[Congressional Record Volume 169, Number 80 (Thursday, May 11, 2023)]
[Senate]
[Pages S1614-S1616]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                  Immigration and Customs Enforcement

  Mr. CORNYN. Mr. President, as the whole Nation knows by now, title 
42, the COVID-19 public health laws used by the Border Patrol to expel 
people at the southern border, will expire at midnight tonight.
  At our border communities, in the 1,200 miles of our border with 
Mexico and Texas, they are bracing for a tsunami of humanity. As we 
know, over the last couple of years, title 42 has been one of the tools 
in the Border Patrol's toolbox to prevent the Biden border crisis from 
becoming the Biden border catastrophe or calamity.
  To give you a sense of the impact of title 42, which will go away 
tonight, since President Biden took office, U.S. Customs and Border 
Protection has logged more than 5 million illegal border crossings--5 
million. Because of title 42, the United States hasn't been required to 
detain, identify, and process every single person who crossed the 
border illegally. In fact, nearly half of those 5 million were removed 
under title 42, a total of almost 2.4 million people.
  Consider the countless stories we have heard over the last 2 years 
about overcrowded detention facilities. I have seen them myself. We 
have all seen them on television or in the print media. We have seen 
these shelters bursting at the seams. That was the case when Border 
Patrol was detaining only roughly half of the individuals who illegally 
crossed the southern border because they were able to use title 42.
  Starting tomorrow, agents will have to apprehend every single person 
under DHS's--Department of Homeland Security's--traditional title 8 
authority. The problem is that law enforcement doesn't have the space 
to hold those individuals, not even close.
  Last spring, Secretary Mayorcas, the Secretary of Homeland Security, 
said, Customs and Border Protection detention facilities could hold 
approximately 18,000 people. That sounds like a large number, until you 
begin to look at the number of people who are crossing the border every 
day.
  This week, we have already seen an average of about 10,000 border 
crossings a day. And he says we can detain 18,000. And you are getting 
10,000 a day?
  Well, once title 42 is lifted, that number will climb even higher. 
Detention facilities, which are already overcapacity, will become even 
more crowded. And once they are fully maxed out, the Biden 
administration will simply release people into the United States, using 
what they call parole.

[[Page S1615]]

  Now, parole--we are perhaps familiar with parole in the criminal 
context--but parole in the immigration context means that they will be 
released into the interior of the United States, whether or not they 
can satisfy the legal requirement to be granted asylum, and they will 
be told to go to an Immigration and Customs Enforcement office in the 
interior of the United States--in Chicago, in New York, here in 
Washington, DC, or wherever they may end up.
  Unfortunately, immigration court backlogs because of the vast numbers 
of people coming in. If you show up in New York, and you have been 
paroled in the United States, assuming you even show up, which many 
don't, you could wait as many as 10 years to begin the process of being 
heard in immigration court.
  And here is the real unfairness. Consider the people--although it is 
a small minority, maybe 15 percent or so of these migrants who claim 
asylum will have a valid claim. They have to wait in line with the 85 
or more percent who we know will not have a valid plan. How unfair is 
it to those people to leave them in legal limbo because of the 
uncontrolled numbers coming across the border?
  Well, anyone who thinks this is somehow a scare tactic or a made-up 
story is in for a rude awakening. Over the last several weeks, as the 
title 42 end date has crept closer, we have seen migrants gathering 
in larger and larger numbers along the border in Mexico. It is 
currently estimated that more than 100,000 migrants are already 
waiting. With this deadline just around the corner, the Secretary of 
Homeland Security traveled to Brownsville, TX, last Friday to talk 
about what is to come.

  Brownsville, TX, which is at the very tip of the Rio Grande Valley, 
right across from Mexico, is one of three Texas cities to declare a 
state of emergency already, anticipating the end of title 42. Laredo 
and El Paso were the other two because they are preparing, as best they 
can, for an unprecedented surge of migrants.
  Over the last couple of weeks, more than 15,000 migrants have arrived 
in Brownsville. Law enforcement and city officials have been 
overwhelmed by the arrival of so many people, and they are bracing for 
an even larger surge on Friday.
  With this as a backdrop, Secretary Mayorkas made an absolutely 
dumbfounding statement last week--one of many that he has made in the 
past. He said: The border is not open; it has not been open; and it 
will not be open subsequent to May 11.
  It is beyond my comprehension how someone can see what we are seeing 
on our TV screens or in the media and then to have a public official 
like the Secretary of Homeland Security tell us a lie repeatedly about 
the border not being open.
  I don't know what he calls 5 million people coming across the border. 
Well, about half of them have been expelled, so let's say, roughly, 2.5 
million after you consider those who were repatriated as a result of 
title 42. He said this in Brownsville, which is a city that has 
absorbed less than 15,000 migrants in less than 2 weeks.
  You know, in some of the newspapers they have a Pinocchio test where 
they will give you one Pinocchio, two Pinocchios, three Pinocchios, 
four Pinocchios, based on how outrageous the lie is. And I don't think 
you can count up enough Pinocchios to award Secretary Mayorkas for his 
outright falsehood that he continues to spew, sitting in the critical 
position to do something about this.
  The border has clearly been open, and President Biden and his 
administration have laid out the welcome mat. And that is why there has 
been absolutely no deterrence. You know, law enforcement, including 
Border Patrol, doesn't just enforce the law. They, by enforcing the law 
and by people knowing that they are enforcing the law, hope to deter 
other people from violating the law.
  But when people see an open border with no enforcement, there is no 
deterrence. And so people do what we can expect they will continue to 
do, and that is to continue to come.
  Well, at midnight tonight, title 42 expires. Secretary Mayorkas must 
really think that the American people are stupid or dumb. But they are 
not. They are smart. They can see what is going on. They know he is not 
telling the truth. And for some reason, President Biden continues to 
keep him on the payroll. You would think, at some point, somebody 
should get fired for this disaster, which is about ready to get worse. 
There needs to be some sort of accountability.
  If you did something like this in the private sector, what do you 
think would happen to you? You would be held accountable. But 
apparently not in the Biden administration. You can lie to the American 
people. You can fail to do your job until it gets so bad that 
presumably something has to give.
  All of us can see photos and videos of the chaos at the southern 
border. We see it on our social media feeds and on the nightly news. We 
understand what is happening, and we know who is responsible.
  So the administration is being dishonest when they say the border is 
not open. And they have made it painfully obvious that nothing is going 
to change until they are forced to do so.
  After a couple of years--I have been writing to the Secretary of 
Homeland Security for at least the last 2 years, saying: When title 42 
ends, as we know it will at some point, what is your plan? What is your 
plan?
  Well, on the eve of this looming crisis and catastrophe, after the 
end of title 42, the administration has rolled out something they call 
the circumvention of lawful pathways rule.
  The problem is, the Constitution does not give the executive branch--
the President of the United States--the power to write immigration laws 
or to stand up new pathways for legal status. If young people who were 
given Deferred Action for Childhood Arrivals have learned one thing, it 
is that the President does not have the authority to unilaterally 
change immigration laws. That is something he has to do in conjunction 
with the Congress.
  But the Biden administration seems eager to repeat history with this 
rule, which funnels migrants into new, unconstitutional, so-called 
lawful pathways that were unilaterally created by the executive branch.
  You know, there has got to be a little office somewhere--I haven't 
found it yet here in Washington DC--that generates these names for 
legislation or new rules and regulations, which actually are the 
opposite of what they do. That was true with the Inflation Reduction 
Act, which didn't reduce inflation. And it is true of this so-called 
circumvention of Lawful Pathways Act. It is not lawful. It is not 
constitutional for the President to do it by himself.
  Unfortunately, that is just one of many problems with this rule. The 
broad goal, plainly, is to ensure a more orderly asylum process by 
reducing the number of border crossings between ports of entry and 
encouraging migrants to seek asylum at ports. Well, if that were 
actually what was going to happen, that would be improvement. Those who 
fail to present themselves at a port of entry would, theoretically, be 
ineligible for asylum. And it purports to regulate the flow of asylum 
seekers into land ports of entry so they don't become dangerously 
overcrowded.
  As I said, at face value, these seem like constructive ideas, but 
this rule is brimming with flaws and exceptions and loopholes that were 
explicitly designed to ensure migrants will be released into the United 
States en masse.
  I learned as a law student: What the front page giveth, the back page 
can taketh away.
  While the Biden administration may want to put on this happy face 
that, yes, we learned our lesson, we are changing the rules, we are 
going to restrict the pathways by which people can seek asylum in the 
United States, the truth is they have no commitment to an orderly, 
lawful, and humane system of immigration.
  The Biden plan includes broad exemptions for migrants who show up at 
a port of entry without an appointment and are illiterate--or at least 
claim to be. It provides an exception for migrants who can't access the 
DHS scheduling system or who experience significant technical issues 
with the notoriously glitchy CBP One app. And the Department all but 
admits in the fine print that these migrants will be paroled.
  Remember what I said about parole. It is just releasing these 
migrants into the United States and quickly being

[[Page S1616]]

given employment authorization documents.
  The exceptions swallow the rule by outlining broad exceptions that 
can't be objectively evaluated and are easily gamed. If they can't be 
gamed, they will be gamed.
  The Biden administration has provided the cartels with a road map or 
a playbook. The administration is saying: Instruct migrants to use one 
of these excuses. Coach them to use one of these excuses, and they will 
be eligible for asylum, and they will be released into the interior of 
the United States.
  Migrants can make the dangerous journey to the border, show up at a 
port of entry without an appointment, say the magic words, and still be 
paroled into the United States.
  As the administration has made clear, it plans to ``expeditiously 
process'' migrants who arrive at the southwest border. With title 42 
set to expire and 100,000 immigrants gathering across the border, this 
is President Biden's plan. It is called expedited catch-and-release.
  The circumvention of lawful pathways rule is dangerous and 
unconstitutional. I am in the process of introducing a Congressional 
Review Act resolution to disapprove of it. This rule would rapidly 
increase the number of migrants being paroled in the United States 
while doing nothing--zero--to deter migrants with weak asylum claims.
  Immigration groups on the left and the right, interestingly, oppose 
this rule. Some of our colleagues in the Democratic caucus have 
expressed that they are deeply disappointed with the administration and 
that it has chosen to move forward in publishing this proposed rule. 
That is from a Democratic Member of the Senate.
  I urge Senator Schumer, the majority leader, who sets the schedule 
around here, to allow us to vote on my resolution as soon as possible.
  The White House has claimed that this is the only option available to 
address a looming catastrophe, but that is false too. In the nineties, 
President Clinton signed a law establishing something called expedited 
removal. In short, it allows Border Patrol to detain and quickly remove 
people who cannot prove their legal requirement in order to stay. 
Expedited removals have been utilized by Republicans and Democrats over 
the years. It is a part of that powerful deterrent that we need to 
reestablish.
  So those who have no legitimate claim to legal status will make that 
dangerous journey, having paid thousands of dollars to a coyote or 
cartel to get here. If a person is likely to be removed from the United 
States within a few days of crossing, fewer and fewer of them will even 
attempt to make the dangerous journey in the first place.
  That is the power of expedited removal. It sends a clear message that 
America's immigration laws will be enforced, something that has not 
happened during President Biden's watch.
  President Biden has the authority today to conduct expedited 
removals. He has had that authority since day one but refuses to fully 
utilize it.
  I have heard the Press Secretary for the President say: Well, it is 
up to Congress to deal with this.
  Well, Congress has already dealt with this, and President Clinton 
signed it into law.
  It is because President Biden has unilaterally surrendered to the 
cartels that continue to make billions of dollars and whose poison 
kills tens of thousands of Americans each year because it continues to 
flow across the border. President Biden has the tools he needs today. 
So don't believe this: Well, it is their fault.
  It is the blame game, which is an Olympic sport here in Washington, 
DC--trying to blame somebody else, denying personal responsibility.
  But this one sits at the feet of the President of the United States. 
Rather than stand up new facilities or hire more personnel to make the 
expedited removal process function, the Biden administration has, 
instead, chosen to release people into the interior of the country at 
an unprecedented pace.
  Where the expedited removal serves as a deterrent, President Biden's 
wide-scale catch-and-release is a magnet. People are being released to 
wait immigration court dates that are years down the road--if they show 
up, and many of them won't. Some migrants aren't scheduled to appear 
before an immigration judge until 2032--9 years from now. Believe me, 
when that happens, word travels fast, and more people are sure to 
follow suit. Why wouldn't they?

  President Biden has effectively said: Keep coming. We are going to 
wave you on through the turnstile at the border, maybe never to be 
heard from again and never to appear in front of an immigration judge. 
How unfair is it to those who do have legitimate claims to have to wait 
in line for 9 or 10 years with the vast majority of people who we know 
will not qualify?
  Well, this is what we have seen since President Biden took office and 
decided to undo everything the previous President had done. And the 
pace is going to do nothing but accelerate once title 42 goes away at 
midnight tonight.
  This administration needs to get serious about expedited removals, 
about using the tools that are already available. It needs to make sure 
that those with invalid claims are quickly removed from the United 
States and, yes, people with valid claims need to be welcomed for 
following the lawful process.
  That is what I mean when I say we need a legal, humane, and orderly 
immigration system. Legal immigration has been one of the greatest 
things our country has ever embraced. Virtually all of us, or at least 
our ancestors, came from somewhere else. And we have always tended to 
attract people who are leaving dire circumstances--perhaps economic, 
perhaps otherwise--in their home country, who want to come to the 
United States to pursue their dreams.
  I believe that is the secret sauce that has made our country what it 
is today--the powerhouse that it is today, economically and otherwise. 
But it is lawful immigration. It is orderly immigration. It is humane 
immigration. It is not the chaos and the criminality that we see at the 
border today.
  Sometimes I ask myself: How bad does this have to get before the 
politicians in Washington, DC, wake up and decide to do something?
  I hope we are at that point. I hope it doesn't have to get worse 
because it can get worse if we simply do nothing.
  But the first step is for the President to use the tools available to 
him already signed into law. In order to do that, they need to increase 
detention space so frontline personnel will have the capacity to 
actually carry out these expedited removals.
  The Biden administration also needs to stop waving or paroling people 
into the country to wait for an appointment with immigration and 
customs enforcement that is years in the future. Again, that is for the 
ones that show up.
  These are just a few of the ways that the President can deal with 
this crisis today. Those options have been available since the day he 
took office. He just refuses to use them and tries to shift the blame 
to others.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.