liA?lW LIN: ISE i: liH?Hj?uW?, E?Lll Lit i I'I'lt'll?l?h'tN l' IN lift. it El'iNlr?A ?Ili?ilil .9 Ni. 'ntrTar. 'isic'w mm, 't Mi: MIr-m or 'a 3., .il Kai inn-w. Cur-age; Dam-amt: COMMITTEE ON THE JUDICIARY [Javitm i.t]E {1er rue-tam rs: .tlv'lt-MIIML or.th MI- w; DC 20510 62 June 23, 2015 Dear Secretary Burwell: I am writing today regarding troubling information provided to the Committee that indicates the Department of Health and Human Services (HHS) may be mischaracterizing its handling of unaccompanied alien children This information raises key questions about the ?mctioning of the Department, its collaborative efforts with other federal agencies, and the degree to which the Department is adhering to federal law. While I atn grateful for the Department?s recent disclosure of information regarding the UAC in?ux over the last few years,2 I have received independent information indicating that the Department has, according to its own internal documentation, adopted practices and strategies that, at best, could be deemed ineffective, and at worst, do not accord with current federal law. The information also indicates not only creative (and questionable) bookkeeping practices, but also an intent to deceive the American people and Congress. I have obtained an internal HHS PowerPoint slideshow presentation that appears to have been prepared for congressional appropriators in April 2014.3 I am concerned about the following speci?c information contained in the slideshow: Use of Creative Strategies Deceptive Use of UAC Label. The most striking aspect of this slideshow is its revelation of the use of ?Additional Strategies? to handle the UAC in?ux, some of which are arguany intended to deceive the American people and Congress. The slideshow discusses the use of a ?Modi?ed Approach to Children with Non-Parent Relatives? as part of a broader consideration of other, creative strategies for dealing with Uer4 In the itmnediately following slide, the slideshow proposes ?treating at least some [of the UAC who arrive with non-parent relatives] like children arriving with parents.? That Same slide also indicates that, ?[w]hen children are apprehended throughout the interior of the United States, they may be treated as UACs even if residing with a relative at the time of apprehension.? These two tactics appear to be suggested as possible avenues for reducing the costs of the UAC in?ux.5 The Department also now appears to be using the terms ?unaccompanied child? and ?unaccompanied children," and the corresponding acronym. For the sake of consistency, this letter will use UAC. 2 See Letter from Health and Human Services Secretary Sylvia Mathews Burwell to Senator Ted Cruz (May 15, 2015) {providing feedback about handling of UAC). I am still in the process of evaluating the suf?ciency of the material you have provided pursuant to that request. 3 A copy of this slideshow, entitled Brie?ng for Appropriators" and dated April 22. 2014, is provided as an attachment to this letter (hereinafter ATTACHMENT19. These proposals, if they have in fact been adopted, could violate current immigration law, particularly with respect to: congressionally established enforcement requirements. Additional information isneeded about the Department?s role in suggesting or implementing these proposals, as well as the legal support for these proposals. Aunreness of Unprecedented UAC Volume as of Early 2014-. Despite frequent commentary by this Administration ab out how the increase in UAC during the suminer months of 2914 was wholly unexpected and therefore caught relevant federal agencies off guard,? this slideshow seems to completely contradict that narrative, and raises signi?cant questions about whether the Administration has been truthful with the American people and Congress about its knowledge of the scope of the UAC problem. This slideshow which is dated April 22, 2014, and porports to present the vdews of HHS, the Department of Homeland Security (DI-IS), the Department of Justice (DOD, the Department of State, and the Of?ce of Management and Budget clearly demonstrates that the federal government was cognizant of the exponential ?increase? in UAC volume ?om 201 1 through 2014. Beyond just general awareness of past skyrocketing UAC numbers, however, the slideshow also explicitly projects a UAC in?ux level of 60,000 for 2014.3 Far from being an unforeseen crisis, the high number of UAC that approached the United States-Mexico border last summer appears to have been calmly predicted, although not addressed. This raises additional questions about what actions were or were not taken, and whether federal agencies utere fully sharing information with Congress at a time when the Administration was seeking supplemental ?mding to handle the in?ux? It also raises questions about the Administration?s preparedness for an even larger in?ux in 2015, which also appears to have been calmly predicted in early 2014.? Explanation of UAC DiEt?ers Siggi?c anti}: from Federal Intelligence Reports. The slideshow offers discussion on the ?Reasons for UAC Migration,? cites both ?Push Factors? (meaning internal home country factors) and ?Pull Factors? (meaning incentives outside of home cormtries), and draws statistical support from the United Nations Of?ce of the High Commissioner for Re?igees' (UNI-ICE.) in ascerting that home country violence and displacement were among the primary drivers, if not the primary drivers, of UAC migration. ?1 The slideshow 5 See, ag, Melissa del Basque, Shame: dictate in Charisse at Border 'Urgear Humanitarian Situation, TEXAS OBSERVER (Jun. 2, 2914) (nothig White House domestic policy director Cecilia Munoz indicating that ?the scale in the last few months caught the government and quoting Munoz as stating that ?[t]he number of children coming [to the United States] is much larger than We anticipated?). 7 It is worth noting that, while inthragency collaboration on this issue is not necessarily problematic, and may even be desirable, several of the agencies listed as lead agencies in the slidesth speci?cally, DES, and the State Department? have denied involvement in any aspect ofUaC handling or strategy. The slideshow unequivocally states, however, that HHS, DUI, and the State Department have been engaged in ?Ei]nteragency coordination" on an ?ongoing? basis, and that these agencies have, at the direction ofappropriators, been ?meeting to develop an tarerageacy strategy to address the growing number of ATTACHMENT, supra note 3, at 11 (emphasis added). Additional information is needed-to review the interagency coordination. 3 See id at 5. The projected ?gure is close to the 67,339 CBP ultirnately reported for all of FY 2014. See LLB. Customs and Border Protection, Southwest Border Unaccompanied Children, available at (last viewed Jun. 23, 2015). 9 See Letter ?'crn President Baraclt Dbama to Speaker John Boehner 8, 2014) {citing the UAC surge generally and a letter from 0MB Acting Director Brian Deese as the basis for a $3.7 billion supplemental appropriation for FY 29M). '9 See ATTACHMENT, supra note 3, at it] (noting that arrivals increased 315 percent betrveen FY 2311 and FY 2914," and that, these growth rates continueL] we could see 127.000 UAC arrivals in FY See id. at 8 {citing UNHCR datato support claims that approximately 58% came to the United States a?el- being ?forcibly diaplaced because they suffered or faced henna? and that approximately 43% were 2 mentions ?Opporuini?gr Di?erential? as the main, overarching pull factor, and cites UNHCR data in support of the claim that 51% of UAC cite economic opportunity ?as a reason for migrating [to the United States], but it is seldom the only reason.?12 Bluntly stated, this slideshow differs sharply with a leaked, unclassi?ed federal intelligence assessment, which claims that hundreds of UAC have attested, upon reaching the United States, that their perceptions of changes to US. handgration law were the primary motivators for their journeys to the United States. 13 While it is true that this federal intelligence assessment was compiled after the date on this slideshow, the contrast in analysis raises questions about the degree to which the relevant agencies are accessing or presenting relevant information, or are tailoring the information they are providing for speci?c federal and non?federal audiences. Em basis on ?Streamlined?? UAC Referral Process Raises uestions about Corner?Cuttin . The slideshow makes multiple references to streamlining the UAC referral process, including what it refers to as ?family reunification procedures," and how this streamlining has, as of the date of the slideshow, resulted in signi?cant savings for Of?ce of Re?rgee Resettlement (01210.? While cost reduction efforts are theoretically positive, it is unclear if savings have been achieved by either releasing individuals that should not be released at all, releasing individuals prematluelv, engaging in the previoust discussed creative strategies, or otherwise bypassing statutory or other requirements. Additional information is needed regarding the means by which the Department has achieved these cost savings, particularly because the degree of savings seems almost improbable in light of the dramatic rise in UAC levels over the cited time period.15 Possible Inaunrooriate Use of DES Resources for Purposes. The slideshow raises questions about potential misuse of DHS resources for HHS responsibilities. Speci?cally, the slideshow indicates that the resources of components are being used to manage the tracking, logistics, and transportation of It also suggests the possibility that the Department has been able to unload many of its own costs onto DHS, which arguava is designed to conceal the true cost of ?victims of or came in close contact with violent acts perpetrated by organized armed criminal actors"); but see El Paso Intelligence Center, EPIC intelligence Assessment, Mispereepiiens of?? Policy Key Driver in Central American Migrant Surge, 3 (Jul. i, 2014) (hereinafter EPIC REPORT) (citing declining incidence of violence in El Salvador, Guatemala, and Honduras). 12 ATTACHMENT, supra note 3, at 8. 13' See EPIC REPORT, supra note 11, at2 (noting how, in interviews with CBP personnel, hundreds of ?migrants? informed their CBP interviewers that ?the primary reason for migrating to the United States was the perception of US. immigration laws granting lice passes or permisos to UAC and adult female [other than Mexicans] naveling with minors,? and that in-country' media outlets were claiming that the availability of pennisos would end after June 2014) (emphasis in original). The report subsequently clari?es that UAC who mentioned pennisos were referring to ?the Notice to Appear documents; issued to undocumented aliens, when they are released on their own recognizance, pending a hearing before a U.S. immigration judge." Id. at 3. 1" See ATTACHMENT, supra note 3, at 2 (listing on the meeting agenda discussion of ?Efforts to Reduce Length of Stay and Save Costs in HHS Custody"); see also id. at 9 {discussing how, ?between FY 2011 and Z?ld, ORR has reduced length of stay and costs, producing a 56% reduction in per capita shelter costs ?'om 2011 to 2014"); see also in! at 16 (noting how has our the average amount of time UAC spend in care in half since FY 2011, from 75 days to 35 days?). - 15 The cost reduction dimension is of particular concern because it seems remarkable that HHS could achieve substantial savings during a fourwyear window of time that essentially witnessed atenfold increase in the volume of UAC entering the United States. 3 '5 See, ag, ATTACHMENT, supra note 3, at 12 (discussing, in a ?Gained Ef?ciencies" section, how HHS and DHS engage in ?Regular and Ongoing Data Sharing," and how HHS ?[uses] ICE charier?ighis to transport large numbers qf ORR. facilities") {emphasis added). the UAC management effort. Additional information is needed from the Department to determine the propriety of DES resource application for UAC handling. Expenditure of Resources Internationally for UAC In?ux. This slideshow raises questions about whether and how the Depaitment is spending federal dollars overseas in order to address the UAC influx. The slideshow speci?cally references the State Department?s efforts to address the UAC in?ux,? and such international efforts are not only capected, but have been acknowledged by the Administration. It is unclear from the however, if the Department is also involved in the expendiutre of funds internationally. A range of international activities that are also mentioned in the slideshow are not speci?cally attributed to the State Department.? More information is needed to determine if the Deparhnent is spearheading some of these efforts, and the legal support for these efforts. in light of the information in, and the concerns raised by, the Dep artment?s slideshow, I request that the Department engage in the following preservation efforts, effective immediately: 19 l. Preserve all documents, records, and logs, including paper-based documents, e-mail, e- mailrbased calendar appointments, electronic documents, and other electronic data (electronic records),E created since October 1, 2009, that relate to any and all aspects of the UAC issue or the Department? sz? response to, or handling of, the UAC issue, or otherwise include the phrases ?unaccompanied alien child," ?unaccompanied alien children,? ?Imaccompanied child,? ?hmaccompanied children,? the acronyms or the words ?permiso? or ?permisos,? or any related phrases, terms, or acronyms. For the purposes of this request, ?preserve? means taking any and all reasonable steps to prevent the partial or full destruction, alteration, overeuiting, formatting, deletion, shredding, incineration, ndping, relocation, migration, theft, revision, or mutation of electronic and non-electronic documents, records, and legs, as well as negligent or intentional handling that would make such records incomplete or inaccessible. 2. Exercise any and all reasonable efforts to identi?r and notify former Department employees, contractors, subcontractors, grantees, subgrantees, and consultants who may have access to such electronic or non?electronic records that these records are also to be preserved. 3. If it is a practice of the Department, any Department component, any federal employee, any contract employee, any grantee or subgrantee, or any consultant to destroy or otherwise alter suchelectronic or non-electronic records, either halt such practices imrnediately, or arrange for the preservation of complete and accurate duplicates or copies of Such records, suitable for productien if requested. 1" See id. at 3 (noting that the State Deparh'neut ?has actively worked with the home countries"). ?3 See id. at 13 (discussing unspeci?ed information campaign, border security, and anti-tra?icking efforts}. I would remind you, the Department, and its of?cials, personnel, contractors, grantees, and consultants that violation of this presemtion order is a violation of federal criminal law. See generally 13 U.S.C. 1505. 2? Please note that all references to the ?Departmenf? include the Dep arunent?s Administration for Children d: Families (ACE) and Of?ce ofRe?igee Resettlement (OR). 4 Please also provide the following unredacted documents and information for the time period from October 1, 2009, to the present (unless a di?erent time period is Speci?ed below):21 I 1. The following documents and relevant to the scope of the anticipated UAC in?ux up to and including April 22, 2014: a. All data or statistics (Whether created or obtained by HHS) projecting the UAC influx for Fiscal Years and Calendar Years 2014 Lug 2015; h. All internal andi?or external commtniications regarding projections of the UAC in?ux for Fiscal Years and Calendar Years 2014 mid 2015; c. All documents or information provided federal, state, or local law enforcement agencies regarding their projections of the UAC in?ux for Fiscal Years and Calendar Years 2014 gigs! 2015; d. All. documents or information provided _t_g federal, state, or local law enforcement agencies regarding the Department?s projections of the UAC in?ux for Fiscal Years and Calendar Years 2014 gag 2015;22 c. All communications with El Paso Intelligence Center (EPIC) personnel regarding the UAC influx for Fiscal Years and Calendar Years 2014 grit 2015,33 and f. All communications regarding justi?cations for requests for UAC?related supplemental appropriations for Fiscal Years 2014 1nd 2015. 2. The following documents and information regarding the Department?s discussion of the factors driving the UAC in?ux: a. All internal andfor external communications regarding federal intelligence ascessments of the factors driving the UAC in?ux, including those suppiying information to other federal agencies about the Department?s perception of the factors driving the UAC in?ux; h. All internal andlor external communications regarding the impending release of July 2014 unclassi?ed report entitled ?Misperceptions of US. Policyr Key Driver in Central American Migrant Surge?;24 1" It is important to note that this is a request for a document production to the Committee, and is not a request for in camera review of documents inthe Department?s possession. The requested documents are to he physicalt} transferred in unredacrco? form togthe Committee. Similarly, this is aJso not a request for the provision of previously released versions of similar or redacted information that mayr have been made available via Freedom of Information Act requests, since congressional Edoeument requests are not restricted by either the Freedom of Act or the Privacyr Act. - 32 Please inform me if any of the documents or information provided either-to or by the Department regarding projections of the UAC in?ux for 2014 were classi?ed, so that I can make arrangements for a classi?ed document review. 13 Please inform me if any of the communications between the Department?s personnel and EPIC personnel were classi?ed, so that I can make arrangements for a classi?ed document review. 2? See generally EPIC REPORT, supra note i 1. C. All internal andfor external communications containing the terms ?permiso? or ?pem?sos?; and d. All communications with White House domestic policy advisor Cecilia Munoz or her staff. . The foilowing documents and information regarding the interagency collaboration discussed in the slideshow: i f. A list of all federal agencies involved in the e?ort to coordinate the federal response to the UAC in?ux the ?interagencv effort? 3., The names of all of?cials andfor other personnel who have represented andr'or currently represent the respective agencies during this mteragencv effort; A list of the dates and locations of all interagency meetings relating to this interageney effort; The minutes ?'cm the interagencv meetings described in Prior and current versions of the intcragency stratng that has been developed by or as a result of this interagency effort? and All copies of interagency reports prepared for appropriators.25 . The following documents and information regarding the ?Modi?ed Approach to Children with Non?Parent Relatives?: a. Whether the proposal to ?treat[] at least some [of the UAC who arrive with non- parent relatives]; like children arriving with parents? was ever implemented and, if so, the date on which it was implemented; How the Departrnent de?nes the newly created group of ?Children with Non?P arent Relatives?; If the proposal discussed in 4a. was implemented, the names of all Bepartment of?cials andfor other personnel who recommended andfor approved its implementation; 25 Sea ATTACHMENT, supra note 3, at 11 (stating that, directed by the Appropriations Committees, HHS, OMB, DHS, and State have been meethrg, along with to develop an interogency strategy to address the growing number (emphasis added). 25 See. id. at 24 (listing reporting to appropriators on numbers, trends, [and] developments? in the slideshow?s ??ext Steps? section}. 6 i. It'the proposal discussed in 4a. was implemented, the number of UAC who have been so categorized since the proposai?s implementation, broken down by state and fiscal year; - The statutory or regulatory authority for the proposal discussed in Whether the proposal to treat ?children .. . apprehended throughout the interior of the United States? as if they Were UAC was ever implemented and, if so, the date on which it was implemented; Ifthe proposal discussed in 431:? was implemented, the names of all Department of?cials and/or other personnel who recommended andfor approved its huplementation; If the proposal discussed in if. was implemented, the number of UAC who have been so categorized since the proposal?s implementation, broken down by state and ?scal year; and i The statutory or? regulatory authority for the proposal discussed in 4f. . The following documents and information regarding the Department?s streamlining of the UAC referral process: EL All documents or information governing the Department?s UAC referral process, including all internal Department employee manuals or instructional materials that reference the UAC referral process; - All documents or information governing the Department?s UAC ?family reuni?cation procedures,? including all internal andfor external communications discussing UAC family reuni?cation procedures; All documents information discussing the costs of the UAC referral process, including all internal andfor external communications discussing cost savings generated from reductions of UAC length of stay in Department custody; All documents or information discussing the transfer of {JAG-related duties, responsibilities, or expenses from the Department to other federal agencies; and The statutory or regulatory authority for the transfer of UAC~related duties, responsibilities, or expenses discussed in . The following documents and information regarding the leveraging of DES funds or assets for the Department?s management of the UAC influx: a. With respect to hnmigration and Customs Enforcement (ICE), documents or information providing: iv. vii. ix. xii The date of implementation of the program authorizing the use of ICE charter ?ights to transport The trainee of all Department of?cials andfor other personnel who andfor approved the implementation of the program discussed in The total number of ICE charter ?ights that have transported UAC under the program discussed in The total number of UAC who have been transported throughout the United States under the program discussed in 6. The destinations of the UAC who have been transported throughout the United States under the program discussed in broken down by state, locality within the state, and ?scal year; The state or Elocal authorities andfor of?cials who were noti?ed in. these respective states about the nansportation to their states, if any were noti?ed; An explanation as to why UAC are being tIanSported via charter ?ights at all; What funding, if any, the Department contributes to ICE to detractr the costs of the program discussed in Ifthe Department contributes ?mding to ICE to defray the costs of the program discussed in;6.a.i., the speci?c Department account from which those funds are drawn; - Whether the?Department considers the transportation costs home by ICE to be ?savings? that can be attributed to the Department; and Thestatutory or regulatory authority for the program dis cussed in b. With reapect to Customs and Border Protection (CBP), documents or information providing: 1 i. iv. The date of implementation of the program or programs authorizing joint database access or infonnation sharing between the Deparhnent and The names of all Department of?cials andfor other personnel who recommended and/or approved the implementation of the program or programs discussed in - Copies of aliiMemoranda of Understanding or other documents authorizing the program or programs discussed in What ?niding, if any, the Department contributes to to defray the costs of the program or programs discussed in 3 vi. vii. Ifthe Department contributes funding to CBP to de?ay the costs of the program or programs discussed in the speci?c Department account ?our which those funds are dream; Whether the Departlnent considers the information technology and other logistical costs borne by CBP to be ?savings? that can be attributed to the Department; The statuton or regulatory authority authorizing the program or pro grams discussed in and The statutory or regulatory authority for the?program discussed in and With respect to the Federal Emergency Management Agency (FEMA), documents or information proyiding: i. ii. Information; about coordination efforts with FEMA o?cials to house UAC in close proximity to the United States-Mexico border; and Informationexplaining why FEMA has not played a larger role in the housing of UAC during past in?uxes. The following documents and information regarding the Department?s UAC~related international expenditures: a. Whether the Department is spending any funding in Mexico, Guatemala, El Salvador, andfor Honduras, for any reason; If the Dapartrnent is spending any of its funding in Mexico, Guatemala, El Salvador, andz?or Honduras: i. ii. iv. vi. above niternational expenditures. The apec?chepartment account or accounts from which this handing has been drawn or is being drawn; How, much iimding is being spent in each of these four countries, broken down by country and ?scal year; A line-item breakdown of h?W ?nding is being spent in each country; All documents and information regarding the Department?s ?nancial support for any public rotations, public service, or other information or advertising campaigns in each of these four countries; An explanation as to why the Department, rather than the State Department, is spending funding on such diplomatic engagement; and The statutory or re guiatory authority authorizing the Department to engage in the 9 I would also request that you provide with any additional materials that fall into the above categories on a continuing basis but are created, unitten, or otherwise produced after the Department?s initial receipt of this request. Please provide the requested documents and information as soon as possible, but no later than 9:00 am. on Wednesday, July 8, 2015. When producing documents to the Committee, please deliver separate production sets to both the Majority Staff in Room 224 of the Dirksen Senate Of?ce Building and the Minority Sta??in Room 152 of the Dirksen Senate Of?ce Building. I appreciate your cooperation in this very important matter and look forward to your response and receipt of the requested material at the stated date and time. Please contact Committee staff at (202) 224?5225 if you have any additional questions about how to comply with the terms of this production request. Sincerely, Ted Cruz Chairman Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts Attachment Co: The Honorable Charles E. Grassley Chairman Senate Committee on the Judiciary The Honorable Patrick J. Leahy Ranking Member Senate Committee on the Judiciary The Honorable Christopher A. Coons Ranking Member - Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts The Honorable Jeff B. Sessions Chairman Subcommittee on Immigration and the National Interest 10 The Honorable Charles E. Schumer Ranking Member Subcommittee on limnigration and the National Interest The Honorable Daniel Levinson Inspector General 3 U.S. Deparnnent of Health and Human Services The Honorable Loretta E. Attorney General U.S. Department of Justice The Honorable Mohael E. Horowitz Inapector General US. Department ot? Justice The Honorable eh Johnson Secretary US. Department of Homeland Security The Honorable John Roth Inspector General U.S. Department of; Homeland Security The Honorable John F. Kerry Secretary of State 2 11.3. Department of; State The Honorable Steve A. Linick Inspector General U.S. Deparnnent ofState and the Broadcasting Board of Governors The Honorable Shaun Donovan Director Of?ce of Management and Budget Executive Of?ce of the President 11