[House Report 115-877]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-877
======================================================================
RESOLUTION DIRECTING THE SECRETARY OF HOMELAND SECURITY TO TRANSMIT
CERTAIN DOCUMENTS TO THE HOUSE OF REPRESENTATIVES RELATING TO THE
BORDER SECURITY POLICIES, PROCEDURES, AND ACTIVITIES AS SUCH RELATE TO
THE INTERDICTION OF FAMILIES BY THE U.S. BORDER PATROL BETWEEN PORTS OF
ENTRY
_______
July 26, 2018.--Referred to the House Calendar and ordered to be
printed
_______
Mr. McCaul, from the Committee on Homeland Security, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 1005]
The Committee on Homeland Security, to whom was referred
the resolution (H. Res. 1005) directing the Secretary of
Homeland Security to transmit certain documents to the House of
Representatives relating to the border security policies,
procedures, and activities as such relate to the interdiction
of families by the U.S. Border Patrol between ports of entry,
having considered the same, report unfavorably thereon without
amendment and recommend that the resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 2
Committee Consideration.......................................... 2
Committee Votes.................................................. 2
Committee Oversight Findings..................................... 3
New Budget Authority, Entitlement Authority, and Tax Expenditures 3
Congressional Budget Office Estimate............................. 3
Statement of General Performance Goals and Objectives............ 3
Duplicative Federal Programs..................................... 3
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 4
Federal Mandates Statement....................................... 4
Preemption Clarification......................................... 4
Disclosure of Directed Rule Makings.............................. 4
Advisory Committee Statement..................................... 4
Applicability to Legislative Branch.............................. 4
Section-by-Section Analysis of the Legislation................... 4
Changes in Existing Law Made by the Bill, as Reported............ 4
Dissenting View.................................................. 5
PURPOSE AND SUMMARY
On July 19, 2018, Representative Bennie G. Thompson of
Mississippi introduced H. Res. 1005, a non-binding resolution
of inquiry directing the Secretary of Homeland Security to
transmit certain documents to the House of Representatives
relating to the border security policies, procedures, and
activities as such relate to the interdiction of families by
the U.S. Border Patrol between ports of entry.
BACKGROUND AND NEED FOR LEGISLATION
A resolution of inquiry is a House resolution directing the
President or the head of an executive department to provide to
the House specific information in the possession of the
Administration.
Clause 7 of House Rule XIII provides that, if properly
drafted, a resolution of inquiry is provided special
parliamentary status allowing the Committee to which the
measure was referred to be discharged if the Committee has not
reported the measure back to the House within 14 legislative
days after is introduction.
The Committee notes that the consideration of this
resolution of inquiry is to have the Committee comply with rule
XIII, it does not affect the Committee's obligation or
commitment to investigate and require documentation from the
Administration on issues within the Committee's jurisdictional
authorities.
The Committee will investigate any credible allegation of
misconduct in the Executive Branch to the extent that such
allegations fall within the Committee's jurisdiction.
HEARINGS
No hearings were held on H. Res. 1005 in the 115th
Congress.
COMMITTEE CONSIDERATION
The Committee met on July 24, 2018, to consider H. Res.
1005, and ordered the measure to be reported to the House with
an unfavorable recommendation, without amendment, by a recorded
vote of 16 yeas and 11 nays (Roll Call Vote No. 40).
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
The Committee on Homeland Security considered H. Res. 1005
on July 24, 2018, and took the following votes:
Roll Call No. 40
H. RES. 1005
On ordering H. Res. 1005 to be reported to the House with
an unfavorable recommendation, without amendment, by a recorded
vote of 16 yeas and 11 nays (Roll Call Vote No. 40). The vote
was as follows:
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Representative Yea Nay Representative Yea Nay
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Mr. McCaul, Chair......................... X ........ Mr. Thompson of Mississippi, ........ X
Ranking Member.
Mr. Smith of Texas........................ ........ ........ Ms. Jackson Lee............. ........ X
Mr. King of New York...................... ........ ........ Mr. Langevin................ ........ X
Mr. Rogers of Alabama..................... X ........ Mr. Richmond................ ........ X
Mr. Barletta.............................. X ........ Mr. Keating................. ........ X
Mr. Perry................................. X ........ Mr. Payne................... ........ ........
Mr. Katko................................. X ........ Mr. Vela.................... ........ X
Mr. Hurd.................................. X ........ Mrs. Watson Coleman......... ........ X
Ms. McSally............................... X ........ Miss Rice of New York....... ........ X
Mr. Ratcliffe............................. X ........ Mr. Correa.................. ........ X
Mr. Donovan............................... X ........ Mrs. Demings................ ........ X
Mr. Gallagher............................. X ........ Ms. Barragan................ ........ X
Mr. Higgins of Louisiana.................. X ........
Mr. Garrett............................... X ........
Mr. Fitzpatrick........................... X ........
Mr. Estes................................. X ........
Mr. Bacon................................. X ........
Mrs. Lesko................................ X ........
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Vote Total.................. 16 11
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COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.
Res. 1005, would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, a cost estimate provided by the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not made available to the
Committee in time for the filing of this report. The Committee
estimates that this non-binding resolution would not result in
any significant costs.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H. Res. 1005 requests that the
Department of Homeland Security transmit documents to the to
the U.S. House of Representatives related to the U.S. Border
Patrol policies, procedures, and activities as such relate to
the interdiction of families between ports of entry, including
the numbers of families interdicted.
DUPLICATIVE FEDERAL PROGRAMS
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H. Res. 1005 does not contain any provision that
establishes or reauthorizes a program known to be duplicative
of another Federal program.
CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS AND LIMITED TARIFF
BENEFITS
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
PREEMPTION CLARIFICATION
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds that H. Res. 1005
does not preempt any State, local, or Tribal law.
DISCLOSURE OF DIRECTED RULE MAKINGS
The Committee estimates that H. Res. 1005 would require no
directed rule makings.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
H. Res. 1005 requests that the Department of Homeland
Security transmit the following documents to the U.S. House of
Representatives: 1) U.S. Border Patrol policies, procedures,
and activities as such relate to the interdiction of families
between ports of entry; 2) Procedures disseminated within the
U.S. Border Patrol on how interdicted families, including
families with small children, are to be treated and processed;
3) All records made at or near the time that a family is
interdicted between ports of entry by the U.S. Border Patrol
from June 2016 through June 2018 regarding such interdiction,
including any such records or information regarding the
following: The ages of children interdicted and what actions
were taken with respect to such children, and the number of
criminal referrals made by the U.S. Border Patrol, including
for trafficking children.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
As reported, H. Res. 1005 makes no changes to existing law.
DISSENTING VIEWS
On behalf of Committee Democrats, I submit these dissenting
views regarding the Majority voting to report H. Res. 1005, a
resolution of inquiry to compel the Department of Homeland
Security (DHS) to share with the House of Representatives
documents regarding the border security policies, procedures,
and activities relating to the interdiction of families by the
U.S. Border Patrol between ports of entry, with an unfavorable
recommendation.
On April 6, 2018, Attorney General Jeff Sessions announced
the Trump Administration's adoption of a ``zero tolerance''
policy toward anyone entering, or attempting to enter, the
United States illegally.\1\ The policy directs the Department
of Justice (DOJ) to criminally prosecute migrants for illegal
entry,\2\ including migrant parents seeking asylum under U.S.
law who arrive with their children. As a result of this policy,
U.S. Customs and Border Protection (CBP) referred thousands of
parents for criminal prosecution and placed their children in
government custody or foster care as ``unaccompanied minors.''
These actions to enforce the Trump Administration's zero
tolerance policy created a humanitarian crisis on U.S. soil
that shocks the conscience.
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\1\Department of Justice, Office of Public Affairs, ``Attorney
General Announces Zero-Tolerance Policy for Criminal Illegal Entry,''
April 6. https://www.justice.gov/opa/pr/attorney-general-announces-
zero-tolerance-policy-criminal-illegal-entry (accessed July 25, 2017).
\2\Id.
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Although the zero tolerance policy was not officially
announced until this year, the Trump Administration has been
separating children from their parents since October 2017.\3\
Almost a year and a half ago, I wrote to then-DHS Secretary
John Kelly when he floated the idea, in March 2017, of the
Department separating families at the border as a deterrent and
expressed my outrageous at the prospect of our government
engaging in family separation.\4\ Since then, I have sent five
other letters to the Trump Administration; for each, I received
either no response or a non-responsive one.\5\ This
stonewalling by the Trump Administration has made it impossible
to obtain basic information about the processes used by CBP to
separate families, what records were kept to link family
members in Federal custody, whether reunification was ever
planned and, if not, why not, as well as details about the
conditions of separated parents and children in custody.
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\3\Caitlin Dickerson, ``Hundreds of Immigrant Children Have Been
Taken From Parents at U.S. Border,'' The New York Times, April 20,
2018, https://www.nytimes.com/2018/04/20/us/immigrant-children-
separation-ice.html (accessed July 25, 2018).
\4\John Kelly, Secretary of Homeland Security. March 7, 2017.
Interview with Wolf Blitzer; Letter to John Kelly, Secretary of
Homeland Security, sent by Ranking Member Bennie G. Thompson, Rep.
Filemon Vela, and Rep. Donald M. Payne on March 8, 2017.
\5\February 8, 2018--Letter to Honorable Kirstjen Nielsen,
Secretary of Homeland Security, expressing strong opposition to any
policies that would formalize migrant family separation and seeking
information about reports and complaints about the increased use of
this practice along the southern border. Response received April 25,
2018, without answers to questions.
May 25, 2018--Letter to Honorable Kevin McAleenan, Commissioner of
U.S. Customs and Border Protection, asking for additional information
regarding the implementation of the zero-tolerance policy, a de facto
family separation policy.
May 25,2018--Letter to Mr. Scott Lloyd, Director of the Office of
Refugee Resettlement within the Administration for Children and
Families, asking for additional information regarding the effect of the
zero-tolerance policy on migrant children separated from their adult
family members.
June 18, 2018--Letter to Honorable Kirstjen Nielsen, Secretary of
Homeland Security, regarding U.S. Immigration and Customs Enforcement
transfer of 1600 detainees to criminal Bureau of Prison's facilities
due to effect of zero tolerance policy on detention facilities.
June 28, 2018--Letter to Secretary Nielsen, requesting information
on how the Department would effectuate the court migrant family
reunification order.
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A lawsuit filed by the American Civil Liberties Union
(ACLU) resulted in a June 26, 2018 ruling requiring the Trump
Administration to reunite children under the age of five, or
``tender age'' children, within 14 days and to reunite all
children within 30 days.\6\ In response to the lawsuit, the
Trump Administration identified 40 percent of all separated
children (103 children under the age of five and 2,551 children
between the ages of five and 17) as ``ineligible'' for
reunification.\7\ The Committee has not been provided a written
justification for why the Administration contends that 40
percent of children that were taken by the U.S. government
cannot be reunited with their parents.
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\6\Ms. L, et al. v. U.S. Immigration and Customs Enforcement, et
al., Order Granting Plaintiffs' Motion for Classwide Preliminary
Injunction, Docket 18cv0428 DMS (MDD), S.D. CA (June 26, 2018).
\7\Ms. L, et al. v. U.S. Immigration and Customs Enforcement, et
al., Joint Status Report, Docket 18cv0428 DMS (MDD), S.D. CA (July 19,
2018).
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The little that Committee Democrats know about family
separation was executed has been learned from the ACLU lawsuit
and the publication of court records. Committee Democrats have
not been provided necessary documentation from the Department
to effectively oversee how the Department carried out family
separation. In addition to multiple letters requesting
information on the family separation, Committee Democrats and
staff have participated in multiple briefings and conference
calls with Trump Administration officials in which basic
questions went unanswered. Subsequent to each briefing and
conference call, no written documentation was furnished to the
Committee to explain the how the Trump Administration carried
out family separation, conditions of separated parents and
children in Federal custody, efforts and obstacles to
reunification, and grounds for deeming nearly half of these
children as ``ineligible'' to be reunited with their parents.
At a July 18, 2018 closed-door briefing with Trump
Administration officials from DHS, DOJ, and the Department of
Health and Human Services (HHS), Committee Members were told
that all deported parents that were returned to their
originating country without their children had knowingly and
voluntarily agreed to withdrew their asylum claims and be
deported without their children. This assertion was out of step
with anecdotal evidence to the contrary. Then, during the
Committee mark up of H. Res. 1005, Committee Republicans
insisted that they were satisfied with the answers provided by
Trump Administration officials. In fact, Congressman Scott
Perry stated that:
``. . . when somebody says that 463 parents were
deported without their children and the folks that do
that work sat there and told us that none of them were
deported without their children unless they requested
that. The people being deported requested to leave
their children behind. It wasn't the decision of the
United States of America or their agents working on the
border that did that.''
However, on Wednesday, July 25, the ACLU filed affidavits
that indicate as many as three-quarters of these migrant
parents removed from the United States were not given a choice
about leaving their children behind.\8\ We now have proof,
thanks to the court proceedings, that Congress was not told the
truth.
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\8\Flores, Adolfo. ``Separated Parents Were ``Totally Unaware''
They Had Waived Their Right To Be Reunified With Their Children,''
Buzzfeed News, July 25, 2018. https://www.buzzfeednews.com/article/
adolfoflores/separated-parents-totally-unaware-thev-had-waived-their.
(accessed July 25, 2018)
Hesson, Ted, et al. ``Most deported migrants were not asked about
leaving children behind, Trump official says,'' POLITICO, July 26,
2018. https://www.politico.com/story/2018/07/25/deported-migrants-
leaving-children-behind-712088 (accessed July 26, 2018)
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The failure of DHS to provide information to Congress, as
sought pursuant to H. Res. 1005, undermines our capacity to
carry out ongoing oversight to resolve question about various
aspects of this humanitarian crisis, such as with respect to
the guidance that was sent to the field to inform CBP officers
on how to carry out family separation, the numbers of children
reunited with parents, the validity of the ``ineligible''
category, the current status of the parents of separated
children, and conditions in the detention centers.
Since DHS failed to provide such information, on July 19,
2018, I introduced this resolution of inquiry to compel
production of such critical information to the House of
Representatives to ensure effective oversight. Regrettably, the
Majority refused to demand transparency and accountability from
the Department and, on a partisan basis, quashed any chance of
this Committee receiving the information it needs to do
meaningful oversight. I would note that this is the fourth
resolution of inquiry that the Majority quashed, saying that we
can get such information without having to compel them, by law,
to do so. If the Majority had bothered to check the record,
they would see that such an assertion is unsupportable. To
date, the Department has failed to provide information the
Russian hacking of our election systems,\9\ costs associated
with protecting the Trump children on overseas Trump
Organization business,\10\ and ZTE, the Chinese telecom that
the Intelligence Community has indicated poses a national
security threat.\11\
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\9\H. Res. 235--Directing the Secretary of Homeland Security to
transmit certain documents to the House of Representatives relating to
the Department of Homeland Security's research, integration, and
analysis activities relating to Russian Government interference in the
elections for Federal office held in 2016. Introduced on March 30,
2017, and reported adversely by the Committee on Homeland Security on
April 7, 2017.
\10\H. Res. 447--Directing the Secretary of Homeland Security to
transmit certain documents to the House of Representatives relating to
Department of Homeland Security policies and activities relating to
businesses owned or controlled by President Donald J. Trump. Introduced
on July 14, 2017, and reported adversely by the Committee on Homeland
Security on July 28, 2017.
\11\H. Res. 898--Directing the Secretary of Homeland Security to
transmit certain documents to the House of Representatives relating to
Department of Home1and Security policies and activities relating to
homeland security information produced and disseminated regarding
cybersecurity threats posed by the ZTE Corporation, headquartered in
Shenzhen, China. Introduced on May 16, 2018, and reported adversely on
June 8, 2018.
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I strongly believe that the Majority's decision to report
H. Res. 1005 with an unfavorable recommendation is unjustified
and undermines the Committee's ability to carry out its vital
responsibility to carry out oversight of the Department of
Homeland Security.
[all]