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Hearing Summary
From: Squire Patton Boggs (US) LLP

Date: August 1, 2019

Subject: Senate Homeland Security & Governmental Affairs Committee - Unprecedented

Migration at the U.S. Southern Border: What Is Required to Improve Conditions?
______________________________________________________________________________

On Tuesday, July 30, 2019, the Senate Homeland Security & Governmental Affairs Committee held
a hearing titled “Unprecedented Migration at the U.S. Southern Border: What Is Required to
Improve Conditions?” This hearing served as an opportunity for the committee to discuss the
ongoing issues within Customs and Border Protection (CBP), as well as to determine where
priorities lie in addressing these issues.

The following witnesses testified during the hearing:

 Mr. Mark Morgan, Acting Commissioner, U.S. Customs and Border Protection, U.S.
Department of Homeland Security
 Ms. Jennifer L. Costello, Deputy Inspector General, U.S. Department of Homeland Security

The following Members participated in the hearing:

Democrats: Ranking Member Gary Peters (D-MI), Sen. Thomas Carper (D-DE), Sen.
Maggie Wood Hassan (D-NH), Sen. Kyrsten Sinema (D-AZ), Sen. Jacky Rosen (D-NV)

Republicans: Chairman Ron Johnson (R-WI), Sen. James Lankford (R-OK)

I. Member Opening Statements

Chairman Ron Johnson (R-WI) stated that conditions at the southern border are unacceptable.
He expressed concern that the situation is hugely unprecedented, and that border patrol agents are
handling about 4,600 apprehensions each day. Chairman Johnson emphasized the need to address
the root cause of the flow of migrants arriving at the southern border. He also noted that the
Department of Homeland Security (DHS) has been working to design a pilot program, Operation
Safe Return, which would more rapidly and accurately determine individuals who do not have legal
claim to be in the U.S., and safely return them to their home countries.

Ranking Member Gary Peters (D-MI) briefly shared his experience when he visited the U.S.-
Mexican border in May 2019, and acknowledged that DHS personnel and infrastructure are

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completely overwhelmed. Ranking Member Peters expressed his appreciation for the law
enforcement officers, employees, and volunteers working at the facilities at the border, but stated
that it is impossible to ignore the reports and pictures which have emerged, revealing substandard
conditions. He closed by informing the witnesses that he hoped to hear specifics about how the
supplemental funding is being used at the border.

II. Witness Opening Statements

Mr. Mark Morgan explained that CBP professionals have been working tirelessly to save lives and
handle the humanitarian crisis at the border. He stated that the demonizing of law enforcement
professionals must stop, and that efforts should be focused on attacking the real enemies: cartels and
smugglers who are making billions of dollars at the expense of vulnerable populations. Mr. Morgan
added that he met with the Ministers of Security from the Northern Triangle countries last week,
who all expressed their collective frustration that the future of their countries is leaving for America,
and that they “want their children back.” He stressed that although the recent supplemental funding
helped, it only treated symptoms of the crisis, and did not address any of the root causes. Mr.
Morgan concluded by informing the committee that human smugglers openly advertise that if
migrants arrive to the U.S. with a child, they will not be deported, and that the laws in the U.S.
support this narrative. He stressed that a significant change to laws is necessary in order to combat
this perception.

Ms. Jennifer Costello opened by explaining that her testimony would focus on two recent
management alerts regarding the dangerous overcrowding and prolonged detention observed by
Office of the Inspector General (OIG) inspectors at the El Paso processing center in May 2019 and
Rio Grande facilities in June 2019. Ms. Costello informed the committee that the conditions
inspectors observed posed a serious and imminent threat to both the health and safety of DHS
personnel and detainees. These standards govern CBP’s interactions with detainees. Ms. Costello
noted that several facilities were not in compliance with TEDS standards. Ms. Costello added that at
all border patrol facilities visited in the Rio Grande valley, inspectors observed serious overcrowding
among unaccompanied alien children (UACs). She also stated that inspectors found that individuals,
including children, were being detained well beyond the 72 hours permitted under TEDS standards
and the Flores Agreement. Ms. Costello offered the example of the centralized processing center in
McAllen, TX, which had many children who had been in custody longer than a week, some even
longer than two weeks. She reviewed additional violations of guidelines, such as lack of access to hot
meals at some facilities, children lacking access to showers and laundry, and adults with infectious
diseases being forced to remain with the general population of detainees. Ms. Costello noted despite
these challenges, OIG inspectors observed CBP staff interacting with detainees in respectful and
professional manners, and acknowledged that these facilities are generally attempting to comply with
standards to the best of their ability. Ms. Costello concluded by stating that the DHS OIG will
continue to monitor the situation on the border, but that in the meantime DHS leadership must
develop a comprehensive strategy which will allow it to maintain the safety of those in its care.

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III. Discussion

a. Overcrowding

Sen. Rob Portman (R-OH) shared his experience visiting a processing facility in Texas. He stated
that Congress must change the laws in order for CBP to be able to detain individuals long enough to
accurately assess their situations. He asked how many migrants actually appear for their final
immigration hearing which notifies them whether or not they are able to stay in the U.S. Mr.
Morgan responded that about half of migrants show up to these hearings. Sen. Portman also
encouraged his colleagues to examine the asylum system more closely, expressing support for the
concept of having people apply for asylum in their home country or a third country. He added that
the U.S. must provide more effective aid to the Northern Triangles, as well.

Chairman Ron Johnson (R-WI) asked about the capacity of CBP facilities. Mr. Morgan
responded that their hard-sided facilities have a capacity of about 4,000 detainees. He noted that
when OIG was conducting their oversight investigations in May 2019, CBP had reached their
highest level of apprehensions, hitting 19,000 detainees. Chairman Johnson asked if CBP has lower
numbers of UACs at this point. Mr. Morgan replied that in May 2019, CBP had approximately
2,700 UACs, but are now down to about 250 to 300. Chairman Johnson clarified that CBP was
backlogged because there had not been bed space available at HHS for these children. Mr. Morgan
stated that this was correct.

b. Processes and Programs

Sen. Thomas Carper (D-DE) asked if asylum seekers can currently seek asylum protection or
status in the U.S. without leaving their home countries. Mr. Morgan responded no. Sen. Carper
asked if he would support the creation of an in-country asylum processing system to allow asylum
seekers to avoid making the dangerous journey to the southern border. Mr. Morgan replied that he
would, because it would help address the root cause of the migrant crisis. Sen. Carper then asked if
it is reasonable that ICE could detain every undocumented individual in the U.S. through their
traditional removal proceedings. He continued to ask if there are other programs, such as
alternatives to detention, which are less costly and could be used. Mr. Morgan answered that it
would not be reasonable to think that every undocumented individual could be detained, but
emphasized that ICE needs more funding to do its job. He agreed that DHS should look at
additional options, but that statistics show that detainment is the most effective method.

Ranking Member Gary Peters (D-MI) asked how CBP coordinates with other DHS components,
such as ICE and U.S. Citizenship and Immigration Services (USCIS), as well as with HHS and the
Office of Refugee Resettlement. Mr. Morgan stated that there is daily coordination with USCIS and
ICE. He added that one of the largest challenges currently is handling single adults, since ICE does
not have adequate bed space, but CBP also needs to get them out of CBP facilities. He explained

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that they work with USCIS regularly because USCIS is responsible for determining the validity of an
individual’s credible fear claim. Ranking Member Peters then asked if there exists an interagency
group which coordinates in a formalized way. Mr. Morgan responded that there are working groups
at the local level, as well as a working group within DHS which has formal committees, but that this
informal component is more useful on a regular basis. Ranking Member Peters stressed that
coordination is critical, because some person or entity must ultimately be responsible for ensuring
the whole system is functioning properly. Ranking Member Peters asked if anyone at the White
House is facilitating the coordination of these activities, and if so, who. Mr. Morgan responded that
different entities are responsible for this. Ranking Member Peters asked for clarification, and Mr.
Morgan replied that it depends on which element is at hand – whether it be media, the legal
framework, or actual logistics. Ranking Member Peters then inquired whether there is a person
responsible for coordinating with state and local governments and NGOs. Mr. Morgan informed
him that DHS has a state and local partner who handles those efforts.

Ranking Member Gary Peters asked about CBP’s pilot program to train border patrol agents as
asylum officers to conduct credible fear interviews. He first asked how long this training takes. Mr.
Morgan responded that this is set by USCIS, but that he would get the information to Ranking
Member Peters. Ranking Member Peters then asked how many of these agents have been
deployed to date, and what percentage of their time is spent conducting interviews once deployed.
Mr. Morgan stated that he would provide this information at a later point. Ranking Member
Peters inquired as to why this program was implemented. Mr. Morgan explained that it was due to
a lack of USCIS asylum officers. Ranking Member Peters asked if the officer wears their uniform
and carries a gun while conducting these interviews. Mr. Morgan responded that the agents are not
uniformed and do not carry guns when conducting interviews.

c. Medical Concerns

Sen. Jacky Rosen (D-NV) stated that she has heard from child welfare advocates that there are
three immediate changes needed at CBP: more medical professionals with pediatric capabilities, the
hiring of trauma-informed child welfare professionals, and allowing NGO access to CBP facilities in
order to assist with humanitarian efforts. She informed the witnesses that her office had sent a letter
to DHS Secretary McAleenan outlining these needs last week, but has not heard back yet. Sen.
Rosen then asked who currently screens children for illness or injury after CBP apprehension. Mr.
Morgan stated that border patrol agents conduct an initial screen, and that the majority of children
are then screened by a medical professional such as a nurse practitioner once at a processing center.
Sen. Rosen asked if all CBP facilities have adequate working medical equipment for children. Mr.
Morgan responded no, but that CBP is prioritizing that effort, and that seven of nine sectors do
already. Sen. Rosen asked if there a process for children to receive additional help from a medical
professional if need be. Mr. Morgan explained that CBP personnel work with local EMS and
facilities, or can transfer children to nearby hospitals. Sen. Rosen then asked about the care of very
young children. Mr. Morgan shared that coordinators at facilities take care of infants and young

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children, and fill out detailed logs on their care. Sen. Rosen then asked about any CBP policy
allowing NGOs to enter CBP facilities to assist with humanitarian efforts. Mr. Morgan stated that
this is an ongoing conversation, and that he is willing to work with her office to create a solution.

Ranking Member Gary Peters (D-MI) stated that the FY2019 appropriations bill included $128
million for CBP to contract with medical professionals, and the recent emergency supplemental
included about $112 million for medical care and consumables. He asked how much of all this
funding has been spent on pediatric medical professionals. Mr. Morgan stated that he did not have
the exact numbers available, but that so far about $63 million has been spent on medical care and
support. Ranking Member Peters stressed that he needed to know how the funds are being spent
because this is a key component of the committee’s oversight function.

Chairman Ron Johnson (R-WI) asked if physicians or pediatricians who want to volunteer at the
border would be able to offer help. Mr. Morgan stated that help would be welcome, and that he
hopes to meet with organizations to coordinate that. He also noted that CBP has expanded its
medical contract to over 300 medical professionals.

e. Miscellaneous Issues

Sen. Kyrsten Sinema (D-AZ) expressed concern about recent allegations about treatment of
migrants by CBP agents at the Yuma Border Patrol station. She stated that a large part of the
problem seemed to be poor communication between HHS and CBP, and that this information flow
doesn’t seem to be smooth. She asked what steps are being taken to improve CBP’s ability to
respond to allegations such as these in a timely fashion. Mr. Morgan stated that CBP is trying to
work with the Office for Civil Rights and Civil Liberties and Office of Professional Responsibility
within DHS in order to address these allegations.

Sen. Maggie Wood Hassan (D-NH) asked if Mr. Morgan would commit to giving Congress full
visibility into the border patrol, its detention practices, and its treatment of all migrants. Mr.
Morgan said yes. Sen. Wood Hassan then asked if he had the support of his superiors, namely the
acting Secretary of DHS and the President, to be fully transparent with Congress. Mr. Morgan
responded yes. Sen. Wood Hassan asked if Mr. Morgan would take action if any CBP official or
subordinate sought to mislead Congress or the American public. Mr. Morgan replied yes. Sen.
Wood Hassan then inquired about the troubling nature of CBP’s internal culture and what steps
are being taken to address this issue. Mr. Morgan stated that they must be cautious when handling
allegations which have not been fully adjudicated yet. He added that he does not believe that recent
reports are actually reflective of a pattern or deeper culture, especially since he formerly served as
Chief of the U.S. Border Patrol and had not experienced it himself. However, he emphasized that
any and all allegations would be investigated thoroughly. Sen. Wood Hassan also asked about the
recent revelation about the Facebook page which had a number of concerning posts from CBP
agents. Mr. Morgan answered that he would be glad to discuss with her separately what CBP is

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doing to address the Facebook group situation. Finally, Sen. Wood Hassan referenced a CBP
subcontractor, Perceptix, which fell victim to a cybersecurity breach in May 2019. She stated that she
would like to work with Mr. Morgan to ensure that contractors and subcontractors adhere to the
highest cybersecurity standards.

Ranking Member Gary Peters (D-MI) asked what OIG reviews are currently in progress and
when those reports will be released. Ms. Costello responded that the management alerts are part of
a larger series of unannounced inspections along the southern border. She informed him that there
will be a capping report, identifying issues in all facilities, released in fall 2019. Ms. Costello stated
that OIG is also examining how funds are being spent on consumables and medical access. She
added that OIG is also looking at families who are separated at ports of entry, as well as whether or
not families are given the opportunity to be removed with their children. She noted that OIG hopes
to explore the underlying causes of the prolonged detention in CBP facilities. Finally, Ms. Costello
shared that OIG has a data analysis audit underway which is examining the tracking of children
during the Zero Tolerance policy implementation.

Chairman Ron Johnson (R-WI) expressed concern about border patrol agents becoming ill, as
well as regarding their morale. Mr. Morgan responded that morale and health are being negatively
impacted, and that agents get frustrated when they see Congressional inaction on this issue.
However, he noted that CBP’s hiring numbers are not trending downwards currently.

*****

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