THE TORCH: CONTENTSBy Trudy Rebert
NOVEMBER 12, 2019

Departing the U.S. Supreme Court into a cold fall day, dozens of people whose lives are in the balance — plaintiffs, their mothers, and other Deferred Action for Childhood Arrivals (DACA) recipients — emerged from today’s oral argument with their arms linked and raised. There, at the top of the long bank of marble steps, they paused before a sea of young people below who were waving signs and cheering to welcome them out of the courthouse. Their departure from the courthouse today was a reminder of the organizing, courage, and fight for inclusion that led to the creation of DACA in 2012, as well as of what’s at stake before the nine justices inside the courthouse.

Formally, today’s argument addressed two legal questions: (1) whether courts can even review the government’s decision to terminate DACA, a policy that had been in place since 2012, and (2) whether the Trump administration engaged in reasoned decision-making when it decided to terminate DACA (in nonlawyer terms, whether the administration properly “showed its work” or, instead, ended DACA arbitrarily).

But in practical terms, the daily lives of close to 700,000 young people — teachers, parents, medical professionals, neighbors — and the health and welfare of the communities they call home are at stake. Individuals like our plaintiffs Eliana Fernández, a community organizer with Make the Road New York who lives on Long Island with her two U.S. citizen children, and Martín Batalla Vidal, who lives in Queens, New York, and is finishing his college degree while working as a certified nursing assistant caring for people with traumatic brain injuries. Eliana and Martín, along with the plaintiffs in the eight other lawsuits currently before the Court, challenged the administration’s termination of DACA in September 2017.

DACA, first announced in 2012, has allowed hundreds of thousands of young people who grew up and went to school in the U.S. — who are integral members of their many communities — to come forward, declare themselves to the government, and in return receive work authorization and a measure of protection from deportation. DACA is consistent with a long history of deferred action programs enacted by administrations of both parties dating back to the Eisenhower era.

The vast majority of Americans support DACA recipients and their place in our national community. A recent poll showed that 83 percent approve of allowing DACA recipients to become U.S. citizens, meaning that Americans agree more about DACA recipients than just about anything else. This was also evident in the huge outpouring of supporting briefs filed with the Court before today’s hearing, including support from national security experts, many large corporations, medical schools, the Catholic Church, law enforcement, and more. As Justice Stephen Breyer noted from the bench today, 66 medical associations, 210 educational institutions, 3 home builders, 109 municipalities and cities,129 religious organizations, 145 businesses — and more — identified countless different reliance interests in DACA.

The lawyers presented detailed legal arguments about reviewability and the Administrative Procedure Act today, but what it comes down to is quite simple: The Court is also being asked to decide what government accountability means in our democracy. Should the government be able to hide behind legal reasons for ending DACA to avoid having to face the political consequences of ending a popular policy — even if the legal reasons it relies on are unexplained and directly conflict with an existing legal opinion by the Office of Legal Counsel? As Justice Sotomayor noted, “[T]his is not about the law; this is about [the] choice to destroy lives.”

Prior to the Trump administration’s termination of DACA, the president assured the public that DACA recipients would be treated with “great heart,” yet after receiving a letter from the attorney general on September 4, 2017, the then–acting secretary of the U.S. Department of Homeland Security (DHS) abruptly ended the program, writing that she had no choice but to end DACA because it is unlawful.

But through documents obtained as a result of Freedom of Information Act (FOIA) litigation that the National Immigration Law Center filed on behalf of Make the Road New York and Make the Road Connecticut, we know that the decision to terminate DACA was actually made at a meeting in the White House on August 24, 2017. There the administration hatched a plan to have the U.S. Department of Justice send DHS a letter “outlining the legal reasons that the DACA program is unlawful,” for DHS to draft a memorandum to terminate DACA, and for the administration to develop a list of legislative items that the president would trade to protect DACA recipients. Even Newt Gingrich warned that such a strategy risked sending a signal that the administration was dehumanizing DACA recipients as a “bargaining chip.” The Trump administration also reportedly considered terminating DACA by having the president issue an executive order, but abandoned that path.

DACA recipients around the country hope that the Supreme Court will see through the administration’s unreasoned decision-making and attempts to shirk responsibility for an unpopular political decision. Their lives and families depend on it. We have strong arguments that court after court have agreed with, U.S. district courts from California to New York to Maryland to DC. But whatever happens when the Court issues its opinion sometime between January and June, we will continue fighting alongside immigrant youth as they courageously lead the immigrant justice movement, fighting for inclusion and recognition and for the future of our country.

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Trudy Rebert is a NILC staff attorney.

THE TORCH: CONTENTSBy Joan Friedland
NOVEMBER 1, 2019

In a groundbreaking decision, a U.S. district court in California recently concluded that the immigration databases U.S. Immigration and Customs Enforcement (ICE) relies on are too unreliable to form the basis for probable cause to issue “detainers” (administrative arrest warrants) against people whom ICE seeks to detain. The court reviewed multiple immigration and criminal justice databases, finding that “[t]he databases on which ICE relies for information on citizenship and immigration status often contain incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”

Operating without accountability, these same databases play a major role not only in ICE enforcement decisions, but also in decisions made by other U.S. Department of Homeland Security (DHS) officials about immigration applications, etc. In addition, to populate its databases DHS increasingly relies on unregulated private companies that sweep up vast quantities of unvetted data. This information is used to surveil immigrants and expand the Trump administration’s deportation machine.

According to a recent New York Times Magazine article, DHS contracted with Thomson Reuters, the Canada-based multinational media company, to use its Consolidated Lead Evaluation and Reporting (CLEAR) service to target immigrants. The Times says that “CLEAR is powered by personal information: data from credit agencies, cellphone registries, social-media posts, property records, utility accounts, fishing licenses, internet chat rooms and bankruptcy filings, all fused and vetted by algorithm to form an ever-evolving, 360-degree view of U.S. residents’ lives.”

Photo by Matthew Henry on Unsplash

License plate–reader data from a company called Vigilant Solutions are also integrated into CLEAR and used for immigration enforcement. License plate readers are cameras that take pictures of passing cars indiscriminately, recording license plates and date and time of capture. Vigilant Solutions also collects data from local law enforcement agencies and private companies. ICE can query the database for current and historical information that documents a license plate’s movements over the past five years.

ICE also has a contract with Thomson Reuters “for subscription data services” that allow “continuous access to commercial database aggregators and real time jail booking databases.” An ICE notice about the contract makes clear that the system must obtain these types of data: “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.”

ICE also uses information technology systems and law enforcement management tools created by another for-profit company, Palantir, such as the company’s Investigative Case Management (ICM) and FALCON Search & Analysis (FALCON-SA). According to The Intercept, ICM enables ICE to obtain access to a vast “ecosystem” of data to use in deportation cases.

The vast range of unregulated information available to DHS through these private companies is troubling. Access to Individual Taxpayer Identification Number (ITIN) data is of particular concern, as federal law generally protects tax-filing information from being disclosed. ITINs, which are issued so people can file tax returns and use banking services, are available to individuals who are not eligible for a Social Security number. The inclusion of ITIN data in the information harvested by these companies raises questions about how they obtain the data.

Data brokers play a significant role in feeding information into other databases and systems. DHS has access to driver’s license databases through state criminal justice networks, a state-owned nonprofit called Nlets, and specific state networks such as, until recently, Washington State’s Driver and Plate Search (DAPS) database. But it also has access to driver’s license and vehicle information through data brokers, who can buy information from states. As reported by the New York Times Magazine, “[I]n 2017, [Washington’s Department of Licensing] earned $26,371,232 selling driver and vehicle records to 19 principal data brokers, including Experian, LexisNexis and R.L. Polk — a group of companies that had its own relationships with some 34,500 ‘subrecipient’ brokers, including TransUnion, Acxiom and Thomson Reuters” (emphasis added).

So even as states limit access to driver’s license data through their own networks, they must be mindful of the data that brokers are buying from them, which can then be used by DHS for immigration enforcement.

In an early executive order, the Trump administration reversed DHS policy that had applied Privacy Act protections to all persons whose information is in a database or system that includes U.S. citizens and noncitizens with various immigration statuses. Instead, it would protect only citizens and lawful permanent residents. In addition, DHS generally exempts its own records systems from Privacy Act protections, including those systems that rely on information from outside the agency.

The commercial databases that DHS relies on are even more unregulated and shielded from public scrutiny than DHS databases. As private entities, these companies’ practices are not necessarily subject to the Privacy Act, which “governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies,” or by the Freedom of Information Act’s disclosure requirements.

The Trump administration continuously vets and monitors immigrants via these data-gathering and surveillance systems. This practice certainly harms noncitizens and undermines their rights, but it also undermines U.S. citizens’ privacy rights, because the surveillance systems indiscriminately sweep up and store information about all of us. The government and its vendors must be held accountable for this unfettered access to our personal information.

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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.

THE TORCH: CONTENTSBy Emily Tulli
OCTOBER 31, 2019

This past spring, the Social Security Administration (SSA) sent over 500,000 SSA “no-match” letters to employers across the country. And this fall, they’re at it again.

An SSA no-match occurs when the names or Social Security numbers (SSNs) listed on an employer’s W-2 form don’t match SSA’s records. Although these letters are often generated for innocuous reasons — an error in the spelling of an employee’s name, an unreported name change following a marriage or divorce, or an incomplete or missing name or SSN on a W-2 — the Trump administration has reinstituted the practice of sending no-match letters as a backdoor form of immigration enforcement. In fact, SSA resources are being diverted from SSA’s core constituency, elderly and disabled people, to target workers for more immigrant enforcement.

The no-match letter’s original, actual purpose was and still could be valuable — to notify workers that they’re not receiving proper credit for their earnings and to reduce the size of the Earnings Suspense File (ESF). The ESF holds the uncredited funds from workers whose personal information filed on their W-2’s doesn’t match the information in SSA’s database. And, importantly, the letter about a particular worker makes no legal statement about the worker’s immigration status. But the Trump administration is counting on the probability that employers who receive the letters will assume that the workers named in them are unauthorized to work in U.S. — and fire them.

Photo by Xi Wang on Unsplash

Everyone agrees that SSA should ensure that workers are properly credited for their earnings. This is vital to help workers retire with dignity and get disability assistance when needed. But no-match letters are an ineffective way to meet that goal. No-match letters were last sent on a large scale to employers in 2006. In a review of the practice, the SSA Office of the Inspector General found that the letters “are not effective” at reducing the size of the Earnings Suspense File. In fact, in 2005 SSA sent 127,652 letters to employers nationwide, but these resulted in only 2,915 wage items being reinstated. That’s right. No-match letters met their stated goal about 2 percent of the time.

Even if SSA wants to send no-match letters, there is a far more effective way to do it. During certain years in the past, SSA sent the letters directly to employees to alert them of a no-match. According to the inspector general, these letters were far more effective and helped resolve about 11 times more suspended wage items than letters sent to employers. But no-match letters sent to workers don’t get immigrants fired or reported, so they don’t further the administration’s agenda.

Perhaps more importantly, no-match letters sent to employers divert the resources of an already beleaguered SSA. SSA is experiencing a staff retirement wave at the same time that aging baby boomers are requiring more services from the agency. When this reality is coupled with a hiring freeze that’s been in place since 2010, SSA already has “significant management challenges” in meeting the projected growth in its workload. And SSA is spending resources to send no-match letters despite a nearly decade-long rise in customer wait times in all 10 SSA regions. More no-match letters could make a bad situation worse.

Across the country, employers are speaking out about the headaches caused by no-match letters. For some employers, no-match letters make hiring and staff retention a problem. Other employers report that the letters cause confusion and a “high level of anxiety.”

But employers are not the only ones reeling from these letters. No-match letters are a direct threat to millions of workers. U.S. citizen workers who’ve changed their names and work-authorized immigrants are particularly at risk. Given that 10 percent of the noncitizen records in SSA’s database have errors, work-authorized immigrants could be required to visit an SSA office to correct a mistake.

Worse, in the current immigration enforcement climate, many employers, mistakenly believing that a worker’s name in a no-match letter shows that the worker isn’t authorized to be employed, will fire the worker — even if the person is work-authorized. In the past, a study found that 34 percent of workers who were fired reported that their employer failed to give them an opportunity to correct their information. In Chicago, advocates and workers report that no-match letters are sowing confusion and fear in workplaces.

Ultimately, this makes workers more vulnerable to abuse. In the past, bad employers have used the letters to retaliate against immigrant workers who were organizing to protect their rights. And in 2019, NILC has fielded many requests for assistance related to mistreatment of workers based on employers’ misuse of no-match letters.

The path forward is clear. SSA no-match letters are part of yet another policy designed to target and harass immigrants and their families. The “collateral” damage? Seniors, workers, and employers. It’s time to let SSA focus on its core mission and leave policies driven by an anti-immigrant agenda behind.

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Emily Tulli, a former NILC policy attorney, is a consultant working on special projects for NILC.

THE TORCH: CONTENTSBy Diana Pliego
OCTOBER 25, 2019

Next month, the U.S. Supreme Court will hear oral arguments in three consolidated Deferred Action for Childhood Arrivals (DACA) cases. But it will be doing more than that. Its deliberation, on any scale, is a debate over whether I and hundreds of thousands of other immigrant youth belong in this country. It is about whether the only country we call home is our home. I’m here to tell you that it is. Home is here.

I’ve been in the United States since I was three. I grew up in Ohio, Georgia, and South Carolina. All these places have been home, yet it wasn’t until the summer of 2012 that I finally felt like this country wanted me — despite the many years I’ve spent loving it. When DACA became available in 2012, it changed my life. DACA was the answered prayer that allowed me to get the college education I so desperately wanted.

In South Carolina, undocumented students are explicitly barred from attending public colleges and universities. I clearly remember deciding, while sitting in my high school counselor’s office, to tell her the real reason I wasn’t planning to go to college. I broke down in tears because I’d never actually told anyone outside of my family about my immigration status.

My counselor made it her mission to help me get into college. Ultimately, I was accepted into a private school that welcomed me with a full-tuition scholarship. Tuition was just the first hurdle. Room and board were another, but my parents promised to move mountains to clear it. And together they did.

By the end of the summer, we were making just enough money to make my college dreams come true. Then my mom’s company went under. Just three days before move-in day, the rug was pulled out from under me. It felt like my future had collapsed before it even started.

Miraculously, my admissions counselor was able to find just enough additional scholarship money so I could start school. By the end of my first semester, I was finally able to apply for DACA. My parents skipped a car payment to afford the then $465 application fee. With DACA, and my pastor as my cosigner, I was able to get a student loan that came in just in time to make the payment that would allow me to go back to school the following year. With DACA, my brothers and I began working. Thanks to DACA and my family, I graduated from college.

The protection from deportation DACA affords eased some of the constant fear I felt about my safety. It allowed my siblings and me to work and contribute to our household. It allowed us to get jobs and have experiences we otherwise would never have had. It allowed us to give back to the country we call home. It changed our lives and served as the long-awaited recognition that, for us, this is home.

On September 5, 2017, when the Trump administration tried to terminate DACA, another rug was pulled out from under me, and again it felt like my future was being taken from me. I’m grateful to be a part of an organization that knows this is my home and is fighting back on every front to ensure immigrant youth are protected. My NILC family has taken Trump to the courts to challenge his unlawful termination of DACA, because my life and future, and those of so many others, hang in the balance.

We know the importance of fighting back, and we know this is part of a larger fight. Trump’s attack on DACA is a clear part of his administration’s broader plan to target nonwhite immigrants in an attempt to basically redefine who we are as a country. And because the administration hasn’t been successful in getting Congress to approve Stephen Miller’s white-supremacist, anti-immigrant policy wish list, it has tried time and again to leverage our livelihoods — and pain — to force Congress into passing its racist agenda.

Trump’s latest tweets couldn’t spell it out any clearer. His administration wants to take away our protections so it can turn around and use us as bargaining chips — again. There is no “heart” involved in these actions. They are a purely racist and cruel way of getting more cruel and racist policies in place to shape the U.S. into the whiter country Trump and Miller long for.

But we won’t let them. We’ll put up the fight of our lives, and we’ll not allow them to define who we are. To every person who has at some time been told to “go home” because of the color of our skin, know this: You are home. Always have been. Always will be. Home is here. And we’re here to stay.

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Diana Pliego is a NILC policy associate and a DACA recipient.

THE TORCH: CONTENTSBy Holly Straut-Eppsteiner
SEPTEMBER 25, 2019

Deferred Action for Childhood Arrivals (DACA) has provided approximately 825,000 immigrant youth with work permits and temporary protection from deportation since 2012. In September 2017, the Trump administration announced it was rescinding DACA’s availability, and U.S. Citizenship and Immigration Services (USCIS) stopped accepting first-time applications for DACA (i.e., from people who had not previously received it) as well as renewal applications from anyone whose DACA was set to expire after March 5, 2018.

Fortunately, people who’ve already had DACA have been able to apply for DACA renewal as a result of nationwide injunctions issued by federal courts. Now, DACA’s future remains uncertain as the U.S. Supreme Court prepares to hear arguments this fall to determine whether the Trump administration’s termination of DACA is lawful or whether the courts even have legal authority to decide this question.

 

Over the past five-plus years, Tom Wong, associate professor of political science at the University of California, San Diego, and director of the U.S. Immigration Policy Center, has collaborated with the Center for American Progress, United We Dream, and the National Immigration Law Center to survey DACA recipients across the country. The latest findings from this year’s survey were released last Thursday.

Over the years, this survey has allowed us to learn more about the population of immigrant youth with DACA, including how DACA has impacted recipients’ educational and employment outcomes, their economic contributions, and their sense of belonging. In recent years, the survey has also measured how uncertainty surrounding DACA under the Trump administration is impacting recipients. For the first time this year, we also have data outlining recipients’ fears and concerns about the possibility of deportation if they were to lose the protections DACA affords. Findings from the 2019 survey confirm what we have now known for years: DACA helps recipients to thrive and contribute to their families and communities.

DACA provides recipients with greater mobility pathways through higher education and higher-quality jobs. After their DACA applications were approved, 71 percent of the sample pursued educational opportunities they previously could not pursue, and an additional 24 percent plan to pursue more education in the future. Since receiving DACA, more than half of recipients moved to jobs that better fit their education, training, and long-term career goals. Just under half reported moving to a job with better working conditions.

Moreover, this year’s survey again documented that DACA is associated with higher wages. The survey found that 57 percent reported getting a job with better pay after their DACA application was approved, with an average 86 percent increase in hourly wages. These gains are even stronger among recipients age 25 and older, who reported an average 128 percent gain in wages.

The 2019 survey results also reiterate that DACA recipients are woven into the fabric of their communities here. Our respondents’ average age of migration to the U.S. is 6 years of age, so DACA youth, on average, have lived most of their lives in the U.S. Most respondents (69 percent) do not have any immediate family in the countries where they were born. Yet 70 percent do have an immediate family member who is a U.S. citizen. Since being granted DACA, immigrant youth in our study have gotten driver’s licenses (80.2 percent), opened bank accounts (56.5 percent), and bought their first cars (59.5 percent) and even homes (13.6 percent). More than two-thirds of respondents reported feeling more like they belong in the U.S. and no longer afraid because of their immigration status since their DACA applications were approved. This complements other research finding that receiving DACA is strongly associated with gains in psychological wellbeing.

As DACA recipients grow older, they are forming their own families here in the U.S. Among respondents 25 and older, 27 percent have children. We know from other estimates that approximately 256,000 children in the U.S. have a parent with DACA. Unfortunately, the uncertainty surrounding DACA presents a source of constant worry for these parents. About three-quarters of parents in the study report thinking about being separated from their children about once a day or more, and close to that amount (72 percent) worry about not being able to see their children grow up because the parents may be deported. In fact, fears of enforcement are pervasive among the sample in general. About half of all respondents think about being deported at least once a day, and two-thirds worry about a family member being detained.

New findings also suggest what’s at stake for recipients who face the possibility of losing their DACA status and potentially being deported to the countries where they were born. According to this year’s survey, 93 percent of the sample indicated that if they were deported, they would be concerned, once arriving in their country of birth, about their or their families’ physical safety, access to health care or education, food security, or becoming homeless.

The results are clear. Providing even temporary protections to undocumented youth has resulted in substantial gains, for them and for the U.S. generally. Taking away DACA would mean denying DACA recipients opportunities for higher education, better quality jobs and, potentially, the ability to remain with their families in the country that has been their home for decades. It would also deny recipients a sense of and actual belonging in their communities and, in turn, deny those communities the economic, civic, and professional contributions that DACA recipients make in them every day.

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

THE TORCH: CONTENTSBy Hayley Burgess
SEPTEMBER 13, 2019

Last week I was sitting on the floor of a stiflingly hot building in Tijuana with an 18-month-old girl. We were scribbling in a coloring book. She was sprawled on her stomach with a concentrated look on her tiny face, handing each crayon back to me as she finished using it. I was intent on keeping her busy so her mother, sitting in the chair next to us, could absorb the critical information an advocate was sharing with her and other asylum-seekers.

As the toddler tottered to her feet and reached up to grab her mother’s leg, I heard the advocate get to the family separation part of the presentation. The advocate explained to the parents in the room that it’s very likely that their children will be taken away from them when they cross into the U.S. And that right before it’s their turn to cross, they should write their information in Sharpie on their child’s arm in hopes they will be reunited. The parents were encouraged to dress with their warmest clothing closest to their skin, since they likely would be confined in “hieleras” for several days while they await their next step — in many cases, indefinite detention or being returned to extremely dangerous conditions in Mexico to wait for their court dates. As so many alarming reports are now showing, migrant families stranded in Mexico are facing homelessness, kidnapping attempts, assault, and threats of violence from those they are fleeing.

Image by StockSnap from Pixabay

If you don’t know about hieleras — the cold, concrete rooms where people apprehended by U.S. Customs and Border Protection are held for days with nothing but the layer of clothing closest to their skin — learn the horrifying details here.

The rest of the children, most of them no older than 11, were playing on the other side of the room. My fellow volunteers were keeping them distracted so they could enjoy a few hours of playing freely and to ensure that they weren’t hearing the same scary information their parents were. As most of these children were staying in overcrowded shelters or on the streets of Tijuana, I couldn’t help but think of how rare and important these moments of joy were.

A report released last week on the lasting psychological effect on the children caught in this situation is gut-wrenching. And reading it after spending most of my time last week with families about to navigate through the horrors of our immigration system, connecting these details to the kids I met and spent time with, breaks my heart. “[I] can’t feel my heart,” some children are saying. Or: “I can hear my heart beat.”

There are so many other moments that will stay with me. The time another young mother, also of an infant, asked us if U.S. immigration officials will take good care of her baby when the baby is taken away from her. Or if she’ll ever see her again. And we couldn’t in good conscience give her a comforting answer. The time I was at the nearby port of entry early one morning and watched a young girl hug her dad goodbye before she and her mother crossed without him. Or when I gripped another young mother’s hand and wished her luck before she and her family were hurried toward the vans taking that day’s small allotment of asylum-seekers towards the U.S. side of the border.

The parents I spoke with during my time there are brave, kind, and resilient. Most were fleeing some kind of government persecution, extortion, organized violence from cartels, or other significant threats to their family’s safety and had endured harrowing journeys to get as far as the border. Not only should their courage and sacrifice for their families be honored, but their legal right to seek asylum must be upheld. Instead, our government is tormenting them and their children.

The Trump administration has taken extraordinary steps to dismantle our asylum system. Despite the great work by so many to fight back, the damage has been substantial and will likely only get worse. Just this week, the U.S. Supreme Court allowed the administration to enforce a policy that makes it nearly impossible for these families to exercise their legal right to make their asylum cases while litigation challenging the policy continues. The consequences will be dire.

The right to seek asylum literally means life or death for these families. And yet our government punishes them and makes each step more miserable and dehumanizing than the last. Our system is being intentionally reconfigured to make life as difficult as possible for those seeking safety within our borders. It’s an ugly reality that we all must confront and work tirelessly to dismantle.

Al Otro Lado is one of the many crucial organizations both fighting these cruel policies and working to support asylum-seekers so they know their rights within what has become, under the Trump administration, a more cruel and complicated process. I encourage you all to learn more about what they’re doing and support them in their critical work.

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Hayley Burgess is NILC’s media relations associate.

THE TORCH: CONTENTSBy Joan Friedland
AUGUST 27, 2019

When Congress heads back to Washington, DC, after its long August recess, it will resume the ongoing debate over how many taxpayer dollars the U.S. Department of Homeland Security (DHS) should be allocated to do its work. Much of that debate has focused specifically on how to hold U.S. Immigration and Customs Enforcement (ICE), one of DHS’s major component agencies, accountable for how much it’s spending — and increasingly overspending — to inhumanely target non–U.S. citizens for detention and deportation.

ICE, in performing its various functions, has consistently blurred the line between the resources it allocates for investigating criminal activities and those it allocates to civil immigration enforcement. And ICE’s increasing reliance on databases and systems outsourced to private companies has only increased its ability and tendency to blur this line.

According to ICE, the agency’s Homeland Security Investigations (HSI) component investigates criminal activity, including cross-border and transnational activity, while its Enforcement and Removal Operations (ERO) unit handles interior enforcement of civil immigration laws. ICE claims that those roles are clearly distinct from one another, but the reality on the ground is different.

As the Immigrant Legal Resource Center, National Immigrant Justice Center, and National Immigration Law Center recently pointed out, “HSI’s mission has increasingly focused on carrying out the Trump administration’s harsh and often unlawful enforcement-only approach to migration.” HSI has been involved in aggressive workplace raids, arrests of people suspected of being affiliated with gangs based on racial profiling, and “sham investigations that purport to involve child welfare but [that actually] are intended to create fear among children’s loved ones and sponsors.” In other words, HSI is engaging in mission-creep that has allowed it to engage in civil immigration enforcement and to carry out sweeping collateral arrests, using its authority to conduct criminal investigations as a pretext for deportations and family separations.

The blurring of lines between HSI’s criminal investigative work and ERO’s civil immigration enforcement is supported by an expanding immigration surveillance machinery designed to gather, manage, and use information to deport people from the U.S. We’ve previously reported on how ICE is vacuuming up vast quantities of data to use in immigration enforcement, relying on commercial aggregators.

Photo by Markus Spiske on Unsplash

Here are examples of how some of those databases and systems and the HSI-ERO connection operate.

Investigative Case Management (ICM)

The private company Palantir plays an outsized role in enabling the blurring of the line between criminal and civil enforcement. Investigative Case Management (ICM), an information technology system and law enforcement management tool developed by Palantir, is used primarily by HSI for criminal and civil prosecutions and investigations. But ERO can and does use ICM to manage and query the system for information related to civil cases.

Recently released documents obtained through Freedom of Information Act (FOIA) litigation show how HSI and ERO carried out joint operations to arrest parents and family members of unaccompanied children. As pointed out by the advocacy group  Mijente, ICM played a critical role in these joint HSI-ERO operations.

An ICE privacy impact assessment describes how ICM allows ICE personnel to “create an electronic case file that organizes and links all records and documents associated with a particular investigation so they are easily accessible from a single location. It also enables personnel to link records to multiple investigations in order to draw connections between cases ….”

FALCON Search & Analysis (FALCON-SA)

ICM system data are housed in the HSI Data Warehouse. It receives a direct feed once every 24 hours that contains a refresh of ICM data, including new records and edits to previously existing records.

The HSI Data Warehouse supports reporting and the export of data once every 24 hours to yet another information technology developed by Palantir: ICE’s FALCON Search & Analysis System (FALCON-SA) is owned by HSI and is one component of a larger FALCON system. According to the U.S. Department of Homeland Security (DHS), FALCON-SA is a “consolidated information management system that enables ICE law enforcement and homeland security personnel to search, analyze, and visualize volumes of existing information in support of ICE’s mission to enforce and investigate violations of U.S. criminal, civil, and administrative laws.”

FALCON-SA routinely ingests and allows users to query information from all the FALCON components, ICM, the Immigration and Enforcement Operational Records System (ENFORCE) — which includes ICE, U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) arrest and investigation records — and other ICE systems. On an ad hoc basis, FALCON-SA includes commercially available or public-source data, criminal history information (including data from the National Crime Information Center as well as state and local law enforcement), information from foreign governments, and more.

Records and information in FALCON-SA may be disclosed outside DHS to law enforcement agencies at all levels of government, including fusion centers, as well as to international agencies.

LeadTrac

An HSI database called LeadTrac also provides investigative information to ERO. According to an ICE privacy impact assessment, it is owned by HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU). A private technology company called T-rex has contracts to manage and modernize LeadTrac.

LeadTrac’s function is “to vet and manage leads pertaining to visitors in the United States who are suspected of overstaying their period of admission or otherwise violating the terms of their admission, as well as organizations suspected of immigration violations …. LeadTrac contains the Personally Identifiable Information (PII) of suspected status violators and other individuals who may be material to a lead (e.g., family members and associates of a subject, employers, designated school officials (DSOs)). Some of these individuals may be lawful permanent residents (LPRs) or U.S. citizens.”

Leads are forwarded to ERO for enforcement actions. LeadTrac provides HSI and ERO with information to further investigate and locate suspected status violators.

In announcing plans for aggressive round-ups of immigrant families, the acting director of ICE recently said that “[e]very city and every state in this country is a border city and a border state.” We can expect that the HSI-ERO collaboration will continue its draconian enforcement policies throughout the country and that ICE surveillance and monitoring systems will continue to grow. It remains critically important to understand and challenge how this occurs and to remind members of Congress that we should be cutting funding to both HSI and ERO and holding both subagencies accountable for how they are using their resources.

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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.

THE TORCH: CONTENTSBy Jackie Vimo
AUGUST 20, 2019

The U.S. Department of Homeland Security (DHS) recently published its final set of regulations on “public charge,” which amount to a racially-motivated wealth test on immigrant families and individuals pursuing a healthy, stable future in the U.S. DHS finalized this rule against widespread public opposition, having received 266,000 public comments on it, the overwhelming majority opposed to its implementation. If the new rule goes into effect, it would devastatingly impact millions and dramatically reshape our immigration system, adding new bricks to the “invisible wall” the Trump administration is building around the U.S. to exclude would-be immigrants who aren’t white or wealthy.

The intention behind the new public charge rule is to spread fear and chaos in immigrant communities — to make people afraid to benefit from programs they are legally entitled to access, programs intended to make them healthier and stronger. Already, rumors and confusion about the new 837-page rule are having a chilling effect on immigrants and their families, causing them to avoid using crucial basic-needs and health care programs.

The new rule, along with the Trump administration’s attempt to include a citizenship question in the 2020 census, its Muslim ban, recent worksite raids in Mississippi and elsewhere, and its practice of confining refugee children in cages, is a brick in the administration’s invisible wall and part of the toolkit of fear that the Trump administration is using to send a clear message to immigrants and people of color: “You’re not welcome here.”

But we can fight back against this campaign of fear and attacks on immigrant communities. We need to fight fear with facts.

 

“Public charge” or the “public charge test” is a longstanding policy used by immigration officials to decide whether a person may immigrate to the U.S. or be granted lawful permanent resident status. While policy experts are still analyzing the specifics of the final rule, the American people already recognize its cruel intentions. By altering the standards of the public charge test, the Trump administration is rigging the rules to make it much more difficult for people who aren’t white or wealthy to immigrate. Under the new rule, anyone whose income is less than 250 percent of the federal poverty level could be deemed by immigration officials likely to become a public charge, so families of four whose income is less than $64,000 a year need not apply.

The rule does not go into effect until October 15, 2019, however, and several lawsuits have already been filed seeking to halt its implementation, including one by NILC and partners. We are fighting back in the courts, in Congress, and in our communities to stop the rule, so stay tuned for new developments. In the meantime, here are three things you should know about public charge:

One: Trump’s public charge regulation is a race-based wealth test that creates prejudicial standards for people of color. Who among us has the power to predict someone’s future potential and accomplishments based on a simple snapshot of their life? The public charge test looks at factors such as age, health, income, and family status to gaze into a crystal ball to make a prediction about whether or not a person is likely to become a public charge in the future, but the test reads like the extreme and counterproductive immigration “reform” legislation that President Trump has been unable to get Congress to pass.

Under Trump’s new test, people who are elderly, have disabilities or problems with their health, come from countries where English isn’t spoken, or have relatively low incomes will be the most heavily impacted. The new rule’s “totality of circumstances” test is essentially legalizing a discriminatory narrative of who deserves to be American. If applied to U.S.-born citizens, at least half of today’s citizens would fail the test. And these prejudicial standards aren’t just aimed at immigrants; they’ve long existed in this country for all communities of color. The new rule is a codification of the classic double standard that if you aren’t born white or rich, you’ll always have to work twice as hard to be recognized — no matter where you come from.

Two: We’ve seen abuses like this before — both in our country’s history and from this presidential administration. The first mention of the term “public charge” in the U.S. was in relation to colonial “poor laws.” While these “poor laws” originally applied to everyone living in the colonies, New York and Massachusetts altered these laws in the mid nineteenth century to make it harder for Catholic Irish immigrants — who were fleeing the Great Famine in Ireland — to immigrate to those states. Similarly, a “public charge” rationale was used to prevent European Jews fleeing Nazi Germany and the Holocaust from seeking refuge on our shores. And now Trump is using a public charge rationale to rig our immigration system in favor of the white and wealthy.

Three: Confusion and fear are causing people to unnecessarily avoid using crucial programs that could help them. There is widespread confusion about who is directly affected by the new rule, and many people to whom the rule does not apply have already begun to avoid benefiting from crucial programs for which they’re eligible. The rule doesn’t go into effect until October 15, 2019, and any benefits used before that date will not be counted against people who use them. Most immigrants are ineligible for most federal benefit programs, like Medicaid and food stamps, until they’ve had permanent resident status and lived in the U.S. for at least five years — so most applicants for permanent residence haven’t received public benefits, because they’re not eligible to receive them. In addition, the receipt of benefits by an applicant’s children or family members is not counted against the applicant, unless the family members are also applying for permanent residence.

The rule will be applied only to applications submitted after October 15, 2019, so people who currently have permanent residence applications pending are also not subject to it. But, unfortunately, that isn’t the message immigrants are hearing, as millions of immigrants, their U.S. citizen children, and family members have become frightened that their families might be torn apart. So many are avoiding health, housing, and nutrition programs, even though the rule doesn’t apply to them. Community education to dispel false information will be crucial to counter this chilling effect.

MAKE NO MISTAKE, THIS NEW RULE IS AN ATTEMPT to push a divisive narrative that people of color, people with relatively low incomes, people with disabilities, LGBTQ communities, and immigrants are somehow less deserving of American opportunity. But this narrative is wrong. The best way to build a strong country is to ensure that the families who live here have the food, medical care, shelter, and other basics they need to thrive.

And this fight isn’t over. Public servants, advocates, and regular people all over the country will continue to stand up, speak out, and fight back to protect immigrant families and our country’s future. When America is at its best, we are a welcoming country.

To stay updated about the latest developments regarding the public charge rule and to get involved in the fight against the public charge attack on immigrant families, visit www.ProtectingImmigrantFamilies.org.

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Jackie Vimo is NILC’s economic justice policy analyst.

THE TORCH: CONTENTSBy Joan Friedland
AUGUST 6, 2019

Local, state, and federal law enforcement, including U.S. Immigration and Customs Enforcement (ICE), have long relied on driver’s license databases to obtain information (such as addresses) about drivers and car owners. For many years, the FBI and ICE have asked states to use their face-recognition systems to search photos in their department of motor vehicles (DMV) databases.

In NILC’s 2016 report summarizing documents we received as a result of a 2014 Freedom of Information Act (FOIA) request to the U.S. Department of Homeland Security (DHS) and in our 2017 report Untangling the Immigration Enforcement Web, we describe how ICE asks DMVs to use their face-recognition systems to find people to target for deportation. These reports also describe the different ways ICE obtains DMV information. Last month, the Center on Privacy and Technology at Georgetown Law School released documents confirming that ICE has asked DMVs in Utah, Vermont, and Washington to run face-recognition searches against their driver’s license photo databases.

How does face recognition work?

Face recognition compares one photo against many photos in a database. Searches are run against all the images in the DMV database, not simply against the photos of individuals suspected of wrongdoing or of violating immigration laws. These searches put certain groups at increased risk of being wrongfully identified, as face-recognition technology produces false results more often for images of people of color, particularly women of color. And photos of people who are identified as possible matches then become part of the vast biometric databases operated by the FBI and DHS.

Photo by Andrii Podilnyk on Unsplash

These face-recognition searches are unregulated and affect U.S. citizens as well as immigrants, regardless of their immigration status. The Government Accountability Office (GAO) has criticized the FBI’s failure to evaluate the accuracy of states’ face-recognition systems — the same unevaluated state systems used by ICE. And ICE has refused to disclose how it uses the searches.

DMVs share driver’s license photos with ICE in other ways too. For example, Nlets, a private, nonprofit information-sharing system, runs a photo-sharing service that many states choose to participate in and to which ICE also has access. When they use Nlets, ICE or other agencies request the photo of an identified individual rather than asking the state to run a photo against all the photos of people in its database. And states may share DMV photos with ICE using their own networks.

The use of face-recognition searches in states that issue driver’s licenses to their residents regardless of their immigration status has received more attention recently, given the Trump administration’s ruthless attempts to deport as many people as possible. But everyone living in this country — including U.S. citizens — whose information is in one or more DMV databases should be deeply concerned about protecting the privacy of the information that the DMVs have gathered about them.

How to limit ICE’s access to DMV information

Currently, fourteen states plus the District of Columbia and Puerto Rico have enacted laws making driver’s licenses available to eligible state residents regardless of their immigration status. These states know that public safety improves when all drivers, regardless of their immigration status, are trained, tested, licensed, and insured. They have good reason to ensure that information provided by driver’s license applicants to their DMVs is not made available to ICE for immigration enforcement purposes, because if it is, some drivers will choose not to get a license, which will undermine the states’ efforts to reach their public safety goals.

Many of the state laws authorizing issuance of licenses to residents regardless of their immigration status include provisions limiting affirmative disclosure of DMV information. For example, the recently enacted New York law includes multiple provisions to protect drivers’ information.

States can take these affirmative steps to protect the privacy of DMV information, including photographs:

Be transparent about the mechanisms by which DHS and its component agencies obtain information from the state’s driver’s license databases.

Just say no. States can use administrative measures to limit DHS access to DMV information and can refuse to share driver’s license photos or to use their face-recognition technology at ICE’s request.

Take affirmative steps to ensure that individuals are not identified or isolated because of their immigration status through application procedures or license issuance, by ensuring that standard licenses are available to citizens as well as immigrants regardless of their immigration status and by having application procedures that don’t discriminate between applicants based on the type of license they are seeking and that don’t reveal the license recipient’s particular immigration status.

Enact legislation that prohibits the use of face-recognition technology and protects the confidentiality of documents and information provided in applying for a license.

States that offer access to driver’s licenses for all eligible residents can help ensure the success of these policies by safeguarding the information in their DMV databases to the greatest extent possible. Failing to do so undermines their public safety policies by deterring eligible residents from applying for a license. Unlicensed drivers face serious consequences if they are stopped by police, including, potentially, being arrested or handed over to ICE for immigration enforcement. In the end, drivers will need to weigh the risk that DMV information, including photos, will be shared against the consequences of being stopped for not having a license. States can promote public safety by adopting robust policies that protect all drivers’ privacy.

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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.