```

[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:

----------------------------------------------------------------------------------------------------------------
              Representative                   Yea       Nay           Representative            Yea       Nay
----------------------------------------------------------------------------------------------------------------
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   ........
                                                                                             -------------------
                                                                Vote Total..................       16        11
----------------------------------------------------------------------------------------------------------------

                      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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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)
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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]
```