Letter to US Senate and House Leadership Regarding the Department of Homeland Security's (DHS) Fiscal Year (FY) 2018 Omnibus Appropriations Bill

March 19, 2018

Majority Leader Mitch McConnell
317 Russell Senate Office Building
Washington, D.C. 20515

Democratic Leader Chuck Schumer
322 Hart Senate Office Building
Washington, D.C. 20515

Speaker Paul Ryan
1233 Longworth House Office Building
Washington, D.C. 20515

Democratic Leader Nancy Pelosi
U.S. Capitol H-204
Washington, D.C. 20515

Re: Reject Supplemental Funding Request for Immigration and Border Enforcement in the Department of Homeland Security's (DHS) Fiscal Year (FY) 2018 Omnibus Appropriations Bill

Dear Leader McConnell, Leader Schumer, Speaker Ryan, and Leader Pelosi:

With the March 23^rd deadline fast approaching, we urge Congress to reject President Trump’s Fiscal Year (FY) 2018 supplemental funding request for increased numbers of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents and detention beds, under the Department of Homeland Security’s (DHS) jurisdiction --- for three main reasons.

First, Congress shoulders a heavy responsibility when exercising its appropriations and oversight authority in immigration matters. As an organization dedicated to ensuring that US immigration enforcement efforts are pursued in a way that is consonant with US obligations under international human rights and constitutional law, we have documented serious failures by the Department of Homeland Security to use existing resources under previous budgets in rights-respecting ways. As long as these larger problems remain unaddressed, any increase in appropriation in these areas is likely to cause a proliferation of abuses.

Therefore, as a matter of responsible oversight, we believe that Congress should not increase funding in these areas until serious failings in border policy, immigration detention, and enforcement that lead to rights violations have been addressed. Specifically, Human Rights Watch has documented: failures by CBP to follow US law when apprehending asylum seekers at the border;[1] the separation and mistreatment of families traveling together to the US to seek asylum;[2] systemic failures in detention medical care that has contributed to preventable deaths;[3] transfers of immigrant detainees between far-flung detention centers in ways that interfere with their due process rights;[4] the abuse of transgender women in detention[5]; and widespread summary deportations of people who call the United States home[6]—including mothers, fathers, and spouses of US citizens; tax-paying employees; and respected community members—without giving them a chance for consideration of their deep and longstanding ties to the United States before removing them from the country. In addition, the media and other organizations have documented DHS’ harmful treatment of immigrants, including women^[7] – particularly those who are pregnant^[8] – in  detention, DACA recipients[9], domestic violence survivors[10], and children.^[11] We believe measures should be taken to rectify the structural causes of these abuses and the impunity that has generally attached to them, before any increase in appropriations towards enforcement activity is considered.

Second, the abuses that we and others have documented might be rectified through enhanced oversight and greater attention to due process. We recognize that these activities may, in fact, require appropriation of funds. For example, ensuring due process rights may require allocating funds to hire immigration judges and for know-your-rights services,[12] it may require ensuring counsel for noncitizens whose due process rights are threatened in immigration proceedings including vulnerable groups such as persons with mental disabilities;[13] it requires transparency in data collection and dissemination;[14] and in effective accountability mechanisms within DHS and its component agencies. However, without a clear commitment by this administration and this Congress to appropriate first to these types of activities, there should not be general appropriations for business-as-usual.

Similarly, we oppose any cuts to the budget of the DHS’s Office of the Inspector General (OIG) and believe that the proposed 21 percent reduction in the President’s FY 2019 budget[15] – about $37 million less than the last enacted budget in FY 2017 – would severely hinder mechanisms to promote increased transparency and accountability at DHS. Such a reduction would be especially troubling in light of recent reports from the OIG such as a July 2017 report that found neither CBP nor ICE could demonstrate an operational purpose, deployment strategies, or even the administrative capacity for the hiring of 15,000 additional border patrol agents and immigration officers, as requested by President Trump[16] and a December 2017 report that found based on unannounced visits that treatment and care of ICE detainees at four facilities..[undermined] the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.”[17] Congress should increase oversight of CBP and ICE agents, ensuring accountability for abuses and improving upon commitments to standards such as the 2011 ICE Performance-Based National Detention Standards[18] and adhering to recommendations made by the DHS Inspector General.

Third, we submit that increasing enforcement appropriations to CBP in particular is especially misguided. In addition to that agency’s failure to follow US law in its interactions with asylum seekers, the agency has a troubling history of misconduct without accountability, including as the DHS OIG found in January of this year of violating federal court orders related to President Trump’s January 27, 2107 Executive Order restricting the travel of nationals from several Muslim-majority nations.[19]

Additionally, despite regulations purporting to limit the use of deadly force, U.S. Border Patrol has a disturbingly violent track record.[20] Unfortunately, these violent incidents often go uninvestigated and unpunished. One policy organization found that of 809 complaints of alleged abuse lodged against Border Patrol agents between January 2009 and January 2012, a full 97 percent resulted in a disposition of “no action taken” by the agency.[21] A June 2015 interim report of the CBP Integrity Advisory Panel similarly found that “CBP did not have sufficient IA [internal affairs] investigators to investigate these incidents, nor until recently did its IA investigators have authority to conduct investigations involving potential criminal misconduct in the exercise of use of force by CBP’s LEOs [Law Enforcement Officers.]”[22] A 2011 study by the Homeland Security Studies and Analysis Institute on CBP workforce integrity found that the CBP disciplinary system fails to “foster timely discipline or exoneration.”[23] Five years later, the Homeland Security Integrity Advisory Council’s 2016 Integrity Advisory Panel found that the agency’s disciplinary system remained “broken” and its “disciplinary process takes far too long to be an effective deterrent.”[24] Appropriators should focus urgently on fixing these crucial oversight and accountability systems not allocating more enforcement money to an agency that is failing to police itself.

We call on you to cut appropriations that will only serve to exacerbate serious rights violations in the existing immigration enforcement system, and instead to consider appropriations that will enhance transparency, due process, accountability, and fair treatment of all people subject to DHS jurisdiction.

Sincerely,

Nicole Austin-Hillery
Executive Director, US Program
Human Rights Watch