[Senate Prints 116-57]
[From the U.S. Government Publishing Office]
116th Congress} { S. Prt.
2d Session } COMMITTEE PRINT { 116-57
======================================================================
DHS RUN AMOK?
A RECKLESS OVERSEAS OPERATION,
VIOLATIONS, AND LIES
__________
A MINORITY STAFF REPORT
PREPARED FOR THE USE OF THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
One Hundred Sixteenth Congress
SECOND SESSION
October 13, 2020
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-405 PDF WASHINGTON : 2021
--------------------------------------------------------------------------------------
COMMITTEE ON FOREIGN RELATIONS
JAMES E. RISCH, Idaho, Chairman
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin BENJAMIN L. CARDIN, Maryland
CORY GARDNER, Colorado JEANNE SHAHEEN, New Hampshire
MITT ROMNEY, Utah CHRISTOPHER A. COONS, Delaware
LINDSEY GRAHAM, South Carolina TOM UDALL, New Mexico
JOHN BARRASSO, Wyoming CHRISTOPHER MURPHY, Connecticut
ROB PORTMAN, Ohio TIM KAINE, Virginia
RAND PAUL, Kentucky EDWARD J. MARKEY, Massachusetts
TODD YOUNG, Indiana JEFF MERKLEY, Oregon
TED CRUZ, Texas CORY A. BOOKER, New Jersey
DAVID PERDUE, Georgia
Christopher M. Socha, Staff Director
Jessica Lewis, Democratic Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
----------
Page
Letter of Transmittal........................................ v
Introduction................................................. 1
State Department Agreemenmt with DHS Prohibited Immigration
and Law Enforcement Operations............................. 2
The Trump Administration's Deployment of U.S. Border Agents
to Guatemala............................................... 3
DHS Participation in Migration Operation at the Guatemala-
Honduras Border............................................ 4
SFRC Oversight Met with DHS Obfuscation...................... 6
DHS Admitted to Violating its Agreement with the State
Department................................................. 6
Conclusion................................................... 8
Principal Findings........................................... 8
Recommendations.............................................. 9
ANNEX A...................................................... 11
ANNEX B...................................................... 12
Letter of Transmittal
----------
United States Senate,
Committee on Foreign Relations,
Washington, DC, October 13, 2020.
Dear Colleagues: This explosive report is a painful
reminder of how President Trump's anti-immigrant agenda has
overtaken every aspect of this administration's work. Blurring
the lines between the work of our nation's professional
diplomatic corps and that of domestic immigration enforcement
agents is corrosive and wholly unacceptable.
Months before the Trump administration used similar tactics
against peaceful protestors in Portland, Oregon, we now know
DHS secretly used State Department funding to rent unmarked
vans in Guatemala to haul migrants back to the Guatemala-
Honduras border. In doing so, DHS misused State Department
funds, violated a written agreement between the two
departments, and got caught lying about it.
The Department of Homeland Security and Customs and Border
Protection have no business acting as un-deputized
international migration police throughout Latin America.
Congress must once again step in to serve as a check on this
President's unhinged anti-immigrant agenda.''
Sincerely,
Robert Menendez,
Ranking Member.
Introduction
----------
Since assuming office, President Donald Trump and his
administration have made curbing irregular migration a near
singular focus of U.S. foreign policy towards Central America.
President Trump's fixation on addressing irregular migration
has undermined the Department of State's traditional role as
the principal steward of U.S. foreign policy in the region, and
the Department of Homeland Security (DHS) has assumed
unprecedented influence over foreign policy towards Central
America. This paradigm shift has led to troubling consequences.
In January 2020, Senate Foreign Relations Committee (SFRC)
Democratic Staff uncovered a disturbing incident in which DHS
misused State Department funding to carry out an unauthorized
operation. Specifically, CBP personnel in Guatemala transported
an unidentified number of Honduran migrants in unmarked vans to
relocate them to the Guatemala-Honduras border. DHS informed
SFRC Democratic Staff that DHS personnel used the vans to
transport migrant women and children, but was unable to clarify
whether any family members had been separated during the
operation or whether there was any process to reunify any
family members that may have been separated. Moreover, the DHS
operation to transport Honduran migrants was conducted in an
improvised manner without any protocols in place to address
security considerations or ensure the personal safety and human
rights of the migrants. DHS also failed to put in place any
appropriate screening for individuals seeking asylum or
international protection.
The January 2020 incident occurred in a broader context in
which the Trump administration has repeatedly sought to
increase the role that DHS plays in Central America. For
example, when President Trump and Secretary of State Michael
Pompeo recklessly suspended over $400 million of U.S. foreign
assistance for El Salvador, Guatemala, and Honduras in 2019--a
decision they claimed was the result of the three countries not
effectively stopping migrants from reaching the U.S. border--
the administration still rerouted tens of millions of dollars
from the State Department to DHS programs to improve border
security and address transnational crime in the region.\1\ In
April 2020, when Secretary Pompeo announced a restart of U.S.
foreign assistance for the Northern Triangle and claimed the
three governments had taken steps to combat migration to the
United States, he touted that the governments had signed ``14
historic agreements and arrangements to strengthen cooperation
to deter illegal immigration.'' \2\ However, these agreements
had largely been negotiated and signed by DHS, not the State
Department.
---------------------------------------------------------------------------
\1\ Congressional Research Service (CRS), U.S. Strategy for
Engagement in Central America: Policy Issues for Congress, at 20,
updated Nov. 12, 2019; Morgan Ortagus, Department Spokesperson, U.S.
Department of State, ``Department Press Briefing,'' June 17, 2019.
\2\ Press Statement, Michael R. Pompeo, Secretary of State, U.S.
Department of State, ``United States Continues U.S. Foreign Assistance
for El Salvador, Guatemala, and Honduras,'' Apr. 13, 2020; U.S.
Department of Homeland Security, Fact Sheet: DHS Agreements with
Guatemala, Honduras, and El Salvador (last visited October 6, 2020).
---------------------------------------------------------------------------
In the January 2020 incident, DHS personnel stationed in
Guatemala conducted a reckless operation that breached
restrictions on their funding. Additionally, in response to
SFRC Democratic Staff inquiries, DHS initially tried to
obfuscate the violation of its agreement with the State
Department. Later, DHS acknowledged that its actions violated
the terms of an interagency agreement between DHS and the State
Department's Bureau of International Narcotics and Law
Enforcement Affairs (INL), constituting a misuse of INL
funding. In reviewing this incident, SFRC Democratic Staff
found that:
DHS violated its interagency agreement with the State
Department that explicitly prohibited DHS from
conducting operations with INL funding.
DHS lied to the State Department about how it misused INL
funding and caused the State Department to transmit
misleading information to Congress.
DHS' improvised operation lacked protocols related to
security, personal safety, human rights, and the
screening of migrants for international protection.
DHS unnecessarily exposed the U.S. Government to potential
legal and financial liabilities.
DHS has assumed unprecedented influence over U.S. bilateral
relations with Guatemala, simultaneously imposing its
policies on the Guatemalan government and undermining
the State Department's traditional role as the
principal steward of U.S. foreign policy.
This report reviews the troubling January 2020 incident and
makes recommendations for Congress and the State Department to
prevent similar events in the future.\3\ It also calls on the
State Department and DHS Inspectors General to thoroughly
investigate this matter.
---------------------------------------------------------------------------
\3\ As the principal Senate committee with jurisdiction over the
State Department, the Senate Foreign Relations Committee conducts
regular oversight over INL programs, as well as INCLE-funded programs
administered by the other departments and agencies, including DHS.
State Department Agreement with DHS Prohibited
Immigration and Law Enforcement Operations
The Secretary of State serves as the principal authority
responsible for U.S. foreign policy and foreign assistance, and
the Department of State plays a central coordinating role with
other U.S. Government departments and agencies that operate
overseas. U.S. Ambassadors, in their role as chiefs of mission,
are responsible for overseeing and coordinating all activities
of the U.S. government in country, including through the
development of an Integrated Country Strategy. Additionally,
given the authorities conferred on the Secretary of State in
his or her administration of U.S. foreign assistance, the
Department of State may transfer, allocate, or obligate foreign
assistance funding to other U.S. departments and agencies to
implement assistance programs in foreign jurisdictions.
The Bureau of International Narcotics and Law Enforcement
Affairs (INL) leads the State Department's efforts to counter
transnational crime and narcotics trafficking, as well as build
the capacity of partner governments' criminal justice
systems.\4\ INL frequently partners with DHS, the Department of
Justice (DOJ), and other agencies as part of its administration
of INL assistance programs. INL regularly enters into
interagency agreements with other U.S. Government departments
and agencies to finance programs with State Department
International Narcotics Control and Law Enforcement (INCLE)
funding. In order to advance U.S. foreign policy objectives,
INL utilizes interagency agreements to specify the purposes for
which INCLE funding can be used, as well as particular
limitations, restrictions, and prohibitions on the use of the
funds.
---------------------------------------------------------------------------
\4\ U.S. Department of State, ``About Us--Bureau of International
Narcotics and Law Enforcement Affairs,'' https://www.state.gov/about-
us-bureau-of-international-narcotics-and-law-enforcement-affairs/.
---------------------------------------------------------------------------
Under routine circumstances, INL provides INCLE funding to
DOJ and DHS to provide training to civilian police and border
authorities in Central America, including technical training to
improve criminal investigations and routine law enforcement
inspections, as well as human rights standards.\5\ INL utilizes
its interagency agreements to prohibit DHS from conducting
operations with INCLE funding, and the INL-DHS agreement for
Guatemala included terms that explicitly stated ``U.S.
personnel under this agreement will not conduct immigration or
law enforcement operations; they are in country for mentoring,
advising and capacity-building purposes only.''\6\
---------------------------------------------------------------------------
\5\ Government Accountability Office, ``Central America Police
Training,'' GAO-18-618, Sept. 5, 2018; Nick Miroff & Kevin Sieff,
``Trump Administration to send DHS agents, investigators to Guatemala-
Mexico border,'' The Washington Post, May 31, 2019.
\6\ Annex A.
---------------------------------------------------------------------------
Yet in January 2020, DHS directly violated its interagency
agreement with INL and misused INCLE assistance when it did
just that: conducted an overseas immigration operation to
transport Honduran migrants in the border region of Guatemala.
The Trump Administration's Deployment of U.S. Border
Agents to Guatemala
Less than two weeks into January 2020, the year's first
caravan of Central American migrants amassed in western
Honduras.\7\ With hundreds of migrants moving towards the
Guatemalan border on January 15, the stakes were high for
Guatemala's new president, Alejandro Giammattei. Less than 24
hours earlier, President Alejandro Giammattei had been sworn
into office, pledging to combat the challenges of corruption
and crime that had festered under his predecessor--factors that
forced tens of thousands of Guatemalans to flee their country
every year.\8\
---------------------------------------------------------------------------
\7\ Kirk Semple, ``Migrant Caravan Embarks from Honduras, Posing
Challenge to Region, The New York Times, Jan. 15, 2020.
\8\ Sofia Menchu and Frank Jack Daniel, ``Turbulent Inauguration
Day in Guatemala, Outgoing President Hit by Eggs,'' Reuters, Jan. 14,
2020.
---------------------------------------------------------------------------
Before President Giammattei could formally take office, the
Trump administration had already made it clear that addressing
irregular migration in Central America would continue to be its
number one priority for the U.S.-Guatemala bilateral
relationship. On January 14, DHS Undersecretary Chad Wolf
joined Commerce Secretary Wilbur Ross in Guatemala for the new
president's inauguration.\9\ Before the ceremony, Wolf met
Giammattei privately to discuss immigration and subsequently
expressed his public expectations that the two countries would
continue their ``already strong partnership to reduce illegal
immigration to the United States.''\10\
---------------------------------------------------------------------------
\9\ Press Release, U.S. Department of Commerce, ``Secretary of
Commerce Leads U.S. Delegation to Guatemala,'' Jan. 15, 2020.
\10\ Press Release, U.S. Department of Commerce, ``Secretary of
Commerce Leads U.S. Delegation to Guatemala,'' Jan. 15, 2020; Sofia
Menchu and Frank Jack Daniel, ``Turbulent Inauguration Day in
Guatemala, Outgoing President Hit by Eggs,'' Reuters, , Jan. 14, 2020.
---------------------------------------------------------------------------
Upon returning to Washington, Wolf expressed confidence in
a Fox Radio interview that the Trump administration had
established enough obstacles to prevent members of the migrant
caravan from reaching the U.S. border or pursuing asylum claims
in the United States, despite U.S. laws guaranteeing the right
to seek asylum.\11\ Wolf asserted in his interview, ``[w]hat
has changed from 2018 or even from last year are the number of
agreements that we have in place with Honduras, Guatemala, as
well as Mexico.''\12\ To reinforce the Trump administration's
aggressive stance, he stated, ``[w]e have CBP agents--tactical
agents--in Guatemala.''\13\
---------------------------------------------------------------------------
\11\ Chad Wolf, Acting Secretary of Department of Homeland
Security, Interview with Brian Kilmeade, The Brian Kilmeade Show, Fox
News, Jan. 16, 2020. The right to seek asylum in the United States is
codified under the United States Refugee Act of 1980, P.L. 96-212, 8
U.S.C. Sec. 1158.
\12\ Chad Wolf, Acting Secretary of Department of Homeland
Security, Interview with Brian Kilmeade, The Brian Kilmeade Show, Fox
News, Jan. 16, 2020. For information about the agreements, see U.S.
Department of Homeland Security, Fact Sheet: DHS Agreements with
Guatemala, Honduras, and El Salvador, https://www.dhs.gov/sites/
default/files/publications/19--1028--opa--factsheet-northern-central-
america-agreements--v2.pdf.
\13\ Chad Wolf, Acting Secretary of Department of Homeland
Security, Interview with Brian Kilmeade, The Brian Kilmeade Show, Fox
News, Jan. 16, 2020.
---------------------------------------------------------------------------
As Guatemalan authorities prepared to respond to the surge
of Honduran migrants crossing the border, Wolf's comments about
the deployment of ``tactical agents'' alluded to an
unauthorized DHS operation conducted by Customs and Border
Protection (CBP) personnel in the country.
DHS Participation in Migration Operation at the
Guatemala-Honduras Border
On January 15, as the first migrant caravan of 2020 moved
across the border from Honduras into Guatemala, officers from
the Guatemalan border police--the Division of Ports, Airports,
and Border Crossings (Division de Puertos, Aeropuertos y
Puestos Fronterizos, DIPAFRONT)--responded.\14\ Guatemala has
long been a source and transit country for irregular migration,
and the phenomenon of migrant caravans gained widespread
international attention in 2018 when thousands of Hondurans
crossed Guatemala en route to the United States.\15\ With
hundreds of migrants arriving on January 15, DIPAFRONT
personnel mounted their response near the Corinto crossing at
the Guatemala-Honduran border.
---------------------------------------------------------------------------
\14\ ``US Agents Aid in Guatemalan Crackdown on Hundreds of
Migrants Headed North,'' The Guardian, Jan. 16, 2020. While reporting
by The Guardian indicated the presence of DHS Immigrations and Custom
Enforcement (ICE) personnel at the Guatemala-Honduras border, DHS later
clarified to SFRC Democratic Staff that the personnel had been from
U.S. Customs and Border Protection (CBP).
\15\ Dara Lind, ``The Migrant Caravan, Explained,'' Vox, updated
Oct. 25, 2018.
---------------------------------------------------------------------------
However, in a break from past practice, DHS personnel
deployed to the border and actively participated in joint
operations with DIPAFRONT.\16\ Press reports indicated that CBP
personnel assumed a direct role in preventing the migrant
caravan from transiting Guatemala.\17\ The State Department and
DHS later confirmed that CBP personnel participating in the
operation had overstepped the authority of their authorized
training activities.\18\ DIPRAFRONT and DHS personnel stopped
hundreds of Honduran migrants after they crossed the border and
later bussed them to border facilities for processing.\19\
According to Guatemalan officers on the ground, ``the United
States paid for the buses.''\20\
---------------------------------------------------------------------------
\16\ ``US Agents Aid in Guatemalan Crackdown on Hundreds of
Migrants Headed North,'' The Guardian, Jan. 16, 2020; Sonia Perez,
``Guatemala Deporta a un Grupo de la Caravana de Migrantes a
Honduras,'' Telemundo Houston, Jan. 15, 2020.
\17\ Sonia Perez, ``Guatemala Deporta a un Grupo de la Caravana de
Migrantes a Honduras,'' Telemundo Houston, Jan. 15, 2020; ``US Agents
Aid in Guatemalan Crackdown on Hundreds of Migrants Headed North,'' The
Guardian, Jan. 16, 2020.
\18\ U.S. Department of State and Department of Homeland Security
Officials, Meeting with Senate Foreign Relations Committee Staff,
Washington, DC, Jan. 30, 2020.
\19\ 19 ``US Agents Aid in Guatemalan Crackdown on Hundreds of
Migrants Headed North,'' The Guardian, Jan. 16, 2020.
\20\ Id.
---------------------------------------------------------------------------
DHS eventually confirmed that CBP personnel present in
eastern Guatemala commissioned unmarked vehicles and contracted
drivers to support its joint operations with DIPRAFRONT.\21\
CBP and DIPRAFRONT loaded an untold number of Honduran migrants
into unmarked vans and drove them back to the Guatemala-
Honduras border. It remains unclear whether the Honduran
migrants were provided with any information about the role of
the United States Government when they were taken into custody
and placed into vans that did not bear the logo of DHS, CBP, or
DIPRAFRONT. It is also unclear if the Honduran migrants were
provided with any information about their rights in Guatemala
as they were loaded into the unmarked vehicles commissioned by
CBP.\22\ Additionally, CBP's operation to transport Honduran
migrants was carried out in an entirely improvised manner.
There were no protocols put in place to ensure operational
security or the personal safety and human rights of Honduran
migrants that were transported by DHS.\23\
---------------------------------------------------------------------------
\21\ See Annex B.
\22\ In a meeting with SFRC Democratic Staff, DHS was not able to
provide any specificity about the number of Honduran migrants
transported by CBP during its joint operation with DIPRAFRONT, any
evidence that CBP or DIPRAFRONT personnel had informed the Honduran
migrants they were being transported on vehicles commissioned by CBP,
or any evidence that CBP or DIPRAFRONT personnel had informed the
Honduran migrants of their rights in the Guatemalan legal system. U.S.
Department of State and Department of Homeland Security Officials,
Meeting with Senate Foreign Relations Committee Staff, Washington, DC,
Jan. 30, 2020.
\23\ DHS was not able to provide any evidence that it had protocols
in place to ensure the security of the vehicles or drivers, or any
screening and security processes in place to ensure the personal safety
of the migrants transported in the vans. Id.
---------------------------------------------------------------------------
As would become apparent in the ensuing weeks, the
deployment of CBP agents to the Guatemalan border for joint
operations with DIPAFRONT constituted a direct violation of its
interagency agreement with the State Department and one that
exposed the U.S. Government to potential legal and financial
liabilities.
SFRC Oversight Met with DHS Obfuscation
On January 21, SFRC Democratic Staff submitted written
questions to the Department of State regarding the press
accounts of the events that took place at the Guatemala-
Honduras border. Given the concerning nature of the media
reports that DHS personnel were participating in joint
operations with DIPRAFRONT, SFRC Democratic Staff specifically
asked the State Department to confirm if DHS participated in
operations to transport Honduran migrants in Guatemala and
whether any State Department funding was utilized to support
DHS participation in any such operations. SFRC Democratic Staff
also asked the State Department to confirm if any of the
Honduran migrants were provided with access to asylum
screening, specifically given that, prior to the Asylum
Cooperative Agreement entering into force on November 15, 2019,
DHS and DOJ had certified that the Guatemalan asylum system is
capable of providing migrants with a full and fair asylum
process.\24\
---------------------------------------------------------------------------
\24\ See Annex A.
---------------------------------------------------------------------------
On January 22, the Department of State transmitted written
responses to the Senate Foreign Relations Committee regarding
DHS operations in Guatemala. The State Department's responses
indicated that, ``DHS has informed INL that they did not
participate in the action of bussing Honduran migrants from
Guatemala back to the Honduran border or their country of
origin.''\25\ The State Department also noted that, ``INL is
not aware any INL funding was utilized to pay for operations in
Guatemala to return Honduran migrants back to the Honduran
border or their country of origin.''\26\
---------------------------------------------------------------------------
\25\ Annex A.
\26\ Id.
---------------------------------------------------------------------------
Additionally, the State Department responses reaffirmed
that ``INL's interagency agreement with DHS in Guatemala
clearly specifies U.S. personnel under this agreement will not
conduct immigration or law enforcement operations; they are in
country for mentoring, advising and capacity-building purposes
only.''\27\ However, as would soon become apparent, DHS had
lied to the State Department in order to cover up its role in
the joint operations with Guatemalan authorities. In doing so,
DHS caused the State Department to transmit misleading
information to Congress.
---------------------------------------------------------------------------
\27\ Id.
DHS Admitted to Violating its Agreement with
the State Department
On January 30, 2020, the State Department submitted revised
responses to the Senate Foreign Relations Committee--
information that would correct the falsehoods advanced by DHS
the week prior. Acknowledging that the ``information previously
provided was not accurate,'' the State Department provided new
details that it had received from DHS.\28\
---------------------------------------------------------------------------
\28\ See Annex B.
---------------------------------------------------------------------------
In violation of the terms of its interagency agreement with
INL, DHS acknowledged that it had used State Department INCLE
funding from fiscal year 2017 to conduct its joint operations
with DIPRAFRONT.\29\ Specifically, DHS admitted that INCLE
funding ``previously utilized to rent three 12-passenger vans
and drivers to transport personnel and equipment was
subsequently used to return Honduran migrants back to the
Guatemalan-Honduran border.''\30\
---------------------------------------------------------------------------
\29\ See Annex B.
\30\ See Id.
---------------------------------------------------------------------------
That same day, senior officials from the State Department
and DHS met with SFRC Democratic Staff to provide additional
clarifications regarding the false information transmitted on
January 22, 2020. When SFRC Democratic Staff raised questions
about the provision of the INL-DHS interagency agreement that
prohibited immigration and law enforcement operations, DHS
acknowledged that the joint operation with DIPRAFRONT violated
the terms of the agreement.\31\ In recognition of the gravity
of the transgressions committed, DHS stated that it had
curtailed the assignment of the personnel in Guatemala who
authorized the joint operation and that the individual would be
returning to Washington immediately.\32\
---------------------------------------------------------------------------
\31\ U.S. Department of State and U.S. Department of Homeland
Security Officials, Meeting with Senate Foreign Relations Committee
Staff, Washington, DC, Jan. 30, 2020.
\32\ Id.
---------------------------------------------------------------------------
Additionally, DHS confirmed that the vans rented with INCLE
funding had been used to transport migrant women and children
separately from men.\33\ However, DHS was unable to provide
information as to whether any family members had been separated
during their operation, whether any children were
unaccompanied, whether there was any process to reunify family
members who may have been separated, or whether Guatemalan
authorities ensured migrants had access to asylum screening
prior to being returned to Honduras.\34\
---------------------------------------------------------------------------
\33\ Id.
\34\ Id.
---------------------------------------------------------------------------
By its own admission, DHS took few precautions to ensure
that the human rights of migrants--particularly refugees,
asylum seekers, and children--subject to their operation were
upheld. This unsettling admission leaves open the possibility
that DHS may have contributed to new incidents of family
separation, facilitated the forcible return of refugees, or
otherwise added to the protection risks faced by asylum seekers
and other vulnerable migrants. In failing to develop
appropriate screening protocols for the Honduran migrants, the
DHS operation exposed the U.S. Government to possible
complicity in any potential violation of the principle of non-
refoulement enshrined in the 1951 Refugee Convention and its
1967 Protocol, as well as the 1984 Convention Against Torture,
which both Guatemala and the United States are required to
uphold.
SFRC Democratic Staff also raised concerns about the
potential legal and financial liabilities that theU.S.
Government would have faced if any of the vehicles rented by
DHS would have been in an auto accident while transporting
Honduran migrants in Guatemala or if the driver or the
passengers had been injured. In recognition of the seriousness
of the unnecessary risks that had been incurred by DHS
participation in joint operations with DIPRAFRONT, the State
Department acknowledged that the U.S. Government potentially
would have faced significant liabilities.
Conclusion
The DHS breach of its interagency agreement with the State
Department and initial effort to obfuscate the violation must
be seen in the broader context of the Trump administration's
failed track record of coercive policies toward Central
America. To advance President Trump's narrow goals, his
administration has resorted to a wide range of aggressive
tactics.
The Trump administration has threatened visa sanctions
against countries unable to receive deportation flights during
the current COVID-19 pandemic, even following reports which
confirmed that the U.S. had deported individuals to Guatemala
who tested positive for COVID-19.\35\ In March 2019, the Trump
administration suspended over $500 million in U.S. foreign
assistance aimed at addressing the root causes of irregular
migration because it felt that Central American governments
were not doing enough to prevent their citizens from
leaving.\36\ And, the Trump administration has forced
governments in the Northern Triangle of Central America--El
Salvador, Guatemala, and Honduras--to sign a series of asylum-
related agreements that not one of the governments can
implement responsibly.\37\
---------------------------------------------------------------------------
\35\ President Donald J. Trump, Memorandum on Visa Sanctions, The
White House, Apr. 10, 2020, https://www.whitehouse.gov/presidential-
actions/memorandum-visa-sanctions/; Yael Schacher and Rachel Schmidtke,
``Harmful Returns: The Compound Vulnerabilities of Returned Guatemalans
in the Time of COVID-19,'' Refugees International, June 23, 2020.
\36\ Congressional Research Service, U.S. Strategy for Engagement
in Central America: Policy Issues for Congress, at 20, updated Nov. 12,
2019.
\37\ Rachel Schmidtke et al., ``Deportation with a Layover: Failure
of Protection Under the U.S.-Guatemala Asylum Cooperative Agreement,''
Refugees International, May 19, 2020; U.S. Department of Homeland
Security, Fact Sheet: DHS Agreements with Guatemala, Honduras, and El
Salvador, https://www.dhs.gov/sites/default/files/publications/19--
1028--opa--factsheet-northern-central-america-agreements--v2.pdf.
---------------------------------------------------------------------------
Such aggressive tactics have damaged United States standing
in the Northern Triangle and, on May 21, 2020, led President of
Giammattei to remark that, ``I don't believe the U.S. is an
ally to Guatemala, because they don't treat us like one.''\38\
The continuation of this trend threatens to undermine U.S.
national security interests in Central America, and must be
reversed.
---------------------------------------------------------------------------
\38\ Rafael Bernal, ``Guatemalan president: `I don't believe the
U.S. is an ally to Guatemala,' '' The Hill, May 21, 2020.
Principal Findings
DHS violated its interagency agreement with the State
Department. The INL-DHS interagency agreement included
terms that established that, ``U.S. personnel under
this agreement will not conduct immigration or law
enforcement operations; they are in country for
mentoring, advising and capacity-building purposes
only.''\39\ Nevertheless, DHS personnel actively
participated in joint operations with Guatemalan border
police to transport Honduran migrants back to the
Guatemala-Honduras border. DHS personnel acknowledged
that this was an explicit violation of the INL-DHS
interagency agreement.\40\
---------------------------------------------------------------------------
\39\ See Annex A.
\40\ U.S. Department of State and Department of Homeland Security
Officials, Meeting with Senate Foreign Relations Committee Staff,
Washington, DC, Jan. 30, 2020.
DHS lied to the State Department about how it misused INCLE
funding and caused the State Department to transmit
misleading information to Congress. In written answers
submitted to SFRC Democratic Staff on January 22, the
State Department noted that ``DHS has informed INL that
they did not participate in the action of bussing
Honduran migrants from Guatemala back to the Honduran
border or their country of origin.''\41\ Despite
initial attempts at obfuscation, DHS subsequently
corrected that assertion and acknowledged that it had
misused INCLE funding for purposes explicitly
prohibited in the INL-DHS interagency agreement.
---------------------------------------------------------------------------
\41\ Id.
DHS operated without security and human rights safeguards.
DHS transported Honduran migrants to the Guatemala-
Honduras border without any protocols in place to
ensure the security of the unmarked vans that it rented
or the safety of the drivers and passengers. It also
operated without any assurances or procedures in place
to prevent the forcible return of refugees or
individuals fearing torture, risking U.S. complicity in
any potential violation of the principle of non-
refoulement enshrined in the 1951 Refugee Convention
and its 1967 Protocol, as well as the 1984 Convention
Against Torture, which both Guatemala and the United
States are required to uphold. Additionally, DHS'
actions may have contributed to new incidents of family
---------------------------------------------------------------------------
separation.
DHS exposed the U.S. Government to potential legal and
financial liabilities. By conducting prohibited joint
operations with Guatemalan border police, DHS personnel
unnecessarily exposed the U.S. government to potential
legal and financial liabilities. By transporting
Honduran migrants inside Guatemala, DHS ran the risk of
a potential automobile accident and related personal
injuries, which would have exposed the U.S. Government
to potential legal and financial liabilities, as well
as significant political and reputational damages.
Recommendations
1. The State Department and DHS Inspectors General should
investigate violations of the INL interagency agreement
and misuse of INCLE funds. DHS participation in joint
operations with Guatemalan migration authorities
explicitly violated the terms of the INL-DHS
interagency agreement, which stated that, ``U.S.
personnel under this agreement will not conduct
immigration or law enforcement operations.''\42\ The
State Department and DHS Inspectors General should
examine how DHS personnel violated the terms of the
interagency agreement and misused INCLE funds for
activities that were specifically prohibited, as well
as if other similar violations may have occurred in
Central America and Mexico.
---------------------------------------------------------------------------
\42\ Id.
2. Congress must reform INCLE authorities. Congress must
reform the Foreign Assistance Act (FAA) to prevent the
State Department's International Narcotics and Law
Enforcement (INCLE) funding from being used for anti-
immigration operations overseas. Specifically, Congress
must amend Section 481 of the FAA (22 U.S.C. Sec. 2291)
to expressly prohibit joint operations with foreign
government migration and border authorities. Pending
such reform, Congress should place similar restrictions
in appropriations bills to prohibit use of INCLE
funding in immigration operations in foreign
jurisdictions. Such legal prohibitions would strengthen
policy restrictions placed by the State Department in
---------------------------------------------------------------------------
the INL-DHS interagency agreement.
3. The State Department must implement comprehensive
mitigation measures. Following SFRC Democratic Staff
raising concerns about this incident, State Department
and DHS agreed to a series of measures to mitigate
against future misuse of INCLE funds in Guatemala,
including an increased frequency of coordination
meetings, additional financial reporting, and an
explicit requirement that only U.S. Government
personnel are able to enter any vehicle rented with
INCLE funds. To prevent similar events occurring
elsewhere in the region, it is essential that these
changes be standardized for all INL-DHS interagency
agreements related to Mexico and Central America.
4. The State Department must reclaim its leadership of U.S.
foreign policy. Despite the Trump administration's
singular fixation on addressing irregular migration in
Central America, the State Department must reassert its
role as the principal steward of U.S. foreign policy in
the region. U.S. Ambassadors in Central America and
Mexico must reassert their authority for overseeing and
coordinating the activities of all U.S. government
agencies in the country, specifically DHS. DHS misuse
of INCLE funds in Guatemala showed that DHS officials
are willing to place their own operational decisions
above the limitations and prohibitions in their
interagency agreements with the State Department. DHS
must return to its traditional role of solely providing
training and technical assistance to foreign
counterparts.
ANNEX A
----------
INL Response to Questions
by Brandon Yoder \43\
---------------------------------------------------------------------------
\43\ This information was transmitted to the Senate Foreign
Relations Committee by the Department of State on Jan. 22, 2020. Email
from the Bureau of Legislative Affairs, U.S. Department of State, to
Senate Foreign Relations Committee Staff, Jan. 22, 2020.
Question 1. Is INL aware of whether DHS/ICE (or any other
part of DHS) participated in bussing Honduran migrants from
Guatemala back to the Honduran border or their country of
---------------------------------------------------------------------------
origin?
Response. DHS has informed INL that they did not
participate in the action of bussing Honduran migrants from
Guatemala back to the Honduran border or their country of
origin.
Question 2. Was any INL funding (regardless of fiscal year)
utilized to pay for operations in Guatemala to return Honduran
migrants back to the Honduran border or their country of
origin? If so, please detail all related funding, including the
source of funds/account, fiscal year(s), awardee(s), funding
amounts, and a brief description of each award.
Response. No. INL is not aware any INL funding was utilized
to pay for operations in Guatemala to return Honduran migrants
back to the Honduran border or their country of origin. INL's
interagency agreement with DHS in Guatemala clearly specifies
U.S. personnel under this agreement will not conduct
immigration or law enforcement operations; they are in country
for mentoring, advising and capacity-building purposes only.
Question 3. In the event that INCLE (or any other funding)
was used to support the operations described above, please cite
the specific funding authority utilized to carry out these
operations.
Response. INL is not aware any INL funding was used to
support the bussing Honduran migrants from Guatemala back to
the Honduran border or their country of origin.
Separately, the Department's Bureau of Population,
Refugees, and Migration (PRM) provides financial support for
the International Organization for Migration (IOM)'s Assisted
Voluntary Return (AVR) program operating in Mexico and several
Central American countries, including Guatemala. IOM's AVR
program provides a safe, humane, voluntary means for migrants
in those countries to return to their home countries, if they
wish to do so.
Question 4. Given that DHS/DOJ recently certified that the
Guatemalan asylum system is capable of providing migrants with
a full and fair asylum process, were any of the migrants
returned under the operations described above provided with
access to an asylum screening?
Response. DHS has informed INL that they did not support
the bussing of Honduran migrants from Guatemala back to the
Honduran border or their country of origin.
ANNEX B
----------
INL Revised Responses to Questions
by Brandon Yoder \44\
---------------------------------------------------------------------------
\44\ This information was transmitted to the Senate Foreign
Relations Committee by the Department of State on Jan. 30, 2020. Email
from the Bureau of Legislative Affairs, U.S. Department of State, to
Senate Foreign Relations Committee Staff, Jan. 30, 2020.
Question 1. Is INL aware of whether DHS/ICE (or any other
part of DHS) participated in bussing Honduran migrants from
Guatemala back to the Honduran border or their country of
---------------------------------------------------------------------------
origin?
Response. Since the Department of State's January 22
response to you, we learned the information previously provided
was not accurate. DHS informed INL January 23 that FY 17 INCLE
funding previously utilized to rent three 12-passenger vans and
drivers to transport personnel and equipment was subsequently
used to return Honduran migrants back to the Guatemalan-
Honduran border.
Question 2. Was any INL funding (regardless of fiscal year)
utilized to pay for operations in Guatemala to return Honduran
migrants back to the Honduran border or their country of
origin? If so, please detail all related funding, including the
source of funds/account, fiscal year(s), awardee(s), funding
amounts, and a brief description of each award.
Response. Yes. DHS informed INL January 23 that FY 17 INCLE
funding was utilized to rent three 12-passenger vans and
drivers to transport personnel and equipment and then
subsequently used to transport Honduran migrants back to the
Honduran border.
Question 3. In the event that INCLE (or any other funding)
was used to support the operations described above, please cite
the specific funding authority utilized to carry out these
operations.
Response. The Guatemala Assistance on Irregular Migration
(GAIM) program is funded through an interagency agreement
between INL and DHS with FY 17 INCLE funding.
Question 4. Given that DHS/DOJ recently certified that the
Guatemalan asylum system is capable of providing migrants with
a full and fair asylum process, were any of the migrants
returned under the operations described above provided with
access to an asylum screening?
Response. DHS informed INL they are unaware whether the
Honduran migrants transported back to Honduras requested asylum
in Guatemala.
[all]