[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
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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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