of course it does.
  Sixth--and this is the final one--the Biden administration should 
work with our Central American partners, including the Governments of 
Mexico, Guatemala, Honduras, and El Salvador, to discourage unlawful 
migration. They can do that by incentivizing migrants to apply for 
asylum in their countries of origin. Some have said this should be 
mandatory. To me, that seems to make sense. Maybe there is a reason it 
shouldn't be mandatory, but it certainly should be encouraged, and 
these countries should certainly offer this.
  We should provide more aid to the countries of Central America 
because there is a push factor. Everything I have talked about so far 
is the pull factors, bringing them in. But if we do that, that aid 
ought to be conditioned on them helping us to provide people the 
ability to seek asylum in their own country. Where they have such a 
fear of persecution that they can't do it in their own country, they 
should be able to do it in a third country.
  There was a program started in the Trump administration that never 
really got off the ground, and it was called Safe Third Country. The 
program with Guatemala was starting to work. Honduras and El Salvador 
had signed up, but it hadn't started to work yet. Mexico didn't provide 
it. But what it says basically is, if you cross through a third 
country, you have to seek asylum in that third country.
  Specifically with Guatemala--as you know, you have to go through 
Guatemala coming from Honduras or El Salvador or Ecuador or elsewhere. 
Why not have the asylum claims done there? Again, due process, yes, but 
don't make people take this long and treacherous journey up to the 
southern border of the United States. Don't make them go through this 
process of the detention facilities and so on. Have them seek asylum in 
their own country or in other countries. That, to me, seems like it 
makes a lot of sense.
  The Biden administration suspended the Safe Third Country program on 
February 6, shortly after the inauguration.
  One program they would like to restart that I think makes sense is 
called the Central American Minors Program. They are going to restart 
that program

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now, starting in March. This is a program where, during the Obama 
administration, if you had a family member, a parent--it had to be a 
parent or a guardian--in the United States legally, then you could come 
through this program called CAM, Central American Minors Program. I am 
glad they have restarted that program. That makes sense. I will tell 
you, over 5 years, only 3,500 kids were processed in that program. 
Again, your parent has to be in the United States legally. There are 
3,500 kids coming across our border every 9 days right now. So the 
program is not going to solve all our problems, but it will help, and 
that is a good idea.
  We need to take a hard look at all of this, at all of these pull 
factors we talked about and certainly at the push factors.
  I will say that the Biden administration has proposed $4 billion to 
go to these three countries--Guatemala, El Salvador, Honduras. As a 
Congress, we have appropriated and $3.6 billion has been spent in the 
last 5 years in these three countries. So we have done almost that much 
in the last 5 years, and yet, because of the corruption, because of the 
lack of transparency, because of the lack of rule of law, the money has 
not been as effectively spent as it should have been. So we have to be 
sure the money is conditioned upon reforms to actually improve the 
lives of the individuals in those countries. Despite the corruption, we 
need to cut through that and say: If you take this money, you have to 
commit to the reforms. Second, again, it should be contingent upon 
helping with our asylum system to be sure that we can deal with this 
surge that we are now facing.
  If the Biden administration takes these six recommended actions I 
have laid out today, I believe we would move toward bringing a quicker 
end to this crisis on the border, and we would be able to secure our 
southern border with regard to the drugs that are coming over and other 
contraband and be able to say that we, together, worked on this.
  I know this is a time where everybody is in their corner, the 
Republicans and Democrats, and it is impossible, it seems like, to make 
progress. But I think these are pretty sensible ideas, and the 
alternative is a bad one: that this is going to get worse. You will 
have more and more kids in detention centers. You will have more and 
more families released to communities in the United States where they 
don't come forward for their hearings. And it is something that 
discourages people about our immigration system. It just doesn't seem 
to work. It is certainly not working on the border today.
  So my hope is that these ideas or others--maybe others in this 
Chamber have better ideas, but hopefully they can be bipartisan, and we 
can get some of this stuff done and actually deal with the crisis we 
all know exists and we have a responsibility to face.
  I yield the floor.

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