Portman Presses Administration Officials on Catastrophic Surge of Unlawful Migrants & Illicit Narcotics Without Title 42

WASHINGTON, DC – Today at a Homeland Security and Governmental Affairs Committee hearing on securing and ensuring order on the southwest border, U.S. Senator Rob Portman (R-OH), Ranking Member of HSGAC, pressed Biden administration officials on their plan to address the catastrophic surge of unlawful migrants and illicit deadly narcotics, like fentanyl, without Title 42. Last month, the administration announced its intent to lift Title 42. Title 42 is public health order put in place to allow border authorities to turn unlawful immigrants away due to the COVID-19 public health crisis. Currently about half of the unlawful immigrants who attempt to enter our country are turned away using Title 42. Portman expressed his concern over lifting Title 42 without an adequate plan to deter unlawful immigrants once the order is lifted as it will lead the current border crisis to catastrophe. In addition to the unprecedented number of individuals, children, and families attempting to enter the country unlawfully, illicit narcotics, like fentanyl, are also coming across the border and into the United States, resulting in a record number of overdose deaths in Ohio and throughout the country. 

Portman discussed how the March CBP operational statistics showed fentanyl seizures at the southern border increased 56 percent in March compared to March 2021 a year ago and over 300 percent increase from March 2020. Those same statistics showed a 33 percent increase in encounters of unlawful migrants at the southern border compared to February and a 78 percent increase from last March, and a 300 percent increase from March 2020.

He also highlighted the need to reform the asylum process that acts as a pull factor to bring unlawful migrants to the southern border and into the United States. Portman voiced his frustration over the reported plans by the Department of Homeland Security to bring more buses, planes, and personnel to the border to process unlawful migrants into the country more quickly when coronavirus-related policies at the border end. This policy change will only increase the worst migration crisis in our nation’s history.   

Finally, Portman also asked officials how they are working to ensure the safety of unaccompanied children at the southern border. Since 2015, PSI has been conducting oversight of the Department of Health and Human Services (HHS) program to place unaccompanied minors with sponsors in this country following reports that HHS placed eight unaccompanied minors with human traffickers who put those children into forced labor in Ohio. PSI has documented its findings in two reports, one released on August 15, 2018 and the other on January 28, 2016. In 2019, Portman introduced bipartisan legislation – the Responsibility for Unaccompanied Minors Act – which requires HHS to better care for and keep track of unaccompanied minors and ensure they appear at their immigration court proceedings.   

A transcript of the exchange can be found below and videos can be found here and here.

Portman: “Thank you, Mr. Chairman. Look, I think we need to be straight with the American people as to what’s happening here. And let me just comment, if I could, on your suggestion that there would be consequences for people who enter multiple times and how that would address the problem. I think it’s fine to have consequences, but that’s not the issue. Agent, you just told us that you’re preparing post Title 42 not for people to have consequences for multiple entries, but for more asylum seekers, didn’t you? That’s what you just told us, right?” 

Benjamine “Carry” Huffman, Acting Chief Operating Officer for U.S. Customs and Border Protection: “For those that come to the Port of Entry and make an application for asylum, yes sir.” 

Portman: “So you’re expanding your capacity to deal with asylum. That’s what’s going to happen. I mean, the alternative to Title 42 is not that people are going to stay home. The alternative to Title 42 is that they’re going to do what they cannot do now because of Title 42, which is apply for asylum. Do you disagree with that, Agent?” 

Agent Huffman: “Sir, I don’t think I understood your question.” 

Portman: “What’s the alternative to Title 42? It was suggested by Mr. Nuñez-Neto a second ago that the alternative to Title 42 is that repeat offenders in particular are not going to come over because they’ll have consequences. The alternative that you stated is that you’re going to have more people coming and applying for asylum. That’s what you’re preparing for, right? 

Agent Huffman: “Sir, we’re prepared to allow whoever comes to the country they can afford the access to our asylum system if they have a right to do so.” 

Portman: “Right, that’s what I’m saying, you’re going to increase your capacity for it. That’s what’s going to happen, right?” 

Agent Huffman: “Yes, sir. We intend to increase our capacity to process whatever person…” 

Portman: “Answer my question, and let’s just be honest here with the American people right now. Title 42 is the ability for you to say to about a million people a year, we’re going to turn you back. And by the way, they aren’t turned back to Mexico in cases where they’re not from Mexico, you actually process them for roughly 40 hours and you send them back to their country of origin. It might be Ecuador. So it’s not what was described. And those people obviously are less likely to be repeat offenders because they’re thousands of miles away. But what you are saying is that without Title 42, you’re going to have a lot more people who come to the border and say, I have a credible fear and like others, they’ll be allowed to come into the country. Is that correct?” 

Agent Huffman: “Yes, sir, that is correct.” 

Portman: “Okay, so, I mean, guys, we can talk about this and try to play politics with it and say the administration has all these plans and consequences matter, but the reality is we have an asylum system that is broken. And until we fix that, it’s not going to be solvable post Title 42. That Title 42 is not sustainable. I get that. It’s a public health authority. It’s not meant to be an immigration law, but it’s all we have right now to keep the system from being totally overwhelmed and to keep not just a million people being released into the country every year who come unlawfully claim asylum. Remember, 85 percent at the end, at least, of Mexicans and Central Americans that we know of are not given asylum, and yet they are not deported. The numbers we have are that there are 1.2 million migrants who have received a final order of removal, and we are removing 56,000 a year right now. That was the number in 2021, and that is less than five percent. So that’s the issue, isn’t it? I wish it was easier, but it’s hard because we have to deal with the asylum issue. Mr. Nuñez-Neto, you were on this Committee. You know this issue well. Do you disagree with anything that I’ve said?” 

Blas Nuñez-Neto, Acting Assistant Secretary for Border and Immigration Policy in the Office of Strategy, Policy, and Plans at the U.S. Department of Homeland Security: “Sir, I think it is clear that under current law, migrants who arrive at the border have the opportunity to claim asylum. And as a department and as a country, we enforce those laws. I think, as the Secretary noted yesterday…” 

Portman: “Let’s just back up for a second, if you could, please, and I apologize, but we don’t enforce the laws in the sense that what the laws say is that we’re supposed to detain people pending the process of asylum. And we don’t do that. We don’t have the beds to do that. The expedited removals, in fact, in the budget for this year are reduced even further, specifically with regard to detention, which is mandated by law. So we don’t do that. And we can’t do that. You know you can’t do that. We don’t have the space, right? We have 24,000 beds. We’re talking 1.2 million people who have been put into expedited removal. Is that correct?” 

Mr. Nuñez-Neto: “I don’t think we have ever had enough beds to run everybody through the process sir.” 

Portman: “Maybe we haven’t ever had enough beds, but isn’t that the reality?” 

Mr. Nuñez-Neto: “Yes, sir, we do not have enough detention capacity to hold everybody.” 

Portman: According to Secretary Mayorkas, not even close, not even close. I mean, we have 7,000 or 8,000 people a day coming to the border right now unlawfully, and we have 24,000 beds. And because of social distancing, because of COVID, we have fewer beds even than that, I’m told, even though Title 42 is about to expire. With regard to COVID, we’re still applying it to the beds. But that’s another issue. The problem, I guess, that I’m trying to get at is that unless we fix the asylum system, there’s no way to allow you, Agent Huffman, to do your job and your men and women who I’ve talked to, and they’re the ones that tell me they are scared to death of what’s going to happen when Title 42 goes away because there is no alternative. And the six pillars that were just talked about, again, we can go through this, but 1,000 new Border Patrol agents, my understanding is the budget asked for 300, something like that. So I guess you’re going to take them from other places including the border with Canada, making processing work faster, enhanced processing on buses while people go into the interior working with nongovernmental organizations to process people faster. I mean, all that’s fine, all that’s fine, but it doesn’t deal with the problem. It just puts more people into the system and Secretary Mayorkas tells us there’s a six to eight year wait right now. In other words, the backlog is 1.6 million people waiting for their asylum claims to be adjudicated and they’re in the United States for six to eight years before their case is resolved. Is that correct?” 

Mr. Nuñez-Neto: “Sir, it is correct that people who are not detained on average take five or six years to go through the process. I would note, sir, if I may..” 

Portman: “Mayorkas says six to eight years.” 

Mr. Nuñez-Neto: “..that we have tried to tackle the asylum process through the asylum officer rule by executive action. But we would welcome a bipartisan effort on the Hill to work on this important issue.” 

Portman: “Well, I would too and there are ideas out there that are, I think very promising. One would be to have an expedited adjudication process at the border. Senator Sinema was here earlier. She and Senator Cornyn have a proposal along those lines with processing centers. I think that makes a lot of sense. It’s going to be expensive but it’s absolutely crucial to me that the last people coming in are the first people who are told, you know we understand that your country has issues and that the economics are a real problem. You look at the Migration Policy Institute here indicates that between 75 percent and 91 percent of migrants who are coming to the border are coming for economic reasons. We get that. That’s why the asylum policy is leading to adjudications of only 15 percent being accepted from the majority of these countries. So we’ve got to make that decision early. Send people back home if they don’t qualify, allow them in if they do. And that is what will send a message to the traffickers and to these families that it doesn’t make sense to make this arduous and dangerous journey north. So I would love to work on that. But that’s not what is being proposed here. Thank you, Mr. Chairman.” 


Portman: Thank you, Chairman, and thank the witnesses for their patience with us today. There’s just so much to go over. Let me just talk quickly about what I think we’ve learned today. One is a deep concern expressed by just about every member of this panel, Democrat and Republican, about the lack of a plan in place to properly the address the surge of migrants who will certainly be coming over the border when Title 42 ends. That I think is a consensus point. Second an acknowledgment that the asylum process is totally broken and it acts as a magnet to draw people to the border and over the border. Here are the numbers. Secretary Mayorkas tells us the average asylum case processing time is six to eight years. We heard today it’s five to six years, but that’s not what your boss says. But let’s say it’s five to six years. It’s a long time when people are in the community, living in the community, working, and kids going to school, having children, becoming part of the community. There’s a 1.6 million person backlog now on asylum claims being considered by the courts. 1.2 million people have gone through the process and received a final order of removal, meaning they should be deported because they were not successful in their  asylum claim. And yet the administration has reduced the number of people being deported. It’s now 56,000 a year. That’s about four percent. In the Obama Biden years, it was 350,000 a year. Incidentally under law Section 235 of the Immigration Nationality Act, there is a requirement for detention of unlawful migrants seeking asylum crossing our border without authorization. And yet, of course, we don’t have the capacity to do that. This administration has reduced the number of ICE beds. We’re now at 24,000 beds, much of which are already full. So that’s where we are. 

“And that’s why it’s true, I think, that there is a consensus here on this panel that this is broken, we have to fix it. On the illegal narcotics coming over. Agent, I appreciate the work your folks do. I was at Mariposo, the port of entry near Nogales earlier this year and saw the desperate need for more of these scanning devices you talked about to try to stop the fentanyl. The fentanyl is streaming into our communities. It’s coming in at such high volumes now that it’s reducing the price because of supply and demand. A huge supply, very inexpensive, and it is causing more deaths as a result. I’m a big fan of looking at the demand side. I’ve passed legislation and it’s working now on treatment and recovery and prevention. But it’s impossible to deal with this flood and not have many more people dying of overdoses. We’re at record levels right now. Here’s the numbers that we have. Only two percent of passenger vehicles are being scanned. Only 17 percent of commercial vehicles are being scanned. That’s it. And yet that’s where 90 percent of the seizures attributed to nonintrusive inspections are resulting from so this is where we’re finding most of these narcotics. 

“It’s a huge increase in March, a huge increase from the last previous March, 300 percent increase from the previous March, levels we’ve never seen before. And yet think of all those trucks and cars that we’re not scanning. So the question, Agent Huffman, is how can we do better? There’s a plan to increase that by the end of next year. And yet, I look at the President’s budget this year, there’s zero in the budget for new scanning machines. So I guess my question for you is, are we on track at least to reach this number of 40 percent of passenger vehicles instead of two percent and 70 percent of commercial vehicles instead of 17 percent by the end of next year?” 

Mr. Nuñez-Neto: “Yes, sir. We are on track by the end of FY23 to increase the scans, to scan 40 percent of vehicles and the 72 percent of the commercial vehicles, respectively. And as you know, we certainly like to do more. And as we increase our ability to do so, we will do that. It’s key that we’re able to look at obviously, we’d like to look at every single thing that comes into the country if we have the ability to do that, because it’s important to do that. And there’s no question that fentanyl is a significant threat to us.” 

Portman: We provided the funding for you back in 2019 to get to that number of 40 percent at least, of course, 70 percent of trucks, and we should provide more. But again, in the budget, there’s nothing. On unaccompanied kids, Senator Ossoff talked about this. Kids have been mistreated in the past. As we know, there are lots of stories about it unfortunately. I got involved in this because of a bunch of kids from Guatemala. Six of them were brought up by their trafficker, went into HHS custody. Then HHS gave them to sponsors. Those sponsors were the traffickers, the very traffickers who had treated them so poorly coming up from the border, lied to their parents. And they took them to an egg farm in Ohio, where six kids as young as 14 lived in deplorable situations underpaid working six, seven days a week, not in school. And luckily, a local authority found it. 

“And this is one thing that got the interest of the Permanent Subcommittee on Investigations of this Committee. Senator Carper and I did an intensive investigation. We published three reports about it and basically about the failure of the federal agencies to be responsible for the care of our unaccompanied kids. So, Ms. Contreras, I don’t have time to get into this in the detail. I’d like to, but as you know, we’ve done a lot of work in this area. We think it is totally unacceptable for the US government to release unaccompanied kids who are, by definition, much more vulnerable to trafficking to unrelated sponsors and not to do more follow up. Right now, we are told that there is no follow up after three phone calls and that we don’t know where 19,000 unaccompanied kids are, we cannot determine their safety and well-being, is that correct?” 

The Honorable January Contreras, Assistant Secretary in the Administration for Children and Families at the U.S. Department of Health & Human Services: “Senator, thank you for that question and thank you for your leadership on making sure that we keep our duty to children, and that includes post release. What I would like to share is that the work that has been done to strengthen the post release work, sSome of which you referred to, which are well-being follow up calls, there are home visits in place now. If there are concerns raised, the background checks and vetting that happens for sponsors is designed specifically to avoid the kinds of problems that have happened. We take the safety of kids very seriously. It’s the number one priority, and we keep building on what our duties are. How do we carry out those duties to build up that post release support as well, to make sure that they are in safe hands.” 

Portman: “Well, there’s a continuing issue, as you know, who has responsibility, and my hope is that HHS, under your leadership, takes additional responsibility for these kids. Someone’s got to be responsible for their care.  

“Let me ask you a very specific question. As my final question, Mr. Chairman, HHS has cooperated with some of our requests for information. We continue to do oversight on this issue, as you know, but we have yet to receive documents that we have requested, and these were requested in January. In a letter to HHS Secretary Xavier Bacerra, can you commit to ensuring that HHS sends the remaining documents by the end of next week?” 

Ms. Contreras: “Senator, you do have my commitment that we’ll go back and get the attention of who I need to, to figure out what it is that we owe you and how we can make sure that we follow up as promptly as we can.”

Portman: I tell you what it is. It’s very simple. It’s the number of sponsors out there, the number of sponsors who have been denied information that you would have. And it’s not information that is difficult, I wouldn’t think to find and very necessary for us to do the proper oversight. So I really appreciate you getting those to us by next week so that we can continue our oversight work. Again, to each of you, thank you for your service and particularly to those of you representing people on the border itself, you have an impossible task. Thank you for what you do every day. The American people are asking a lot of you, and I know it’s very stressful, and I know there’s been a difficulty in retention and recruitment, and we need everything we can to hold agents, your people up right now because it’s hard already, and it’s about to get a whole lot harder. And we owe them not just better policy in the administration, but better legislating. And we will continue to work on that. Thank you, Mr. Chairman.”