PEP's predecessor program, Secure Communities, or S-COMM, ended in part because various federal courts held aspects of the program to be unconstitutional. In November 2014, in response to widespread and mounting concerns, DHS Secretary Jeh Johnson announced the end of S-COMM and the launch of PEP, in part to avoid further constitutional violations. However, since this announcement, DHS has left the public in the dark about how PEP operates. 

Last week, Senator Sanders and Congressman Grijalva called on Secretary Johnson to increase transparency about PEP. Their letter pointed to a federal lawsuit filed last month in Southern District of New York, National Day Labor Organizing Network, et al., v. U.S. Immigration and Customs Enforcement, et al., No. 16-cv-0387, where immigrant rights groups sued DHS, ICE, and eight other federal agencies under the Freedom of Information Act (FOIA), demanding that they release records on PEP. 

Almost a year after filing their FOIA Request, the plaintiff's in the lawsuit have received little to no information on PEP from the ten agencies sued. Senator Sanders and Congressman Grijalva called on DHS and ICE to comply with their obligations under FOIA to disclose the records requested about PEP. 

Further, Senator Sanders and Congressman Grijalva echo concerns of immigrant communities and other that PEP does not rectify the problems of S-COMM: "there is little evidence that ICE is following the directives and priorities laid out in (Johnson's Priorities) memoranda, or that there is any oversight or accountability within the agency to follow the policies you established." Meanwhile, local and state lawmakers are under pressure to decide whether and how to participate in PEP in the absence of information about the program. 

The plaintiffs in the suit are the National Day Labor Organizing Network, Asian Americans Advancing Justice - Asian Law Caucus, and the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law.