[Congressional Record Volume 168, Number 56 (Wednesday, March 30, 2022)]
[Senate]
[Pages S1850-S1854]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Border Security

  Mr. PORTMAN. I am here on the floor today to talk about border 
security, an issue that is intertwined with our national security and, 
certainly, with the drug epidemic that we see in our communities around 
the country. We are in the middle right now of the worst border crisis 
in the history of our country.
  This chart tells the story.
  Monthly border crossings are at an unprecedented level. Customs and 
Border Protection reports that there were 164,973 encounters at the 
border in February. By the way, that is equal to the population of 
Dayton, OH. Actually, it is far greater than the population of Dayton, 
OH.
  So we have never had this kind of illegal migration into the 
country--this many people being apprehended. They told us last week 
that they are seeing over 7,000 migrants per day in this month, in 
March, and this is while something called title 42 is in effect.
  What is title 42?
  Well, despite these really big numbers you see here in terms of the 
number of people being apprehended at the border, under what is called 
title 42, which is a public health authority--it has nothing to do with 
immigration, really. It is about public health, and it is in place 
because of COVID-19. It allows the Customs and Border Protection folks 
to say: Sorry, you can't come into the United States for public health 
reasons. And, therefore, they can be turned away.
  So that order is in place right now. Here is how that has worked. If 
you look at this chart, you will see the people who have been turned 
away because of title 42, in orange. Those are the numbers in orange. 
Those who have been allowed to come into the country are in blue.
  You will see here, at the end of the last administration, in the 
Trump years, when we had for the most part a secure border, we had very 
few illegal entries. We had about 75 percent of the people who were 
coming in who were turned away by title 42.
  In this administration, it is closer to about 50 percent. About 50 
percent of the people are being turned away by title 42.
  Why is this important? Well, obviously, we are making progress on 
COVID. COVID-19, we all hope, is not going to be here forever. There 
may be another variant out there, but as we are relaxing mask mandates 
and telling people that they don't have a vaccination mandate anymore 
to be able to come to work or travel across our borders, we are hearing 
reports that the Biden administration may rescind title 42, so get rid 
of this authority within the next several weeks.
  And do you know what? Unless we have a new variant, God forbid, that 
comes in and causes a new health crisis, they are probably right. Title 
42 shouldn't be used in this way because it is a public health 
authority, not an immigration law. The problem is that if that 
happens--remember, we already have an unprecedented number of people 
coming into the country. Look at this chart. If that happens, then all 
these folks who are being turned away--the orange bars here--are going 
to be coming across the border also without title 42 in place to have 
them be turned away. This is why the Border Patrol tells me--and I know 
the Presiding Officer hears the same thing all the time--that they are 
already overwhelmed. But they say it will be out of control.
  Now, some may argue it is already out of control. But it is going to 
get a whole lot worse. So they are worried on the border, and rightly 
so, that the current crisis is going to become far worse.
  My two colleagues from Arizona, both Democrats, to my understanding, 
have just asked President Biden to keep title 42 in place. And I think 
that makes sense to keep it in place right now because we are not ready 
for a huge increase of migrants coming across the border. We can't 
handle the current wave. The information we received from the 
Department of Homeland Security is that they are planning for a massive 
increase of migrants when this happens.
  I am the ranking Republican--the top Republican--on the Department of 
Homeland Security oversight committee, called the HSGAC Committee, or 
Homeland Security and Government Affairs Committee. We are talking to

[[Page S1851]]

the Department of Homeland Security, and they are preparing for a huge 
increase. But their plan seems to be more about more buses, more 
planes, and more tents to help expedite the flow of these migrants into 
the country rather than figuring out a way that an immigration system 
should work better to be able to say to people: Come legally. Come 
legally. Please don't come illegally--which is what these numbers 
represent.
  By the way, I am for legal immigration. I think it has enriched our 
country. I think it is a very important part of the fabric in our 
Nation. It makes us special. We brought people in from all over the 
world, including, pretty much, all of our parents and grandparents and, 
certainly, great-grandparents. Anybody who is in the Chamber, unless 
you are Native American, you came here or your family came here as 
immigrants.

  But legal immigration, while it should be encouraged, is not the same 
thing as what we are talking about here. We are talking about illegal 
entry, people who don't qualify under the legal system. And in all of 
these countries where people are coming from, others are waiting in 
line patiently under the legal immigration system.
  So America, typically, is the most generous country in the world, 
year after year, in accepting legal immigrants. Sometimes, that changes 
based on the refugee flows, and we are seeing the refugee flows today 
in Poland, as an example. Poland is going to be the most generous 
country in the world, thanks to the brutal and murderous and cowardly 
attacks by Putin on that country. But America is a generous country in 
terms of immigrants, and we should be.
  But with regard to legal immigration, we are not just a country of 
immigrants--that has enriched us--we are also a country of laws, right? 
So we have to have some laws in place to deal with this illegal 
immigration. And, of course, it is not just about people coming 
illegally. It is about all the other contraband that comes across the 
border, particularly illegal drugs.
  So I believe we have to keep title 42 in place for now, but I also 
agree this is not a long-term solution to the crisis we have at the 
southern border. To use a healthcare authority to effectively take care 
of about half the illegal immigration coming across the border doesn't 
make sense.
  By the way, when you see the difference here in the use of title 42, 
it is because, during the Trump years, they used title 42 for families 
and for single adults coming over; whereas, here, the Biden 
administration chose not to apply it to families for the most part. The 
vast majority of families do not get stopped because of title 42. It is 
just single adults, which is the vast majority of people coming across 
the border illegally. So that is the difference in terms of the 
percentage of use of title 42.
  So we have a real problem on our hands. It is already overwhelming, 
and it is about to get a lot worse. What is the solution?
  Well, the solution is to fix our immigration laws. The foundation 
underneath all this and the problem that has resulted in these numbers 
is because our immigration law doesn't work. It is broken, and 
everybody acknowledges that. I don't know a Member in this Chamber who 
wouldn't acknowledge, at least privately, that our immigration system 
is broken. How can you look at these numbers and not realize that?
  And yet we haven't been able to find a bipartisan way forward. It is 
very frustrating. What we have to do is we have to look at the 
underlying laws and why they don't work.
  Well, there is one reason, and it is by far the biggest reason. It 
may not be the only one. You can argue that we should put in more 
Border Patrol. We should do that. We should have more fencing. We 
should do that. But the biggest problem is our asylum policy in this 
country. The administration has implemented the asylum policy in a way 
that makes getting control of the border impossible.
  Now, what is asylum? Well, it is something to help people who really 
need relief. And it should be used for that, for people who have a 
credible fear of persecution. So back in their home country, they are 
being persecuted. They come to America, and they apply for asylum. We 
have a tradition in America of accepting those people as we accept 
refugees. It is basically the same standard. But the problem is that 
people are coming into our country and claiming asylum, going through a 
long system, which we will talk about in a minute, not qualifying for 
asylum, and yet staying in our country. And this has caused a huge pull 
factor where people from all over the world are coming to America 
because they are told: Gosh, all you have to do is apply for asylum, 
and they will let you in, and it is unlikely that you will ever have to 
leave.
  That is how the system works now. I mean, that is just the honest 
truth, and I think if you talk to anybody who is objective about this, 
they will admit it.
  Now, some people think: We should not have the asylum policy act as 
our immigration policy. These people should just be allowed to come in.
  There are some people who believe that. My belief is we ought to 
stick with the legal immigration system--again, the most generous in 
the world in most years--and say that, for asylum, let's limit it to 
people who actually qualify for asylum. Let's not let people misuse the 
system to gain entry into the United States.
  By the way, the people who are misusing it are the smugglers because 
it is the smugglers who go to the family, let's say, in a country like 
Ecuador or Guatemala, and they say: Give me a bunch of money--like 
10,000 bucks, which is a lot of money for a poor family in one of these 
countries--and I will get your kids or you and your kids into the 
United States and get them in school, get you a job, because America 
has this crazy asylum policy where you can just do that.

  And we will talk about how that works in a second, but that is a pull 
factor.
  I recently went to Latin America and met with the Presidents of 
Mexico and Guatemala and Ecuador and Colombia. They all said the same 
thing, which is this: Please change your policies because it is a pull 
factor. You are taking some of our best and brightest people, and they 
all want to come to the American border and go across because they know 
this is how they can get into your country. You have a legal 
immigration system where people stay here and apply and go through the 
process. That is fine. But change your asylum policy.
  Now, that may surprise some people. People may think: Well, the 
Presidents of those countries might like when people leave and send 
money back to their family.
  But, no, they don't want to lose all these people, and that is what 
is happening. Look at these numbers. That is what is happening.
  By the way, it is not just people who are from Central America and 
Mexico.
  So here is an interesting chart that I asked my team to put together. 
These are encounters at the southwest border--so when somebody gets 
stopped, apprehended by the Border Patrol--of people who are not from 
either Mexico or the Northern Triangle.
  So look at how this has increased. Back in 2018, there were very few 
people coming across the border illegally who weren't from Mexico or 
Central America, the so-called Northern Triangle countries. Look at 
what happens here. You have a huge increase of people coming over the 
border who are from other countries.
  So I was told today that there were people coming over the border 
this year from 150 countries. You probably heard the stories of people 
from Ukraine, a country that is under siege by Russia. You can't blame 
the people for leaving that country. And I have been to Poland, on the 
border, recently, and I have seen the refugees there. But some of these 
refugees are actually coming to Mexico and then finding their way to 
the southern border and coming across the southern border, from Ukraine 
and also from Russia. And the Border Patrol has confirmed that for me.
  So this has ticked up as this conflict continues. Why? Because they 
know the easiest way to get into America is to walk across the southern 
border and you claim asylum and you get in.
  Now, we have just decided to bring 100,000 refugees in from Ukraine 
because of this crisis. So maybe that will be a way that more people 
can come. They don't have to come through the

[[Page S1852]]

southern border. But now, they know this is the easy way to come in. 
And look at these numbers.
  So it is not just people, again, from Mexico and Central America. 
Now, it is people from all over the world. And for some of these 
people, the Border Patrol is nervous because they come from countries 
where there are a lot of people who want to do us harm. So people are 
coming in from countries in the Middle East, as an example. They are 
concerned and for good reason.
  So what happens when you come to the border and you claim asylum?
  So, after you tell the Border Patrol that you would like to claim 
asylum, you then are permitted to come into the country, assuming you 
meet a basic standard where you say the right things about having a 
credible fear of persecution, and you get in line for an asylum 
determination. So you come to Washington, DC, or my hometown of 
Cincinnati or Tucson, AZ--wherever it is--and your wait is between 4 
and 6 years. Others say it is 4 to 8 years because of the appeals 
process, but let's say it is 4 to 6 years--so an average of 5 years 
that you are in the United States, waiting for your asylum request to 
be adjudicated.

  What happens during that time period? Well, you are able to work. 
Your kids are able to go to school. You get embedded into the 
community, as you might imagine. Some people show up for their court 
cases; some people don't. They are in the community. They probably feel 
it is unlikely they will be deported. So it is not a system that works 
well to have that kind of a lag time.
  By the way, there are 1.5 million people in this category--1.5 
million people in this backlog. Does this make any sense?
  Here is what is most unusual about this process, I will say: At the 
end of the process, when the asylum adjudication is made, do you know 
what happens? Most people are told: I am sorry. You don't qualify.
  In fact, the latest information that we have from the Department of 
Homeland Security is that immigration judges granted asylum to roughly 
2,400 migrants in fiscal year 2021. These, again, all originated with a 
credible fear claim, a credible fear of persecution in their home 
countries--2,400. That is just 14 percent of such cases completed. That 
would mean, in terms of these cases, these numbers we have here, that 
roughly 85 percent or 86 percent of the people who applied, who went 
through the process, were not granted asylum.
  Now, I have heard different numbers here, but I have never heard 
somebody tell me a number that is close to 50 percent. So, the majority 
of people who go through this whole process wait 4 to 6 years and 
finally have their court cases heard. Again, in fiscal year 2021, it 
would appear it was 2,400 in removal. That would be just 14 percent of 
such cases completed. The vast majority don't meet our standard.
  So who are these people? They are economic refugees. Who can blame 
them for wanting to come to the United States of America? If I lived in 
one of these countries and wanted to look out for my kids and my 
family, as we all do, I might do the same thing.
  I don't agree with people who say: Oh, these folks are coming over 
here to use our welfare and to commit crimes. Some of them do--we know 
that--both of those things, but I think the vast majority of them come 
here--and I have talked to a lot of them, as has the Presiding Officer. 
If you go to the border, you meet these people. These are families who 
are poor and who are looking for a better life, a higher salary, better 
healthcare, a future for their kids, but they are not coming legally, 
and that is the issue. Economic refugees don't qualify as asylees. They 
don't meet the standard to come in under the asylum process. They have 
to come in under the legal immigration system.
  Look, it is a complicated issue, but in some respects, it is really 
very simple, isn't it? We have a process here in our country now 
whereby, if you show up to the border and you claim asylum and you get 
in, there is a very good chance, although you will not have your claim 
adjudicated favorably, that you will end up being able to just stay in 
the United States.
  There is discussion about how many people are actually deported once 
they are put into removal. In other words, if they are told they don't 
meet the standards and are put into removal, are they deported? Well, 
the priority of Homeland Security--and, again, we are the oversight 
committee for this--is people who have criminal records and people who 
are terrorists, who pose some threat to the country. That means, for 
the vast majority of the people, they are not going to be prioritized 
in terms of removal. There is also an opportunity to appeal. That is 
why some people say it is not 4 to 6 years but that it is 4 to 8 years. 
But let's say it is even 4 years. That is a long time to wait--1.5 
million people.
  Now, I am told that the administration is coming up with a new rule 
to help deal with this issue, and I was initially very encouraged when 
I heard about this.

  What I have been asking for, for some time, is a system where we 
adjudicate these cases at the border as soon as people come across, yes 
or no. Let people know. If it is no, go back home, and apply legally. 
If it is yes, come on into the United States. You then are a legal 
immigrant. Eventually, you qualify for a green card, and eventually you 
qualify for citizenship because you are an asylee, like a refugee. But 
let's do that adjudication at the border when people come. That is what 
the law says. It says people should be detained until they are 
adjudicated, but it is not what we do.
  I have been pushing for Congress to actually fund this effort--it is 
going to be expensive--of places where people can be humanely detained 
during a short period of time while they actually go before an 
immigration official who can determine, yes, you are in or, no, you 
don't qualify, rather than waiting years and years, as we do now. 
Again, 1.5 million people are in limbo who are in the United States.
  So I was sort of excited when I heard that the administration was 
coming up with a new rule for quicker decisions. I think that makes 
sense. However, I am learning more about this proposed rule. It appears 
to be another asylum appeal on top of an already backlogged asylum 
system. This is why I say that: It adds an asylum officer to the 
process--who is on the border--and when a person comes forward and says 
``I have a credible fear of persecution, and I want to claim asylum,'' 
this individual, who is not a judge but who is an asylum officer and is 
trained, is able to either approve or deny the case.
  The problem is, if you approve the person, the person comes in and, 
again, eventually gets a green card and becomes a legal immigrant, but 
if the person is denied, apparently the individual then goes into the 
regular process and can immediately appeal to an immigration judge. It 
just adds another layer that can be appealed. So I am concerned about 
that.
  Now, I am told that there will be an effort to speed up an 
immigration judge's decision under this process. So, if there is an 
officer at the border who makes the initial determination and if the 
initial determination is no, then the judge would have to act more 
quickly than the 4 to 6 years that are currently in place. So that 
would be an improvement. That would be an improvement if it could be 
faster, but I am not sure how that is going to happen because the 
reason it is 4 to 6 years is that there is a 1.5 million-person 
backlog.
  My view would be, as people are coming in, they ought to be 
adjudicated quickly, yes or no. If it is yes, come on in. If it is no, 
go back home. That would send a message to the next group who is being 
told by these smugglers we talked about: You know, just pay me this 
money, and I will get you into America. Your kids can go to school, and 
you can go to work.
  I fear that, unless we fix this system, it is going to give those 
human smugglers even more opportunities to encourage unlawful 
migration.
  By the way, this comes at a time when the DHS recently reported to 
Congress that several million migrants in the Western Hemisphere are 
getting ready to start their journey to the United States. Why? Because 
they know title 42, which we talked about earlier, is going to 
disappear. It is in the orange here. So this is a time when, 
apparently, there are more people who are thinking about coming. We 
know as we have seen the caravans and so on. That is not something that 
we want to go through again. It is a pull

[[Page S1853]]

factor, as I said earlier. It is pulling people to the border. It is 
giving the coyotes, the traffickers, the smugglers the ability to make 
lots of money and to bring people, again, not just from Mexico and 
Central America but from all over the world.
  By the way, the journey north is a dangerous one. I know everybody 
has heard about that and has seen that. We saw recently that there was 
a tractor-trailer full of migrants that crashed, and dozens of people 
were killed. We know about the sexual assaults of women, girls, boys. 
We know about the human trafficking that occurs in connection with 
this. We know about the cartels that are involved with this smuggling 
and how much they charge people.
  By the way, just last year, there were 10,000 requests for Border 
Patrol help from people who were in distress because they were left in 
the desert to their own devices. They needed water or they needed food. 
They needed to be rescued. There have been over 10,000 cases wherein 
the Border Patrol has gone and rescued migrants who were left by these 
smugglers in the middle of the desert.
  So this is not a system that we should hold up as a good system. This 
is a system that is broken and corrupt, and the people making money, 
again, are the cartels.
  Drug cartels, by the way, are very involved in this. So it is about 
people, but it is also about drugs, and we all know this. They know 
when the Border Patrol agents are being taken offline to process people 
who are coming into the country, which leaves wide-open gaps for them 
to transport drugs into America. I saw it when I was down there last 
year.

  I was down more recently also. What I saw was--we were out at night, 
and a group of migrants was coming, and the Border Patrol was going to 
that location to stop them and to question them. Meanwhile, the drug 
smugglers came across. We all heard it on the radio, and you could see 
it, but what could they do? They were distracted.
  Fentanyl is the deadliest of the drugs. This is the synthetic opioid 
that is killing more people than is any other drug. About two-thirds of 
the people who die of overdoses in my home State of Ohio and probably 
in the Presiding Officer's State are dying from fentanyl or from a 
variant of fentanyl.
  It used to come from China--through the mail, for the most part. We 
did a pretty good job of stopping that, including with legislation 
called the STOP Act, which I was proud to be a part of. Yet it is like 
Whac-A-Mole, wherein you stop it here, and it starts somewhere else, 
and now it is coming in from Mexico. A lot of the analogs and a lot of 
the precursors are coming from China, still, into Mexico. It is then 
being made into either a pill or into some other substance that comes 
into the United States.
  I do a lot of work in this area in terms of the prevention and the 
treatment and the longer term recovery, and I think that that is really 
the most important part--to stop the demand. But I have got to tell you 
that it is really hard right now for people who are interested in 
helping on the treatment side or in law enforcement back home because 
this stuff is flooding across the border. It means that the supply has 
gone up, and it means it is so cheap. Law enforcement in Ohio told me 
that it is cheaper than marijuana on the street--fentanyl--and that it 
is being pressed into pills that say things like ``Xanax'' or 
``Percocet.'' Unfortunately, people are taking those pills, not knowing 
it has fentanyl, and some are dying of overdoses immediately.
  Last year in Ohio, we had, unfortunately, a record level of overdose 
deaths again. In America, the same was true--100,000 people died of 
overdoses from these drugs. Again, probably 60 percent--two-thirds--in 
Ohio were dying of fentanyl.
  Last year, we had a 40-percent increase in fentanyl coming over the 
southern border, which is based on apprehensions. By the way, Border 
Patrol will tell you, when you go and talk to them, that they are not 
stopping a lot of it because they don't have the ability; they don't 
have the resources. But it is a true crisis--four times as much as in 
2019. According to the CDC, fentanyl and these other synthetic opioids 
are the biggest dangers.
  A few months ago, I was in Nogales, which is south of Tucson, where 
the Presiding Officer lives. I was there to ride with the Border Patrol 
and to go to the port of entry and meet with the Border Patrol and 
customs officials. They are doing an awesome job with what they have--a 
24/7 job--to try to protect our Nation from these narcotics and these 
bad actors, who come from around the world now and try to enter through 
this vulnerable southern border, and just to deal with the migrant flow 
that we talked about. It was pretty alarming. They need better 
equipment. They need help. They need more resources. They need better 
technology to be able to scan the cars and trucks that are coming in, 
particularly for the drugs we talked about.
  Fentanyl, by the way--a relatively small package--can kill thousands 
of people, so you can hide this stuff in a car or in a truck much more 
easily.
  Some of the ports of entry have more technology than others, but here 
is the average: Less than 2 percent of the passenger vehicles and less 
than 20 percent of the commercial vehicles coming into the United 
States are scanned for illegal drugs, like fentanyl. Those are the 
numbers. It is unacceptable. A smuggler with multiple pounds of 
fentanyl concealed in a hidden compartment, who is going to make 
hundreds of thousands or millions of dollars on that, has a very good 
chance of getting across the border without a search. It is not a gap 
in our security; it is a gaping hole, and it helps lead to this flood 
of cheap fentanyl and other dangerous drugs. Last year, Customs and 
Border Protection seized nearly 10,000 pounds of deadly fentanyl--
again, a 40-percent increase from 2020.
  We also face challenges between the ports of entry. In Nogales, the 
Border Patrol Agent in Charge I rode with showed me huge gaps in the 
fencing and described an overwhelming, recordbreaking number of 
unlawful migrants and drugs coming into the United States and of the 
urgent need, as he told me, for more agents, more trucks, and more 
technology, including cameras and sensors. These gaps and broken areas 
of fencing that need repairs, it is just inexcusable. We should fix 
them.

  By the way, the smugglers know where these gaps are. The human 
smugglers know well. The gap I saw, there were all kinds of bottles and 
old backpacks and stuff where people had discarded things as they come 
across the border. And you could see the trails. You could see the 
tracks where people had come across because they know where the breaks 
are in the fencing. So this is a system that is broken.
  The difference between what was happening here at the end of the last 
administration and this system is there were changes in policy that 
were put in place right away. One widely reported one was the one to 
stop the installation of the fencing on day one via Executive order.
  By the way, fencing alone is not enough. You have to have technology 
that goes with it. But, unfortunately, they stopped the technology too.
  I was in El Paso probably a year and a half ago, and they showed me 
the gaps in the wall, and maybe 80 percent of the fencing was done; and 
then 20 percent was openings where, unfortunately, 24/7, the Border 
Patrol had to be there or else people would just come across. So it 
wasn't slowing anybody down.
  But I focused on the technology because you want the sensors and the 
cameras and all that. The fence itself is not as effective. In fact, it 
is not very effective at all if it doesn't have the technology.
  They said 90 percent of the technology had yet to be installed 
because of that decision on day one of the Executive order because it 
stopped all the technology, too.
  And I know my colleagues on the other side of the aisle and I talk 
about this a lot. They are for the technology because they understand 
this is an issue. But somehow, I don't know, this issue just is one 
where there is a disconnect between the clearly broken system and what 
we were able to get together and do on a bipartisan basis.
  Since the President's inauguration, the southern border has faced the 
worst unlawful migration crisis we have had. The men and women of the 
Border Patrol--Customs and Border Protection--I have met over the years 
are doing the best they can. We need to help them more. They have got 
really difficult jobs right now.

[[Page S1854]]

  For the Border Patrol, I am working on bipartisan legislation to 
increase the number of agents, address retention challenges of the 
existing workforce--they are losing people--and let them respond faster 
to humanitarian crises, including having a Border Patrol reserve they 
can call on where people are qualified and ready to help.
  The ongoing crisis at our southern border is clear, and it is 
persistent. It is not seasonal anymore, if you look at these numbers.
  Again, we welcome legal immigrants. We always should. They enrich our 
country. But we are both a nation of laws and immigrants.
  I urge the Biden administration to change course, to fix this broken 
system, to fix and reform this asylum process that acts as a pool 
factor to America, to stop these policies that send a green light to 
the human smugglers and the drug traffickers that leads to so much 
human suffering and a border that is not secure.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.