[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF FAMILY SEPARATION AND U.S. CUSTOMS AND BORDER PROTECTION
SHORT-TERM CUSTODY UNDER THE TRUMP ADMINISTRATION
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JULY 25, 2019
__________
Serial No. 116-42
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-654 WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
C O N T E N T S
----------
JULY 25, 2019
OPENING STATEMENTS
Page
The Honorable Zoe Lofgren, California, Chair, Subcommittee on
Immigration and Citizenship, House Committee l-- J) on the
Judiciary...................................................... 1
The Honorable Doug Collins, Georgia, Ranking Member, House
Committee on the Judiciary..................................... 3
The Honorable Ken Buck, Colorado, Ranking Member, Subcommittee on
Immigration and Citizenship, House Committee on the Judiciary.. 5
The Honorable Jerrold Nadler, New York, Chairman, House Committee
on the Judiciary............................................... 31
WITNESSES
Chief Brian S. Hastings, Chief of Law Enforcement Operations,
U.S. Border Patrol, U.S. Customs and Border Protection
Oral Testimony............................................... 8
Prepared Statement........................................... 11
Mr. Jonathan H. Hayes, Director, Office of Refugee Resettlement,
Administration for Children and Families, U.S. Department of
Health and Human Services
Oral Testimony............................................... 18
Prepared Statement........................................... 20
Commander Jonathan White, United States Public Health Service
Commissioned Corps, U.S. Department of Health and Human
Services
Oral Testimony............................................... 32
Prepared Statement........................................... 35
Mr. Joseph B. Edlow, Deputy Assistant Attorney General, Office of
Legal Policy, U.S. Department of Justice
Oral Testimony............................................... 42
Prepared Statement........................................... 44
Ms. Diana R. Shaw, Assistant Inspector General for Special
Reviews and Evaluations, Office of Inspector General, U.S.
Department of Homeland Security
Oral Testimony............................................... 48
Prepared Statement........................................... 50
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Document produced to the Committee by the U.S. Department of
Health and Human Services regarding the ``DHS Deterrence
Model,'' Submitted by the Honorable Zoe Lofgren................ 67
Letter from the Honorable Ted Deutch to Office of Refugee
Resettlement Director Jonathan Hayes, Submitted by the
Honorable Ted Deutch........................................... 83
McClatchy article entitled, ``Obama administration fights to keep
family detention,'' Submitted by the Honorable Matt Gaetz...... 93
Letter from the Honorable Debbie Mucarsel-Powell to Office of
Refugee Resettlement Director Jonathan Hayes, Submitted by the
Honorable Debbie Mucarsel-Powell............................... 118
VICE News article entitled, ``4,000 Migrant Kids Might Have to
Spend the Rest of Their Childhood in Federal Custody,''
Submitted by the Honorable Veronica Escobar.................... 131
Articles for the record entitled, ``What a Pediatrician Saw
Inside a Border Patrol Warehouse''; ``The Border Patrol Hits a
Breaking Point''; ``Reports of misconduct and sexual assault of
migrant kids surface at Yuma border facility'', and; ``Abner,
17, describes 11 days of hunger and thirst at Yuma's border
station''; Submitted by the Honorable Mary Gay Scanlon and the
Honorable Madeleine Dean....................................... 138
Articles for the record entitled, ``Autopsy Offers Jarring New
Details About the Death of a 16-Year-Old Guatemalan Boy'';
``Plans to Close Carrizo Springs Demonstrate Conditions That
are Not in Children's Best Interests'', and; ``ICE Just Quietly
Opened Three New Detention Centers, Flouting Congress'
Limits''; Submitted by the Honorable Sylvia Garcia............. 170
APPENDIX
Statement of Church World Service, Submitted by the Honorable Zoe
Lofgren........................................................ 183
Statement of the National Immigrant Justice Center, Submitted by
the Honorable Zoe Lofgren...................................... 184
Statement of the American Immigration Council, Submitted by the
Honorable Zoe Lofgren.......................................... 186
Questions for the Record Submitted by the Honorable Greg Stanton. 189
U.S. Border Patrol Responses to Questions for the Record
Submitted by the Honorable Greg Stanton........................ 192
U.S. Department of Health and Human Services Responses to
Questions for the Record Submitted by the Honorable Greg
Stanton........................................................ 195
OVERSIGHT OF FAMILY SEPARATION AND U.S. CUSTOMS AND BORDER PROTECTION
SHORT-TERM CUSTODY UNDER THE TRUMP ADMINISTRATION
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THURSDAY, JULY 25, 2019
House of Representatives
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 10:03 a.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler
[chairman of the committee] presiding.
Present: Representatives Nadler, Lofgren, Jackson Lee,
Cohen, Johnson of Georgia, Deutch, Bass, Richmond, Cicilline,
Swalwell, Lieu, Raskin, Jayapal, Demings, Scanlon, Garcia,
Neguse, McBath, Stanton, Dean, Mucarsel-Powell, Escobar,
Collins, Chabot, Gohmert, Jordan, Buck, Gaetz, Johnson of
Louisiana, Biggs, Lesko, Reschenthaler, Cline, Armstrong, and
Steube.
Staff Present: Joshua Breisblatt, Counsel; Rachel Calanni,
Professional Staff Member; Susan Jensen, Parliamentarian/Senior
Counsel; Madeline Strasser, Chief Clerk; Brendan Belair,
Minority Staff Director; Bobby Parmiter, Minority Deputy Staff
Director/Chief Counsel; Jon Ferro, Minority Parliamentarian/
General Counsel; Andrea Loving, Minority Chief Counsel,
Subcommittee on Immigration and Citizenship; Erica Barker,
Minority Chief Legislative Clerk; and James Rust, Minority ICE
Detailee.
Ms. Lofgren. The House Committee on the Judiciary will come
to order.
And without objection, the chair is authorized to declare
recesses of the committee at any time.
Chairman Nadler is running a little bit late. So in order
to get to our witnesses, the staff has asked that I begin, and
he will give his opening statement upon his arrival.
I want to welcome everyone to this morning's hearing on
Oversight of Family Separation and CBP Short-Term Custody under
the Trump Administration, and I will now recognize myself for
an opening statement.
We are here today to hold the administration accountable
for its failure to effectively manage the humanitarian crisis
at the border and for continuing to mistreat children and
families. Nearly 6 months have passed since our first hearing
on the Trump administration's family separation policy, and yet
parents and children are still being separated and detained in
deplorable conditions every day.
Less than 2 weeks ago, Vice President Pence stated that
U.S. Customs and Border Protection is providing compassionate
care to immigrants in a way that ``every American would be
proud of.'' But just 2 weeks earlier, DHS's own Inspector
General released the second of two management alerts detailing
the overcrowded and dangerous conditions at CBP facilities in
Texas.
Unlike the Vice President, I do not believe that Americans
are proud of how we are treating these children, and I know of
no parent who would want their child housed in conditions that
deprive them of nutritious food, safe water, clean clothing,
and a place to sleep, not to mention the soap, toothpaste, and
toothbrushes that this administration in open court argued were
not necessary for the health and sanitation of detainees.
Acting Secretary McAleenan has stated that families are
only separated when CBP is unable to confirm the relationship
between the child and the person claiming to be the parent or
legal guardian or when the child's safety is at risk. But the
Government's own data disproves this. Out of 400 children
separated from their parents between June 2018 and March 2019,
only 3 percent were separated for these reasons. And of those
cases, it is now clear that CBP made egregious errors in some
of those separations.
Take, for example, Maria--a pseudonym--a client of the
National Immigration Justice Center, who was separated from her
child upon arrival. One month later, Maria learned that her
child had been taken from her because she had been identified
as having a criminal history in her home country. Maria denied
this, but it was not until lawyers obtained official documents
from El Salvador proving that she had no criminal background
that she was allowed to reunite with her son, a full 3 months
later. When they finally got together, Maria's son was
withdrawn and disconnected from his mother.
While the Trump administration claims that its policies are
the only way to manage the current influx of immigrants at the
border, that is not true. Every administration has grappled
with migration challenges, but none have exposed children and
families to such appalling conditions. No administration has
resorted to the cruelty of systematically separating kids from
their parents as a method of deterrence.
We are dealing with an administration that has dehumanized
immigrant children and families and refuses to implement smart
immigration policies. As a result, Border Patrol agents report
low morale, high stress, and an inability to focus on their
primary responsibility of protecting our borders. Asylum
officers report that the migrant protection protocols,
otherwise known the ``remain in Mexico policy,'' have made
problems at the border even worse.
A competent and capable administration would have planned
for the expected arrival of families and children seeking
protection and developed the necessary infrastructure to ensure
that those who must be detained are held in humane conditions.
A capable administration would identify and detain those
individuals who may pose a risk to our country and release
under supervision until an immigration hearing those who pose
no risk, so that overcrowding is not an issue. But we are not
dealing with a competent and capable administration.
The administration's family separation policy has stained
our Nation and will have lasting effects on those who are
subjected to it. As a mother and a grandmother, my heart aches
for all of them. But as a member of this committee, I know that
real solutions are required, and we will keep bringing the
administration before us until we find them.
I would now recognize the ranking member of the Judiciary
Committee, the gentleman from Georgia, Mr. Collins, for his
opening statement.
Mr. Collins. Thank you, Madam Chair.
And here we are again. We have had this same hearing in
February. We know that the crisis on the Southern border is
being fueled by loopholes in our immigration laws. Border
Patrol Chief Provost testified legislative changes were needed
to get the situation under control. In fact, we have heard that
over and over and over and over again.
But the crisis has gotten worse. In February, the Border
Patrol apprehended 66,000 individuals. That number would have
been above--has been above 92,000 every month since, peaking at
over 132,000 apprehensions in May alone.
You know, just last week I was horrified and deeply
affected when Secretary McAleenan told me that there are three
ongoing cases where a small group of children, 5 to 8 in each
case, had been used by dozens of different adults to cross our
border, seeking release in the U.S. And my colleagues' claim is
we care--look, I am going to stop. I am not going to read this.
This all--you know what is dehumanizing? It is continuing
to bring the same witnesses or the same people from the same
agencies to talk about this over and over and over again. What
is dehumanizing is doing that and not doing anything about it.
That is what is dehumanizing.
It is talking about a problem, talking about a problem,
talking about a problem, and never putting a solution up. I
have talked about this almost at every one of these so far,
especially in the last few weeks. And look, my Democratic
colleagues have ideas. I may disagree with those ideas, but put
a bill up.
I have a bill. Put mine up. Make amendments to it. Do
whatever you want to do. That is what Congress is supposed to
do. Dehumanizing is this. This is dehumanizing.
And also what a competent and capable majority would do is
actually put a bill forward. Instead, we are not a competent
and capable majority, undoubtedly, using the words of the
ranking member of the subcommittee. We are not capable and
competent because we are not putting bills forward.
We are having bash the President time, bash the
administration time. This is all it was and all this is.
I appreciate you being here to testify. Some of you have
been here before. Some of you are replacing the ones who had
already testified before. Mr. White, you are back again. Good
to see you.
This is what bothers me. I can read another opening
statement, and we can ask questions, and we will all go through
this. And we can talk about how the Trump administration is not
competent and not capable. I think that this falls back on us.
It falls back on this committee.
Why has the majority not put a bill forward? We have heard
that it doesn't work. We have heard from both administrations,
the Obama administration and the Trump administration, that
laws need to be fixed and worked on, but yet we don't do it.
We put together this week, we passed on the floor, we
passed out of this committee a bill that was a band-aid to fix
a little bit of problem, which everybody ought to be treated
humanely and as best they can at the border, and we need to
have that. That needs to happen. But we just did it in such a
way yesterday that it just applied to everybody and, again,
applied to nobody in a sense.
So as we look at this, as we go forward, you know, Madam
Chair, I agree with you. You and I have worked on big things
before, but what is dehumanizing is this hearing. What is
dehumanizing is this hearing where we are going to talk about
it again.
And people come, and the folks in this audience, I am glad
you are here. We are trying to work on a problem, but don't
accept another hearing. Accept some answers. Accept some bills
being put forward. Don't be fooled again.
If you want to take part in a political positioning paper,
then that is what we are doing today. Because we have already
heard--there is not--no offense to our witnesses. We have heard
your statements already before. So I don't know what is going
to move us this time that didn't move us last time.
This is becoming, unfortunately, a committee of press
releases. That is it. Dehumanizing is taking people you say you
care about, but doing nothing for them. That is dehumanizing.
Competent and capable, the last time I understood Congress
to pass legislation. I will be very slow. Pass bills that
matter. Don't have hearings that are simply stunts.
I think about these kids being used. I think about the
issue of the Flores Agreement or the trafficking victims or the
asylum issue, things that have been talked about by multiple
administrations. And even under us, even under the previous
Congress, I will go ahead and say it before anybody else does.
Republicans didn't do anything.
You know what was really funny? When they had a chance this
year to work on the Dreamer bill, the majority leader went to
the floor and said we could have worked on this last year. We
were one signature away from passing the Dreamer bill, getting
it off the table and passing it. Then why didn't you bring that
bill back to the floor?
There was one vote, or you had one signature away. Now you
are in the majority. You should have been able to pass it and
probably would have passed it with 40 or 50 votes. No, but I
will tell everybody watching, you know the reason you didn't?
Because we didn't have it political enough.
The Dreamer bill, we had to add in everything else. Not
that it could get passed, not that we could help the Dreamers,
not that we could help the DACA recipients. We wanted a
political stunt.
If it wasn't, then I challenge you. Go ask the majority
leader why he didn't bring back the bill from last year. I will
tell you why. It is because it was something that would pass
but didn't have everything else political on there.
So, Madam Chair, I appreciate it. I couldn't read the rest
of this. I mean, this is dehumanizing. This is showing a
noncompetent and noncapable majority, and so a Congress that is
willing to listen to problems and not act on problems.
So here we go. Popcorn machine is ready. Anybody wants
some, send the office over here. The show begins.
I yield back.
Ms. Lofgren. The gentleman yields back.
I would note that the chairman of the committee will be
recognized for his opening statement when he arrives. So at
this point, I will recognize the ranking member for the
Immigration Subcommittee, Mr. Buck, for his opening statement.
Mr. Buck. Thank you.
As I have been saying for months now, there is a crisis on
the Southern border. What has the Democrat response been to the
crisis? The majority spent the first 6 months of this year
denying there was a problem. Some Democrats claim the crisis
was manufactured. The House Democratic Whip even laughed at the
crisis.
What else have Democrats done? In February, Democrats cut
funding for ICE detention beds in the omnibus spending bill.
One article suggested the Democrats' bill would encourage ICE
to detain fewer immigrants and asked will it work? We now know
the answer. No.
The committee heard testimony from Carla Provost, Chief of
Customs and Border Protection, that her agents were facing a
``border security and humanitarian crisis.'' On the very same
day, the Democrat majority passed a resolution rejecting the
President's emergency declaration targeted at addressing the
crisis.
House progressives objected to passing a supplemental
funding bill a few weeks ago to provide needed resources to
address the crisis. This crisis is not only being felt at the
border, it is being felt in many small towns across the
country. Recently, several mayors went to the border and saw
the crisis firsthand. They commented on how it impacts their
community.
``Cities were among the first to feel the impact of this
crisis, and local communities have made extraordinary efforts
to alleviate the human suffering,'' Rochester Hills, Michigan,
Mayor Bryan Barnett has said. ``We are pleased the Congress
recently provided some emergency funding, but it is clear that
more must be done to meet the needs at the border.''
Mesa, Arizona, Mayor John Giles said, ``We had a frank and
candid discussion with Acting Secretary McAleenan about the
realities that border cities face each day and the need for the
Federal Government to find solutions that prioritize the health
and well-being of asylum seekers without draining community
resources.''
``We have had in the previous 3 months 5,000 people come
through our shelter in Yuma,'' Mayor Douglas Nicholls said.
``The City of Yuma is 100,000 people. So it is a big impact on
our community. In the past 4 months, Yuma has spent $1.5
million for migrant care.''
Perhaps nowhere is the impact of Washington's failures and
the Democrats' negligence more acutely felt by America's mayors
than in the area of education. According to one estimate,
educating the children of illegal immigrants poses a cost to
America's public schools of $59.8 billion per year, with 98.9
percent borne by State and local taxpayers.
As illegal immigration increases, costs have skyrocketed,
including for limited English proficiency programs that are a
major drain on school budgets. Commenting on the impact of
local government, Randy Capps of the Migration Policy Institute
has said, ``Public education is where the real big cost comes
in. The amount of taxes that the parents pay, it is not going
to be as much as is spent on public education for their kids
and food stamps for their kids.''
Last week, the Immigration and Citizenship Subcommittee
heard testimony that policies passed by Congress contribute
greatly to USCIS processing backlogs. We have also heard
congressional policy can have a devastating impact, encouraging
and incentivizing illegal immigration. For example, the
situation involving unaccompanied minors was made worse, much
worse by legislation pushed by Senator Feinstein and passed by
Congress in 2008. The number of unaccompanied children grew
from 8,041 in 2008 to 50,036 last year, a 622 percent increase.
The Federal agencies have sounded the alarm. Local
governments have sounded the alarm. Think tanks have sounded
the alarm. Republicans have sounded the alarm. The President
has sounded the alarm. Despite this, Democrats refuse to
address the root causes of the problem and, in turn, refuse to
solve the crisis. They would rather ignore the problem or even
make it worse than acknowledge the President is right.
What do we need to do? First, we need a stronger commitment
from Congress to secure the border, and this includes building
the wall. Second, we need to pass H.R. 586. This bill will help
keep families together while fixing some of the rules that
currently tie the hands of DHS. It will close loopholes related
to human trafficking, and finally, it will prevent frivolous
asylum claims, allowing the agencies to focus on and prioritize
genuine claims.
I hear repeatedly from those on the other side of the dais
that someone is not an illegal alien if they file an asylum
claim. That is not true if the applicant has filed a fraudulent
claim. In that case, the applicant is not in the country
legally because they have committed immigration fraud.
We need to enact reforms overriding the judicial settlement
that ties the hands of the agencies responsible for securing
our border. America will always be a place that welcomes legal
immigrants. This great nation will always have a generous
immigration policy, but we need an immigration system that
works for America, and we cannot, cannot continue to ignore or,
given Democrat policy priorities, make worse the crisis at the
border.
I look forward to hearing from our witnesses today and hope
they will share with us what Congress can do to address the
crisis and, even more, hope Democrats in Congress will not only
listen, but take the right action.
I yield back.
Ms. Lofgren. The gentleman yields back.
This is the Judiciary Committee's hearing on Oversight of
Family Separation and CBP Short-Term Custody. We have two
functions in Congress. One is passing bills, and second is
oversight to see that the laws are being faithfully executed.
Today, we have a number of witnesses who will help us
understand whether the administration is falling short in its
obligation to see that the laws are begin faithfully executed.
I will introduce them now.
Ryan Hastings is the Chief of the Law Enforcement
Operations Directorate at the Border Patrol headquarters in
Washington, D.C., where he is responsible for oversight of the
day-to-day law enforcement operations at Border Patrol sectors.
Chief Hastings has served with U.S. Border Patrol since 1995,
and over the course of his tenure there, he has worked in
various sectors and Border Patrol divisions in a variety of
leadership positions. Prior to his current position, he served
as chief patrol agent of the Buffalo sector from 2012 until
November of 2017.
Jonathan Hayes serves as the Director of the Office of
Refugee Resettlement in the Administration for Children and
Families at the Department of Health and Human Services. Prior
to being named Acting Director in November and being formally
installed as Director in February of this year, Mr. Hayes was
chief of staff for the Office of Refugee Resettlement in the
Office of Director.
Mr. Hayes has also served as chief of staff to two Members
of Congress and has experience in the private sector,
specializing in broadcast sales and marketing, international
trade and customs, and commercial airline operations.
Jonathan White is Commander of the U.S. Public Health
Service Commissioned Corps at the Department of Health and
Human Services. He is currently a senior adviser in the Office
of Emergency Management and Medical Operations, and he was the
Federal health coordinating official for the Unaccompanied
Alien Child Reunification Mission from June to December of
2018.
Commander White is a career public health officer who has
worked with HHS for nearly a decade. He is a licensed clinical
social worker, emergency manager, and certified public health
professional.
Joseph Edlow currently serves as the Deputy Assistant
Attorney General with the Office of Legal Policy at the
Department of Justice, where he focuses on immigration policy.
Before joining the Department in 2018, Mr. Edlow worked in
Congress for one of our own former Members, Mr. Raul Labrador
of Idaho, and also served as his counsel for the Immigration
Subcommittee.
Prior to that, he worked with the Baltimore, Maryland,
Immigration and Custom Enforcement field office, where, as
assistant chief counsel, he represented DHS in removal
proceedings and specialized in worksite enforcement, national
security, and gang members.
And finally, Diana Shaw was appointed the Assistant
Inspector General for Special Reviews and Evaluations for the
Department of Homeland Security of Inspector General in March
of this year. Ms. Shaw has also served in several other
leaderships positions with the Inspector General's office,
including Assistant Inspector General for Legal Affairs, acting
counsel to the Inspector General, Director of the Special
Review Groups, and Acting Assistant Inspector General for
External Affairs.
Prior to joining the Office of the Inspector General, Ms.
Shaw practiced law with a firm's white collar crime group,
specializing in internal investigations and compliance
counseling.
We welcome all of our distinguished witnesses and thank
them for participating in today's hearing, and now if you will
please rise, I will begin by swearing you in.
If you would please raise your right hand, do you swear or
affirm under penalty of perjury that the testimony you are
about to give is true and correct, to the best of your
knowledge, information, and belief, so help you God.
[Response.]
Ms. Lofgren. And the record will note that each of the
witnesses replied in the affirmative.
And we will now receive your testimony. Please note that
each of your written statements will be entered into the record
in its entirety, and accordingly, I ask that you summarize your
testimony in about 5 minutes.
To help you stay within that timeframe, we have a lighting
system. When the light switches from green to yellow, it means
you have 1 minute to conclude your testimony. And when the
light turns red, it means your 5 minutes is up. So we would ask
you to try and finish up when that occurs.
Chief, let us begin with you.
TESTIMONY OF BRIAN S. HASTINGS, CHIEF, LAW ENFORCEMENT
OPERATIONS, U.S. BORDER PATROL, U.S. CUSTOMS AND BORDER
PROTECTION; JONATHAN H. HAYES, DIRECTOR, OFFICE OF REFUGEE
RESETTLEMENT, ADMINISTRATION FOR CHILDREN AND FAMILIES, U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES; JONATHAN WHITE,
COMMANDER, UNITED STATES PUBLIC HEALTH SERVICE COMMISSIONED
CORPS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; JOSEPH B.
EDLOW, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL
POLICY, U.S. DEPARTMENT OF JUSTICE; AND DIANA R. SHAW,
ASSISTANT INSPECTOR GENERAL FOR SPECIAL REVIEWS AND
EVALUATIONS, U.S. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF
INSPECTOR GENERAL
TESTIMONY OF BRIAN S. HASTINGS
Mr. Hastings. Good morning, Chairman Nadler, Ranking Member
Collins, and members of the committee.
You have asked me here today to testify regarding the
allegations that CBP has begun the widespread separation of
children. Let me be clear. This is not occurring.
Border Patrol has separated less than 1,000 children of the
approximately 413,000 family members apprehended, or 0.45 of
all families we have apprehended this fiscal year. Separation
is an incredibly rare occurrence and only takes place in
compliance with the President's June 20, 2018, executive order
and preliminary injunction in the Ms. L. v. ICE case. The vast
majority of separation involve adults who, due to their
criminal or gang history, would not be eligible for release had
they been apprehended alone.
Bringing a child illegally into the U.S. should not entitle
anyone to be released into U.S. communities. Many of the cases
discussed recently involve family members other than parents or
legal guardians. The laws passed by Congress define an
unaccompanied alien child, or a UAC, as a child without a
parent or a legal guardian. By law, Border Patrol is required
to turn over all UACs to HHS.
Since late June, Members of Congress have been vocal about
the condition of Border Patrol facilities. Frankly, this
attention came far too late to address the overwhelming
situation that we have raised concerns about for the past 8
months.
You have heard the DHS Acting Secretary state that 4,000
aliens in custody across the entire Southwest border is an
acceptable level. We first surpassed 10,000 people in custody
in April 13th of 2019. By May, apprehensions had spiked to more
than 132,000, with as many as 19,500 people in Border Patrol
custody.
ICE and HHS were unable to keep pace with these record
apprehensions. By June 6th, the number of UACs in our custody
peaked at 2,700.
After Congress passed a supplemental 3 weeks later
providing HHS funding for additional bed space, the number of
UACs in Border Patrol custody quickly dropped to 300. By
contrast, ICE was denied supplemental funding for single adult
bed space, and single adults continue to remain in Border
Patrol custody much longer than they should.
I am very concerned that if ICE is unable to take custody
of these adults, we will have to start direct releases at the
border. I can tell you that this will create a draw that we
have never experienced and result in a complete loss of border
security.
As Chief Provost testified yesterday, the crisis is not
over, and supplemental funding is only a band-aid. Apprehension
numbers have decreased from May to June, but 94,000 aliens that
we apprehended in the month of June was higher to any June
dating back to 2000.
The $1.1 billion provided to CBP in the supplemental will
help us continue surging agents and officers to assist with the
crisis, as well as continuing investing in soft-sided
facilities, air and ground transportation, medical support, and
consumables. We did not wait for additional funding to start
making those investments. We had already contracted for six
soft-sided facilities to provide additional capacity before the
supplemental was passed.
Additionally, we have purchased or leased 515 showers, 240
portable toilets, 24 washers and dryers for the areas that we
have the highest apprehensions. To be clear, there has never
been a shortage of personal care items for detainees, such as
food, snacks, diapers, formula, and hygiene products. We have
purchased those items out of operational funding for months and
will continue to do so with the additional supplemental
funding.
While the men and women of Border Patrol have been doing
their best in an overwhelming situation for months, so much
energy has been forced on vilifying them. In the same way
inappropriate conduct by an agent is unacceptable, it is also
unacceptable to broadly paint all agents as heartless and
inhumane. On a daily basis, agents are feeding and caring for
migrants, consoling children, and rescuing over 4,000 aliens
that smugglers have placed into peril.
They continue to perform their humanitarian mission,
knowing that they are sacrificing the border security mission
they were hired to do day after day with no one in sight. The
funding that was provided to CBP and HHS will only last a few
months and will do nothing to address the unsustainably high
flow of illegal immigration.
Without changes to our immigration system, we will be back
here in a few months. The money will run out. The summer heat
will subside, and smugglers will adapt, as they always do, to
Mexico's efforts. Each of these endeavors are short-term fixes
to a long-term problem. We need a functioning system that can
quickly adjudicate immigration cases and asylum claims and
quickly return those who are unsuccessful back to their home
country.
We need legal changes to allow the system to detain
families together, quickly repatriate UACs, and set a higher
bar for credible fear. Border Patrol has apprehended more than
740,000 individuals so far this year, and without holistic
changes to the immigration system, loopholes will continue to
be exploited, smugglers will continue to profit, and border
security will continue to be sacrificed.
Thank you.
[The statement of Mr. Hastings follows:]
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Ms. Lofgren. Thank you.
Be pleased to hear from you, Director Hayes.
TESTIMONY OF JONATHAN H. HAYES
Mr. Hayes. Thank you, ma'am.
Chair Lofgren, Ranking Member Collins, and members of the
committee, it is my honor to appear today on behalf of the
Department of Health and Human Services.
My name is Jonathan Hayes. As the Director of the Office of
Refugee Resettlement, I manage the Unaccompanied Alien, or UAC,
Program. I became the permanent Director earlier this year, and
it is a privilege to serve in this role.
I am continually impressed with the level of commitment and
professionalism that I see in the ORR career staff and our
grantees, who carry out round-the-clock operations in service
of some of the world's most vulnerable children. I have visited
nearly 50 UAC care provider shelters across the United States
over the last year so that I could see firsthand the quality of
care provided to these children.
Prior to my time at ORR, I worked for two congressional
Members for approximately 8 years. That experience provided me
with firsthand knowledge of the important oversight role that
you and your staff have to ensure that Federal programs operate
successfully.
I would like to first express the Department's appreciation
and gratitude to Congress for passing the emergency
humanitarian aid package. Immediately upon enactment of the
supplemental appropriation, we restored the full range of
services for UAC that we were unable to provide during the
anticipated deficiency.
The number of UAC entering the United States during this
fiscal year has risen to levels we have never before seen. As
of July 15th, DHS has referred more than 61,000 UAC to us, the
highest number in the program's history. By comparison, HHS
received 59,170 referrals in fiscal year 2016, the previous
highest number of annual referrals on record.
HHS currently has about 10,000 children in our care, though
this number fluctuates on a daily basis. As of June, the
average length of time that a child stays in HHS's custody is
approximately 42 days, which is a dramatic decrease of 53
percent from late November 2018, when the average length of
care was about 90 days.
During my tenure at ORR, we have issued four operational
directives and revised our policies and procedures with the
specific aim of a more efficient and safe release of UAC from
our care and custody. HHS does not enforce immigration laws.
The Department of Homeland Security and the Department of
Justice perform those functions.
In general, DHS separates parents from their children for
reasons recognized by the Ms. L. court and agreed upon between
DHS, HHS, and the American Civil Liberties Union. Those reasons
include unverified familial relationship or fraud, criminal
history, communicable diseases, danger to the child, or lack of
parental fitness. DHS has also separated adults from children
based on lack of parentage.
Once HHS receives information from DHS that a child has
been separated from a potential parent, we first try to
establish communication with the separated adult, whether they
are in the custody of DHS's Immigration and Customs
Enforcement, DOJ's Federal Bureau of Prisons, or DOJ's U.S.
Marshal Service. HHS works to confirm parentage and to confirm
the separation.
As of July 8, 2019, HHS has discharged 562 of these minors
through removal with their parents through ORR's sponsorship
process or through voluntary departure. When a child enters ORR
care, care provider staff assess each child's needs, including
special concerns such as family separation, known medical or
mental health issues, and other risk factors. HHS is deeply
committed to the physical and emotional well-being of all
children in its temporary care.
Staff at our care provider facilities are trained in
techniques for child-friendly and trauma-informed interviewing,
ongoing assessment, observation, and treatment of the medical
and behavioral health needs of these children, including those
who have been separated from their parents.
Care providers must deliver services that are sensitive to
the age, culture, and native language of each child. All
children participate in weekly individual counseling sessions
with trained social work staff, where the provider reviews the
child's psychosocial well-being progress, establishes short-
term objectives for addressing trauma and other health needs,
and addresses developmental and crisis-related needs, including
those that may be related to family separation.
If children have acute or chronic mental health illnesses,
ORR refers them for mental health services within the
community. It is the expressed desire and goal of both the
political and senior career leadership of ORR to expand our
capacity in such a manner as possible so that as many children
as possible are placed into a permanent State-licensed
facilities or transitional foster care while their sponsorship
suitability determinations are made or their immigration cases
are adjudicated in the event there is no sponsor available.
HHS operates nearly 170 licensed care provider facilities
and programs across the United States. These care providers
include group homes, long-term therapeutic or transitional
foster care, residential treatment centers, staff secure and
secure facilities, and shelters. Our facilities provide
housing, nutrition, routine medical care, mental health
services, educational services, and recreational services, such
as arts and sports, services that are similar to the domestic
child welfare system.
In closing, please know that my top priority and that of my
team is to ensure the safety and well-being of the children who
are placed temporarily in HHS care and custody as we work to
quickly and safely release them to suitable sponsors.
Thank you for the support of the UAC program and the
opportunity to discuss our important work. I will be happy to
answer any questions that you may have.
[The statement of Mr. Hayes follows:]
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Chairman Nadler [presiding]. Thank you, Director Hayes.
Let me apologize for being late. I had unavoidable
commitment, which I won't go into. But with the indulgence of
the committee, I will give my opening statement now, and then
we will resume the testimony.
In February, the Judiciary Committee held a hearing to
examine the Trump administration's indefensible and repugnant
family separation policy. Since then, we have seen how this
policy, along with many others, have collectively led to a
humanitarian crisis at the border, evidenced by a devastating
image of children and families squeezed into overcrowded and
unsanitary facilities.
Instead of addressing the root causes of migration and
competently managing the challenges at our border, the Trump
administration has chosen to dehumanize immigrants and exploit
this crisis for political gain. In doing so, it has violated
American laws and values and caused permanent damage to
children and families.
The inhumanity of family separation can be illustrated by a
story that surfaced last week. According to National Public
Radio, a Customs and Border Patrol, CBP, agent forced a 3-year-
old child with a serious heart condition to make a serious
choice, an impossible choice, to decide which one of her
parents she would stay with--her mother, who was allowed into
the United States, or her father, who was forced to remain in
Mexico. And she had to choose which one to go to in the
presence of the CBP agent.
But family separation is just one component of this crisis
as it clear the conditions at border facilities have
deteriorated to an unconscionable level. Twice in the last few
months, the DHS Office of Inspector General released reports
detailing the severe overcrowding and lack of sanitation at
border facilities in Texas.
These reports and others are appalling. Facilities lacking
safe drinking water and age-appropriate food. A lack of showers
and essential personal hygiene products like soap and
toothpaste, with some detainees going days or weeks without a
shower or the ability to brush their teeth.
Children required to share combs during a lice outbreak.
Allegations of sexual assault in retaliation against children
at the Yuma processing center in Arizona. And tragically, the
death of 10 people, including 3 children, in CBP custody over
the last 10 months.
Administration officials would have you believe that these
incidents are the exception, not the rule. Yet we have also
learned about racist and misogynous posts in a closed Facebook
group of nearly 10,000 current and former CBP officers, almost
half the force.
Posted a joke about migrant--that joked about migrant
deaths and disparaged female Members of Congress. The sheer
size of this Facebook group and the fact that the Chief of the
Border Patrol, Carla Provost, was allegedly a member at one
time is deeply concerning.
To be clear, this hearing is not an attack on individual
Border Patrol agents but is an examination of the Trump
administration's policies and the culture of disdain and
cruelty toward immigrants that stems from the White House and
apparently has deeply affected the agency.
The inhumane treatment of children and families at the
border must be examined in the context of these incidents.
There must be accountability for the policy choices that got us
here. The Trump administration has repeatedly claimed that
border conditions are a result of increased numbers of asylum
seekers. But let us be clear. We have the capability to have
safely processed the influx of migrants and deal with the
situation with compassion rather than cruelty.
And indeed, if the problem were simply an increase in the
number of asylum seekers, the solution would be an increase in
bed capacity, an increase in the number of asylum judges, and a
policy of letting--of quick trials and quick adjudications so
that we don't face the question of long-term detention or long-
term release of asylum claimants without adjudication into the
country.
Instead, the administration has opted for policy choices
that compromise safety and exacerbate the crisis, such as
locking up all asylum seekers, which is unprecedented in
American history, regardless of whether they pose any danger.
Although I hope that one day hearings like this will no longer
be necessary, today we must continue our efforts to bring these
issues to light and to hold the Trump administration
accountable for its shameful border policies.
And before I finish my statement, I must note--take note of
the statement of the ranking member. It is not true that we
have had sufficient hearings on this. We will not have
sufficient hearings on this until the problem is eliminated.
Nor is it true that we have done nothing about this but
hold hearings. Just last week, or earlier this week--time
flies--we passed the Ruiz bill dealing with proper medical
conditions at detention facilities. We passed the Dreamers Act.
We have taken legislative action, and we will take more.
The fact that the administration is hostile to all
legislative action which doesn't evince a terrible hostility to
immigrants and to people, to refugees who need asylum status is
our problem, but it is not our fault.
Before I call on the next witness, I want to thank Ms.
Lofgren, the distinguished chair of our Immigration
Subcommittee, for beginning the hearing in my absence.
Commander White, you may proceed.
TESTIMONY OF JONATHAN WHITE
Mr. White. Good morning, Chairman Nadler, Ranking Member
Collins, members of this committee. It is my honor to appear
before you today on behalf of the Department of Health and
Human Services.
I am Jonathan White. I am a career officer in the United
States Public Health Service Commissioned Corps, a clinical
social worker and emergency manager. I did serve as the HHS
operational lead for the interagency mission to reunify
children in ORR care as of June 26, 2018, who had been
separated from their parents at the border by DHS.
And currently, I am HHS's operational lead for the effort
to identify children who had been separated from their parents
at the border, referred to ORR, and discharged from ORR care
prior to June 26, 2018.
After Secretary Azar directed ASPR to help ORR comply with
the executive order, we formed an incident management team. And
our incident management team was tasked by the Secretary to
take all reasonable actions to comply with the Ms. L. court
orders.
We work closely with DHS, including CBP and ICE, to
identify all the parents of children in ORR care who met the
court's criteria. And as a result, the current reporting of
possible children of potential Ms. L. class members is 2,814
children. And I want to be very clear. That count of 2,814
children does not include children who were discharged by ORR
before June 26, 2018, and it does not include separated
children who were referred to ORR care after the 26th.
Working in close partnership with colleagues in ICE, DOJ,
and Department of State, we first worked to reunify children
who had parents in ICE custody. This was an unprecedented
effort, requiring a novel process, which we developed and the
court approved.
Under the compressed schedule required by court order of 15
days for children under the age of 5 and 30 days for children
between the ages of 5 and 17, we reunified 1,441 children with
parents in ICE custody. Those were all the children of eligible
and available Ms. L. class members in ICE custody.
For children whose parents had been in ICE custody but had
been released to the interior, we implemented an expedited
reunification process. For parents who had left the United
States, the ACLU, who serve as plaintiffs' counsel for the Ms.
L. class, obtained from the parents their desire either for
reunification in the home country or waiving reunification for
children to go through standard ORR sponsorship process.
And once we received the parents' desire, HHS, DHS, and DOJ
coordinated with the ACLU, with the government of the home
country, and with the child's family to ensure safe
reunification into the care of the parents. So of the 2,814
children, as of the 9th of July, we have reunified 2,167 with
the parent from whom they were separated. Another 611 children
have left ORR care through other appropriate discharges, and in
most cases, that means released to a family sponsor such as the
other parent, an adult sibling, an aunt, an uncle, a
grandparent, a more distant relative, or family friend.
There are 13 children still in ORR care who were separated
but can't be reunified with their parent because the parent has
a criminal history that poses a specific threat to child
safety, or the child has made credible allegations of abuse by
the parent. There are 14 children still in ORR care whose
parents are outside the U.S. and have waived reunification.
There are 6 children in care who further review determined that
they were not separated. There is one child in care whose
parents are in the U.S. and have waived reunification.
So as of today, of the 2,814 children reported to the
court, there is only one child left for whom the ACLU has
advised a resolution. The parents' wishes will be delayed. We
can't yet reunify that child.
But those 2,814 children do not include all children who
have ever been separated by the border and referred to ORR. It
is only the number that were in care as of June 26th of last
year, based on how the court defined the case. On April 25th,
the court approved our plan to identify those children. So
pursuant to those plans, teams of U.S. Public Health Service
commissioned officers reporting to me have completed manual
review of every child who was referred to ORR after July 1,
2017, and discharged by June 26th.
We send those lists from HHS to CBP and ICE, who conduct
their own file review. That completed information is provided
to the ACLU as part of a rolling delivery of lists ordered by
the judge. And to date, the Federal interagency has provided
the ACLU with three lists comprising 981 possible children of
potential class members. The judge has given us until October
25th to identify all the children, and I anticipate with great
confidence that we will meet his deadline.
Our mission is a child welfare mission. We seek to serve
the best interests of each child. In almost all cases, the best
interests of the child is to be with their parents or their
family. That guides us in our work every day in the UAC program
and in the reunification of separated children. We have done
our best at the Department to achieve that goal.
Thank you. I am glad to answer any questions you have for
me.
[The statement of Mr. White follows:]
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Ms. Lofgren [presiding]. Thank you, Commander.
We would be happy to hear from you, Mr. Edlow, at this
point.
TESTIMONY OF JOSEPH B. EDLOW
Mr. Edlow. Thank you.
Madam Chair, Chairman Nadler, Ranking Member Collins, and
other distinguished members of the committee, thank you for
this additional opportunity to speak with you today regarding
the Department of Justice's role in the zero-tolerance
prosecution policy.
Congress has directed that certain violations of our
Nation's immigration laws should be subject to criminal
sanction. The Department of Justice's law enforcement role
applies no less to these immigration crimes than it does to
other categories of offenses.
The current immigration system faces numerous challenges.
Nationwide immigration enforcement is being dictated by court
orders rather than by sound policy choices via rulemaking or
congressional action. Exploitation of our asylum laws and the
unaccompanied alien children provisions of the TVPRA have
compounded the challenges and left the Federal Government with
even fewer viable options to address our ever-growing crisis
along the border.
This administration has emphasized border security and
immigration enforcement. Section 13 of President Trump's
Executive Order 13767 directed the Attorney General to
establish guidelines and allocate resources to ensure that
Federal prosecutors accord a high priority to prosecutions of
offenses having a nexus to the Southern border.
In fulfillment of that order, on April 11, 2017, then-
Attorney General Sessions issued a memorandum to all Federal
prosecutors outlining certain immigration-related offenses,
including improper entry, as high priorities for prosecution.
On April 6, 2018, then-Attorney General Sessions issued the
memorandum entitled ``Zero Tolerance for Offenses under 8
U.S.C. Section 1325(a).'' That memorandum directed Federal
prosecutors along the Southern border to adopt, to the extent
practicable and in consultation with the Department of Homeland
Security, a zero-tolerance policy for all offenses referred for
prosecution under Section 1325(a) by the Department of Homeland
Security.
That memorandum remains in force today, and illegal or
improper entry, among other immigration crimes, remains a
prosecution priority for the Department of Justice. Neither the
executive order, nor Department of Justice directive called
for, nor created a policy of family separation.
The Department of Justice does not dictate which cases are
referred by the Department of Homeland Security for
prosecution, nor does it maintain a general exemption from
criminal liability for parents. The Department of Justice also
has no operational or logistical role in either the care or
processing of aliens for removal, regardless of whether they
are adults or minors.
And I will note that the President issued an executive
order on June 20, 2018, that directed the Department of
Homeland Security, to the extent permitted by law and subject
to the availability of appropriations, to maintain custody of
alien families together during the pendency of any criminal,
improper entry, or immigration proceedings involving their
members.
Criminal proceedings are separate from administrative
immigration proceedings, and prosecution for illegal entry does
not foreclose an alien's ability to make a claim to remain in
the United States. As the issue of family separation and
reunification has reached the Federal courts, I may be limited
in my ability to speak to certain issues today, either because
they are currently in litigation or because they are more
properly directed to another agency that the Department
represents in litigation.
The Department of Justice stands ready to work with
Congress to improve existing laws to avoid a reoccurrence of
the present situation and to respond to the challenges that our
immigration system faces.
Thank you for this opportunity to speak before you today. I
look forward to your questions.
[The statement of Mr. Edlow follows:]
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Ms. Lofgren. Finally, but not least, Ms. Shaw, we will be
pleased to hear from you.
TESTIMONY OF DIANA R. SHAW
Ms. Shaw. Thank you, Chair Lofgren, Ranking Member Collins,
and members of the committee. Thank you for inviting me to
discuss DHS OIG's recent work on conditions at Customs and
Border Protection facilities at the Southern border.
My testimony today will focus on our two recent management
alerts regarding dangerous overcrowding and prolonged detention
observed by DHS OIG inspectors at the El Paso del Norte
processing center in May of this year and at facilities in the
Rio Grande Valley in June. We issued these alerts because the
conditions we observed posed serious and imminent threat to the
health and safety of DHS personnel and detainees.
DHS OIG conducts unannounced inspections of CBP facilities
to evaluate compliance with CBP's transportation, escort,
detention, and search standards, otherwise known as TEDS
standards. TEDS standards govern CBP's interactions with
detainees, providing guidance on things like duration of
detention, access to medical care, access to food and water,
and hygiene.
Our unannounced inspections enable us to identify instances
of noncompliance with TEDS standards and to propose appropriate
corrective action to the Department. Although CBP has struggled
at times to achieve full compliance with detention standards,
our recent unannounced inspections reveal the situation far
more grievous than any our inspectors previously have
encountered.
For instance, when our team arrived at the El Paso del
Norte processing center, they found the facility, which has a
maximum capacity of 125 detainees, had more than 750 detainees
onsite. The following day, that number had increased to 900.
At all Border Patrol facilities we visited in the Rio
Grande Valley, we also observed serious overcrowding among
unaccompanied alien children, or UACs. Additionally, we found
that individuals, including children, were being detained well
beyond the 72 hours generally allowed under the TEDS standards
and the Flores Agreement.
For instance, at the centralized processing center in
McAllen, Texas, many children had been in custody longer than a
week. Some UACs under the age of 7 had been in custody for more
than 2 weeks.
Under these circumstances, CBP has struggled to comply with
TEDS standards. For instance, although all facilities we
visited in the Rio Grande Valley had infant formula, diapers,
baby wipes, and juice and snacks for children, two facilities
had not provided children access to hot meals, as is required,
until the week we arrived.
Additionally, children at three of the five facilities we
visited had no access to showers, limited access to a change of
clothes, and no access to laundry facilities.
Space limitations also affect single adults. The lack of
space has restricted CBP's ability to separate detainees with
infectious diseases, including chicken pox, scabies, and
influenza, from each other and from the general population.
According to CBP management, these conditions also affect the
health of Border Patrol agents, who are experiencing high
incidence of illness.
Further, there is a concern that the overcrowding and
prolonged detention may be contributing to rising tensions
among detainees. A senior manager at one facility in the Rio
Grande Valley called the situation ``a ticking time bomb.''
Despite these immense challenges, we observed CBP staff
interacting with detainees in a professional and respectful
manner and in general attempting to comply with the standards
to the extent possible. Notwithstanding these efforts, Border
Patrol requires immediate assistance to manage the overcrowding
in its facilities.
CBP is not responsible for providing long-term detention,
and CBP facilities like those we visited are not designed to
hold individuals for lengthy periods. However, with limited bed
space available at ICE and HHS long-term detention facilities
nationwide, detainees are left in CBP custody until a placement
can be found.
In its response to our recent management alerts, DHS
described the situation at the Southern border as ``an acute
and worsening crisis.'' Our observations comport with that
characterization, which is why we have called on the Department
to take immediate action to begin to remedy the situation.
DHS OIG will continue to monitor and report on the
situation at the border. In the meantime, however, the
Department's leadership must develop a strategic coordinated
approach that will allow it to make good on its commitment to
ensure the safety, security, and care of those in its custody.
I thank you. This concludes my testimony, and I look
forward to your questions.
[The statement of Ms. Shaw follows:]
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Chairman Nadler [presiding]. Thank you, and before I begin
the questioning, I want to thank Ms. Lofgren for assuming the
chair in my absence.
We will now proceed under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
I want to start with the zero tolerance policy and its
implementation. Chief Hastings, as part of our investigation
and document request into zero tolerance, the Department of
Homeland Security has given the Committee documents which
detail allegations of how family--Border Patrol did family
separations. Among these documents, the Department produced a
chart of 850 complaints made to the DHS Office of Civil Rights
and Civil Liberties reporting family separation between October
2017 and June 2018. These documents are startling.
The records we received detail separations of 12 children
age 1 year old or younger and 124 children under the age of 5.
Even more surprising, of the 12 children under the age of 1,
nine of those separations occurred before the Trump
administration enacted its zero tolerance policy. In many
cases, family separations happened without warning and without
giving the children a chance to say goodbye to their families.
Many were not told where their families were being taken.
For example, in May of 2018, a 14-year-old boy being held
at the Rio Grande Valley Processing Center was ``separated from
his father after a meal break while in custody and was told
that his father would be deported.''
An 11-year-old was ``called aside by an officer and then he
did not see his father again.''
Another child at only 7 years of age describes being
separated from her father ``in the place where it was cold''
and that she did not understand why she could not see or talk
to her father.
Chief Hastings, are these tactics how Border Patrol agents
were told to implement the zero tolerance policy?
Mr. Hastings. Chairman, we sent over some documentation
that you had asked the Secretary for prior, as far as the
interim guidance that we follow currently for separations, and
those are similar to what we followed before the zero tolerance
policy.
Chairman Nadler. I asked a question. Are these tactics that
I just outlined, actual cases, how Border Patrol agents were
told to implement the zero tolerance policy? Yes or no.
Mr. Hastings. I do not know what tactics you are referring
to.
Chairman Nadler. I just read them. Were you listening?
Mr. Hastings. I was listening, sir.
Chairman Nadler. So then answer the question.
Mr. Hastings. Sir, I have given you what we follow as far
as guidance for separation; 88 percent----
Chairman Nadler. Well, I will take it that----
Mr. Hastings [continuing]. Are criminal.
Chairman Nadler. I will take it that when we find the names
of the people who did this, they will be disciplined for not
following policy.
Mr. Hastings. They were following policy to the best of my
knowledge. I am not hearing----
Chairman Nadler. If they did what I said, they were not
following the policy that you just outlined.
Mr. Hastings. I do not know the individual specifics in
each of----
Chairman Nadler. Were Border Patrol agents instructed by
your agency to trick children so they could rip--so they could
take their mother or father away from them while they did not
know that that was happening?
Mr. Hastings. No.
Chairman Nadler. Did Border Patrol receive any training in
how to do this?
Mr. Hastings. Yes, we have training about how family
separation, and we put out the guidance as you have seen.
Chairman Nadler. If these reports are not an accurate
description of how separations happened, can you please share
how they did occur?
Mr. Hastings. Again, I am not specific to the--I do not
know the specific issues that you are talking to about the
eight----
Chairman Nadler. Well, how were they supposed to occur?
Mr. Hastings. Pardon me?
Chairman Nadler. How were they supposed to occur? How were
children supposed to be separated from their families?
Mr. Hastings. So the mother and father are informed prior
to the separation.
Chairman Nadler. You did not answer the question. How is it
supposed to happen? The mother and father are informed, and the
kid--I mean, how is it supposed to happen? The mother and
father is informed that at some point today your kid is going
to be taken away, in the middle of the night someone comes and
snatches the kid? I take it that is not what is supposed to
happen. What is supposed to happen?
Mr. Hastings. So we would inform the mother or father of
the charges and the reason and provide them the time to say
goodbye to the child.
Chairman Nadler. The charges and the reason and the time in
advance?
Mr. Hastings. Yes.
Chairman Nadler. How far in advance?
Mr. Hastings. It is going to vary depending upon the
situation.
Chairman Nadler. Vary from what? Hours? Minutes? Seconds?
Mr. Hastings. I do not what specific one you are talking
to, but----
Chairman Nadler. What is the minimum time?
Mr. Hastings. I do not have a minimum time.
Chairman Nadler. So it could be 10 minutes?
Mr. Hastings. It could be.
Chairman Nadler. If you were choosing to deport parents
without their children, how can the Trump administration claim
there was a plan to reunify?
Mr. Hastings. I am sorry, sir. I did not hear you.
Chairman Nadler. If you were choosing to deport a parent
without the children, how can the Trump administration claim
there was a plan to reunify the family?
Mr. Hastings. Because when we started this, we would place
the A number and all of the information of the adult or the
child on all of the paperwork so there could be reunification
after the adult went through the appropriate legal action----
Chairman Nadler. After the adult was deported, was the
child supposed to be report--I am sorry. After it was
determined that the adult was being deported, was the child
supposed to be returned to the parent before the deportation or
the parent is suddenly in some foreign country and the child is
here?
Mr. Hastings. That is probably a better question for HHS.
Chairman Nadler. Who did the deportation?
Mr. Hastings. We would do the deportation.
Chairman Nadler. You would do the deportation while the
child was in a different city in the United States?
Mr. Hastings. We do not do the reunification, is my point,
sir.
Chairman Nadler. But you would do the deportation before
the reunification without any knowledge of whether the parents
were being reunified?
Mr. Hastings. Yes.
Chairman Nadler. So, in other words, you are kidnapping the
child?
Mr. Hastings. We are not kidnapping the child. We follow
the guidelines that are out.
Chairman Nadler. Deporting a parent without their child is
literal kidnapping.
The documents produced to the Committee also reveal that
vulnerable children, such as those of a tender age or those
with disabilities, were not given special accommodations or
consideration in these facilities. For example, CBP separated a
deaf-mute child from his father. The DHS database was not
updated to reflect the child's special needs and did not record
that the child had been separated from his father.
Another report described a 10-year-old with developmental
delays who was separated from his mother. No special effort was
made to help him communicate with his parents.
Chief Hastings, from these reports it appears that Border
Patrol placed little to no consideration into the physical and
psychological needs of children when separating them from their
family. In what ways--this is my last question because my time
is over--did CBP consider the risks of these vulnerable
children--of taking these vulnerable children from their
parents and keeping them in CBP facilities? What special
arrangements were made for children with these kinds of--who
were deaf or mute or whatever?
Mr. Hastings. So I am not familiar with the two cases, but
normally when we have incidents like that, we would alert HHS
to the special needs.
Chairman Nadler. You would alert HHS to the special needs
before you gave the child to----
Mr. Hastings. Sir, we are a short-term hold facility. We
are trying to get the children into the proper care as quickly
as possible.
Chairman Nadler. Let me just read one thing. Contrary to
what you said, we have case reports here. Just one line: ``On
May 16, 2018, after a meal break while in custody, she was told
by officers that her father would be deported, and she did not
see him again.'' That is the way these things were done. It is
inhuman and un-American.
I yield back. The gentleman from Georgia.
Mr. Collins. Thank you, Mr. Chairman. And I would help the
witnesses to understand you are going to be here a little bit
longer today because it is now my understanding that each
member is going to have 7 minutes to question.
Chairman Nadler. That is an incorrect understanding.
Mr. Collins. Well, is the Chairman just going to continue
to violate the 5-minute rule? Parliamentary inquiry.
Chairman Nadler. The gentleman will proceed.
Mr. Collins. Well, I am glad you are back because, as you
related to me in answering my questions, you really did not
answer my questions from my opening statement. Holding hearings
until a problem is solved is about like saying I am going to
scream at that wall until it changes color. It is not going to
happen.
So you can come back here, and you can, you know, be very
direct with our CBP agent who is here and give out-of-context
situations in which people were detained without going through
the actual determination of how they are actually determined
right now. If separation occurs under these conditions, which
were actually under the Obama administration and the Trump
administration, if a determination is made that the parent or
legal guardian poses a danger to a child, is otherwise unfit to
care for a child, has a criminal history, has a communicable
disease, or is transferred to a criminal detention setting for
prosecution for improper entry, or the CBP is unable to confirm
that the adult is actually the parent or legal guardian or the
child's safety is at risk, if you are advocating to keep that
child in those conditions, then maybe we have a whole different
issue.
And then to go back to we have not done anything, I will
stand by exactly, and you can explain to this--Mr. Chairman,
you can explain to the members here and the audience why the
Ruiz bill is simply--again, we have talked about it--is not
solving the underlying problem. Treating them well and having
good conditions is something we would all agree upon, but the
bill was so out of context and applied to everywhere in the
Custom and Border Patrol, not just the southern border, which
is where we are having this issue, which made it impractical in
many ways. This is the issue we are dealing with.
So you can come back and try to correct me, but all you did
this morning and even your line of questioning confirmed what
we know, that this is simply another way, as we mentioned every
time the Trump administration--we mention it every time. We do
not talk about what actually is happening or why they are being
separated. And if you want to keep kids with unfit parents, you
want to keep kids who have actually been bought and paid for
and brought across the border, then if that is what you are
advocating, then maybe we need to talk about something
different.
But here is the issue, and I know--it seems to me you are
frustrated. This has been a long week. But this is not helping.
And to say you are going to hold hearings until the problem is
solved, that probably caps this week. That just probably, you
know, just comes to the point of capping this week. We are
going to hold hearings. We are going to talk about it. It
reminds me of when my kids were little and they were going to
hold their breath until I gave them their way. We are just
going to sit here and hold and hope and hope and hope.
Look, put bills in this Committee that actually affect the
underlying aspect, which the Obama administration talked about
the Flores decision, we have talked about the Trafficking
Victims Protection Act, we have talked about asylum standards.
What we want to do, though, is talk about what is going on at
the border, which we have already done many times. And I am not
saying this oversight should not be done. We are, and we are
holding accountable our Border Patrol, our ICE agents. We are
holding that because we have had multiple hearings about it.
But at a certain point in time, hearings do not solve problems.
Bills do.
So, Mr. Chairman, I am glad that you came back and answered
me, but you did not answer. In fact--well, let me rephrase
that. You did. You showed that we are not interested in solving
the problem, because if you believe truly that hearings will
solve problems, then I have maybe a basic misunderstanding of
how a bill becomes a law. Because what would happen is you have
several of these hearings, which we have had--you have had a
lot of people here who are interested, and I am sympathetic
with the audience being here to be interested in this. But what
are we giving them? Nothing, except a hearing. Tweetable
moments. Press releases. This is what we are doing.
This Committee is better than this. There are great members
on both sides who have legitimate arguments for bills. I have
listened passionately to my members on the other side, sitting
in front of me and on down the dais, who have ideas about this.
But we are not bringing the bills to a markup.
Now, it could take 3 or 4 or 5 days or even 2 weeks to have
these markups, but so what? Are these kids and these families
not important enough on the border? Or is just better to have
another hearing that does not solve anything?
Now, you can justify it any way you want to. You can say
you passed a bill last week that actually, you know, does--you
know, has standards. That is great. Again, any logical look at
it would say it is overbroad and could have been supported
bipartisanly until we add in things that were unworkable. By
the way, we did not talk to the Border Patrol before we
actually did the bill to see how we could actually put this in
implementation. I guess that is a small oversight.
But, again, I am not sure why both sides are even
continuing to show up at these hearings, except to be used as
props. The five of you are here, you have gone--you are really
technically going to testify to nothing. Some of you are back
again, as we said, Mr. White and others back again. Some of you
are back again replacing somebody who was here earlier. You are
not going to--you know, Mr. Hayes, you are just testifying,
somebody who was here earlier. You are not going to say a lot
that we do not know. We all know there is a crisis. We at least
all now at least come to the conclusion there is a crisis. But
it is--as I said before, using the words of the Ranking Member
of the Subcommittee, it is dehumanizing to sit here and do this
and not solve a problem. And as was said about the
administration, a competent and capable administration would
have solved this. A competent and capable committee would have
put bills forward instead of doing this.
So, again, spin it however you want to. This is what you
want to do, go for it, but do not tell these people in this
audience the disingenuousness that you are fixing something. Do
not try it. They may buy it for a few minutes. Some of them
have been buying it for 7 months. But they are not going to buy
it forever. Pretty soon they are going to ask: When can you
have honest debate? You have got more numbers than I have got.
You can put bills up here, and you can pass them because you
are the majority. But we are not even doing that.
So, Mr. Chairman, I appreciate you answering the question
or attempting to, but instead you made my point. Crank the
press release, get the Twitter going, talk about it before, but
this is where we are at. This is the problem. For those of you
who are here hoping for an answer, you are not getting it. If
you were hoping for a show, you are getting it. But if you want
an answer, I am sorry. Both Republicans and Democrats right now
are not able to give you that answer, whether you like the
answer or not. Maybe it is time we start going back to doing
legislation that actually addresses the problem that the Obama
administration and the Trump administration have both pointed
out.
With that, I yield back.
Chairman Nadler. The gentleman yields back.
The gentlelady from California, the Chairperson of the
Immigration Subcommittee, is recognized.
Ms. Lofgren. Thank you, Mr. Chairman.
I do think it is important to take a look at what is going
on in the facilities run by the Department of Homeland Security
and to determine whether they meet the standards that Americans
expect of them.
The Ranking Member's rather extravagant comments that
somehow this does not matter, that it is abusive to us, I think
are unwarranted.
We did receive, as the Chairman has indicated,
documentation from the Department itself outlining complaints
that were made by the Office of Civil Rights in DHS to--about
what was going on in these facilities. For example, one of the
allegations is an 8-year-old boy who was separated from his
mother, and then his report was that CBP officers kicked him
and hit him with a shoe when he was sleeping in order to wake
him up, that he was physically hurt by this.
I assume, Chief Hastings, that that is not considered
acceptable behavior on the part of your officers, kicking and
hitting children?
Mr. Hastings. No, ma'am. Kicking and hitting children are
not. But what I would imagine that was was a check to make sure
the individual was okay. We do do those checks and go through
periodically and make sure that the individuals in our custody
are okay.
Ms. Lofgren. So you would kick a child to see if he is
okay?
Mr. Hastings. No. May tap his shoe or may shake the child
lightly to see if they are awake and check to see how they are
doing, frankly.
Ms. Lofgren. There are, as I say, hundreds of reports from
the Department itself of misconduct--there is no other way to
describe it--in the treatment of children by Border Patrol
agents. I do not mean to say that every Border Patrol agent is
engaging in misconduct. Obviously not. I have met many Border
Patrol agents who are going the extra mile to try and help
people out, and I honor them for their efforts. But when there
are reports or allegations of misconduct, what steps do the
Border Patrol take to investigate these allegations? And how
frequently are investigations opened to these reports?
Mr. Hastings. So all allegations are taken seriously. We
have posters and signs in many of our stations--all stations
that provide numbers that the detainees can call and provide
these complaints that they may have.
Ms. Lofgren. Well, that is not really the question. The
question is: What is your Department doing once those
complaints are made to track them down and hold officers
accountable if they are true?
Mr. Hastings. So either OIG, the Office of the Inspector
General, or our internal CBP OPR, Office of Professional
Responsibility, will do the investigation upon each of those
and provide the investigation to us or to members to follow
through with----
Ms. Lofgren. All right. The OIG is actually taking a new
look at that for us, so we will look forward to her report on
that.
Commander White, I want to turn to you to discuss the
intent behind the zero tolerance policy. The last time you
testified here--and we do appreciate that--you noted that there
were multiple meetings in the first half of 2017 with officers
from DHS where the possible family separations were discussed.
According to the documents provided to the Committee, in July
2017 you sent out a memo dated on the 4th of July which
discussed how ORR would need an additional resources if the
``DHS deterrence model'' was employed. The deterrence model
included DHS instituting family separations and a memorandum of
agreement between ICE and HHS where fingerprints of all people
in the household would be shared with ICE. And, without
objection, Mr. Chairman, I would ask that this memo be made
part of the record.
Chairman Nadler. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Lofgren. Can you describe why it was called a ``DHS
deterrence model''?
Mr. White. Yes, ma'am. We used a number of different models
of possible future scenarios to anticipate how many beds we
would need.
Ms. Lofgren. Okay.
Mr. White. We constructed a deterrence model in part as
part of my effort to convince HHS leadership that separating
children would not be possible for us to support operationally,
that we would never have the funding or the beds to do it,
because I believe that was an important part of the argument
against separation.
Ms. Lofgren. Right. Can you tell us who those ideas were--
who in the Department discussed those ideas with you?
Mr. White. I discussed these issues primarily with the
leadership to whom I reported. That was then-Director of ORR
Scott Lloyd, then-Acting Assistant Secretary for the
Administration of Children and Families Steven Wagner, and
then-Counselor to the Secretary for Human Services Maggie Wynn.
Ms. Lofgren. Thank you very much. I would just note, you
know, Mr. Collins was dismissive of these efforts, but we did
get a report from the OIG, the Inspector General, in September
of 2018 that noted that so-called pre-verbal children, children
who could not speak, were separated from their parents without
a picture taken of them, without a fingerprint taken of them,
without any kind of identification or bracelet put on them,
simply removed. So to say that this is an unnecessary exercise,
that everything is dandy, that we just need to pass a bill, I
do not think you need to pass a bill to say do not destroy
families at the border with callous disregard.
And I yield back, Mr. Chairman.
Chairman Nadler. The gentlelady yields back.
The gentleman from Texas.
Mr. Gohmert. Thank you.
Chief Hastings, I appreciate your Department's efforts in
the face of such massive vilification. I know a great many
border patrolmen, and those men and women are not appreciated.
The huge, huge majority are doing a thankless job.
Director Hayes, I want to say thank you and your Department
for the efforts in bringing down the outrageous 92-day or 90-
plus-day average of detention during the Obama--during the
previous years down to 42 days. I appreciate the attempted--or
the response, the class response that each of you have had
during vilification of yours and your employees' efforts to be
humane and yet enforce and follow the law, even being
castigated for having cages and things like that that were
constructed by the Obama administration. It is deeply saddening
that there was none of this vilification for inappropriate and
outrageous conduct that occurred during the Obama
administration. It seems to be all new-found now that there is
a different administration that happens to be part of the
Republican Party.
I just cannot help but reflect historically, having served
in the United States Army at a time that was very unpleasant to
be in the military, when we were often ordered not to wear our
uniforms off post because of violence against military members.
I did not know if we would see a day when people would be proud
of servicemembers and proud of first responders again. But one
of the results of the horrible evil that occurred on 9/11 was
how Americans came together afterwards and people began to
appreciate first responders and our military. It was
incredible, the transformation.
But during the last administration, we saw law enforcement
being vilified over and over and over again, and the President
himself was immediate to jump on a side before he knew the
facts, and he was usually wrong on which side he attempted to
defend. And as a result, we are now--we have been seeing
attacks on law enforcement, attacks on people who are trying
simply to do their job, protect the country, protect people,
``serve and protect'' as a motto. And it has become outrageous
again, what is happening.
Chief Hastings, let me ask you, in the emergency bill that
has been touted that the majority passed, how much of that
money came to your Department to help you provide additional
and better services?
Mr. Hastings. Thank you, sir. So $1.1 billion came to our
Department. The majority of that is for soft-sided facilities
and for facilities due to the influx that we are seeing.
Mr. Gohmert. Did that allow you to hire any more people to
handle the dramatic increase we have had crossing our border?
Mr. Hastings. No, sir.
Mr. Gohmert. So you are still that limited in your
personnel in carrying out your job?
Mr. Hastings. We are seeking assistance in 2020 to begin
with a prosecution assistant, basically, that would help us
provide some of the support for the detainees that we are
seeing who we currently right now have DHS volunteers and other
volunteers from other agencies assisting with now during the
surge. What I am talking about is feeding, caring,
transportation, hospital watch, those types of duties.
Mr. Gohmert. Well, I know the Immigration Chair referenced
that we need to allow the Border Patrol to get back to their
primary duty of protecting the border. I have spent so many
nights on the border. I do not see your Border Patrol agents
protecting the border. They are required not to protect it but
just in-process everybody that comes through. I would think
protecting would mean you protect the border from people coming
in illegally. There is none of that, is there?
Mr. Hastings. Our agents are frustrated right now. We have,
you have heard before, 40 to 60 percent of our agents in RGV,
El Paso, and even in Yuma who are doing the humanitarian
mission and the care and feeding primarily. And we know that
the border security mission is being affected. We know that.
Mr. Gohmert. Thank you.
Chairman Nadler. The time of the gentleman has expired.
The gentleman----
Mr. Gohmert. And just to note the Chair has been gravely
unfair. You said yesterday no one is above the law, but to be
clear, the Chairman is above the rules.
Chairman Nadler. Mr. Gohmert, I took 6 minutes and 38
seconds. Mr. Collins took 6 minutes and 40 seconds. You just
took 5 minutes and 45 seconds. We are trying to get back, at
the request of the minority, towards 5 minutes, which is why I
did not stop you at 5 minutes. And it is all at the discretion
of the Chair, in any event.
The gentleman from Tennessee is recognized.
Mr. Cohen. Thank you, Mr. Chair.
Mr. Hayes, Director Hayes, you are the permanent Director
now, are you not?
Mr. Hayes. Yes, sir, Congressman, I am.
Mr. Cohen. When did you become the permanent Director?
Mr. Hayes. March 3rd.
Mr. Cohen. And you became the temporary Director after the
previous Director was--he resigned?
Mr. Hayes. He transferred to a different department or
division within the Department of Health and Human Services.
That was late November of last year, sir.
Mr. Cohen. And when did you come to the Department?
Mr. Hayes. I came to the Department in mid-June of 2018.
Mr. Cohen. And before that, what was the largest number of
people you had ever administered as an administrator?
Mr. Hayes. As supervision, it would be here on the Hill,
sir, congressional staff.
Mr. Cohen. What was that job that you had before you went
over there?
Mr. Hayes. I was the chief of staff.
Mr. Cohen. Chief of staff for a Congressperson. Was that
Mrs. Lesko?
Mr. Hayes. No, sir.
Mr. Cohen. Who was it? Who were you the chief of staff for?
Mr. Hayes. Prior, I was chief of staff to Congressman Trent
Franks and Congressman Steve Southerland.
Mr. Cohen. Steve Southerland, remind me who he is.
Mr. Hayes. He is from the Florida Panhandle, sir.
Mr. Cohen. Florida Panhandle. Okay. Isn't that the--okay.
Thank you, sir.
Mr. Hayes. You are welcome, sir.
Mr. Cohen. This Department needs somebody who has
experience in running major agencies, who has experience and
not political background. And I am afraid that is part of the
problem we have. But Congresswoman Escobar knows so much more
about this subject. She is on the front lines. I want to yield
my time to her, and I appreciate--I yield.
Ms. Escobar. Thank you so much, Congressman.
Just for the record, El Paso, Texas, in 2017 was the
testing ground for family separation, and so, unfortunately, I
think that there are far more children who had been ripped from
the arms of their parents than Americans even begin to realize.
I think the numbers are much higher. I think we as a country
have damaged an entire generation of Central American children,
and this abhorrent policy, unfortunately, continues to this
day.
Chief Hastings, you mentioned that family separation is a
rare occurrence. You were referring to separation between a
biological parent and a biological child. Is that correct?
Mr. Hastings. That is correct, ma'am.
Ms. Escobar. So to many of us, a family actually is a much
broader definition than a biological parent and a biological
child. To many of us, family is a grandparent, a grandchild, an
aunt or uncle, and a niece or nephew, siblings, et cetera.
Chief--and, actually, before I begin my questioning, I feel
like I have to say I do not believe that Border Patrol agents
are bad. Chief, you and I were in a meeting where I expressed
my gratitude to the many really great agents who are working
hard and are overwhelmed. But there is no doubt that there are
some really bad agents as well, and it is important that we
root out those who dehumanize migrants so that those who do not
feel that way do not feel despondent.
But isn't it true, Chief, that we are still separating
families today, children who are taken from--the grandmother
who is separated from a grandchild, for example, isn't that
still occurring?
Mr. Hastings. So we are following the definition by TVPRA,
and the definition is a parent or legal guardian.
Ms. Escobar. So a grandmother who enters with a grandchild,
they are being separated. Is that correct?
Mr. Hastings. That is correct.
Ms. Escobar. And that child then becomes an unaccompanied
minor. Is that correct?
Mr. Hastings. Yes, ma'am.
Ms. Escobar. Okay. Also, you said in your testimony that,
``Our laws also prohibit the removal of individuals to
countries where they face the likelihood of torture.'' But we
know that people are being forced into Mexico even when they
have a credible fear of being there, and they have expressed it
to Border Patrol, but Border Patrol is forcing them anyway at
that point in what is a violation of both Section 241(b)(3) of
the Immigration and Nationality Act as well as the principle of
non-refoulement under international law.
In my district in El Paso, we know that over 11,000 people,
many of them families, are waiting in Mexico for their asylum
hearings. We know of a specific case, for example, where two
young families were returned to Ciudad Juarez and, while
running errands, their fathers were kidnapped, beaten, and then
released. These families had to fight hard not to be returned.
Chief Hastings, why is Border Patrol violating U.S. and
international law by forcing people to wait in Mexico when they
have expressed a credible fear of residing there or they have,
in fact, experienced kidnapping, rape, or other violence?
Mr. Hastings. So, ma'am, are you referring MPP or are you--
--
Ms. Escobar. Yes.
Mr. Hastings. Okay. So with MPP----
Chairman Nadler. The time of the gentlelady has expired.
Yeah, the witness can answer the question. I am sorry.
Mr. Hastings. With MPP, if the subjects do claim fear, we
take them to CIS. CIS will determine if there is fear. If there
is fear determined, then they will go through the asylum case.
If they do not claim fear, they will be returned to Mexico
under the Mexican Protection Program, MPP.
Ms. Escobar. And just for the record, we have innumerable
examples in El Paso, Texas, where they have claimed fear, and
they have been returned anyway.
Chairman Nadler. The time of the gentlelady has expired.
The gentleman from Colorado.
Mr. Buck. Thank you, Mr. Chairman.
Chief Hastings, do you receive combat pay when you come to
the Hill?
Mr. Hastings. No, sir.
Mr. Buck. Well, you should. How long have you been with
Border Patrol?
Mr. Hastings. A little over 24 years, sir.
Mr. Buck. Are you what is considered a career official?
Mr. Hastings. I am a career law enforcement official, yes,
sir.
Mr. Buck. Well, thank you for your service, first of all.
And, second of all, you have served under approximately how
many different administrations?
Mr. Hastings. Three or four, sir.
Mr. Buck. And have you seen any of those administrations
target children for hostile activity?
Mr. Hastings. No, sir.
Mr. Buck. Have you ever heard of an administration ordering
the Border Patrol to kidnap a child?
Mr. Hastings. No, sir.
Mr. Buck. Did you hear the Chairman's opening statement?
Mr. Hastings. I did, yes, sir.
Mr. Buck. Did you hear the story about a 3-year-old being
forced to choose between two parents?
Mr. Hastings. I did.
Mr. Buck. Have you heard--let me ask it this way: Are you
aware of that incident?
Mr. Hastings. I am. So if I understand that incident, I
think we actually looked into that at the request of--I am not
sure if it was a committee or the Chairman. But in this
specific incident, the child was not asked to choose if he was
going to return with the father and mother. That was while they
were in custody, he was--we did not have a dual head of
household holding cell, so he was asked would he rather stay
with his father or mother while he was in Border Patrol
custody. He was ultimately reunited with his entire family and
sent back to Mexico under the MPP program. So there was no
child separation.
Mr. Buck. Okay. So one parent was not deported, as the
Chairman indicated, one parent was not deported and another
parent kept in the country and the child had to choose between
whether to leave with the deported parent or stay in the
country.
Mr. Hastings. That was which cell he went to while he was
in our custody. He returned to Mexico with both parents.
Mr. Buck. Okay. Thank you for clarifying that because I
think it is important. If we are not going to deal with facts,
if we are going to start tearing at heart strings, let us make
sure that the underlying facts or at least the stories are
accurate before we start talking about those particular
incidents.
Chief, are you aware that the human smuggling business in
Mexico, Guatemala, the Northern Triangle is a multi-billion-
dollar business?
Mr. Hastings. Yes, and it is thriving right now.
Mr. Buck. And what does it mean to be a multi-billion-
dollar business? In other words, who is making that money? Are
they legal agencies making that money, or are these cartels and
illegal organizations?
Mr. Hastings. So it is illegal organizations, transnational
criminal organizations that are profiting on the backs of the
people who are coming today.
Mr. Buck. And when you say ``on the backs of,'' have you
heard of--have you read intelligence reports where there are
instances of children being purchased so that individuals can
enter this country illegally?
Mr. Hastings. Yes. Children are treated and all aliens are
treated as a commodity, frankly, with no care to their personal
safety. And we see time and time again. I have testified
before. We see kids put on pool toys by smugglers and cross
across the Rio Grande Valley--the Rio Grande River, and then
when our agents try to make an interdiction or assist, we see
smugglers kick the kid off of these toys so they can make a
safe getaway back to the south or to the Mexico border,
essentially little care to no care for those that they are
smuggling.
Mr. Buck. Okay. And is this a result of a policy that--a
recent policy from the Trump administration? And when I say
``is this,'' is the crisis at our border, is the treatment of
young people a result of a policy from the Trump
administration? Or is it just a fact that the surge in
immigration has left the facilities overwhelmed?
Mr. Hastings. The facilities are overwhelmed by far. We
have--our facilities were not built for this type of
demographic that we are seeing today. They were built for the
demographic of primarily returning quickly to Mexico. They were
not built for what we are seeing today. They are short-term
facilities. They are not meant to hold long term.
Mr. Buck. And I have to tell you something. I have heard
the testimony from the Inspector General's office. I agree that
there are serious problems, and we have got to address those
serious problems, by increasing the facilities, increasing
personnel, and also changing our laws so we do not incentivize
this kind of surge. But to blame Border Patrol or this
administration for what is happening is shameful. And I thank
you and I yield back.
Chairman Nadler. The gentleman yields back.
The gentleman from Georgia.
Mr. Johnson of Georgia. Thank you, Mr. Chairman.
Chief Hastings, it is your testimony that human smuggling
on the border is a billion-dollar-per-year business?
Mr. Hastings. Yes, it is.
Mr. Johnson of Georgia. Where did you get that information
from?
Mr. Hastings. Because we hear intelligence reports and
speak with those who come across the border----
Mr. Johnson of Georgia. That is what somebody has--that is
what you have heard. Okay. I got you. But, listen, do you have
a Facebook account?
Mr. Hastings. I do not.
Mr. Johnson of Georgia. And do you have a Twitter account?
Mr. Hastings. I do not.
Mr. Johnson of Georgia. So it was recently revealed that
there is a secret Facebook group made up of 9,500 current and
former Border Patrol members. Are you aware of that secret
group?
Mr. Hastings. I have read the ProPublica report. Yes, sir,
I am aware.
Mr. Johnson of Georgia. And many of this group's Facebook
posts have been racist, misogynistic, xenophobic, and
dehumanizing. They have targeted Members of Congress, members
of this Committee, and also dead migrant children. In
particular, the posts that callously made light of the death of
a Guatemalan teenager at a border station in Texas, those posts
are truly despicable. Are you aware of those posts?
Mr. Hastings. I am, sir, and those are inappropriate and
they are being investigated, and if found to be true, the
appropriate disciplinary action will be taken. We have already
provided cease-and-desist letters to all of those individuals
that were on the posts. Some have been relieved of their law
enforcement duties as well.
Mr. Johnson of Georgia. How many of those individuals were
on that post?
Mr. Hastings. I know of approximately 50 cease-and-desist
letters that have gone out, and I am not sure, a handful more
or less of administrative actions or administrative duties
where agents are basically not doing law enforcement duties
while they await the outcome of the disciplinary.
Mr. Johnson of Georgia. I see. I am particularly troubled
by reports that CBP leadership knew about this secret Facebook
group for years. Are you aware of that?
Mr. Hastings. I have seen the reports, but I did hear Chief
Provost testify yesterday, and I know that the Chief I think
mentioned she had been on Facebook nine times in a year, and
that was primarily, frankly, to search herself to try and find
out what the agents thought about how she was doing as a Chief.
Mr. Johnson of Georgia. And you are familiar with the fact
that she has actually posted on that secret Facebook group?
Mr. Hastings. I have seen the article. I believe she posted
one time in reference to a Jeopardy question that asked how
quickly she had been a supervisor within Border Patrol or
something to that effect.
Mr. Johnson of Georgia. And that is what you have heard,
but you have not talked with her.
Mr. Hastings. I know she--yes, I have talked with her. She
is in my chain of command, and I talk to her daily. But that is
all I am aware she has ever posted.
Mr. Johnson of Georgia. I see. Did she tell you that
herself or that is something that somebody else told you?
Mr. Hastings. That is what I heard her say during her
testimony yesterday, and that is what I have heard her say to
me before.
Mr. Johnson of Georgia. Do these racist and xenophobic
posts in that Facebook group concern you as a member of Border
Patrol leadership?
Mr. Hastings. They do. It is inappropriate, and we are
taking the appropriate actions.
Mr. Johnson of Georgia. Now, let me ask you--and thank you,
sir--Inspector General--or, excuse me, Ms. Shaw. You testified
before the Immigration and Citizenship Subcommittee earlier
this month that the Inspector General's office is looking into
this secret Facebook group. Correct?
Ms. Shaw. That is correct. We are not looking at individual
posts by individual members, but we are conducting a review to
determine who within CBP and DHS leadership was aware of the
group and the postings, when, and what, if any, action they
took.
Mr. Johnson of Georgia. And will you be looking to identify
the current Border Patrol members involved in this group, and
including additional members of Customs and Border Patrol
leadership?
Ms. Shaw. That is not currently within the scope. To the
extent that we are looking at who within leadership was aware
of it, it could come into scope, but primarily membership
within the group and individual postings I believe is being
handled by CBP's Office of Professional Responsibility.
Mr. Johnson of Georgia. And if you identify specific Border
Patrol members where disciplinary action may be taken, will you
refer that to the CBP's Office of Responsibility?
Ms. Shaw. We would, yes.
Mr. Johnson of Georgia. And what is the timeline for this
investigation?
Ms. Shaw. We are in very early stages. It is time-
sensitive. We would hope to be able to complete field work in 2
to 3 months and have reporting ideally before the end of the
calendar year. But we have to follow the leads where they take
us.
Chairman Nadler. The time of the gentleman has expired.
Mr. Johnson of Georgia. Thank you.
Chairman Nadler. The gentleman from Louisiana.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman. Thank
you all for being here.
I want to echo the sentiment that has been expressed by
Ranking Member Collins, by Mr. Buck, and so many others. We
just have extraordinary respect for the work that you all do in
these agencies, and it is heroic and under extreme duress these
days. And we are grateful that you come continually to answer
these questions, even though, as has been expressed, we do not
seem to be getting to many solutions. We want to do that.
In light of that, let me ask you a couple of questions
about the credible fear issue, and I will ask Mr. Edlow these
questions. But let me just say for those who are taking notes
that the current threshold to establish credible fear is that
the asylum applicant must be able to show ``significant
possibility''--that is the quote--of persecution if they return
to their home country. One U.S. Supreme Court decision found
that this threshold is satisfied if there is only a 10-percent
chance of persecution.
In fiscal year 2018, there were 99,035 total asylum
applications, and DHS agents determined that under the current
standard 74,677 met the criteria. Of that number, only 16
percent of credible fear cases were actually approved later by
immigration judges.
It is abundantly clear the current credible fear threshold
is contributing to the severe backlog of asylum cases in our
immigration courts and, unfortunately, contributing to the
delay of families who are legitimately fleeing persecution.
So here is a question for Mr. Edlow. Do you believe that
the unprecedented surge in family units crossing the southern
border has exposed faults in the credible fear standard under
our existing asylum laws?
Mr. Edlow. Thank you, Congressman. The position of the
Department and, frankly, the administration is that the
credible fear standard, along with other loopholes, has
provided some impetus for the increase in crossings.
Mr. Johnson of Louisiana. I think that bears of common
sense. And let me ask you, do you believe it is possible that
the current lax credible fear standard can act as a catalyst
for southern border crossings that endangers these family units
in the process?
Mr. Edlow. Again, the administration has long said that
illegal crossings do come with a great deal of danger, so
anything that acts as a catalyst to do so would increase danger
to families and to children.
Mr. Johnson of Louisiana. The last Congress, numerous
officials, including then-Attorney General Sessions, Secretary
Nielsen, Director of CISNA stated in response to previous
questions that statutory changes are necessary to enhance the
process of assessing what constitutes credible fear. Do you
agree with them that the credible fear standard needs to be
raised to ensure the protection for those that are truly
fleeing persecution?
Mr. Edlow. Congressman, I think any legislative changes the
Department would like to see, we would be happy to work with
the Congress in perfecting those changes and are willing to
provide technical assistance as needed.
Mr. Johnson of Louisiana. I am grateful for that. I filed a
bill to do that in the last Congress. It made it through this
Committee in a bipartisan fashion, and Ranking Member Collins
and I have filed it again.
Would you speak briefly to the failure to appear rate in
immigration court for non-detained family units?
Mr. Edlow. Yes. I believe what you are referring to is what
has been actually wrongly called a pilot program. From
September until--it is continuing. The Executive Office for
Immigration Review has studied \1\ specifically the family
units within ten cities, the cases that are being filed within
ten cities. Of those numbers, there has been about 64,000 cases
that have been filed in those courts.
---------------------------------------------------------------------------
\1\ Mr. Edlow requested this be changed to ``tracked''.
---------------------------------------------------------------------------
Of the completed cases, there has been about 17,000
completed. Over 13,000 have resulted in an in absentia order,
which would translate to about 80 percent of the total
completed cases were completed with an in absentia order.
Mr. Johnson of Louisiana. Thank you. I think we have got to
work on that.
Real quickly, I have about less than a minute left. Mr.
Hayes, isn't true that DHS is separating children where there
is a potential danger to the child? I know this has been
discussed today, but we just want to reiterate this for the
record.
Mr. Hayes. So, in regards to any specifics, I defer to my
colleagues at DHS. But I do know in the intakes process at the
Office of Refugee Resettlement, we are informed of certain
separations due to concern for safety of the child, yes, sir.
Mr. Johnson of Louisiana. We hear a lot about sex
trafficking and the rest, and if a child comes across and is
not easily identified to be with a parent, isn't it appropriate
for us to take appropriate measures to protect the child, to
separate that child from that adult? Doesn't that make sense to
everyone?
Mr. Hayes. I would defer that law enforcement-minded
question to my colleague at DHS.
Mr. Johnson of Louisiana. Would you follow up on that?
Mr. Hastings. So 88 percent of those that we have separated
so far this fiscal year have been for criminal or gang history
for the endangerment to the child. The best example I can give
is about 2 or 3 months ago we had a child cross with their
father, immediately claim that her father had raped her the
night before in Mexico, and we separated that group.
Mr. Johnson of Louisiana. It would be inhumane to do
anything else.
I yield back. Thank you.
Chairman Nadler. The time of the gentleman has expired.
The gentleman from Florida.
Mr. Deutch. Thank you. Thanks, Mr. Chairman.
Mr. Chairman, during the Committee's February 26th
oversight hearing on the administration's family separation
policy, I entered several documents into the record that were
turned over by HHS detailing a high number of alleged sexual
assaults of unaccompanied children in the custody of ORR. And
since the February 26th hearing, I have been attempting to work
with ORR to identify changes that need to be made to ensure the
safety for unaccompanied children being held at facilities
across the country.
On April 22nd, ORR assisted in arranging a visit to the
Homestead facility, my second visit to the facility. The staff
was accommodating during my visit. The tour was extremely
informative. And following up on the tour, Director Hayes,
following up on the tour, I sent you a letter on June 7th with
several questions and requests for documents. I just received a
response yesterday evening that my letter had been received--I
am grateful for that--and that the information was being
compiled.
Mr. Chairman, I ask unanimous consent to submit my letter
dated June 7th to Director Hayes for the record.
Chairman Nadler. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Deutch. Thanks, Mr. Chairman.
Director Hayes, during my visit to Homestead, the staff
there confirmed that operating a facility like that costs three
times as much as operating a permanent facility, and unlike
temporary influx facilities, permanent facilities are subject
to Federal, State, and local laws meant to protect the welfare
of children.
So what I would like to ask and I ask in my letter and what
I would like you to tell us this morning is whether ORR is in
the process of finding less expensive alternatives to
facilities like Homestead for unaccompanied minors, and I guess
fundamentally the question is: Are you in the process of
closing the Homestead facility?
Mr. Hayes. Thank you for the question, Congressman. I want
to first give you my commitment that we will respond to that
letter just as quickly as we can.
Mr. Deutch. I appreciate that.
Mr. Hayes. You are welcome, sir.
I will say that, as I mentioned in my testimony, I want to
thank you and the leadership of the House of Representatives
for helping get the supplemental. One of the main priorities of
myself, Assistant Secretary Lynn Johnson, and Secretary Azar is
to absolutely increase the number of permanent State-licensed
beds available for receiving of children from Customs and
Border Protection at HHS. That is something that we are equally
committed to at both the political and the career leadership of
ORR.
Mr. Deutch. And do you have any information in the
possibility of Homestead providing information on when the
Homestead temporary facility will be shut down?
Mr. Hayes. So as of this morning, sir, our census at
Homestead is down to 829. We have not designated any additional
children to Homestead since July 3rd, and we are in the process
of drawing that down given the higher discharge numbers that we
are seeing as well as the lower referrals coming across the
border.
Mr. Deutch. Great. Let me ask you some questions that I
asked in my letter, but perhaps you can answer them. The
Homestead facility staff stated that General Dynamics has
contracted with the facility to provide sexual abuse training,
and I had asked for copies of the contract with General
Dynamics and details regarding that curriculum. Is that
something that you can provide to us quickly?
Mr. Hayes. I do not know if I can provide it quickly, sir,
but I will certainly go back to our team and look into it.
Mr. Deutch. In 6 weeks, so it is no longer quickly, but if
you could help with that, I would appreciate it.
Mr. Hayes. I will check into that, sir.
Mr. Deutch. Also, the Homestead facility staff informed me
that DHS, ORR, and Comprehensive Health Services include the
Prison Rape Elimination Act, PRIA, and other standards in their
contract provisions. We have been trying to get a copy of the
contract between the Government and Comprehensive Health
Services. We would also like to see copies of the subcontracts
just to see the extent to which those requirements are
incorporated. Can we get copies of those contracts?
Mr. Hayes. I will go back to the Department, and we will
look into that, sir. If I may just add one thing, it is not
just GDIT that does some of the oversight. There was also
Federal oversight. There was State and local official
oversight. It is a very broad, multipronged approach.
Mr. Deutch. That is actually--there is State and local when
they submit to them, which gets me to my last question.
Mr. Hayes. Yes, sir.
Mr. Deutch. The Homestead facility staff gave me a briefing
about the database that keeps track--a national database that
keeps track of every allegation and serious incident that
occurs at that facility and throughout the country, every
facility housing unaccompanied minors. It tracks when a staff
person is fired. It tracks what happens when allegations are
made.
Can you provide the Committee with information from the
database on how many assault cases have resulted in the
termination of an employee nationwide, how many were resolved
in disciplinary actions, what disciplinary actions were taken
against the staff person, and, most importantly, how many cases
of sexual abuse are being investigated and are ongoing
nationally?
Mr. Hayes. We will look at that letter, sir, and respond as
quickly and as we are able. I will note for this Committee's
information that there are three different types of sexual
misconduct. There is inappropriate sexual behavior, sexual
harassment, and sexual abuse. And I will note that the number
of actual sexual abuse is very small and most often involved
children amongst children. But we will work to get that
information.
Mr. Deutch. As I said, Mr. Chairman, as I said at our last
hearing, one case is too much, and please----
Mr. Hayes. I 100 percent agree.
Mr. Deutch. And please, please, do not try to make us feel
better by suggesting that sexual harassment is somehow less
objectionable that we should tolerate sexual harassment.
Mr. Hayes. That was not my intention, sir.
Mr. Deutch. I appreciate that.
Mr. Hayes. We are in agreement.
Chairman Nadler. The time of the gentleman has expired.
The gentleman from Virginia?
The gentleman from Arizona.
Mr. Biggs. Thanks, Mr. Chairman. So, Chief, you testified
about the human trafficking business right now is in excess of
a billion dollars, maybe more than $2 billion. Is that fair?
Mr. Hastings. It is fair. Yes, sir.
Mr. Biggs. And the gentleman from Georgia might have
implied that your testimony about this was based on some
intelligence reports, briefings, and he said, quote, ``or
something you heard,'' close quote.
An intelligence briefing is not just gossip between folks
coming across the border illegally and agents. It is an
intelligence briefing, I assume.
Mr. Hastings. That is correct, sir.
Mr. Biggs. Please describe what goes into an intelligence
briefing.
Mr. Hastings. So we have a multitude of intelligence agents
working in the field who work closely with sources of
information, work closely with those that come through our
process, in order to determine the amounts that individuals
from different countries are being charged, how much they are
being charged to be smuggled into the U.S., and that is how
primarily, in short, how we get the information of what they
are being charged to be transited up illegally through the
U.S., or into the U.S.
Mr. Biggs. So you can make that testimony with some
confidence in the intelligence briefings you received.
Mr. Hastings. Yes, sir.
Mr. Biggs. So we have been talking about family separation,
and on the monitors before you, onto the sides, is what we call
permanent family separation. Brandon Mendoza, a Mason City
police officer, son of Marianne Mendoza, who is one of my
constituents, was killed by an illegal alien who had been
deported multiple times. They are permanently separated.
Grant Ronnebeck--yeah, that is Grant on the right--Grant
was working as a clerk when he was shot in the face and
murdered by another individual who had been here and deported
multiple times, including have multiple felony convictions.
This is permanent separation.
If you want to solve separation we would do more than have
hearings, because there isn't anybody in this room that doesn't
want to deal with this situation that are horrific along the
border.
We should fix Flores. We should allow for detention of
family units for more than 22 days and extend it back to 45
days, allowing us hopefully to resolve their issue before the
courts more quickly.
Down in Yuma, not too many months ago, is a facility
designed for 250 people. When we were there, there were 750-
plus, and last time I checked they were over 1,200. It is a 12-
hour facility. It is not a detention facility. It is a holding
facility, to process individuals and move them along in this
system that is the most thorough, due process-giving system of
immigration in the world. It is not because CBP is infiltrated
with people who hate people. It is because the surge is so
overwhelming to the system, the facilities.
CBP found, in an investigation, that Charleston, South
Carolina, and several other cities, had the same sponsor for
multiple individuals. Fifty people going to the same address.
In their investigation they found that they had a cartel
affiliate running a human trafficking ring, and when they went
there to bust it, much to their surprise they had the local
LEOs, they had the CBP, they had ICE, they had FBI involved.
They found three small children there. They didn't even
know about the children. They knew that the adults were being
trafficked and basically treated like slaves. Well, these three
children had been ceded over, either rented or sold, through
the drug cartels, the human trafficking cartels. They were able
to get those children out of that situation. That person was
charged.
They report to me that there are literally hundreds of
these rings in this country. Thousands of children are
separated on a monthly basis by these human traffickers and
parents giving them that--moving them over to these
traffickers. Conditions are terrible. We have to enact the laws
and see enforcement and provide the resources necessary to
resolve those issues.
Thank you, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentleman from Rhode Island.
Mr. Cicilline. Thank you, Mr. Chairman. I just want to say
at the outset, Mr. Chairman, there was a lot of discussion from
our colleagues on the other side of the aisle about inaction by
Congress. I would remind them that we have appropriated an
additional $4.5 billion to address this crisis on the border.
We passed legislation just yesterday to set standards for care
for individuals who are in detention. We passed the DREAM Act
and temporary protective status legislation, and today we will
pass temporary protective status for Venezuela.
Oversight is also part of our responsibility, so I invite
my Republican colleagues to join us in some of the work of
actually responding to this crisis.
And I want to start with you, Ms. Shaw. You issued what are
called management alerts. Is that correct?
Ms. Shaw. Yes.
Mr. Cicilline. And a management alert is issued in this
case because you found, and I quote, that you ``identified
issues that posed a serious, imminent threat to the health and
safety of CBP personnel and detainees requiring immediate
action by the department.'' Is that correct?
Ms. Shaw. Yes.
Mr. Cicilline. And you detail those in your written
testimony in considerable detail. Is that communicated to the
Customs and Border Patrol?
Ms. Shaw. The recommendation for immediate action?
Mr. Cicilline. Yes.
Ms. Shaw. Yes. As part of the first management alert that
was an official recommendation.
Mr. Cicilline. Okay. So, Chief Hastings, have you read the
management alerts that have been provided by the Office of
Inspector General?
Mr. Hastings. I have, sir, both.
Mr. Cicilline. Have you begun to develop a response to it?
Mr. Hastings. Sir, we have been working, prior to the
reports coming out, and like I said, we have been saying for
eight months we are over capacity.
Mr. Cicilline. In particular, there is an acknowledgement
that there is not a strategic, coordinated approach to service,
safety, security, and care for those in custody. Are you now
developing a strategic, coordinated approach to address these
issues?
Mr. Hastings. We are constantly working on the capacity
issues. As I testified in my opening, we had six off-sited
facilities that we had actually paid for to begin construction
prior to even getting the funding for the supplemental.
Mr. Cicilline. So, Chief Hastings, you made reference, in
your testimony, to the implementation of a zero tolerance
policy, which occurred on April 6, 2018. Is that correct?
Mr. Hastings. Yes, sir.
Mr. Cicilline. And that was a new policy being put into
place. Correct?
Mr. Hastings. That was a policy to increase our total
overall prosecutions.
Mr. Cicilline. Okay. And that was a new policy.
Mr. Hastings. It was.
Mr. Cicilline. So there wasn't a zero tolerance policy
before April 6th of 2018, was there?
Mr. Hastings. We had ran similar pilots in the field in
other locations, but to that magnitude, no.
Mr. Cicilline. And it was not a policy in place throughout
the entire department. Correct?
Mr. Hastings. No, not before that, to my knowledge.
Mr. Cicilline. Okay. And that policy required you to
prosecute parents so that every child that was with a parent
then became an unaccompanied child. Correct?
Mr. Hastings. Well, there was a list, and you have seen the
list, but it started out with single adult criminals, went to
single adults who were smuggling, and then went to non-
contiguous family units.
Mr. Cicilline. Okay, Chief, I want to talk specifically--I
know a number of my colleagues have mentioned family
separations at the southern border are ongoing. I want to
discuss one very specific case with you, Chief. Due to the
Trump administration's Migrant Protection Protocols, MPP, or
Remain in Mexico policy, where migrants are required to wait in
Mexico until they can have their asylum hearing, one Honduran
family was told that they would be separated. One parent would
stay in the U.S. with their children and one would be sent to
Mexico.
According to the parents, a Border Patrol agent then asked
the couple's three-year-old daughter, Sophie, to choose which
parent she wanted to stay with, ultimately deciding who would
stay in the U.S. and who would go to Mexico. Asking a three-
year-old child to choose between their parents, not knowing if
they will ever see one again, is unconscionable and traumatic
to a child.
The separation occurred despite a medical recommendation
from a doctor who advised that they be removed from MPP and
stay together due to Sophie's severe heart condition.
So, Chief Hastings, my first question is did this Border
Patrol agent correctly implement MPP, according to our
policies?
Mr. Hastings. So I believe that is the same case we were
discussing earlier, where they were separated only in our
facility and they were retired as an entire family back to
Mexico.
Mr. Cicilline. My question, Chief, is even though that
ultimately was the result, because of some court intervention,
is it an appropriate policy to ask a three-year-old child to
decide which parent will stay in the U.S. and which will not?
Mr. Hastings. Sir, that was based upon capacity and
availability within our own short-term holding detention cell.
Mr. Cicilline. Chief, my question is not about your
capacity. My question is the propriety and the damage you are
doing to a three-year-old child, to ask them to make that
decision, to pick a parent. Is that consistent with the MPP
protocols?
Mr. Hastings. Sir, the family was not separated. They were
returned together.
Mr. Cicilline. You deny that the child was asked to pick a
parent to stay with, and which one would be deported?
Mr. Hastings. While in our custody, there was no--to my
knowledge, no deportation.
Mr. Cicilline. And the medical and psychological conditions
of minors considered before placing a family's case into the
MPP program?
Mr. Hastings. They are.
Mr. Cicilline. I yield back, Mr. Chairman.
Chairman Nadler. The gentleman yields back.
The gentleman from Florida.
Mr. Gaetz. Thank you, Mr. Chairman.
We have smugglers and traffickers that take young children
out of the Northern Triangle, subject them to a treacherous
journey where they are abused--physically, mentally,
emotionally, sexually--and then they come to our country, and
what I have seen in Yuma Sector, is that we have Border Patrol
agents who are doing everything they can to respond to a crisis
that they did not create and that our laws continue to
exacerbate.
We have a crisis at our border because our laws themselves
seem to be a humanitarian crisis. Instead of requiring migrants
to show up with legal paperwork, we simply require them to show
up with a trafficked child and present that child in lieu of
legal basis to be in our country. And it is devastating to me
that while we continue to have thousands of people that today
will show up at our border under these conditions, that we are
not taking action to reform our asylum laws, and they are sick
laws.
The crisis on our border was articulated by Secretary
McAleenan at the beginning of the year. He begged for the
resources to be able to help save lives. He begged for changes
in our asylum laws so that we would not be encouraging people
to cross our border illegally.
Commander White, had the Congress responded timely to
Secretary McAleenan's request for supplemental funding rather
than only passing it quite recently how many migrants would
that have impacted and what would have been the effect of more
prompt response to DHS' request?
Mr. White. I don't know any way I could answer that
question. Is your question about what would be the effect had
there not been a period of near deficiency in the UAC program?
Mr. Gaetz. Yeah. The question is like, so McAleenan asks
for the money in February. We don't provide the money until
very recently, and so that delta between the request and the
provision of resources created some consternation for the
health, safety, and welfare of people who are in our country
illegally, and I am trying to understand that dynamic.
Mr. White. I am not aware of any impact that would have on
the Ms. L. class, but to the extent that it might have an
impact on the UAC program I will defer to that program's
director, Mr. Hayes.
Mr. Hayes. So, Congressman, yes, the lack of funding and
the deficiency status that we entered into for short season at
HHS did create a level of uncertainty in the program, and in
accordance with the Anti-Deficiency Act there were some
services that were affected as we carried out the mission to
care for the children as they worked through the process. Now
how that would have any impact actually at the border----
Mr. Gaetz. No, no, I don't mean that. I mean for the
conditions of people that the majority is focused on.
Mr. Hayes. And I would defer part of that to----
Mr. Gaetz. I have got an answer to the question. Chief
Hastings, my colleagues from Georgia I don't think gave you a
full opportunity to answer the question about your basis for
the belief that this smuggling industry was a billion-dollar
industry. You referenced intelligence reports and intelligence
collected off of those that were being trafficked, and he said,
``Okay, well, you have just heard some things,'' and went on.
Would you like to illuminate more thoroughly on how we know
of the gravity and of the stakes of this trafficking crisis?
Mr. Hastings. Yes. So, again, the smugglers are the ones
who are profiting from all this, the TCOs. But, I mean, I give
five specific examples. This year we have had 200 large groups
of over 100 hit our borders. We have never seen anything like
that. Last year it was 13. The year before, 2. Specifically, in
an example, in at least five of those large groups we had
technology that provided us with information that large drug
loads, usually cocaine or marijuana, were being trafficked at
the same time. In other words, these large groups are often
used as a diversion for drug trafficking organizations to know
that when you are sending a group that large down through the
border you are effectively shutting down our operation so we
can deal with that amount of people, and in the meantime you
are running a large narcotic load through right next door, two
to three miles away.
Mr. Gaetz. And that is--your agents refer to that as gap
time--is that correct?--where there are gaps in where they can
cover the border because they are having to process large
volumes of migrants?
Mr. Hastings. That is correct, where we either have to
transport, detain, or, in this case, it effectively shuts down,
just due to sheer transportation and volume of getting those
individuals medically assessed and back to our station in a
timely manner to process.
Mr. Gaetz. Thank you. Well, I certainly hope we can get
some of that bipartisan work before the committee.
Mr. Chairman, may I be recognized for a unanimous consent
request?
Chairman Nadler. Without objection.
Mr. Gaetz. Mr. Chairman, I seek unanimous consent to enter
into the record a McClatchy article, January 15, 2016, entitled
``Obama Administration Fights to Keep Family Detention.''
Chairman Nadler. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Nadler. The gentleman's time has expired.
The gentleman from Maryland.
Mr. Raskin. Thank you, Mr. Chairman. When the zero
tolerance policy ended after a court decision, I understand
that hundreds of children continued to be separated from their
parents at the border, and unless someone corrects me I believe
they are still taking place to this day, on the criteria of
either criminal history or best interest of the child. Is my
understanding basically right, Chief Hastings?
Mr. Hastings. This is correct. Guidance was put out
immediately that basically identified when child separation
would occur, to the agents.
Mr. Raskin. Can you tell us generally what the standard is
there?
Mr. Hastings. I can. It is a referral for a parent/legal
guardian for prosecution of a felony. Parent/legal guardian
presents a danger to the child. Parent/legal guardian has a
criminal conviction for violent misdemeanors or felonies. And
then the parent or legal guardian has a communicable disease.
Mr. Raskin. So I have gotten word of some disturbing
stories of families being torn apart for reasons which appear
not to fall within those categories, but I understand there is
some generality and abstractness to the way that that memo is
written. You are quoting from the June 27, 2018, interim
guidance.
For example, if a child was separated from a parent because
the parent had had a marijuana arrest or conviction, would you
see that as outside of this memo or would you see that as an
acceptable interpretation of this memo?
Mr. Hastings. It would be a case-by-case basis and I would
want to see all of the facts of everything that was presented.
Mr. Raskin. But assuming that there were no other salient
facts offered, would it be enough that there was a marijuana
conviction in someone's record?
Mr. Hastings. Again, it would be case-by-case. I would need
to the totality of the circumstances to make that decision.
Mr. Raskin. Well, I understand that it is case-by-case.
That is how the justice system works. But we take case-by-case
and then we apply rules. And what I am looking for is what is
the rule that is to be applied on a case-by-case basis? Would a
marijuana arrest or conviction fall within--and it doesn't look
like it is prosecution for a felony, and it doesn't look like
it is a criminal conviction for a violent misdemeanor or
felony. Wouldn't that fall outside?
Mr. Hastings. Again, I would want to see the totality of
the circumstances to see if there were other convictions, other
things out there.
Mr. Raskin. All right. So if you--you know, you are in
charge and you have got enormous experience. If you cannot tell
us, how is somebody, a line person in the Border Patrol,
supposed to make that determination? I mean, can one make a
decision one way about a marijuana arrest and then another
officer make another decision about a marijuana arrest?
Mr. Hastings. If the agent has a question they will refer
that through our legal counsel and work with our legal counsel
to make sure they are making the right decision in accordance
with this guidance that has been put out.
Mr. Raskin. The National Immigration Justice Center
represented a woman, who I will call Maria, who was separated
from her three-year-old for more than three months because
Customs and Border Patrol thought that she had a criminal
history in her home country. She was not reunited with her son
until U.S. lawyers were able to obtain proof from El Salvador
that she had no such record.
What steps are taken to prevent mistakes and errors,
because the impact is obviously devastating on a family. None
of us, I am sure, can contemplate having a missing or lost
child for more than 15 minutes, much less for three months.
Mr. Hastings. Sir, I am not aware of this specific case but
I would be glad to look at it and get back to you.
Mr. Raskin. But what is being done to prevent mistakes from
being the basis for decisions?
Mr. Hastings. So as we said earlier, as I said earlier, a
separation is not taken lightly. We run every check, discuss--
make sure, to the best of our ability that we can by running
all criminal records checks, working with other entities,
sometimes even foreign law enforcement officers, to make sure
that everything that we are told is true and correct, and to
the best of our due diligence make sure that we are doing
things properly.
Mr. Raskin. If a mother or father has HIV-positive status,
is that alone enough to justify separation from their child?
Mr. Hastings. It is. It is a communicable disease, under
the guidance.
Mr. Raskin. Because we have reports of people being
separated from their kids on that basis. Is that what we mean
by communicable disease? It is not communicable through
ordinary contact.
Mr. Hastings. This is the guidance that we follow.
Mr. Raskin. And that came from our legal counsel or that
came from the Chief of Border Patrol, or where did that come
from?
Mr. Hastings. I am not sure if that came from legal
counsel. We just see that--I believe that is defined as a
communicable disease.
Mr. Raskin. Do you have a list of the communicable
diseases?
Mr. Hastings. Not with me. No, sir.
Mr. Raskin. I mean, the flu is communicable. Would we
separate parents from kids if a mom or dad had the flu?
Mr. Hastings. We are not, sir.\2\
---------------------------------------------------------------------------
\2\ Statement Attributable to Brian Hastings, Chief, Law
Enforcement Operations Directorate, U.S. Border Patrol: ``As I noted
multiple times when presented with hypothetical scenarios or specific
allegations by members of the Committee, I would need to review the
full facts and circumstances associated with a case before speaking
definitively. To clarify my exchange with Rep. Raskin regarding
potential reasons for separation due to communicable diseases, while
HIV is not a communicable disease that would bar entry into the U.S.,
HIV does present additional considerations that may affect how migrants
might move forward in processing. CBP would not separate families due
to the communicable nature of HIV. Generally speaking, separations of
this type are due to the potential requirement for hospitalization and
whether it is in the best interest of the child to wait for the
disposition of the their parent in HHS or CBP custody. Similarly, while
a simple flu case would generally not be grounds for separation,
complications requiring hospitalization may impact the best approach
for maintaining custody of the child. For these reasons, Border Patrol
makes all separation decisions on a case-by-case basis and these
decisions are not taken lightly.''
---------------------------------------------------------------------------
Mr. Raskin. Okay. I see my time is up. I yield back.
Thanks.
Chairman Nadler. The time of the gentleman has expired.
The gentleman from North Dakota.
Mr. Armstrong. Thank you, Mr. Chairman. I wish that we--and
I agree with my colleague on what due process is in convictions
and those types of things, and I do, but I also know that I
have seen reports that up to 92 percent of the crimes in El
Salvador don't go punished. And I am not going to ask you
because you all work with those countries and we are doing a
lot.
But this is more than just checking a Clerk of Court record
in some of these countries. We are going to vote today on TPS
status for an entire country. We wouldn't be doing that if
everything was wine and roses down there.
So I wish that their due process was where it was and that
it was as absolute as that, and you could say, ``Have you been
charged?'' ``Have you been convicted of a crime?'' and that was
the final inquiry. But I suspect it is a little more
complicated than that, and you are dealing with people--and
oftentimes the level of the crime you pay in some of these
countries is how big of a bribe you paid to get out of it.
So I think the real world is a little different than how we
are interacting with that. So I think that is an important
point.
But Mr. Edlow, we talk about family separation and we talk
about all of these different things and asylum, but we have to
start from the basis of that. We actually have a law, and the
law is it is a Federal crime, under United States Code 1325, to
illegally enter the United States. Correct?
Mr. Edlow. That is correct.
Mr. Armstrong. And this wasn't added to the Federal Code
under President Trump.
Mr. Edlow. No, sir. Congressman, the 1325(a) was added back
in 1952.
Mr. Armstrong. And this is unique for Federal crimes
because it is actually a misdemeanor for a first offense, and
we don't typically--the Federal Government isn't really in the
business of like prosecuting Federal misdemeanors in other
areas of the law, is it?
Mr. Edlow. It would depend, I guess, on the crime that we
are referring to. But I would note that with every
administration the Department of Justice has an attorney
general, and that attorney general sets priorities for
prosecution.
Mr. Armstrong. But--and you would agree one of the
reasons--I mean, we are not locking a bunch of these people up
if they get a misdemeanor conviction. I mean, we are better
stewards of the taxpayers' dollars that that. We are deporting
them and sending them back to where they go. And I am not
talking in these asylum cases, I am just saying--whatever, they
get convicted of a misdemeanor and then we work through ICE and
get a deportation order.
Mr. Edlow. That would be--after the prosecution phase they
would be returned to the Department of Homeland Security for
them to explore whatever relief they may have available, or
protection, and ultimately to get that relief or protection or
to be removed.
Mr. Armstrong. I mean, one of the reasons for this is to
deter illegal entry. Correct?
Mr. Edlow. Well, Congressman, presumably when Congress
enacted 8 USC 1325, one of the reasons was to encourage
individuals to appear at the port of entry and to try to get
admission at the port of entry as opposed to trekking through
the desert, through the river, whatever else, to make a very
dangerous journey into the United States.
Mr. Armstrong. And there is another reason, too, because
illegal re-entry is no longer a misdemeanor. Illegal re-entry
of a previously deported alien is a felony, right?
Mr. Edlow. Yes.
Mr. Armstrong. So in order to have--I mean, if we have bad
actors who continue to go back and forth, dealing with that, we
need a deportation order. I mean, that is actually an element
of the crime the second time.
Mr. Edlow. For illegal re-entry? Yes, an element would be
the deportation order.
Mr. Armstrong. And so it is not only to defer the first
track but is also to make sure that people understand that if
you keep doing this, and continue to do it more than once, the
consequences get more significant.
Mr. Edlow. That is correct, Congressman, but I would also
say that in terms of one of the most important parts of
prosecuting 1325(a) is to really get at what Mr. Biggs was
talking about earlier, with regard to the smugglers, the abuse
of children that we are seeing across the border at this point.
And I would note that in the last year there has been a marked
increase in prosecutions for both violent crimes and crimes
against children prosecuted by the Federal Government along the
border.
Mr. Armstrong. And at the same time, in the last year,
parents traveling with children are not being referred for
prosecution right now because of an Executive Order issued by
President Trump?
Mr. Edlow. Congressman, I would defer to the Department of
Homeland Security as to who is being referred to the Department
of Justice, but I believe that the injunction under Ms. L. and
the Executive Order of June 20th is in effect and is being
complied with.
That said, Congressman, I would also note briefly that, as
it has been stated, the policy is no longer in effect. The zero
tolerance prosecution policy is still an active memo.\3\
---------------------------------------------------------------------------
\3\ Mr. Edlow requested this paragraph be changed to, ``That said,
Congressman, I would also note briefly that, as it has been stated, the
zero tolerance prosecution policy is still an active memo.''
---------------------------------------------------------------------------
Mr. Armstrong. I guess that is my question, is what is--it
seems--and this goes to what Mr. Gaetz is seeing--it seems we
have created now, through attempts at compassion, an absolute
incentive to bring children across the border because it
essentially a get-out-jail-free card.
Mr. Edlow. Again, I would defer to the Department of
Homeland Security as to how they are referring cases, who they
are deciding to refer.
Chairman Nadler. The gentleman's time has expired.
The gentlelady from Washington.
Ms. Jayapal. Thank you, Mr. Chairman. I wanted to start
by--since there have been so many calls from the other side
that there hasn't been anything done, I wanted to quickly run
through a timeline of what happened with the family separation
policy.
On March 6, 2017, former DHS Secretary John Kelly announced
that DHS was considering separating children from their parents
to deter migration. A few weeks later, because of massive
outcry across the country, on March 29th, Secretary Kelly
announced that, no, DHS was not going to pursue family
separation, and yet just a few months later we learned that DHS
secretly piloted family separation in the El Paso Sector from
July through November of 2017.
In February of 2018, responding to reports that family
separation was occurring in the El Paso Sector, Ms. Lofgren and
I sent a letter raising concerns with reports of family
separation. That was circulated to my Republican colleagues.
Not a single one signed on.
In April of 2018, the New York Times reported that DHS took
more than 700 children from their parents between October 2017
through April of 2018. And then on May 4, 2018, then Attorney
General Jeff Sessions announced Trump's Zero Humanity Family
Separation Policy, and he named the principal purpose of family
separation as deterrents and to criminally prosecute people.
I would remind my colleagues on the other side of the
aisle, as they express their outrage that nothing has happened,
that they actually controlled both chambers of Congress, the
House and the Senate, and the White House, during this entire
time that family separation was happening. The entire two-year
period that they had control of the House, the Senate, and the
White House, this was actually happening at the behest of the
Trump administration.
They did not join us in oversight or having a single
signing onto a single letter to address the humanitarian
crisis, and ultimately, it was actually a court order that
was--that ensured that children were reunited with their
parents, on June 26th of 2018, that court order happened. But
at that point nearly 3,000 children had been identified as
separated, just during that time of the case.
Now today we know that family separations are still
happening. As Mr. Edlow said, zero tolerance policy is still an
active memo. I believe that is what you said.
So let me go to Chief Hastings. You mentioned earlier in
your testimony, and I don't have the exact words so I wanted to
make sure I get this right, you said something like ``when we
started we were tracking A numbers.'' What did you mean by
``when we started''? What point of time were you referring to?
Mr. Hastings. So during zero tolerance we were basically--
we had a tear sheet that went with the A number, to list the
family member. So when reunification became--when reunification
would take place that the child could be matched with the
family easier.
Ms. Jayapal. Okay. And are you aware that on September 27th
of 2018, the DHS Office of Inspector General found that DHS
was, quote, ``not fully prepared to implement zero tolerance or
to deal with after effects''?
Mr. Hastings. So for Border Patrol, I mean, we are the
arresters and set-up for prosecution, so we were prepared.
Ms. Jayapal. Okay. And so, you know, the report also said
that DHS struggled to identify, track, and reunite families,
and provided inconsistent information to migrants, thereby
creating communications issues with their children once they
were separated. So somewhere between Border Patrol, ORR, ICE,
the various agencies that were involved, we lost the data.
Children were separated from their families, and I would
like to go to Commander White. The last time you were here--and
thank you for your courage and your testimony--you testified
that you warned three Trump appointees about the potential
health risks of family separation more than a year before the
policy became official. Is that correct?
Mr. White. Yes, ma'am. I gave my first warning to my
superiors on the 15 of February, 2017, after attending the
first meeting that we had on that proposal.
Ms. Jayapal. February of 2017. Thank you. And you also
testified that the best available evidence shows that
separating children from their parents--and this is your
quote--``entails very significant and potentially life-long
risks of psychological and physical harm.'' Is that correct?
Mr. White. That is an established scientific fact.
Ms. Jayapal. Thank you. And Commander White, would you
agree that if a child welfare official observed children being
forced to wear clothing stained with vomit for weeks, deprived
of basic essentials like adequate food, water, clothing,
medical care, and dental hygiene, and leaving infants and
toddlers in the care of other young children, wouldn't child
welfare officials remove children from that household?
Mr. White. Although I don't know if that occurred, there is
no doubt that any competent child welfare professional would
take such a step.
Ms. Jayapal. And yet here we are, the U.S. Government,
detaining children in those conditions. It is absolutely
abhorrent, and I am just--I continue to be stunned----
Ms. Lofgren [presiding]. The gentlelady's time has expired.
Ms. Jayapal [continuing]. Madam Chair, and I yield back.
Ms. Lofgren. The gentleman from Virginia is recognized.
Mr. Cline. Thank you, Madam Chair, and I want to echo the
concerns of everyone here who has told horrendous stories of
children being separated from their parents, of children in
conditions that are unacceptable, and I think that we all
share--put politics aside--we all share these concerns and want
to move to address them.
So I am glad to hear the timeline that the gentlelady
presented, letters of concern as early as the last Congress
that were going on. I can't help but also note that additional
legislation as pushed during that same time that would have
fixed Flores, offered by my predecessor, Congressman Chairman
Goodlatte. Both of his bills would have included a fix to the
Flores problem that we are encountering.
The Administration--it is my understanding while they have
continued a zero tolerance policy, has put forward a memo
opposing family separation. Is that my understanding?
Mr. Edlow. Congressman, there was an Executive Order that
opposed \4\ family separation.
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\4\ Mr. Edlow requested this be changed to ``restricted.''
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Mr. Cline. Executive Order.
Mr. Edlow. And that Executive Order is being followed as is
the injunction in the Ms. L. litigation.
Mr. Cline. Thank you. I think we all want to see
legislation pushed to address it, and we have seen some
legislation move, one piece of legislation out of this
committee, sponsored by Congressman Ruiz, that dealt with
conditions at the border. There is another bill dealing with
short-term detention standards.
You know, when I was in the State legislature for 16 years,
we developed expertise in our specific areas. I was on the
Courts of Justice Committee. I was on the Finance Committee,
which dealt with tax policy, and when there was a tax question,
when there was a bill to effect tax policy, that legislation
went through the Finance Committee.
And so I am concerned that not only is there--I am pleased,
first of all, to hear that there are legislative initiatives
out there to address this issue, but I am concerned that these
bills are not only being introduced--now I am glad to hear they
are being introduced by members of our committee. The
gentlelady from Texas, Ms. Escobar, introduced a bill dealing
with immigration policy, but it was not sent here. The
committee of jurisdiction has not gotten to review that bill.
And we have people on both sides with significant expertise on
those issues, who want to weigh in, who want to help. We have
staff with decades of experience who should be able to assist
as we seek to make the best policies possible, the best pieces
of legislation possible, to come out of this committee, to come
out of this Congress. The only way you are going to get solid,
A-plus pieces of legislation is to put them through the
committees of jurisdiction.
And so for Congresswoman Escobar's bill to be referred to a
different committee I think is going to result in a piece of
legislation that is not as good as it could have been, and that
is just to put it mildly.
Let me ask Mr. Hayes, Director Hayes, we have heard a lot
of discussion about the homestead influx shelter. Did that
shelter open during the Trump administration or the Obama
administration?
Mr. Hayes. Sir, the homestead site was first chosen and the
initial contract and operator chosen in December of 2015, in
the last administration.
Mr. Cline. Was the contractor who operated the homestead
influx shelter selected during the Trump administration or the
Obama administration?
Mr. Hayes. It was chosen in December of 2015, in the last
administration, sir.
Mr. Cline. Are the services offered to the children under
this administration different than the services offered in the
last administration?
Mr. Hayes. No, sir.
Mr. Cline. And what has changed since it opened in 2016,
until now?
Mr. Hayes. Just the census has gone up and down, but
basically, you know, the shelter remains very similar to the
way it was.
Mr. Cline. Thank you. I yield back.
Ms. Lofgren. The gentleman yields back.
Just a note. I appreciate his comments on jurisdiction. I
remember many years ago when Henry Hyde was chairing the
committee and we had an issue that related to an overlap
between the Energy and Commerce Committee, and he said, ``You
know, Democrats are adversaries, but the Energy and Commerce
Committee is our enemy.'' So there is that jurisdiction.
I will note that the Homeland Security Committee has
jurisdiction over personnel in the Department of Homeland
Security, but obviously all the policy issues are our
jurisdiction, and I think the gentleman has identified a
serious issue, and I wanted to acknowledge that.
Now I would recognize the gentlelady from Florida, Mrs.
Demings, for five minutes.
Mrs. Demings. Thank you so much, Madam Chair, and thank you
to all of our witnesses for being here. As I listen to my
colleague from Washington State describe the conditions of
children and families, I initially thought that I was listening
to a story about families in a distant land.
I know many of my colleagues on the other side of the aisle
have tried to make this issue a partisan issue, but it is not.
This issue is really about is American who we say we are? Do we
treat people with dignity and respect, regardless of where they
come from, and do we treat them fairly? That is what this issue
is about. It is not a partisan issue. And I would say that we
better get back on track, because the conditions and situations
at the border is a loser. It is a loser for all of us. It is a
loser for this nation, and we are better than what we are doing
at the border.
Chief Hastings, I know you have a tough job, but let me
just say this. As a law enforcement agency, CBP plays a
critical role in our national security mission. But I also know
what it is like to have been given an unjust, improper, and
impossible mission or order. And as opposed to CBP being able
to stay in their land and keep our nation safe, you are having
to deal with overcrowding in facilities, deal with children,
deal with families, long-term stays and detentions. That is not
your mission.
And so I just want to know, but since you have been given
that charge, do your officers or agents receive any specific
training in dealing with children or the treatment of children
in detention?
Mr. Hastings. Yes. We receive--yearly, we receive TDPRA
training and Flores settlement training as well. But
specifically as far as child care training, no.
Mrs. Demings. No medical training to deal with----
Mr. Hastings. We do have--we have got over 1,200 EMTs that
are trained. I think we are the largest only behind the
Department of Defense. So we do receive that as well as basic
EMT for all of our officers.
Mrs. Demings. That is annual training, you said?
Mr. Hastings. It is. Yes, ma'am.
Mrs. Demings. Have all of your officers or agents received
the training to date?
Mr. Hastings. I would have to get back to you on that. I
don't know what the status is on that.
Mrs. Demings. Acting Secretary proclaimed that such
training is a hard thing to comprehensively provide for law
enforcement. Do you agree with that statement, and if so, why?
Mr. Hastings. In the current crisis any training is hard to
provide right now, because, as I said earlier, we have got 40
to 60 percent of our agents just dealing with the crisis and
border security mission is suffering. We have cancelled leave.
We have cancelled a lot of task forces, pulled agents back from
those, and those agents are specifically--it is all hands on
deck. We have even cancelled some training.
Mrs. Demings. Acting Secretary also mentioned, in his
testimony, that the department is hoping to have contracted
experts in CBP facilities that can identify mental health
trauma in children. Have you completed that?
Mr. Hastings. Are you referring to the contract of medical
assessment teams that we have in our facilities?
Mrs. Demings. That is correct, but specifically dealing
with mental health issues that children may suffer who are in
your detention facilities.
Mr. Hastings. So what I can say is we started with about 20
medical health professionals through a contract company in all
of our southwest border facilities. We have over 200 today. We
are expanding those medical contract as quickly as possible, to
provide that additional assessment. Again, it is short-term,
not long-term, so if a problem is identified we will seek to
get the proper help as quickly as possible, not in the
facility.
Mrs. Demings. Ms. Shaw, during your visits to the various
facilities, do you agree with that assessment? Is that what you
saw, contracted professionals in place dealing with some of the
challenges in the facilities?
Ms. Shaw. So I can't share specifics as of yet. We are
working on our capping report, which will address what we saw.
We do observe volume of medical staff on site. I can tell you
that we did see staff on our visits, some from Coast Guard,
some from other agencies, to provide help under the
circumstances.
Mrs. Demings. And finally, Chief Hastings, if a medical
emergency does occur, could you just kind of walk us through? I
know there was some discussion in the past that there were not
even medically trained personnel even close to a lot of the
crises or medical crises that you interacted with in the field.
Could you kind of walk us through how things have gotten
better?
Mr. Hastings. Sure. As I said earlier, we now have over 200
medical nurse practitioners and physician assistants in our
facilities through the contract. If they identify an issue, or
if an individual in our detention says ``I am sick'' or ``I
need to see a doctor,'' they are taken to the hospital or the
nearest medical facility to seek additional care. I mean, up to
80 per day right now, so far over 20,000 this fiscal year, have
been referred for secondary medical care.
Ms. Lofgren. The gentlelady's time----
Mrs. Demings. Thank you.
Ms. Lofgren [continuing]. Has expired.
Mrs. Demings. Thank you, Madam Chair.
Ms. Lofgren. The gentlelady from Pennsylvania is recognized
for five minutes.
Ms. Scanlon. Thank you very much. Two to three weeks ago,
multiple news outlets reported that DHS had received complaints
that a 15-year-old Honduran girl, detained in Customs and
Border Patrol's short-term custody in Yuma, had been sexually
assaulted by an officer. During what was supposed to be a
routine pat-down, the officer reportedly put his hands inside
her bra, pulled down her underwear, and groped her. While
assaulting her, the CBP officer said to have spoken with other
CBP officers and laughed. And this has all happened in front of
other detained migrants and officers.
I understand that the incident is still being investigated,
but the reporting we have seen thus far is horrifying, and this
is not the first time we have heard allegations from migrants
hurt in other government facilities. In fact, in 2016, the
Berks County Family Detention Facility in Pennsylvania had such
allegations, and that is the facility that Representative Dean
and I visited just last week.
All of these incident raise serious questions about
institutional response to bad actors and what protections
should be in place to protect an extremely vulnerable
population--minors, people who may have language barriers, and
people who are in custody.
Chief Hastings, has the agent accused in the Yuma case been
identified?
Mr. Hastings. Ma'am, to my knowledge, I don't personally
even know if it is a Border Patrol agent or if it was someone
from ICE that was transporting the individual. I know that the
investigation is currently under--I believe the Office of the
Inspector General's investigating that case now. I first heard
of the case, by the way, when it went out in the media. That is
the first time I had heard of the case.
Ms. Scanlon. Okay. So Customs and Border Patrol is not
doing any independent investigation. It has just been referred
to the Office of Inspector General?
Mr. Hastings. To my knowledge, I believe the Office of
Inspector General has that case.
Ms. Scanlon. So Customs and Border Patrol is not doing
anything separately?
Mr. Hastings. Not to my knowledge, ma'am.
Ms. Scanlon. But officers--Customs and Border Patrol
officers in Yuma are under the jurisdictions of CBP. Correct?
Mr. Hastings. CBP, OPR, that is our internal mechanism that
investigates Border Patrol officers, but, I mean, I believe
right of refusal, I believe OIG gets the first crack at the
case.
Ms. Scanlon. Okay. Has CBP taken any efforts to ensure that
such incidents won't happen in the future, in any sector?
Mr. Hastings. Absolutely. As I said, we just learned about
this, but, I mean, we have posters and things that basically
say open to any complaints, provide the numbers for any
complaints that any detainees in our facilities have to call.
We take all of these allegations seriously. We will seek to--
you know, if the allegations are found to be true, then we will
take immediate action against those employees, if they are
indeed true, if those allegations are true.
Ms. Scanlon. Is there any training with respect to who
should be performing pat-downs?
Mr. Hastings. There is. There is training and policies.
Generally it is preferred to be a member of the same sex that
does those pat-downs. That is not always available, but
generally that is the guidance that is put out to the field.
Ms. Scanlon. And that includes with respect to children?
Mr. Hastings. Children as well. It is same sex, generally.
It is obviously not as--yes, it is same sex as often as we can.
There are some remote locations in the field where we have to
do quick cursory searches to make sure that the individuals
don't have weapons, and if there isn't anyone available and
then the officer, for officer's safety, needs to do that
search, will perform that search and do so, as professionally
as possible.
Ms. Scanlon. Okay. But all the reporting said that this
incident happened at the holding facilities in Yuma, so that
would not be out in the field.
Mr. Hastings. That is correct. There are times that an
opposite-sex member or a same-sex member may not be available,
and our policy does allow for cursory searches in those cases.
Ms. Scanlon. Ms. Shaw, it sounds like the ball was passed
to you, so I understand your office has announced an
investigation here. Are there ongoing efforts to plan a wider
investigation into allegations of sexual assault in CBP
facilities?
Ms. Shaw. We do have work underway looking at the law
enforcement components within Department of Homeland Security
and how they handle allegations of sexual harassment and sexual
misconduct. That work is, I believe, out of field work and we
are in the process of drafting, so we will have work product
out on that in the near future.
Ms. Lofgren. The gentlelady's time has expired, and we will
turn now to the gentlelady from Texas, Ms. Garcia.
Ms. Garcia. Thank you, Madam Chair. Before I begin my
questions I wanted to thank Representative Cline for
acknowledging that we, in fact, have been drafting bills to try
to address a lot of these issues. I really did take exception
with Ranking Member Collins making a suggestion that all we are
doing is having hearings but that there is no action, that we
believe to file bills. And I believe she said something like,
you know, ``Let's do our work. Let's file bills.''
So, Madam Chair, I wanted to remind Representative Cline
that Chairman Thompson also H.R. 3731. The bill he was
referencing from Representative Escobar is 2203. And, of
course, the DREAM Act, which we did get out of this committee
and has passed the House, is H.R. 6, the DREAM Act.
Additionally, the Congressional Hispanic Caucus has filed
numerous bills--in fact, it is two pages worth of bills
addressing many of the issues that have been raised today,
everything ranging from Representative Gallegos' bill about
site visits to detention centers, to one of mine--I have filed
several--about stopping shacking and detaining of pregnant
women. I mean, the list goes on.
So any representation that all we are doing is having
hearings and this is all for--I guess for fun--I am not quite
sure what message she was trying to get across, but it is just
simply not true. And I just want to make sure that the folks
watching and listening know that these issues are serious.
And, Commander, I recall when you were here in February,
that you said, as you mentioned to Representative Jayapal, that
you took objection and shared your concerns to the Acting
Director then, Mr. Lloyd, was it?
Mr. White. Yes. Among those two I raised those concerns.
Ms. Garcia. My note just says that you raised concerns. And
then later during the hearing, because I do take some notes,
you actually said that you just--you are against family
separation, as a child welfare professional.
Mr. White. Every career member of the ORR team was opposed
to the idea of family separation.
Ms. Garcia. So you were opposed to it then. You are still
opposed to it?
Mr. White. I am.
Ms. Garcia. Right. So are you concerned about the reports
that Ms. Shaw has detailed, about the conditions that her team
saw firsthand, as many of us have seen as we have visited
centers?
Mr. White. My focus remains on ORR's and HHS's child
welfare mission. Border stations are a matter that my
colleagues from Border Patrol could speak to.
Ms. Garcia. But as a child care professional, are you
concerned about some of the conditions that some of the
children are being placed in prior to coming to ORR?
Mr. White. It is because Border Patrol facilities are for
short-term holding that it is so important that all children
move in the 72-hour time frame into ORR. ORR shelters are
appropriate settings for children.
Ms. Garcia. Well, I was trying to get you, as a child care
professional, give me an opinion on the holding facilities, but
I will move on.
You know, former First Lady Laura Bush actually said, in an
op-ed piece, in the Washington Post back in June of 2018, when
this first started, that they were eerily reminiscent of
internment camps. On the other side we had Laura Ingraham say
that they were essentially summer camps. And recently a group
of evangelical ministers who visited one of the sites in Texas
said they were summer camps.
Let me ask each of you just yes or no, quickly, if you have
a child, or if you don't have children and you have a little
niece or nephew, is this a summer camp that you would go and
place your children in today?
Mr. Edlow, I will start with you. Just yes or no. I don't
need an explanation.
Mr. Edlow. I can't give you a yes or no. I can say if the
choice is between being in the desert or being in a secure
facility, a protected facility----
Ms. Garcia. Well, that is not the question. The question is
would you place your child, niece, or nephew in those
facilities today? If it is a summer camp----
Mr. Edlow. What I am saying is if the choice is between
being out in the----
Ms. Garcia. That is not the question, sir. You are a
lawyer. I am a lawyer. Answer the question.
Mr. Edlow. I can't give a yes or no.
Ms. Garcia. All right. Ms. Shaw.
Ms. Shaw. These are detention facilities and I would not
want my children in detention facilities.
Ms. Garcia. Commander White.
Mr. White. Short-term holding facilities are no appropriate
places for children.
Ms. Garcia. So the answer is no?
Mr. White. Correct.
Ms. Garcia. Director Hayes.
Mr. Hayes. I too would not want my children in a detention
facility, ma'am.
Ms. Lofgren. The gentlelady's time has expired. The chief
will be allowed to answer.
Ms. Garcia. I just have one more.
Mr. Hastings. Ma'am, I would just clarify, I think that was
an FRC that the article was about. But regardless, we don't
want children in our facilities longer than 72 hours.
Ms. Garcia. But would you put your child there?
Mr. Hastings. To me it is not a yes-or-no question. I
wouldn't put my child in that circumstance of crossing
illegally.
Ms. Garcia. You just refuse to answer.
Mr. Hastings. Ma'am, it is not a yes or no answer to me.
Ms. Lofgren. The gentlelady's time has expired.
The gentleman from Colorado is recognized, Mr. Neguse, for
five minutes.
Mr. Neguse. Thank you, Madam Chairwoman, for holding this
important hearing and for your leadership in this regard and on
so many issues, with respect to immigration policy here in our
country.
I just--I want to--I was not planning on this, but I have
to follow up on the exchange from my colleague, the
distinguished lady from Texas, because, Mr. Edlow, I am
dumbfounded of how you could not answer that question with a
simple no. Of course you do not want your children to be kept
in this type of detention. And the fact that all of your
colleagues are willing to say that and that you are unwilling
to do so is confusing to me. But in any event we will proceed
with my questions.
Chief Hastings, my understanding is that you testified in
front of the Senate a few months ago, I believe, and my
understanding from your testimony is there was some exchange
about supplies at these facilities, at the border facilities.
You might recall that?
Mr. Hastings. Yes, sir, that is correct.
Mr. Neguse. And my sense from reviewing your testimony is
that it was your position that the facilities have soap and
toothbrushes and some of the other items that they are required
to have, and you described that to the Senate. Do you recall
that?
Mr. Hastings. That is correct.
Mr. Neguse. And I assume you would agree with me that those
items--soap, toothbrushes, that those are central, that they
are key to making sure that the facilities have safe and
sanitary conditions, to the extent that the children, or
adults, for that matter, are being detained. Is that safe to
say?
Mr. Hastings. It is.
Mr. Neguse. All right. Thank you.
Mr. Edlow, do you agree with Chief Hastings?
Mr. Edlow. I am sorry. Can you repeat the question?
Mr. Neguse. The question is do you agree with Chief
Hastings? Chief Hastings just testified that he believes soap
and toothbrushes are central to providing safe and sanitary
conditions for those who are detained.
Mr. Edlow. Congressman, I believe you are referring to
the----
Mr. Neguse. I am not referring to anything. I am asking you
a question. I don't know if you--Chief Hastings just testified
to a very simple question about whether soap is considered
central to providing safe and sanitary conditions.
Mr. Edlow. I understand that. Congressman, I believe we are
getting very close to matters that are under active litigation.
Mr. Neguse. Being very close----
Mr. Edlow. I would not be able to comment on those matters.
Mr. Neguse. I want to reclaim my time. Being very close to
matters in litigation is not--I am not asking you about a
pending litigation matter. I am asking you whether or not you
agree with Chief Hastings that soap and toothbrushes are
considered central to providing a safe and sanitary condition
for those in the custody of CBP. It is a pretty simple yes or
no, and the Chief is willing to say yes. I would hope you would
be willing to say yes, as well.
Mr. Edlow. Of course, toothbrushes and soap are important
sanitary provisions\5\ to be issued to anyone in the custody of
the government. That said, but----
---------------------------------------------------------------------------
\5\ Mr. Edlow requested this be charged to ``items''.
---------------------------------------------------------------------------
Mr. Neguse. I appreciate you saying that.
Mr. Edlow [continuing]. In terms of what you are getting at
with the comments made, I would just ask the entire committee
to review the entire record of the arguments made before the
Ninth Circuit, and as I said, I can't comment on anything
further about the substance of the arguments made at the Ninth
Circuit.
Mr. Neguse. Well, look. I have reviewed those arguments.
Obviously they are a matter of public record, so members of the
public and citizens can review them for themselves. I believe
that many in the country were shocked by the arguments that
were made in front of the Ninth Circuit, in the case that you
are describing, in the Flores v. Sessions case.
But suffice it to say, I think you have perhaps clarified
the record today in saying that those are items that are
central to providing safe and sanitary conditions for those who
are detained in the custody of CBP. And given that, I would
hope that the Department of Justice, which is the department
that you work for, would reconsider its position, the position
that it has taken in that litigation, because I don't know how
you can reconcile the statement you just made with the position
that the department has taken in that case, and I suspect in
many other cases.
I would just close--I was not here for the exchange but I
want to make sure we have a chance to cover this, because one
of my colleagues had mentioned it. You stated earlier, Mr.
Edlow, that the zero tolerance policy is still, quote ``an
active memo.'' Is that correct?
Mr. Edlow. That is correct.
Mr. Neguse. Okay.
Mr. Edlow. It has not been rescinded, I should say.
Mr. Neguse. Okay. Courts, my understanding, put a stop to
that policy last year, through a preliminary injunction, which
cites both the Flores settlement agreement and Trafficking
Victims' Protection Reauthorization Act. So why hasn't that
policy been withdrawn? Why hasn't it been rescinded?
Mr. Edlow. Congressman, I think we are conflating issues
here. The zero tolerance policy that I am referring to under
the April 6th memo, states that the U.S. Attorney's Offices
along the southern border will accept for prosecution, to the
extent practicable, and in consultation with DHS, all cases
that are referred for prosecution, for improper entry. The
decision about who to refer is a decision that is made from our
law enforcement partners, so in this case from Border Patrol,
from Customs and Border Protection.
So the memo that we are referring to here is still in
effect, that cases that are referred are being--and they are
being accepted provided they are amenable to prosecution. That
is completely, wholly, separate and apart from any--who is
being referred.
Now certainly the Federal Government is complying with the
injunction, Ms. L., as you reference, as well as with the
President's Executive Order of June 20th. My understanding, and
I would defer to the Department of Homeland Security, but my
understanding is that parents that are entering with children
are not being referred under this memo, but the memo itself is
still being--it is still being followed.
Ms. Lofgren. The gentleman's time has expired.
The gentlelady from Georgia is recognized for five minutes.
Mrs. McBath. Thank you, Madam Chair, and thank you to each
of you for coming here to testify before us. As a mother, I
have to say it just truly breaks my heart to hear the stories
that my colleagues and I continue to hear, and the idea that
separations appear to be going on is just unconscionable.
The American Academy of Pediatrics said, in a statement,
that separating children from their parents contradicts that
the Academy stands for as pediatricians. They noted that
immigrant children seeking safe haven in the United States
should never be placed in detention facilities. Studies of
detained immigrants have shown that children and parents may
suffer negative physical and emotional symptoms from detention,
including anxiety, depression, and post-traumatic stress
disorder. Conditions in United States detention facilities,
which include forcing children to sleep on cement floors, open
toilets, constant light exposure, insufficient food and water,
no bathing facilities, and extremely cold temperatures are
traumatizing for children. No child should ever have to endure
these conditions.
The American Medical Association sent you a letter urging
the Trump administration to promptly end the practice of
separating children from their families at the southern border,
citing emotional and physical distress associated with this
policy. The zero tolerance policy has and continues to fracture
families at our border as punishment for seeking refuge in the
United States.
Chief Hastings, if you will answer my questions please, in
just a yes or a no. Are you aware of the research on trauma
caused by parental separation?
Mr. Hastings. I have not read those reports. No, ma'am.
Mrs. McBath. Are you aware of the effects of trauma on
child development?
Mr. Hastings. Again, I have not read those reports.
Mrs. McBath. Are you aware of the comments by the American
Academy of Pediatrics?
Mr. Hastings. I have not read the reports, ma'am.
Mrs. McBath. Did you read the letter from the American
Medical Association calling for an end to family separation
because of the emotional and physical stress it causes to
parents and children?
Mr. Hastings. I have not read the letter. I haven't seen
it.
Mrs. McBath. Did you make any changes in CBP policy at all?
Apparently not, because you have not read the report. Correct?
Mr. Hastings. I haven't read the reports but we have
outlined how the policy was changed after the Executive Order
was put out. I have provided that, when we separate children
now, from here on out, our guidance.
Mrs. McBath. Okay. Does this committee have that guidance?
Mr. Hastings. They do. Yes, ma'am.
Mrs. McBath. Okay. Thank you. So to your understanding,
have any changes really been made to training of CBP agents and
officers with this new guidance?
Mr. Hastings. We have provided the specific guidance, which
you have, as I said, and basically it is what we were doing
prior to the zero tolerance initiative.
Mrs. McBath. Did you implement a system that would like
each child to the parent or family member that you tore them
away from?
Mr. Hastings. We document the familial relationship with
tear sheet that is provided, as well as in the A file, or the
file for the individual, yes.
Mrs. McBath. And I am going to ask Inspector General Shaw--
my time is short--is DHS providing trauma-informed mental
health services to children and parents who have been separated
or those who are detained in locked facilities?
Ms. Shaw. I am sorry. I don't have details on that at this
point. It is an issue. Access to medical care is an issue that
we are looking at as part of the broader review of our
unannounced inspections. But we, within DHS OIG, don't have the
subject matter expertise at this point to evaluate the quality
of that care, but we are looking at access to care and will be
able to put some reporting out, hopefully in the fall.
Mrs. McBath. So when you do conclude your reporting you
will make that available to this committee. Correct?
Ms. Shaw. We will, and it will be published for the public,
as well.
Mrs. McBath. Okay. Thank you.
I just have to say this in closing. We have absolutely got
to end the physical and mental harm faced by our children at
the border. These policies are harming innocent children and it
simply has to stop. And I yield back the balance of my time.
Ms. Lofgren. The gentlelady yields back.
We have been called for votes, but I think we can go to one
more individual for questions, and that would be Mr. Stanton
from Arizona, who is recognized for five minutes.
Mr. Stanton. Thank you. Securing the border and treating
children humanely are not competing values, and this
administration's family separation practice deeply concerns me.
I am a father with two children, 9 and 12, and the stories that
I have heard, situations that I have witnessed, they tug at the
heart. And I am trying to best understand how this
administration and the agencies who carry out this practice
believe it is acceptable.
Just last week I visited an Office of Refugee Resettlement
shelter in Phoenix that was specifically for children under the
age of 5, a tender-aged children. And let me be explicitly
clear--this was not a shelter for teenage moms and their
babies. It was a shelter specifically designed for babies and
young children who had been separated.
When I walked into the nursery I saw babies as young as 10
months old, held in government custody, cradled by adults
unknown to them. ORR staff informed me that each child had been
separated from their families and that several had been
separated from their parents. I want to use my time today to
follow up on what I saw and what I heard.
Director Hayes, how many ORR-funded shelters are in our
country specifically for tender-aged children, 5 years old and
under?
Mr. Hayes. I don't have that exact number, sir, but I would
be happy to get back to you. I know we have almost 170 shelters
and facilities across the whole nation.
Mr. Stanton. I appreciate that.
Mr. Hayes. Yes, sir.
Mr. Stanton. The facility I visited in Phoenix started to
take in children from the border just five weeks ago, and ORR
staff informed me that there are plans to contract with a
second facility for tender-aged children in the near future.
Director Hayes, yesterday you testified before the
Appropriations Subcommittee that HHS plans to double its
permanent bed capacity to 20,000 by December 31, 2020. Who
projected this increase and what is the basis for the
projection?
Mr. Hayes. So, thank you for the question, Congressman. I
would say that that is a number that we have used in reference
to being up to 20,000. It is not quite doubled. We have about
12,000 permanent licensed beds in our shelter. As I said
earlier in my testimony today, it is the commitment of myself
and Assistant Secretary Lynn Johnson at the Administration for
Children and Families, along with Secretary Azar, that we have
plenty of permanent, state-licensed facilities in partnership
with the states and the communities that you represent, in
order to provide care for these children that are referred to
us.
Mr. Stanton. Of the 20,000 that you mentioned, how many are
tender-aged children? How many tender-aged children do you
estimate, or will receive between now and December 31, 2020?
Mr. Hayes. I don't have an estimation on that, sir.
Mr. Stanton. Director Hayes, on July 3rd, an HHS
spokesperson said that the Trump administration was evaluating
vacant properties that would serve as a permanent housing
facility for unaccompanied children, looking at Phoenix,
Dallas, Atlanta, Houston, or San Antonio area. Since the
announcement, my staff has learned that Atlanta is no longer
under consideration. Is Phoenix still under consideration for
such a facility?
Mr. Hayes. Yes, sir, and to be specific, Congressman, those
facilities are what we would consider at the sub-prospectus
level in partnership with GSA, trying to identify both smaller
and medium-sized shelters that we can get licensed in the
respective state.
Mr. Stanton. Okay. I will be following up. I am short on
time but I will be follow up with a lot more specifics about
the decision-making----
Mr. Hayes. Absolutely.
Mr. Stanton [continuing]. On where that facility will be
located.
Mr. Hayes. Arizona is a fabulous partner with ORR in the
care of these children.
Mr. Stanton. Several children arrived sick at the ORR
facility I visited. Staff said they don't believe DHS is
supposed to transfer sick children to their custody, but their
experience is that DHS employees give children Tylenol to
merely mask the symptoms and still transfer over the sick
children to them. Those are their words, not mine.
Chief Hastings, why are so many children sick when they
leave DHS custody and are placed into ORR facilities?
Mr. Hastings. So sir, we have received an incredible
amount, as I mentioned earlier, 66,400 UACs so far this year.
We have done the best we can. I gave the numbers of how we have
increased our medical capabilities across the border, and we do
the best we can to get individuals who are sick basically out
of our care and into secondary health care facilities whenever
possible.
So we are doing the best we can with the resources that we
have, and we are not, to my knowledge, turning over sick kids.
Mr. Stanton. The youngest baby I saw was 10 months old--10
months of age. Chief Hastings, what specific training do Border
Patrol agents receive for separating a baby who might still be
breastfeeding?
Mr. Hastings. Sir, I don't know what the specific event is
about. I would want some more details. But, I mean, again, the
thing that we want to do--and you have heard the rest of the
board give testimony as well--is get them out of Border Patrol
custody, into the proper HHS facilities to deal with this
incident. But I don't know any of the details.
Mr. Stanton. Breastfeeding wasn't specific to one child. It
involves all children of that age. And so I will follow up and
ask more in writing and hopefully get answers from you about
what training you are giving to Border Patrol agents as it
relates to separating children who maybe still breastfeeding
with their mothers.
I yield back.
Ms. Lofgren. The gentleman yields back.
I note that although we have five minutes remaining, only
50 people have voted so far, so we will ask the gentlelady
from--who is next?--from Pennsylvania--all right.
Then we will go to the floor for votes and we will recess.
We will reconvene promptly after votes. But since there is a
15-minute vote and two 5-minute votes, probably we won't get
back until 1:40. So you can go downstairs, get a cup of coffee
or a snack, and we will see you right after votes.
Thank you. We are in recess.
[Recessed.]
Ms. Lofgren. We are checking to see if our friends on the
other side of the aisle are back yet. But because we have a
very tight schedule and the next person to ask a question is a
member on our side of the aisle, I am going to turn to the
gentlelady from Florida, Ms.--oh, she has yielded her time.
Ms. Jackson Lee. Not her time, but her place.
Ms. Lofgren. Not her time, but her place in line to the
gentlelady from Texas, Ms. Jackson Lee, who will be recognized
for 5 minutes.
Ms. Jackson Lee. I am most grateful, first of all, to my
colleague from Florida who yielded--because I know her
passion--not her time, but her place in line. And I thank the
chairwoman for her leadership, and I want the members of the
witness panel to realize this is a bipartisan hearing of
Judiciary. And I have eternal optimism, and I believe that we
will find a resolution to getting it right.
And the only thing that I ask, I am a lifer on the Homeland
Security Committee. That means that I have been on the
committee since 9/11, and I have engaged with CBP, Border
Patrol, for all of those years, and I have been to the border
in any number of presidential leadership, which includes
President Clinton, President George W. Bush, and of course,
President Obama.
I have seen the surges. I have seen the increases in the
numbers of children. I have seen unaccompanied children. My
colleague from California and myself, I think, Congresswoman,
if you remember, late at night we were at a bus, as we were
seeing the numbers of unaccompanied children come down. I think
it was about 2014 or so.
And it was even earlier than that, and I believe that we
began with her leadership to write the structure for HHS that
was not in place before. We were hoping to do a good thing. So
let me--and it was. But let me go to you, Director Hayes, and
ask you what is the census that you now have of unaccompanied
children that are basically detained in these facilities by way
of--having them sent to you by way of ICE?
Mr. Hayes. So I don't have the specific number sent to us
from ICE, but I can tell you as of this morning, we have 9,984
children in our care at the shelters of HHS, ma'am.
Ms. Jackson Lee. And do you know how many of those children
have been there over 100 days?
Mr. Hayes. I don't have that exact number, ma'am, but I
will be happy to get that back to you. I will note that we have
approximately 3,200 Category 4 children in our care right now,
which means there are no----
Ms. Jackson Lee. I am sorry?
Mr. Hayes. Category--approximately 3,200 as of last Friday
that are Category 4, which means there is no identifiable
sponsor at this time in the United States. But we will get you
the answer on the 100-plus days as well, ma'am.
Ms. Jackson Lee. And do you know how many of those are in
the recent--say, January 2019, are they recently, recently
unaccompanied? Have you brought together all of the family
members of unaccompanied children?
Mr. Hayes. Since--since----
Ms. Jackson Lee. Since January 2019.
Mr. Hayes. I would say, no, that we have not. Again----
Ms. Jackson Lee. All right. So I would want a report on
that. Let me go to this because I don't have time. This past
Saturday, I went to the Casa Sunzal Southwest Key's program
that has suffered enormous protests in my district. And we went
with just myself and one staff with permission after being told
for 2 weeks that you had to have a process. I take issue with
that process, and I want to have a written document on what the
process is for Members to visit.
In the course of it, we saw a young man, and when we went
in, we asked the young people how many wanted to speak to us.
But we had a general conversation of, you know, we are
supporting you, we wish you well, et cetera. We have a
gentleman, Seli, 4 months in detention. We have another one 3
months in detention.
And at the same time, we had two staff persons--Dino
Federico, Jose Gonzalez--who were blocking--of your HHS, who
were blocking a Member of Congress from talking to young
people, not talking about legal matters, but talking about what
their issues were and to say how long they have been there.
What is your policy for disrespectful staff that was blocking
the regular staff, the staff of the detention center, from
engaging in positive conversation to help us move this process
along?
Mr. Hayes. Well, I will just say first off, Congresswoman,
I would not want to hear of any of my staff being
disrespectful. I am aware of your visit over the weekend, and I
believe that my team would classify what happened at the
shelter in a slightly different way than you would, ma'am, with
all due respect.
In regards to Members of Congress interacting with the
children, we have never stopped that. I have escorted several
Members of Congress and allowed them to interact with the
children. But sitting down and having personal, you know,
conversations with these children, we do not allow that.
Ms. Jackson Lee. Well, I want a full report. I hear you
gaveling, Mr. Chairman, but this is very important. I want a
full report. I want a meeting, and I want you to hear the truth
because your employees were atrocious, and I am saying it on
the record.
So whatever they might have characterized, I was interested
in helping the children. You have 9,000 children there?
Mr. Hayes. No, ma'am.
Ms. Jackson Lee. Excuse me. You have 9,000 children in the
system.
Mr. Hayes. Yes, ma'am.
Ms. Jackson Lee. You have little Roger that was taken away
at 9 months old. You have children that you cannot identify any
relative that was taken away under this administration. And as
well, you have children that you cannot find one person to
associate. You are backlogged, and you have children there that
are longer there than 100 days. You are backlogged.
So you need to look into your own glass house, and I expect
to have you in my office to hear what processes you have in
place, and so you can hear, rather than a written document, of
individuals who were inappropriate because the staff people
there finally, my final words, were perfectly okay. There was
nothing untoward going on, including taking pictures with me.
So your staff were out of order. And whatever they might
have reported to you, you need to be in my office so we can
understand each other.
I yield back, Mr. Chairman.
Chairman Nadler. The gentlelady yields back. The gentlelady
from Florida is recognized.
Ms. Mucarsel-Powell. Thank you, Mr. Chairman.
Mr. Hayes, this is not the first time we meet.
Mr. Hayes. No, ma'am. Good to see you again.
Ms. Mucarsel-Powell. Good to see you. I want to talk to you
about Homestead.
Mr. Hayes. Yes, ma'am.
Ms. Mucarsel-Powell. And the first quick point that I just
want to ask you, it has been brought to my attention that the
City of Homestead has sent multiple requests to your office
particularly talking about the name of the facility, and they
haven't received any responses.
You can imagine what it is doing to this thriving community
that I represent, that I am very proud to represent. Are you
willing to please make a quick response to the City of
Homestead officials?
Mr. Hayes. Yes, ma'am. I will respond back to the mayor.
Ms. Mucarsel-Powell. Thank you.
So on May 29th, you gave me a tour of the Homestead
detention facility, and you told me that you did not at that
time have a hurricane plan. I have been continuously asking for
a hurricane plan, and just 24 hours ago, right before the
hearing, I was finally able to receive the hurricane plan. So I
am grateful for that.
Mr. Hayes. Yes, ma'am. And if I may, I believe we are going
to be briefing you in person with my emergency management team
in a couple of weeks down in your district.
Ms. Mucarsel-Powell. I am going to be down on Saturday.
Mr. Hayes. Okay.
Ms. Mucarsel-Powell. So maybe someone can do that on
Saturday.
A month ago, you also told me the last time that I visited
that there were over 2,700 kids at the facility. But according
to your office, now nearly 1,400 kids have been moved out of
Homestead just in the past 2 weeks. So I have a lot of
questions.
Mr. Hayes. Yes, ma'am.
Ms. Mucarsel-Powell. And I don't know if you were able to
see my letter that I sent to you on July 5th with over 50
questions to your office, which I have yet to receive a
response from your office on that. And----
Mr. Hayes. We have seen it, ma'am, and we are working on
those responses.
Ms. Mucarsel-Powell. Yes, it has been over 3 weeks. And Mr.
Chairman, I would like to ask for unanimous consent to
introduce this letter for the record.
Chairman Nadler. Without objection.
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Ms. Mucarsel-Powell. So when I toured the facility, I met
several kids there that had been separated from their families
at the border. So the family separation policy that you say
that is not happening anymore continues to happen. I know that
for a fact because I spoke with some of the children.
So my first question to you, Mr. Hayes. How were you able
to move 1,400 kids in 2 weeks?
Mr. Hayes. I think that is a great question, ma'am. We did
it in two ways. Number one, the capacity at----I just want to
clear one thing. The capacity at Homestead was never above
2,700. That was the max capacity we are able to take there, and
we didn't quite get there.
In regards to the number of children that we moved, that we
did two things. I would specifically point to the fourth
operational directive that I--that we have spoken about and you
are aware of where, at this time, a recommendation put forward
to me by the team, the field team at ORR, and then further
considered input forwarded by the senior career staff of the
Office of Refugee Resettlement, where we are at this time
treating grandparents and adult siblings the same way we would
in our background check process, as moms and dads----
Ms. Mucarsel-Powell. So let me interrupt you there. So----
Mr. Hayes. If I may finish, please, ma'am? And also the
numbers have significantly dropped in referrals coming into--
into us as well.
Ms. Mucarsel-Powell. That is not the story that I heard
last time. That you were getting more referrals is what I heard
about a month ago, that you were expecting 500 more kids to go
to Homestead. So let me just ask you, how many of those kids
were moved with family members? Out of the 1,400 kids, how many
of them are with family members?
Mr. Hayes. So the overwhelming majority of them are, ma'am.
The number I know when we were down there last week with a
CODEL, it was about 900 that we had moved. And about 80 to 90
of them had been transferred to other licensed permanent
shelters because they were long-stayers or what we refer to as
Category 4.
Ms. Mucarsel-Powell. So can I get a list of that? I would
like to----
Mr. Hayes. Sure. We can break that down by category, and we
will go ahead and update it with the number 1,400, ma'am.
Ms. Mucarsel-Powell. So why are you still holding close to
900 kids at the detention facility?
Mr. Hayes. At the Homestead influx shelter right now, we
are working to bring that census down just as quickly and
safely as we can. One of the things that we have done, again,
we have not designated any children to Homestead since July
3rd, and we have not designated any children to our other
influx shelter, Carrizo Springs, since July 17th.
I have got approximately 800 to 900 permanent beds that are
set up for teenagers as of a couple of days ago. And if I were
to move all of those children immediately into those other
permanent beds, that would put me in a situation where I would
have----
Ms. Mucarsel-Powell. I don't that much time, Director
Hayes. I want to move very quickly on a couple of points.
Mr. Hayes. Okay.
Ms. Mucarsel-Powell. The kids that are turning 18, are you
still sending them to ICE in shackles on the day of their
birthday?
Mr. Hayes. We are not sending any children to ICE. As we
have talked about numerous times, ma'am, when the child turns
18, our statutory authority over that child ends, and they
refer back to the custody of DHS.
Ms. Mucarsel-Powell. But they have been referred to ICE in
shackles. Correct?
Mr. Hayes. They are not referred to ICE. They are required
to go back to ICE because they are no longer children at that
time.
Ms. Mucarsel-Powell. In shackles on their 18th birthday?
Mr. Hayes. I would defer to my colleagues at ICE to how
they process children that age out.
Ms. Mucarsel-Powell. And very quickly, the private for-
profit company, Caliburn----
Mr. Hayes. Yes, ma'am.
Ms. Mucarsel-Powell [continuing]. Which John Kelly is the
person that--one of the architects of the family separation
policy is now on the board of Caliburn. How did they get a $340
million non-bid contract, especially when you just said that
you were running out of resources. And this was early May
before we passed the supplemental bill--$340 million no-bid
contract to Caliburn, when John Kelly, who started the family
separation policy, is on the board of this company. Explain
that to me, please.
Mr. Hayes. So my response to that would be, ma'am, that the
company, Comprehensive Health Services, and that original
contract was chosen back in December of 2015, long before Jim
Kelly was involved in the administration, and it is an
operation and a program that we have maintained into this one.
Ms. Mucarsel-Powell. How long is that contract for?
Mr. Hayes. It expires November 30th of this year, ma'am.
Ms. Mucarsel-Powell. Well, are you willing to commit today
that you are right now in the process of closing down the
detention facility that is located at Homestead?
Mr. Hayes. I will not commit that we will close it down,
but you do have my commitment that we are working at this very
moment to reduce the census down to zero just as quickly, but
as safely as we can. But again, in order to meet the child
welfare mission that we have at ORR, I want to be able to take
kids as quickly as possible from the Border Patrol stations. We
want to put them in permanent beds, but if we don't have
permanent beds----
Ms. Mucarsel-Powell. Well, look, I have spoken with so many
kids, many of them that have been there for months. And I know
that you have been now recently, because of my oversight,
reduced the length of time that the kids have been in
Homestead. Thank goodness that we have brought awareness to
this issue. If not, we would see 3,000 kids in Homestead that
are there without being reunified with family members. I know
that most of them have family members in this country.
Thank you. And I really do expect answers to my 51
questions.
Mr. Hayes. Yes, ma'am.
Chairman Nadler. The time of the gentlelady has expired.
The gentlelady from Pennsylvania.
Ms. Dean. Thank you, Mr. Chairman.
I want to clarify the record, and to follow up on what my
good colleague was just asking you about, I was at Homestead on
July the 2nd. We were in your command center, where you rather
proudly--or the folks there rather proudly showed us a screen
of the last 14 days before a child ages out of Homestead. It
was a bar chart, and it showed on the very day we were there,
one child was aging out.
And we asked what happens to that child? They said we have
been in touch with ICE the entire time. ICE will pick that
child up today.
We said it has been reported that they leave in shackles.
Is that so? The commander of that center, the private
commander, the director of the center for Caliburn said that is
so.
So I will want an answer how many children have been sent
out of Homestead over the course of this administration, over
the course of your care there, where they are being housed for
$775 a day per head, and then they get the birthday gift of
being taken out in shackles.
So I hope you will provide that exact number to this
committee.
Mr. Hayes. How many have aged out? Yes, ma'am.
Ms. Dean. How many have aged out. And as I said----
Mr. Hayes. Going back to the history of the program.
Ms. Dean [continuing]. We got clarity. They go out in
shackles. Happy 18th birthday from this administration.
I wanted to see if anybody could help me get the scope of
this problem, the numbers. How many children have been
separated since the time Donald Trump was sworn in until this
day? So pre-zero tolerance, post? What is the census? Does
anybody here have that number?
Mr. White. Ma'am, I can--I think I am best positioned to
give you the----
Ms. Dean. Thank you.
Mr. White [continuing]. State of that answer.
Ms. Dean. Thank you, Commander.
Mr. White. So to do that, you have to look at three
distinct periods of time. The first is children who were
separated by DHS, referred to ORR, and had already been
discharged to a family member or otherwise discharged before
the court order. We don't know how many of them there are. We
are in the process of finding that out.
As we have gone----
Ms. Dean. The fact there were some separated before zero
tolerance was enacted. Is that correct?
Mr. White. It is absolutely the case that there were
significant separations prior to the announcement of zero
tolerance. We in ORR observed an increase far above the
historic norm starting in July of 2017.
Ms. Dean. I hope you will forgive me. Can you give me round
numbers, just total numbers, a census? Because I do want to
talk about conditions I observed in Texas when I visited there
on the 1st of July.
Mr. White. So here is what we can tell you. During what we
call the legacy class period, we know that number, as we
reported to the court, is 2,814. We don't yet know, but we are
in the process of finding out and have a court deadline of
October 25th, to answer how many were referred after July 1,
2017, and discharged before the court's order. The number we
have--and we provide that on a rolling basis to the ACLU. As of
last night, that number was, and I think I gave it earlier, I
believe 981.
Ms. Dean. Okay.
Mr. White. Then there are the children who were separated
and referred after June 26th, and Director Hayes provided that
number earlier. So the best answer to your question is nobody
knows yet.
Ms. Dean. Nobody knows.
Mr. White. But it is what we have identified in the legacy
class, and the expansion class thus far is over 3,700 children.
Ms. Dean. Okay. Do you have an exact census on how many
children were separated by this administration, Mr. Hastings or
Chief? And then I need to move on to something else.
Mr. Hastings. Ma'am, as I said earlier----
Ms. Dean. Yes or no, do you have a number?
Mr. Hastings. I don't have an exact number.
Ms. Dean. Okay, thank you.
Let me move on. I wish I had more time because I did have
the sad privilege of visiting Texas, El Paso Border Station No.
1 and also Clint. Clint is an insanity. We saw only 25 children
there. Two and a half months earlier, that facility, which was
meant for 100 men, topped 700 children. We spotted three
showers and seven porta-potties. I wonder what it looked like
with 700 children.
But let me to go to El Paso Border Station No. 1, where I
got this, a Jiffy Pop blanket from 1 of 15 women held in a
cell. We asked when did you come into this cell? They said
today, this morning. We said how long have you been here?
Fifty-six days. Where had you been? In temporary housing, not
inside.
Fifty-six days. They were brought in because Congress was
coming in. Six Congress Members stood in their--I counted the
cinder blocks--10 cinder blocks by 13 cinder block cell, which
had a low partition and a stainless steel toilet with no seat
for 15 women.
We ran the sink. The sink did not work. The women said, oh,
yeah, we were told to drink out of the toilet. That water is
clean enough. Two of the women cried because they had been
separated from their adult daughters. Three of the women were
sick, two with epilepsy. They were weeping. They were told to
drink out of the toilet.
The Border Patrol agents were there with us. They said oh,
no, no, that is not the case. What happened to those 15 women
who were brought in only that morning? And by the way, they
were in sleeping bags inside. We said when did you get the
sleeping bags. They said 4 days ago, and the guard said, yes,
they were donated by the Forestry Service.
For 52 days, that is the comfort they had. No cots, no
sleeping bags, no personal affects. Cracked lips from exposure.
That is the way we are handling it. Is that acceptable to
you, Chief?
Mr. Hastings. Ma'am, we are doing the best. As I have
described earlier----
Ms. Dean. Is that acceptable to you?
Mr. Hastings. Ma'am, as I said earlier, we are doing the
best we can with this crisis.
Ms. Dean. Telling women to drink out of a stainless steel
toilet?
Mr. Hastings. Ma'am, there was an open--that door was
unlocked, and there was an Igloo cooler right in front of that
door full of fresh water, and they had access to that water. It
is not acceptable to tell someone to do that, and I don't----
Ms. Dean. What actions were taken following our visit?
Mr. Hastings. There are open investigations into the
incidents into Clint. There are various----
Ms. Dean. Specifically, how were these women's conditions
changed? I am not asking about the investigations. How did
these women's lives change in the custody in the detention of
the United States of America?
Mr. Hastings. I can't speak to each one of these women, but
as I said earlier, we have invested the supplemental funding
into even more space and to give better services and better
medical contracts.
Ms. Dean. Here is the problem. We also visited Clint, and
in Clint, we saw behind glass--you wouldn't let us anywhere
near them--six children, little children. We smiled at them. I
literally held up a piece of paper where I wrote, ``We heart
you. We love you.''
Do you know what Border Patrol said to me? ``What are you
doing? You don't have any right to do that.'' I showed them the
note, ``We heart you.'' I said we are just trying to
communicate that somebody on the outside cares about them. We
are Members of Congress trying to help you.
The children slipped a note under the door to us. We got
yelled at because the Border Patrol was worried we were
slipping notes. We weren't. The children slipped us a note. I
said please translate that. What does it say?
In beautiful printing, the children wrote, ``How can we
help you, Members of Congress?'' Imagine that. The children
retained their humanity as the guards on the outside because of
the pressures of this administration, the inhumanity and the
incompetence of this administration, their humanity is being
drained out while the children retain theirs. That is my worry.
Chairman Nadler. The time of the gentlelady has expired.
The gentlelady from Texas.
Ms. Escobar. Chairman, thank you so much.
And I want to first say thank you very much for having this
hearing. It was shocking to hear the ranking member lament the
fact that we are having another hearing on child separation. I
would like to bring to everyone's attention a recent article,
and I want to just read from it and then ask for unanimous
consent to enter it into the record.
``Approximately one-third of children held in shelters
operated by the Office of Refugee Resettlement, or more than
4,000 kids, have been designated Category 4, meaning they have
no identifiable sponsor in the U.S., CBS News reports. This
doesn't necessarily mean that the Government hasn't tried to
find their sponsors, usually relatives or family friends living
in the U.S., it just hasn't been able to. It also means that
these children will be held indefinitely until or unless a
sponsor comes forward.''
So I would like to ask unanimous consent----
Chairman Nadler. Without objection.
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Ms. Escobar. Chief, I asked you earlier, I brought up the
issue when I was granted extra time earlier about family
separation that happens when a grandmother is separated from a
grandchild or an aunt from a niece or nephew. So we know that
families are being separated that way.
I also want to ask you about a different type of separation
that we are seeing in El Paso, and this has been brought to our
attention by immigration lawyers, where there is a family that
arrives at the port--a father, a mother, and two children. We
are now seeing the father and one child returned to Mexico via
MPP, and the mother and another child allowed to stay in Mexico
who are not MPP'd. Why would Border Patrol separate a family
this way?
Mr. Hastings. Ma'am, I am not sure of the incident that you
are talking to, and I would say if this was a port of entry,
which it sounds like they presented at a port of entry, I
couldn't speak to that. That would be the Office of Field
Operations.
Ms. Escobar. Well, I think it is Border Patrol. So it may
not be--I may have that wrong. But it is Border Patrol, and it
is not one instance. It has actually been a number of instances
that have brought to our attention.
Are you aware of a policy that allows for that?
Mr. Hastings. That allows for separation to different
areas? I am sorry.
Ms. Escobar. Yes, and that--we have a family unit that
enters together. I don't know if it is between ports or at
ports. Don't know the entry point. Happy to get you more
information. But we have more than one case brought to our
attention by lawyers, where a father and a child is MPP'd, sent
into Ciudad Juarez to await the asylum hearing, but the mother
and the child are allowed to remain in the U.S.
Do you know of a policy that allows for such family
separation?
Mr. Hastings. I don't know of a policy, but I would want to
take a look at what you are describing to have all the details,
if possible. And I would be happy to take a look and get back
to you.
Ms. Escobar. And to the attorney on our panel, can you
think of any reason to do this?
Mr. Edlow. In terms of separation of the family, again, I
would have to defer to the Department of Homeland Security. The
Department does not have operational control over separation.
Ms. Escobar. Would there be any reason to have such a
policy in the El Paso sector, to separate families this way?
Anybody? No, I agree. There is no valid reason to separate
families in this way.
Chief, how do you all track the innumerable number of
families that are separated this way and in other ways?
Especially as Representative Lofgren mentioned earlier,
nonverbal kids, how do you track them?
Mr. Hastings. So as I said earlier, we track them
carefully. But I should explain one thing that I didn't
earlier. Every individual that is taken into our custody, this
isn't just we make the instant decision. We roll the prints. We
enter the biometrics. We check all of the systems of record
that we have.
In some cases, we have agreements with other parties
outside of the U.S. We check those systems as well. And so
before any action is taken, we do due process to make sure that
we have the records of the individuals that we have arrested, a
good understanding of what the records, what they may have
done, criminal activity or otherwise, prior to making any
decisions.
After the decision is made, there is a criminal record or
the individual----
Ms. Escobar. But I am not asking about what leads up to it,
and my time is running out. How do you track children once they
have been separated?
Mr. Hastings. So we pass the information on to ORR and work
with HHS.
Ms. Escobar. And every single child is now tracked, every
single one?
Mr. Hastings. We track them, yes.
Ms. Escobar. Okay. One final question because my time is
just about up. Has anyone ever been held accountable for
botched family separations? Anybody.
Mr. Hastings. To my knowledge, no. But I don't know of a
botched family separation.
Ms. Escobar. That is what I thought. Thank you.
Thank you, Chairman. I yield back.
Chairman Nadler. The gentlelady yields back. The gentleman
from California.
But before the gentleman from California goes, I must
stress my astonishment. You don't know of a single botched
family separation? Your press has reported hundreds of kids who
cannot be identified. Those are botched.
The gentleman from California.
Mr. Lieu. Thank you, Mr. Chair.
And to the witnesses, thank you for being here today.
I would like to start off asking about the case of Sophie,
who was a 3-year-old. She crossed the border last year with her
grandmother. They went to a legal point of entry in Texas, and
this was after the President had purportedly already ended the
family separation policy.
Her grandmother carried guardianship documents. This is
according to a PBS article. Her grandmother also had Sophie's
birth certificate and her asylum request. Nevertheless, she was
separated.
Sophie's mother was here in the U.S. legally. For days,
they had no idea where she was. Eventually, they tracked her
down in Pennsylvania. I am going to show you on a video what
happened on Day 47. So if we could play the video?
[Video playing.]
Mr. Lieu. Chief Hastings, Sophie is not a criminal or a
national security threat to the United States as a 3-year-old.
Correct?
Mr. Hastings. I don't know the background in this case,
sir.
Mr. Lieu. Do you know any 3-year-olds that are criminal or
national security threats to the United States?
Mr. Hastings. No, I don't.
Mr. Lieu. Okay. Sophie's grandmother was not a national
security or criminal threat to the United States. Correct?
Mr. Hastings. I don't know--again, I don't know the
background of what her grandmother or relatives were.
Mr. Lieu. So I want to ask your agency questions. If you
would agree, could you provide us information about this
specific case?
Mr. Hastings. We will certainly provide information if
you--I don't have the details on this case.
Mr. Lieu. All right. Thank you.
So according to the PBS article, it took 47 days to reunite
Sophie, and eventually, the mother was allowed to call Sophie
one time a week. And eventually, on the phone, the mother
noticed that Sophie started to change, that she seemed to want
to hang up quickly, and her mother was worried that Sophie had
given up on seeing her family again.
So I want to show you now a second video about what happens
with family separations. Can we play that video as well?
[Video playing.]
Mr. Lieu. Earlier at the hearing, Congresswoman Lucy McBath
talked about the American Academy of Pediatrics statement
opposing separation of children and parents at the border. She
asked Chief Hastings about it. He was not familiar with that,
nor the research. So I am going to ask Commander White about
this statement.
The AAP says that separating children from their parents
contradicts everything we stand for as pediatricians,
protecting and promoting children's health. In fact, highly
stressful experiences like family separation can cause
irreparable harm, disrupting a child's brain architecture and
affecting his or her short-term and long-term health. This type
of prolonged exposure to serious stress, known as toxic stress,
can carry lifelong consequences for children.
Are you familiar with that statement?
Mr. White. I am familiar with that statement. I agree with
it. It reflects accepted scientific fact. The images you have
shown are consistent with what we would expect to see in
children in that age group who have experienced family
separation and speak to the potential harms that separation
inflicts on children.
Mr. Lieu. Thank you very much.
I am going to ask whatever administration official has this
information if you could provide it to us. Recently, it was
reported that an 18-year-old U.S. citizen was detained by
border officials, Francisco Erwin Galicia. During the 23 days
he was in the custody of the U.S. Customs and Border Patrol, he
was not allowed to shower. He also said he lost 26 pounds
during his time in detention.
He also said he slept on the floor, sometimes with aluminum
foil blankets. Some had to sleep in the bathroom area. If we
could get information of why this U.S. citizen was detained,
that would be helpful.
Mr. Hastings. Yes, sir, and I can give you some
preliminary. The individual came through the Falfurrias
checkpoint, and upon--he came through with other illegal
aliens. The individual claimed to be a Mexican national who was
born in Reynosa, Mexico.\6\
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\6\ Mr. Hastings requested this be changed to, ``My understanding
is, the individual claimed . . .''
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Throughout the process and while he was with Border Patrol,
he claimed to be a national, a citizen of Mexico, with no
immigration documents to be in or remain in the U.S. Upon
further investigation, we also found that he had a border
crossing card, and that border crossing card he had used 53
times to cross the border into the U.S., which further--gives
us further indication that he was not a U.S. citizen. At no
time in Border Patrol custody did he say that he was a U.S.
citizen.
Mr. Lieu. Thank you. And if we could get additional
information from the agency, that would be great.
Mr. Hastings. Yes, sir.
Mr. Lieu. Appreciate it. I yield back.
Chairman Nadler. I yield to Ms. Dean for a unanimous
consent request.
Ms. Dean. I seek unanimous consent to enter upon the record
articles that were presented by Mary Gay Scanlon,
representative, my colleague from Pennsylvania, without
objection.
Chairman Nadler. Without objection.
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Chairman Nadler. And Chief Hastings, let me ask you one
question before we adjourn the hearing--oh, Mr. Swalwell?
Mr. Swalwell. Yes.
Chairman Nadler. You are recognized.
Mr. Swalwell. Thank you, Chairman.
And following up, Chief, on Mr. Lieu's questioning, isn't
it true, though, that Mr. Galicia's mother showed CBP Mr.
Galicia's birth certificate?
Mr. Hastings. To my knowledge, that was not CBP. I believe
that was ICE, and ICE made the final decision. So I wouldn't
want to say what took place after he was in ICE custody. I am
just speaking to what happened while he was in CBP, Border
Patrol custody.
Mr. Swalwell. So what is CBP doing, now that we know that
this is something that could occur, to reduce the likelihood
that CBP would detain a U.S. citizen?
Mr. Hastings. As I said before, that individual claimed
that he was a Mexican national, and we did run the proper--
through all our systems and saw that he had crossed by a border
crossing card, which gives indication that he was, indeed, a
Mexican national.
Mr. Swalwell. Thank you, Chief.
Ms. Shaw, has your office ever received information or
looked at the extent to which ICE and CBP mistakenly could
detain a U.S. citizen?
Ms. Shaw. I don't have information about specific cases,
but I do know that we have learned anecdotally that it has
happened. I don't believe that we have prior work in this area,
and I can confirm we don't currently have ongoing work.
Mr. Swalwell. Chief Hastings, I want to go back to
something Mr. Johnson talked to you about earlier, which is the
Facebook group. And first, I want to say, you know, I am the
son of a police officer. I worked as a prosecutor. My brothers
today work in Alameda County as police officers, and I have
great respect for the sworn men and women at CBP.
But I have also been troubled by what I have seen at the
border, at detention facilities, a lack of access that Members
of Congress have been given when we have tried to present at
facilities. But I was really troubled by the Facebook group,
just because I think it undermines the good work that the
overwhelming majority of CBP officers are trying to do on a
day-to-day basis.
Just as many times you see people in the immigration
debate, they will take the crimes that immigrants commit, and
they will try and project that on the whole immigrant community
and say that every immigrant is going to commit a crime. We
know that is certainly not the case.
But when a Facebook group like this exists, it makes it
really hard for us to have confidence that CBP officials are
able to carry out their duties with fairness and with
compassion for the people that they are charged with taking
care of and keeping in custody.
So when do you expect a review to be completed, to follow
up on Mr. Johnson's question.
Mr. Hastings. So as I said, we have taken quick action with
the cease and desist letters, quick action with the
administrative duties that we have prescribed in the most
egregious cases. And we have also, as I said, OPR and OIG are
leading the charge on finishing, completing those
investigations quickly, and we anticipate they will be done
quickly.
Mr. Swalwell. And Chief, I believe that there is so many
additional--first, I just want to back up and say it is my
belief that families should not be separated, that there are
families in the United States who are related to many of these
individuals and that is the best place for them to go. But
while this administration's policy is in place, I recognize
that it is straining the resources you have, and I have met
with your officials. I have been on tours with them.
Do you believe that in addition to making sure that there
are beds and food and shelter for the people that you are
detaining, that your own officers may need trauma counseling or
additional resources for trauma counseling to prevent what we
are seeing on these Facebook pages?
Mr. Hastings. We do offer employee assistance. It is
completely voluntary. It is completely available to all agents
without management knowing, and that is one of the many things
we offer to our agents.
Mr. Swalwell. Have you seen an increase, though, in those
taking you up on those services over the last few years as the
number of people in CBP custody has increased?
Mr. Hastings. The EAP services I spoke to are confidential.
So I don't see the reports of how many agents are taking
advantage of that--that program.
Mr. Swalwell. And again, I believe that this is almost
primarily a mess of the President's making. We expect, though,
that CBP officials would conduct themselves, you know,
professionally and with compassion. But I can just imagine with
the conditions that I have seen, not only the toll it is taking
on the immigrants who are being detained, the children who are
being separated, but also the CBP officers who live and see
this every day.
And I would hope that we can find a way, Mr. Chairman, to
see if there has been an increase in those seeking counseling
because, again, everyone involved in this mess this President
has made I think is going to have to live with the long-term
effects.
And I would yield back.
Chairman Nadler. The gentleman yields back. The gentlelady
from Pennsylvania--from Texas.
Ms. Garcia. Mr. Chairman, I just wanted to submit for the
record, ask unanimous consent that three articles related to
first one about a 16-year-old child's death, another one about
the conditions that demonstrate that the conditions were not in
the best interests of the children, and also one on ICE opening
three new detention centers, all for the record.
Chairman Nadler. Without objection.
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Ms. Garcia. Thank you.
Chairman Nadler. This concludes today's hearing. We thank
all of our witnesses for participating.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
And with that, without objection, the hearing is adjourned.
[Whereupon, at 2:49 p.m., the committee was adjourned.]
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