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Don’t Be Fooled: Funding for ICE Homeland Security Investigations (HSI) Is Funding for Trump’s Anti-Immigrant Agenda (The Torch)

Don’t Be Fooled: Funding for ICE Homeland Security Investigations (HSI) Is Funding for Trump’s Anti-Immigrant Agenda

THE TORCH: CONTENTSBy Jessie Hahn, NILC Labor & Employment Policy Attorney
FEBRUARY 8, 2019

While the public may think that Homeland Security Investigations (HSI) focuses primarily on national security and transnational crime, HSI is also responsible for certain immigration enforcement functions inside the U.S. (known as “interior enforcement”), including enforcement of immigration laws as they apply to worksites (“worksite enforcement“). In October 2017, the former acting director of U.S. Immigration and Customs Enforcement (ICE), Thomas Homan, vowed to increase worksite enforcement activities “4 to 5 times,” and in January 2018, U.S. Dept. of Homeland Security Secretary Kirstjen Nielsen doubled down by promising to ramp up worksite raids.

As a result, HSI has resumed engaging in highly militarized and coercive large-scale worksite immigration raids. In fact, over the spring and summer of 2018, it conducted several high-profile operations in Florida, Tennessee, Iowa, two locations in Ohio, Nebraska, Minnesota, Texas, and Arkansas.

Worksite raids are a violent and widely condemned enforcement tactic that tear parents away from unsuspecting children, cause profound psychological harm, destabilize local communities, and generally undermine all workers’ job-related rights. While HSI has attempted to legitimize its use of worksite raids by claiming they are criminal investigations, the vast majority of the workers detained are administratively arrested on civil immigration violations, and in most cases the employers are not criminally charged. By using worksite raids to target large numbers of workers for arrest and deportation while failing to prosecute the employers who hired them and profited from their labor, HSI’s new worksite enforcement practices mirror the larger strategy of the Trump administration — abusing executive powers to demonize and scapegoat immigrants while quietly pursuing policies that line the pockets of business interests.

 

During the spring and summer of 2018, disturbing patterns emerged in HSI’s conduct of its worksite raids. Multiple news reports described that while helicopters circled overhead and local law enforcement blocked nearby roads, HSI agents stormed worksites as heavily armed guards secured all exits. In the utter chaos that ensued, unsuspecting workers were subjected to excessive force, intimidated by police dogs, thrown to the ground, assaulted, had guns pointed at their heads, and were subjected to racist and degrading comments from HSI agents. In Ohio, plainclothes HSI agents initially lured a group of workers into a breakroom using boxes of donuts before surrounding them and arresting them. In multiple raids, HSI agents racially profiled workers, separating workers by skin tone and rounding up brown-skinned workers without asking for identification or immigration status information — which resulted in false arrests of U.S. citizens who were then held unlawfully, in some cases for hours.

Predictably, such enforcement brings deep trauma to those directly impacted by it and also terrifies the larger immigrant community. After a devastating raid in Tennessee, the ripple effects spread across the region, with neighbors scrambling to care for children who had been left stranded without parents for hours and families sleeping in churches for days out of fear of ICE coming to their homes. The day after the raid, 550 children failed to show up to local schools. This kind of immigration enforcement has a profoundly destabilizing effect on the well-being of the children whose parents are unexpectedly torn from them, causing severe anxiety and depression, poor sleeping and eating habits, inability to focus in school, and constant fear of separation from other family members.

While HSI has engaged in criminal investigations of employers since its formation, the use of large-scale worksite raids to target workers for arrest and deportation was discontinued after 2008 due to the widely documented harms and the havoc these operations cause. In public statements, HSI has attempted to justify its latest ramping up of worksite enforcement as necessary to “build another layer of border security” and “reduce the continuum of crime that illegal labor facilitates.” In reality, HSI is making the decision to engage in the most aggressive, violent form of enforcement it can take at worksites because the real purpose of the raids is to target workers for deportation while creating a media spectacle designed to intimidate immigrant communities into “self-deporting.”

 

If HSI were serious about curbing unlawful hiring and employment, it would meaningfully hold employers accountable instead of focusing its enforcement firepower on workers. Yet in the majority of recent raids, employers have not been charged criminally — in fact, 2018 saw the lowest number of federal indictments and convictions of managers for unlawful hiring offenses in the last ten years. In addition, of the 779 criminal worksite arrests that HSI did make in 2018, 85 percent were workers and 15 percent were employers. As the graph above shows, while there has been an increase in the number of employers charged criminally in the worksite enforcement context, far greater resources have been expended in criminally charging workers — and most of those charges were detected after taking the workers into custody and fingerprinting them (see examples from the raids in TennesseeSandusky, Ohio; and Canton, Ohio).

HSI also alleges that its investigations help combat the exploitation of workers, but that couldn’t be further from the truth. HSI’s worksite enforcement activities force immigrant workers into the margins and damage communities, making workers more fearful of deportation and more vulnerable to gross exploitation by employers. When HSI’s own investigation of the Tennessee employer turned up wage and hour and safety violations on the job, it did not refer those violations to the proper authorities (who opened investigations only after the employees filed complaints).

ICE has been sued repeatedly for constitutional violations committed during home raids and by this point should be well aware of the constitutional rights and protections that everyone in the U.S. has. There is no legitimate reason for Congress to increase funding for HSI’s abusive worksite raids. Currently, HSI has approximately 6,000 enforcement officers and 6,000 special agents. But it wants to add an additional 10,000 officers and agents, which would significantly increase its capacity to harm families and communities across the country.

Rather than increasing HSI’s funding, Congress should cut it and also prohibit HSI from arresting workers while conducting worksite enforcement.

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Redacted National Vetting Center Implementation Plan Raises More Concerns Than It Answers (The Torch)

Redacted National Vetting Center Implementation Plan Raises More Concerns Than It Answers

THE TORCH: CONTENTSBy Joan Friedland
JANUARY 31, 2019

The Trump administration recently released a redacted version of its implementation plan (dated August 2018 but not released until December 2018) for a newly created National Vetting Center (NVC). The NVC project was first announced by presidential proclamation (NSPM-9) in February 2018. While it raised immediate concerns, the implementation plan and a December 11, 2018, privacy impact assessment (PIA) only confirm why this should worry immigrants and citizens.

As we’ve reported previously, the administration has been determined to implement a “continuous vetting strategy, framework and process” as a way to screen non–U.S. citizens at all stages of the immigration process, including after they become U.S. citizens. This extreme vetting strategy is part of a larger Trump agenda to criminalize, surveil, and police immigrants and communities of color. The NVC represents one element of that strategy.

 

The U.S. Department of Homeland Security (DHS) describes the NVC as “designed to improve the efficiency and effectiveness of U.S. Government vetting programs in order to better identify individuals who may pose a threat to national security, border security, homeland security, or public safety, consistent with law and policy.” The PIA calls the NVC a “process and technology” and describes its primary purpose as “[c]reating, maintaining, and facilitating” the vetting process. NVC’s first phase of operations will focus on vetting of individuals applying to U.S. Customs and Border Protection’s Electronic System for Travel Authorization (ESTA) in order to travel to the U.S. under the Visa Waiver Program (VWP).

According to the implementation plan and the PIA, the NVC won’t store or retain information or make decisions on whether to grant or deny an immigration application, but instead will simply make recommendations to government agencies that make the ultimate decision on whether to grant or deny an immigration benefit or target a person for immigration enforcement. But that description misstates the NVC’s impact, since the recommendation may be relied upon heavily by the agencies.

Here are some reasons we should be concerned about the NVC:

• No transparency about NVC’s plans for the future. DHS is secretive about where this program is going. While the NVC may focus for the moment on ESTA screening, its Phase Two plans are substantially redacted in the implementation plan. And even that redacted plan was released months after it was written. That makes us concerned that Phase Two — whatever it might be — will be revealed only after it is well under way, just as Phase One was. This is yet another glaring example of how DHS lacks transparency about these new programs, as shown by its under-the-radar creation of an enormous database called Homeland Advanced Recognition Technology (HART).

• No redress within the NVC. According to the PIA, the NVC will not have a redress system and doesn’t feel it owes one to the public, even though the information it collects and shares will be relied on by final decisionmakers. That means that affected individuals are left only with whatever redress procedures exist within DHS or other agencies but will not know the source of information relied upon by the NVC in making a recommendation. And since only citizens and lawful permanent residents are, in accordance with Trump administration policy, covered by Privacy Act protections, they will have no way to request that bad information be corrected.

• No standards or limits. According to the PIA, the NVC “will not use commercial sources or publicly available data as part of the vetting process” and will not “conduct electronic searches, queries, or analyses to discover or locate a predictive pattern or an anomaly.” But these self-imposed limits could easily evaporate in the future. The U.S. State Department has made collection and evaluation of information available on social media a critical part of deciding whether or not to issue visas, and DHS has made clear its intent to monitor and use individuals’ social media and Internet activity for enforcement. DHS would like to use algorithms and computational methods in analyzing and using the vast quantities of information it is able to gather, backing off of that only because of limits in software technology.

• No independent monitoring or audits. All monitoring and auditing of the NVC’s activities are internal. As a result, no independent body is authorized to examine how the NVC is really operating.

• No limits on information-sharing. The implementation plan and the PIA are either silent or at best vague about how information will be shared outside of DHS, leaving individuals subject to the wide-open information-sharing processes of the different adjudicating agencies.

Advocates should continue to monitor the NVC and its operations closely. But that will be challenging, given the program’s secrecy and reliance on internal monitoring processes. Without aggressive oversight by Congress and demands for transparency, the NVC risks becoming yet another way for DHS to keep the American public in the dark.


Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies.” She formerly was a managing attorney at NILC.

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More Spending on Border Will Secure Only More Suffering (The Torch)

More Spending on Border Will Secure Only More Suffering

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
JANUARY 30, 2019

After a catastrophic and unprecedented government shutdown, lawmakers are convening this week to negotiate a border security plan amid persistent threats from the president that he might shut the government down again three weeks from now. The hysteria surrounding President Trump’s demands for a wall and increased funding for border security gives the illusion that the U.S.-Mexico border remains a lawless expanse that migrants are free to cross. In fact, since the 1990s, the U.S.-Mexico border has become increasingly fortified with both physical and political infrastructure that has made migration more difficult and dangerous. Border militarization has come at a significant cost for both U.S. taxpayers and border-crossers seeking safety and opportunity in the United States.

Annual appropriations for interior and border enforcement have increased tremendously in recent years, and federal spending on enforcement has totaled $263 billion since 1986. With it, the government has built nearly 700 hundred miles of physical barriers along the U.S.-Mexico border and hired tens of thousands of interior and border enforcement agents. Between fiscal years 2003 and 2016, the number of Border Patrol agents doubled and the number of U.S. Immigration and Customs Enforcement (ICE) agents working in ICE’s Enforcement and Removal Operations tripled. Since the U.S. Department of Homeland Security (DHS) was established in 2003, the budget for U.S. Customs and Border Protection (CBP) has grown from $5.9 billion to more than $14 billion in 2018. Appropriations for CBP for 2018 included $1.57 billion for “physical barriers and associated technology along the Southwest border.”

When we set aside hyperbole and examine the data, it becomes clear how unnecessary even more border spending really is. As shown in the graph below, Border Patrol staffing (the blue line indicated by numbers on the left axis) skyrocketed as apprehensions (orange line, numbers on the right axis) tumbled since the mid-2000s. In fact, contrary to the misinformation frequently put out by the Trump administration, the undocumented population has decreased in recent years. Net migration from Mexico, the largest source of migrants to the U.S., has decreased since 2010. Undocumented migration from Mexico is now near zero. Net Mexican migration is, in fact, negative, meaning more people are returning to Mexico than entering the U.S.

 

Migration scholars have found that as the border has become more militarized, making travel back and forth more dangerous and difficult, migrants have increasingly opted to settle permanently in the U.S. Rather than maintaining families in their countries of origin and supporting them through U.S.-based jobs, migrants have developed strong social ties in their U.S. communities and are raising U.S. citizen children.

When these settled migrants are deported, their ties to the U.S. are so strong that deterrence policies at the border — even detention — are ineffective: People with homes and families in the U.S. are significantly likely to plan to cross again despite interactions with border enforcement.

The costs of border militarization, however wasteful, are more than financial. There are also human costs. Migrants crossing the U.S.-Mexico border do so at great risk, facing hazards, including drowning, dehydration, hypothermia, exposure, and assault. “Deterrence” programs such as DHS’s “lateral repatriation” ATEP, which deports migrants to places far from where they were initially detained, are largely ineffective even as they make crossing more dangerous.

The Trump administration has sought to ramp up spending on border “security” in response to refugees from violence and persecution in Central America applying for asylum at the border. Seeking asylum is a legal right. Moreover, supporting people’s right to seek refuge is part of the fabric of U.S. immigration policy.

Yet the Trump administration has designed policies intended to deter people from seeking asylum at the southern border, policies that include separating families, limiting the number of asylum claims processed per day and, most recently, requiring asylum-seekers to wait in Mexico. As a result, people are trying to cross in more remote desert areas, like rural southern New Mexico. The risks of such crossings have been made all too clear by the recent tragic deaths of two migrant children.

The International Organization for Migration’s Missing Migrants Project tracks deaths along global migratory routes. Since 2014, it has recorded 1,468 deaths along the U.S.-Mexico border. Only one month into 2019, 12 deaths have already been recorded there. Surely there are better ways to spend $5 billion than to continue building border security infrastructure that is not only wasteful but that inevitably will lead to greater human suffering.


Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

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Trump-McConnell Bill Is an Anti-Immigrant Wish List (The Torch)

Trump-McConnell Bill Is an Anti-Immigrant Wish List

It would gut asylum laws and make it harder for people with DACA and TPS to keep protections

THE TORCH: CONTENTSBy Avideh Moussavian, Patrick O’Shea, and Holly Straut-Eppsteiner
JANUARY 23, 2019

For over a month, President Trump and Senate Majority Leader McConnell have remained at the helm of what is by far the longest government shutdown in U.S. history. Both Trump and McConnell are responsible for holding the paychecks of approximately 800,000 workers hostage to Trump’s demands to build a racist wall, hurting the livelihoods of federal workers and cutting off critical services for families and poorer communities across the country.

Tomorrow, the Senate is set to vote on the “compromise” White House-McConnell bill that is nothing more than a ransom note to American taxpayers and Democrats in Congress. As federal employees face missing their second paycheck, the White House and McConnell have shown once again their callous disregard for American workers and their ruthless desire to radically reshape our immigration system by gutting protections for asylum-seekers, vulnerable immigrant youth, and people with DACA (Deferred Action for Childhood Arrivals) or TPS (temporary protected status).

Some of the many disturbing poison pills in the bill are that it:

  • Adds $5.7 billion for a border wall and a slush fund
  • Adds 750 Border Patrol and 2,000 U.S. Immigration and Customs Enforcement Agents to police and jail immigrants
  • Bans asylum for Central American minors who are seeking safety in the U.S., by preventing them from applying for asylum at the border and forcing them to wait for a process that will take nearly a year to get underway and will be restricted so that only 15,000 children per year can be granted asylum — and without the chance to see an immigration judge or have their case reviewed
  • Guts trafficking protections for unaccompanied children
  • Offers no permanent solution for people with DACA or TPS
  • Makes it harder for people with DACA or TPS to maintain protection from deportation
  • Explicitly excludes African, Muslim, and South Asian populations with protections under TPS and DED (deferred enforced departure). The bill extends only a one-time, 3-year protection to TPS-holders from Honduras, Nicaragua, El Salvador, and Haiti — leaving out DED-holders from Liberia and TPS-holders from Guinea, Nepal, Sierra Leone, Sudan, South Sudan, Somalia, Syria, and Yemen.
  • Imposes harsh penalties on people with DACA by forcing them to pay back tax credits they were permitted by law to receive and excludes DACA recipients who are not wealthy

The DACA provisions in Trump’s proposal reflect his administration’s hostility to the program, which he chose to kill in September 2017. The Trump-McConnell bill’s offer for a one-time, three-year extension of temporary protection from deportation and work authorization is limited only to current DACA-holders — leaving out those who are otherwise eligible or could become eligible. This extension is meaningless: people with DACA are already able to renew their DACA under a nationwide injunction blocking Trump’s attempt to end the program. And, since the Supreme Court has decided not to take up any of the current DACA court cases during this term, people who currently have DACA will continue to be able to renew their two-year protections from deportation at least through the end of this year.

However, the Trump-McConnell bill would more than double the DACA renewal fee, from $500 to $1,000, which would almost certainly reduce renewal retention for a program that an overwhelming majority of Americans support. DACA recipients need permanent solutions to their perpetual state of limbo — but this bill provides none.

Because of Trump administration policies, people with TPS are also in a state of limbo, because the administration has attempted to phase out TPS protections by allowing them to expire. Legal challenges have left the future of TPS up to the courts. Again, here the Trump-McConnell bill makes a weak offer to provide a one-time, three-year renewal only for TPS-holders from four countries (Honduras, Nicaragua, El Salvador, and Haiti). It completely fails to assist TPS-holders from Guinea, Sierra Leone, Nepal, Sudan, South Sudan, Yemen, Somalia, and Syria. The bill also heads off future opportunities for individuals to receive relief through TPS by requiring that applicants already have legal status in the United States to qualify for protections.

Another insidious aspect of the Trump-McConnell bill’s provisions is that it aims to ensure that the U.S. opens its doors only to the wealthy. The bill would require that individuals with DACA and TPS maintain an income at 125 percent of the federal poverty level or be enrolled in school. For a family of four, that is an income threshold of $32,188. Even with two full-time workers in a household, families earning low wages (the federal minimum wage remains at $7.25) would not qualify. Such requirements reflect the administration’s continued efforts to disenfranchise low-income families.

The Trump-McConnell bill provides no solutions for immigrants and asylum-seekers and, in fact, creates greater risks for these communities. It also fails to provide relief for the suffering of federal workers and families across the country who rely on federal programs. Rental assistance from the Department of Housing and Urban Development has been frozen and low-income renters and seniors across the country may soon face eviction. States will begin exhausting their TANF (Temporary Assistance for Needy Families) funding by the beginning of February. People who rely on SNAP (food stamps) to feed their families could have to wait 45 or 50 days to receive benefits. The shutdown has stretched on so long that even federal courts may start sending home staff as early as January 25 as their funding begins to be affected.

Americans have made it clear that they do not want to build a border wall and do not feel that it should be a priority for Congress. So why are Trump and McConnell intentionally depriving people of their livelihoods and their government? If this bill is any indication, the blatantly disingenuous DACA- and TPS-related overtures (and other similar provisions included to entice Democrats) are simply a Trojan horse meant to give cover to their uncompromising anti-immigrant agenda.

If the president and Senate majority leader were serious about ending this shutdown, they would give up these unreasonable and politicking demands for a cynical and dangerous boondoggle and reopen our government. Full stop.


Avideh Moussavian is NILC’s legislative director for advocacy; Patrick O’Shea is NILC’s research and narrative strategist; and Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.


6:33 PM Pacific time: This article was updated in the following way: The bulleted item that begins “Imposes harsh penalties on people with DACA” was added.

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Trump’s Wall Demands Hurt People Already Hurting the Most (The Torch)

Trump’s Wall Demands Hurt People Already Hurting the Most

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
JANUARY 14, 2019

The Trump shutdown has left more than 800,000 federal workers across the country facing the post-holiday season with no paycheck and a great deal of uncertainty. Members of the federal workforce suddenly find themselves unable to pay for groceries, rent, utilities, and loan payments.

Photo credit: AFGE, www.flickr.com/photos/afge/10195865485/

Essential workers, like Transportation Security Administration (TSA) agents, are calling in sick because they can’t afford to pay for transportation or childcare to get to a job that provides no paycheck. Federal workers are selling their belongings on Craigslist, launching GoFundMe campaigns, or taking on odd jobs to pay their bills. Lost wages create burdens for nonprofit agencies like food pantries, which are stepping in to meet workers’ needs with limited resources.

While federal workers may eventually receive back pay, contracted workers — including low-wage workers who clean federal buildings, provide security, and work in food service — will not. Many of these workers and their families live paycheck to paycheck. In short, Trump’s impetuous demand for a border wall has become an assault on the dignity of working Americans.

Workers of color are especially impacted by the shutdown. Black Americans, for example, are disproportionately highly concentrated in the federal workforce. Historically, public sector employment has helped African Americans avoid discrimination in the private sector. The legacy of generations of systemic racism also means that Black families have less wealth than white families and they are less likely to have a financial safety-net to weather this crisis. Well over a third of Executive Branch employees (36.7%) are people of color.

Workers of color are highly concentrated in some of the agencies deemed essential during the shutdown — in other words, they are among those required to continue working but without pay. About half of Border Patrol workers, for example, are Latinx. The National Treasury Employees Union, which represents U.S. Customs and Border Protection employees, filed suit against the Trump administration because its members are being forced to work without pay.

The shutdown not only impacts federal workers and contractors but promises devastating consequences for the millions of Americans who rely on federal programs to meet their basic needs. With a lapse in federal funding, states have had to pick up the cost of Temporary Assistance for Needy Families (TANF) to ensure low-income families receive cash benefits. Housing assistance is of particular concern. By February, rural Americans will lose U.S. Dept. of Agriculture (USDA) rent assistance and by March, millions of individuals could lose access to Section 8 and Housing Choice Vouchers. Residents of 1,000 low-income apartment homes are at risk because their U.S. Dept. of Housing and Urban Development (HUD) contracts have expired and cannot be renewed during the shutdown. Health and safety inspections and homeless services are also a casualty of the furloughed HUD workforce.

The federal government has responded to pressure to fund nutrition programs such as SNAP (“food stamps”), WIC (the Special Supplemental Nutrition Program for Women, Infants, and Children), and school meals through February. However, if the shutdown continues beyond that point — and Trump has threatened that it could last “months or even years” — millions of low-income families are likely to face benefit cuts. In the meantime, thousands of retailers are unable to accept SNAP benefits because their licenses cannot be renewed during the shutdown.

These federal programs provide critical assistance for millions of Americans, including low-income immigrants who are U.S. citizens. Immigrants have high rates of labor force participation, but they are frequently concentrated in low-wage jobs that can make it difficult to make ends meet. Immigrant households are already less likely than U.S.-born citizens to use federal benefit programs. Recently, immigrant households’ participation in programs such as SNAP have been declining, likely because of Trump’s anti-immigrant positions and policies that have created an environment of fear.

The shutdown is also crippling U.S. immigration courts, holding hundreds of thousands of immigrants’ futures in limbo. Currently, 400 immigration judges, with a backlog of 800,000 cases, are furloughed. Immigrants who must already wait an average of two and as many as four years for their cases to be heard must now wait even longer for a court date.

As the shutdown persists with no end in sight, low-income Americans continue to suffer and will face increasingly dire consequences. Trump’s racist and xenophobic demand for a border wall is not only immoral and wasteful, he is holding hostage Black, brown, immigrant, poor, and working-class Americans who cannot afford to miss the paychecks and benefits on which their families depend for survival.


Holly Straut-Eppsteiner is NILC’s Mellon/ACLS Public Fellow and research program manager.

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NILC Statement Ahead of Confirmation Vote to U.S. Supreme Court of Judge Brett Kavanaugh

FOR IMMEDIATE RELEASE
October 5, 2018

CONTACT
Hayley Burgess, [email protected], 202-805-0375

NILC Issues Statement Ahead of Confirmation Vote to U.S. Supreme Court of Judge Brett Kavanaugh

WASHINGTON — The United States Senate today voted to advance the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. The vote comes after a limited FBI investigation this week into allegations by multiple women who spoke out about Kavanaugh’s past actions. The Senate’s action sets up a final confirmation vote expected to take place Saturday, October 6.

Marielena Hincapié, executive director of the National Immigration Law Center, issued the following statement:

“Kavanaugh’s record shows a dangerous disregard for the rights of women, workers, and immigrants, a disregard that was revealed when he denied the constitutional right of a 17-year-old rape survivor in immigration detention to obtain a safe abortion last year. And, at his hearing before the Senate Judiciary Committee last week, Judge Kavanaugh allowed the nation to see his true character, making it clear once again that he is unfit for a lifetime appointment to the nation’s highest court.

“In weighing whether to support Kavanaugh’s nomination, senators must not only take the allegations against him seriously, they must also recognize that in his hearing to address them, he repeatedly lied under oath, spouted conspiracy theories, and lashed out angrily at Democratic senators. This behavior is unacceptable for any position where the core responsibility is to ethically and impartially interpret our nation’s laws.

“Americans of all backgrounds believe Dr. Ford and the other women who have come forward, and we have been galvanized by their incredible strength and courage. If our country’s leaders disregard them, we all will remember and make our concerns heard with our votes.

“For women, survivors of sexual violence, and marginalized communities in particular, the courts have been a bulwark of protection and a core defender of constitutional rights. Maintaining the dignity of the Supreme Court is essential to the strength and integrity of our democracy. Its role in upholding the rights and values that we, as a nation, cherish most cannot be overstated.

“This has been a flawed process from the very beginning, and Judge Kavanaugh has failed to demonstrate — both through his judicial record and through his conduct before the Senate Judiciary Committee — that he has what it takes to be a fair arbiter on the Supreme Court. If the senate votes to confirm him, it will cause immeasurable damage that will impact the lives of everyone in this country for years to come.”

# # #

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Senate Must Not Confirm Nominee Who Disregards the Rights of the Most Vulnerable (The Torch)


UPDATE (8 AM Pacific time, Thur., Sept. 13)
The Senate Judiciary Committee this morning voted to delay — until Thursday, Sept. 20, at 1:45 PM Eastern time — its vote on whether to confirm Judge Kavanaugh’s nomination to the Supreme Court. According to the Washington Post, “The move was expected — senators routinely delay committee business for one week, which is allowed under the panel’s rules.”


Senate Must Not Confirm Nominee Who Disregards the Rights of the Most Vulnerable

THE TORCH: CONTENTSBy Jessie Hahn, Patrick O’Shea, and Josh Rosenthal
SEPTEMBER 13, 2018

Today the Senate Judiciary Committee will vote on Judge Brett Kavanaugh’s nomination to serve on the U.S. Supreme Court. This Court nomination is arguably the most consequential in at least a generation, given the likelihood that, if he’s confirmed, Kavanaugh will be the deciding vote on many critical issues currently working their way through our court system. Gaining a seat on the Supreme Court confers a lifetime duty to uphold the rights and values of our democracy, including the responsibility to protect the rights of everyone living in the United States. Kavanaugh’s judicial record shows a troubling disregard for the rights of women, workers, and immigrants, a disregard that will be dangerous for families — immigrant and native-born alike — all across our country.

One case that vividly illustrates Kavanaugh’s views on the rights of immigrants and workers, as well as his views on settled law and precedent, is Agri Processor Co., Inc. v. National Labor Relations Board, in which Kavanaugh filed a dissenting opinion as a judge on the U.S. Court of Appeals for the DC Circuit. In this case, a notoriously unscrupulous and exploitative meatpacking company had refused to bargain with the union its employees had voted to form, and it fired several employees in retaliation. The company claimed it did not have to recognize the pro-union votes of immigrant employees who didn’t have work authorization, but the company chose to investigate those workers’ employment eligibility status only after they voted to form a union. (Some employers “weaponize” their workers’ immigration status to silence those who attempt to unionize.) With one exception, every judge who heard this case rejected the company’s arguments and recognized that undocumented workers are protected by the National Labor Relations Act (NLRA). The one exception: Brett Kavanaugh.

In his dissenting opinion, Kavanaugh held that an undocumented worker “is not an ‘employee’” and should not be protected under federal labor laws. To reach this result, Kavanaugh deviated from decades of established law and precedent.

During Kavanaugh’s Supreme Court confirmation hearing, Sen. Dick Durbin (D-IL) asked him why he disagreed with every other judge who had found that federal labor law does, in fact, cover undocumented workers. Kavanaugh argued that section II(B) of a related Supreme Court case, Sure-Tan, Inc. v. National Labor Relations Board, required him to interpret the NLRA as conflicting with the “employer sanctions” provisions of the immigration statute, which require that employers who knowingly hire undocumented workers be penalized. But that section of Sure-Tan does not squarely address the question in Agri Processor, and when Congress established (in 1986) the employer sanctions referenced by Kavanaugh, it did not amend the NLRA to exclude undocumented workers from its protections.

Kavanaugh stretched the Sure-Tan opinion to achieve the result he wanted, and he got that opinion wrong. The Supreme Court reinforced this when it refused to take up Agri Processor’s appeal. By choosing not to accept the appeal, the Court left the Agri Processor majority’s decision in place; therefore, all immigrants fall within the NLRA’s coverage, all a company’s employees’ votes count in a union election, and it’s unlawful for an employer to fire its workers in retaliation for voting to form a union.

The justices who sit on the Supreme Court should work to protect the rights of all of us. If Kavanaugh was willing to depart from settled law in this case, what other precedents would he contort or ignore to reach a particular result?

Another, more recent, Kavanaugh opinion further reveals how he (mis)understands the rights of immigrants. This past October, in Garza v. Hargan, he disregarded the constitutional right of a 17-year-old girl in immigration detention to seek a safe abortion. After being raped on her journey to the U.S., Jane Doe was eight weeks pregnant when she entered the country. Due to her age and immigration status, she was placed in the custody of the Office of Refugee Resettlement (ORR), where she decided to terminate her pregnancy. She followed Texas state law and was granted a judicial bypass to receive the abortion, but federal officials in the ORR blocked her from accessing the procedure. Kavanaugh initially upheld the government’s interference with her exercise of constitutional rights, a ruling that was reversed by the full DC Circuit only four days later. Notably, Kavanaugh again dissented. He would not affirm that the U.S. Constitution’s Due Process Clause protects “any person” in the U.S, as the Constitution states, and he insisted that Jane Doe should be able to exercise her rights only if she could get herself out of immigration detention.

The role of the Supreme Court is to defend everyone’s rights under the Constitution, regardless of what we look like, where we were born, or what our immigration status may be. The Constitution’s Due Process and Equal Protection Clauses protect all “persons” in the U.S. Jane Doe’s fundamental, constitutional rights didn’t disappear simply because she was placed in a government facility. The workers at the meatpacking plant continue to be workers, regardless of their immigration status — workers who continue to be protected by the law from exploitation and abuse. Kavanaugh’s past disregard for the rights of the most vulnerable members of our society should serve as a warning to all of us who believe in a fair judiciary for all.

This confirmation vote will reverberate for generations. The publicly available aspects of Kavanaugh’s record make clear that his extremist views would turn back the clock on some of our most cherished rights. The Senate has an important role to play — it must not confirm someone who could cause irreparable damage to our rights for decades to come. Call your senators at 1-202- 224-3121 and ask them to vote “no” on Kavanaugh’s confirmation.


Jessie Hahn is NILC’s labor and employment policy attorney, Patrick O’Shea is NILC’s research and narrative strategist, and Josh Rosenthal is a NILC staff attorney.

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Information Vacuuming: Massive Collection of Data for Government’s Surveillance and Deportation Machine (The Torch)

INFORMATION VACUUMING
The Trump Administration Is Collecting Massive Amounts of Data for Its Immigrant Surveillance and Deportation Machine

THE TORCH: CONTENTSBy Joan Friedland
AUGUST 22, 2018

The Trump administration is vacuuming up vast amounts of unfiltered information about immigrants and United States citizens in the service of its immigrant surveillance and deportation machine. Here are a few of the ways this information collection occurs.

Visa Lifecycle Vetting

Tracking and monitoring immigrants is official government policy.

In July 2017, the U.S. Department of Homeland Security (DHS) met with vendors to plan “a continuous vetting strategy, framework and process.” At first, DHS called this strategy the Extreme Vetting Initiative. Later, DHS changed the name to the more innocuous-sounding Visa Lifecycle Vetting. But its aim is the same: to serve as a “backdoor” barricade to many immigrants, including those targeted in Trump’s Muslim bans, to reduce access to legal pathways to immigration status, and to funnel immigrants into the deportation pipeline.

According to DHS’s Statement of Objectives for the initiative, “The gaps in the current vetting model along with existing limitations in the vetting process create a compelling case for [U.S. Immigration and Customs Enforcement] to take action to develop and implement a continuous vetting strategy, framework and process” (see “Attachment 1: Extreme Vetting Initiative: Statement of Objectives (SOO),” file name “Attachment_1-_SOO_-_12_June_2017_final”).

The Trump administration is seeking to expand screening and monitoring at all stages — before and after a non–U.S. citizen obtains lawful immigration status and even, according to other DHS DHS notices, after lawful permanent residents become naturalized citizens. This is happening at the same time that DHS has announced it will aggressively target naturalized citizens to strip them of their U.S. citizenship.

This strategy is part of the larger Trump agenda to criminalize, surveil, and police immigrants and communities of color generally.

Tracking Social Media and Internet Use

One important component of the plan is that DHS plans to monitor immigrants’ and naturalized citizens’ social media and other Internet activity. The U.S. State Department also recently proposed requiring applicants for immigrant and nonimmigrant visas to disclose their social media handles.

Recently, DHS announced the creation of the External Biometrics Record System of Records (EBR). DHS claims that EBR allows DHS only to “receive, maintain, and disseminate biometric and associated biographic information from non-DHS entities, both foreign and domestic.” But EBR also will include identifiers for derogatory information, miscellaneous officer comment information, and encounter data. And it will include “records related to the analysis of relationship patterns among individuals and organizations.” These items are undefined and unlimited in scope.

Relying on Commercial Database Aggregators

In 2018 U.S. Immigration and Customs Enforcement (ICE) announced its intent to award a contract to Thomson Reuters “for subscription data services” that would allow “continuous access to commercial database aggregators and real time jail booking databases.” As the Statement of Work makes clear, the system would have to obtain data from “FBI numbers; State Identification Numbers; real time jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; pay day loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records.”

The government’s use of systems that sweep up massive quantities of unverified and random information is often done through outside companies, with little public scrutiny or accountability. For example, DHS has also relied on a company called Palantir to develop systems such as Investigative Case Management (ICM) that, according to The Intercept, will enable ICE to obtain access to a vast “ecosystem” of data to use in deportation cases.

Creation of Giant Information Database

Even more ominous, EBR is part of DHS’s under-the-radar creation of a vast database called Homeland Advanced Recognition Technology (HART), which will replace DHS’s current biometrics database IDENT. HART will centralize access to federal and international databases, provide real-time access in the field, and involve the use of “multi-modal biometrics” (e.g., facial and iris recognition, in addition to fingerprints).

As the Electronic Frontier Foundation recently pointed out, DHS has been “quietly building” Hart, without the benefit of public scrutiny. The EBR notice confirms that the database contains much more than biometric information, including derogatory information, miscellaneous officer comment information, and encounter data, as well as relationship patterns.

Automated License Plate Readers (ALPRs)

Another component of the continuous monitoring strategy is the use of automated license plate readers (ALPRs). These readers are cameras that may be mounted on a fixed object such as a road sign or on police cars. They take pictures of passing cars indiscriminately, recording license plates and date and time of capture. In a December 2017 Privacy Impact Assessment, DHS announced its contract with an unnamed vendor for LPR data service to be used by the ICE Offices of Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI).

A subsequent article in The Verge disclosed that the company is called Vigilant Solutions. Vigilant Solutions’ LPR database will collect data from local law enforcement agencies and private companies such as repossession companies. ICE can query the database for historical information that shows a license plate’s movements over the past five years. ICE can also receive an instantaneous email notice when a license plate that has been uploaded to a “hot list” appears.

DHS has outsourced oversight over the program. Vigilant is a private company, not subject to the federal Privacy Act or the Freedom of Information Act. And Vigilant has refused to provide any details about its contract. As the Privacy Impact Assessment makes clear, it’s up to the commercial vendor to adhere to privacy, disclosure, and other requirements.

Conclusion

The Trump administration is implementing a sweeping system of monitoring and surveillance of immigrants and naturalized U.S. citizens. Given the potential consequences for these individuals, and the threats to privacy of all residents, it’s critical that we understand and are able to challenge the deployment and use of these systems.


Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web: Basic Information for Advocates about Databases and Information-Sharing Among Federal, State, and Local Agencies.” She formerly was a managing attorney at NILC.

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Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents (The Torch)

Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents

THE TORCH: CONTENTS

By NILC staff
AUGUST 14, 2018

President Trump’s family separation policy has harmed about 2,500 migrant children over the past several months, and serious questions remain about how the administration is treating immigrant families once they are reunited.

Is the administration respecting immigrant parents and children’s rights in immigration court? What specific conditions have parents and children been forced to endure inside immigrant family jails? How, exactly, are migrant families being treated by our government?

To find out, we filed a Freedom of Information Act (FOIA) request last month on behalf of the Immigrant Defenders Law Center, an organization that represents several families who have experienced the cruel and inhumane consequences of the Trump administration’s family separation policies.

After the administration’s actions sparked weeks of public outrage nationwide, a U.S. district court judge in San Diego ordered the government to reunite families by July 26 and to halt the deportation of reunited families who are entitled to asylum proceedings. These orders were issued in a lawsuit filed by the ACLU, Ms. L v. ICE.

Nevertheless, here we are, weeks after the court-ordered July 26 deadline, and hundreds of children are still separated from their parents and locked away in government custody. To make matters worse, stories have emerged of U.S. Immigration and Customs Enforcement coercing parents of children from whom they are separated to sign away their rights. Trump officials have even admitted that the parents of as many as 386 children from whom the parents were separated may have been deported.

To get to the bottom of these abuses, our FOIA request seeks information regarding the following:

  • records related to the policies, forms, and checklists governing background checks and reviews for parentage
  • records related to the policies governing whether parents who have previously been released from detention will be re-detained with their children following reunification
  • what factors are considered in determining whether a family will remain detained together or released upon reunification
  • records related to the policies governing children who remain in the Trump administration’s custody whose parents have been deported

While we wait for the Trump administration to answer our request, here’s what we do know. According to research cited by the Kaiser Family Foundation, “Separating children from their parents exposes them to trauma and toxic stress that can have lifelong negative impacts on their mental and physical health.” Each day, each hour these children remain separated from their parents and families has alarming implications for their personal well-being and their families’ health.

We demand that the Trump administration stop dragging its feet. It’s time to reunite all the families it has torn apart and take responsibility for the human rights abuses it has perpetrated. NILC will not stop fighting for accountability and greater transparency. We need answers, and we need them now.


More on how the Trump administration is harming children and families

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Should I renew my DACA now? (The Torch)


UPDATE – AUGUST 31, 2018: In an order filed on Fri., Aug. 31, the U.S. District Court for the Southern District of Texas declined to issue a preliminary injunction that might have affected the ability of people with DACA to apply to renew their DACA. In the coming days, NILC will be updating its DACA-related materials to reflect the effects of the Aug. 31 ruling.


Should I renew my DACA now?

THE TORCH: CONTENTS

By Ignacia Rodriguez, NILC immigration policy advocate
AUGUST 7, 2018

Lately people have been asking, Why the uptick in chatter about renewing DACA now? Starting this summer, advocates began encouraging people to renew as soon as possible, even though the option to renew has been around since January.

What changed? Remember, U.S. Citizenship and Immigration Services (USCIS) did not begin accepting DACA renewal applications voluntarily. USCIS began accepting DACA renewal applications again only because federal judges in California and New York ordered it to. Court orders, as we’ve seen most recently in the Texas case that blocked DAPA (Deferred Action for Parents of Americans) and expanded DACA and also in the Muslim ban court cases, can change over time. A judge’s order can be appealed by the party that disagrees with it, and at the appellate stage the order can continue in effect, can be paused or reversed, or can be modified.

We knew the decisions issued in these cases would probably be appealed (usually a U.S. district court decision is appealed to the court of appeals for the “circuit” corresponding to the state where that district court is located) and that at least one of these cases could then make its way all the way to the U.S. Supreme Court. The probability of an appeal became reality when the federal government appealed the decisions issued by the courts in California and New York.

Litigating a case takes time. Time is allotted for each party to submit briefs that lay out its arguments, and the court schedules hearings as necessary to hear the parties’ arguments. It is very rare for a judge to issue a ruling during or immediately after a hearing, so days, weeks, even months can go by before the judge issues a ruling. This is why, before this summer, some experts expected the DACA renewal process to be available at least through this month (August 2018) and maybe longer. In addition, the U.S. Supreme Court won’t be back in session until October, so under usual circumstances it wouldn’t hear an appeal of one of the DACA cases before then.

So what happened this summer? Back on May 1st, Texas and six other states filed a lawsuit arguing that the DACA program is illegal and shouldn’t have been created in the first place. They are asking for a court in Texas to order USCIS to stop accepting DACA applications. On August 8, U.S. District Court Judge Andrew Hanen will hold a hearing in their case in Houston, Tex.

Nobody knows for certain what will happen either during this hearing or afterwards, including how a possible negative ruling by a judge in Texas will affect the orders issued by federal courts in California and New York. It is unlikely that Judge Hanen will issue a ruling or order on August 8. But some experts think it’s at least possible that USCIS could stop accepting and processing DACA renewal applications as early as the end of August. Depending on what happens in the courts, the option to renew may remain indefinitely or may be modified or eliminated by decisions in these district courts, circuit courts of appeals, or the U.S. Supreme Court.

Should you renew your DACA now, even if your DACA expires in February 2019? May 2019? December 2019? You will need to decide whether it makes sense for you to apply for DACA renewal now. We highly encourage you to speak with an attorney or a Board of Immigration Appeals–accredited representative before you submit a renewal application, to discuss the possible benefits and risks of applying early. Some attorneys or accredited representatives may advise you against applying now, because USCIS used to not accept renewal applications filed more than 150 days before the applicant’s DACA expiration date. However, since it became possible again, in January, to apply for DACA renewal, USCIS has accepted renewal applications filed more than 150 days before expiration.

Still, you must consider the risks and benefits of applying early. Considerations include but are not limited to:

• If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017). Can you afford to lose the $495 fee if USCIS decides not to return fees? Can you afford to send your application by certified mail, to have an additional way of tracking it, to prove that it should be “grandfathered in” if the government decides to process already-submitted applications?

• If you apply early and are granted DACA renewal, your “new” DACA and work permit may start being valid before your “old” DACA and work permit expire. Nevertheless, your new work permit will expire two years after its date of approval. Currently, it’s taking USCIS about 3-5 months to adjudicate an application, but some applications have been adjudicated faster.

Example: Your current DACA and work permit expire in December 2019. You submit a renewal application today, and USCIS accepts it. USCIS grants your DACA renewal in October 2018. Therefore, your renewed DACA and work permit will expire in October 2020. In other words, by applying now, you may gain a total of only 10 more months of DACA and work authorization. You must ask yourself: Is having those 10 additional months of DACA worth the effort and expense of applying? Will I feel more at peace knowing I have more time with DACA, even if it’s only 10 months? What will I feel like if the court orders that require USCIS to accept DACA renewals remain in effect for months or even years?

If you decide to go ahead and apply now, we recommend doing so as soon as possible, since the situation with the court cases is so uncertain. We wish we could answer with a simple “yes” or “no” when people ask us whether they should apply now, but, along with everyone else, we simply don’t know now what will happen in the courts in the next weeks and months. But we will continue to provide information and updates to help you plan for your future.

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