"Privacy Rights" of Illegal Aliens Under Judicial Scrutiny

By Dan Cadman, June 6, 2016

A few days ago, I posted a short item on the irony of the Department of Justice (DOJ) asking the Fifth Circuit Court of Appeals to overturn U.S. District Court Judge Andrew Hanen's order imposing sanctions on DOJ attorneys for repeatedly misleading his court in their briefs. DOJ claims that Judge Hanen's order exceeds the scope of his constitutional authority.

But another portion of the order directed DOJ to turn over to him the names and identifying data of all of the 100,000-plus "Dreamers" who received extensions under another, related executive action program that the DOJ attorneys had promised the judge were not being acted on (the source of the repeated misrepresentations to the judge).

DOJ is also appealing that directive to the Fifth Circuit. As Hans von Spakovsky has noted, DOJ has asserted in its brief that doing so would "breach the confidence of these individuals (and of others who submit information to USCIS) in the privacy of such records", while at the same time acknowledging that illegal aliens have no privacy rights under federal law. The Privacy Act is very clear in limiting privacy rights to "U.S. persons" who are defined as U.S. citizens and lawfully resident aliens — nobody else.

Unsurprisingly, a coalition of open borders groups has now banded together to also ask the Fifth Circuit to quash Judge Hanen's directive to turn over identifying records, via a petition for a writ of mandamus.

News media carrying the story helpfully cite the stories of a couple of the affected "Dreamers", Angela Villalobos and Juan Escalante, both of whom are quoted. Apparently a fear of having their privacy invaded doesn't extend to speaking to the media. How curious.

This make-it-up-as-you-go approach by the Obama administration toward creating and expanding the faux privacy rights of illegal aliens may seem innocuous, perhaps even laudable, but it is not. It has been used by the administration to withhold information from citizens who have been the victims of crimes by illegal aliens, and who rightly seek to know who has harmed them (see here and here, for example).

That is one reason why the Center, when it published a list of 79 actions the next president could take to undo the damage wrought by the Obama administration, added a section on eliminating false privacy "rights" and assisting victims of alien crime (items 69 through 73).

Whether any of our suggestions comes to pass, including those to rescind the fake privacy rights of illegal aliens in favor of hewing to federal law, naturally will depend on the November elections.

In the meantime, the Fifth Circuit has a chance to exercise its prerogative to force the administration back into line in at least this one area — and in so doing, protect the rights of victims and, significantly, the right of the public to know what is going on behind the curtain at the Department of Homeland Security (DHS) and its subordinate agencies. All the appellate court need do is deny the mandamus, and require DOJ (and DHS) to honor Judge Hanen's directive.