Confidentiality Should Be a Non-Starter in Any Immigration Bill

A 'statute of frauds'

By Andrew R. Arthur on February 13, 2018

As Congress takes up a bill that regularizes the status of aliens who were granted (or were eligible for) benefits under the Deferred Action for Childhood Arrivals (DACA) program, one component that the bill should not include is a confidentiality provision for any potential applicants.

Immigration law appears to be the one area where secrecy is considered a virtue. For example, the asylum regulations contain a provision that more or less safeguards from disclosure information contained in an asylum application, or even the fact that an alien has applied for asylum. There is some logic in such a regulation, because it is reasonable to believe that an application for asylum is an unfriendly act to a country from which an alien seeks asylum, that could subject an applicant to greater harm.

There is no logic, however, to placing such a provision in a bill that offers amnesty, particularly to a large population of aliens. Unfortunately, it appears that the Senate may be moving in that direction.

Majority Leader Mitch McConnell (R-Ky.) is using a non-germane bill (H.R. 2579) as a vehicle to debate DACA legislation in the Senate. Because of the "free-for-all debate" that the majority leader is employing, the eventual parameters of the resulting bill are unclear. Yesterday, however, McConnell endorsed a Republican proposal called "the Secure and Succeed Act of 2018", which seven senators are preparing, as "a 'fair compromise' and 'the best chance' at passing a bill that can get signed into law." The seven are Sens. Chuck Grassley (R-Iowa), John Cornyn (R-Texas), Thom Tillis (R-N.C.), David Perdue (R-Ga.), James Lankford (R-Okla.), Tom Cotton (R-Ark.), and Joni Ernst (R-Iowa).

Grassley, who is the chairman of the Senate Judiciary Committee, introduced a similarly named bill in December 2017, the "SECURE Act of 2017", S. 2192, which contained enforcement provisions. Tillis, in September 2017, also introduced a similarly named bill, the SUCCEED Act (S. 1852). The final product will likely be a combination of the two.

The Tillis bill would have provided certain aliens covered by DACA with conditional residence, renewable every five years. At the end of 10 years, those aliens would be eligible to apply for permanent resident status.

Section 10 of the Tillis bill, however, is a confidentiality provision. It would prohibit officers and employees of the United States from using the information provided by applicants for conditional resident status to initiate removal proceedings, to publish the information provided, or to "permit anyone other than an officer or employee of the United States Government to examine such application."

There are exceptions to these restrictions. For example, subsection 10(b) would require disclosure of that information to law enforcement and national security agencies for use in connection with criminal investigations and prosecutions, firearm background checks, and "for homeland security or national security purposes", but only then "if such information is requested by such entity or consistent with an information sharing agreement or mechanism." The information could also be shared with a coroner to "identify [] a deceased individual."

Finally, subsection (c) therein states:

Nothing in this section may be construed to prevent the disclosure and use of information provided by an alien under this Act to determine whether an alien seeking relief under this Act has engaged in fraud in an application for such relief or at any time committed a crime from being used or released for immigration enforcement, law enforcement, or national security purposes.

A violation of these provisions subjects the violator to a fine of up to $10,000.

This provision is similar to the confidentiality provision that was contained in the 1986 amnesty, title II, section 201 of the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (1986), creating a new section 245A(c)(5)(A) of the Immigration and Nationality Act (INA). An even more restrictive confidentiality provision (new section 210(b)(6) to the INA) was included in the original special agricultural worker (SAW) amnesty provision, section 302 of IRCA, although this provision has been subsequently amended to mirror the substantive provisions of section 245A(c)(5)(A) of the INA. Again, disclosure for violations of these provisions was subject to a fine of up to $10,000, and also potential jail time.

Notably, however, the confidentiality provision in IRCA, section 245A(c)(5)(A) of the INA, was arguably not as restrictive, in at least one way, as section 10 of the SUCCEED Act.

Specifically, IRCA provision makes clear that this confidentiality provision should not be "construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in" immigration files or records relating to an amnesty application thereunder "other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source." It also states that: "Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes." There is no similar language in section 10 of the SUCCEED Act. This is important, because alien files (A-files) will have to be created for any applicant who does not have one; an alien applicant may subsequently challenge any new information that is subsequently developed and placed into that A-file.

As my colleague Dan Cadman has stated concerning the amnesty confidentiality provisions in IRCA:

With IRCA, migrant advocates argued that confidentiality was needed to encourage applicants to come forward. It's doubtful that was true then.


Although the provisions contained a narrow exception to confidentiality permitting investigation of fraud in the applications, the reality is that legalization examiners were too overwhelmed to see or refer much in the way of potential fraud, leaving INS investigative agents pretty much on the sidelines, unable to pierce the veil or gain access to files without such referrals. Confidentiality stood as a firewall between enforcement agents and efforts that would have lent integrity to the legalization programs. It also stood as a barrier to other law enforcement agencies seeking leads to identify the whereabouts of criminal suspects who were thought to have filed for amnesty with the INS.

There is another point to consider about confidentiality, though, were the nation to go down the path of a second major amnesty. The legalization programs of IRCA were supposed to end the need for all future amnesties and failed miserably. One reason is because when illegal aliens were denied amnesty, they were allowed to melt back "into the shadows" because confidentiality protected all aspects of the application. There were no consequences. Instead, the files were sealed away and, because of the confidentiality restrictions, they were never sent to agents to apprehend the failed applicants. Thus began the accretion of the 11 or 12 million illegal aliens who are here now waiting to be dealt with in some form or fashion. Why did no one see this as an inevitable outcome?

These points remain valid.

If a DACA-eligible alien wants to apply for relief, the alien should be required to disclose all information requested, and that information should be available to any government agency, for any purpose whatsoever. If the alien does not want to disclose that information, he or she is not required to apply for the amnesty. If the alien does, the alien should waive the use of that information. Any provision to the contrary simply encourages deception, and should more properly be captioned a "statute of frauds".

Moreover, both the confidentiality provisions in IRCA and in section 10 of the SUCCEED Act reflect a pre-September 11 mentality. The "9/11 Commission Report" criticized such "stovepiping" of intelligence information. As it stated: "A 'smart' government would integrate all sources of information to see the enemy as a whole."

Yet, confidentiality provisions do exactly the opposite — they hoard information in one place, and lock it away, under threat of criminal penalties. From my experience, government employees are risk-averse when it comes to such penalties; that is, they not only don't cross the line between what is permitted and prohibited, but they actively avoid coming close to that line. National security is one instance where time is of the essence, and such reflexive (and self-protective) bureaucracy and turf battles often get in the way.

Consider, for example, the response of U.S. Citizenship and Immigration Services (USCIS) to U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agents who were seeking access to "Mariya Chernykh, a Russian national attempting to adjust her immigration status, [who] was married to Enrique Marquez, an associate of" San Bernardino shooter Syed Rizwan Farook, the day after that shooting.

Agents believed that Marquez might accompany his wife to that visit, and sought to detain the couple for questioning. As the Department of Homeland Security (DHS) inspector general stated in his memorandum on that incident:

According to the HSI agents we interviewed, the agents were confined to the lobby for approximately 15 to 20 minutes. The agents were escorted to a USCIS conference room by FPS guards, where they met with the Field Office Director. According to the HSI agents' accounts, they waited approximately 10 additional minutes in the conference room before the Field Office Director met with them. The agents told her they were looking for Marquez because he was connected to the shootings and there was concern that he could be in the building. The Field Office Director told the agents they were not allowed to arrest, detain, or interview anyone in the building based on USCIS policy, and that she would need to obtain guidance from her superior before allowing them access. During this exchange, the agents also spoke by phone with the Acting Chief, Fraud Detection and National Security (FDNS), USCIS, Los Angeles. According to the HSI agents, he told the agents that it was USCIS policy not to arrest, detain, or interview on USCIS property.

When interviewed by OIG, the Field Office Director denied telling the agents they were not allowed to arrest, detain, or interview anyone in the building. However, her account is contradicted by that of the other HSI agents present. Moreover, the Field Office Director herself reiterated to OIG agents during her interview her belief that it was against USCIS "procedure" for law enforcement to detain or interview individuals on USCIS property. She also gave inconsistent answers about when she discovered that the HSI agents were investigating the shootings from the day prior. She told OIG in her interview that she discovered the connection between Chernykh and the shootings while reviewing Chernykh's file. She also stated that she was only told by the agents that they were investigating the shootings after she gave them the photograph. In her written statement, however, the Field Office Director stated that the agent told her that they were investigating the shootings when she initially met with him in the conference room. Either version is contradicted by the building security officer, who said he told the Field Office Director of the purpose behind the agents' arrival when he first notified her.

After meeting with the agents, the Field Office Director again called the District Director in Los Angeles and notified her of the connection to the shootings the day prior. The District Director notified her supervisor, the Regional Director, who in turn notified the Associate Director - Field Operations, USCIS, in Washington, DC, who then met with USCIS counsel's office.


The Field Office Director had her staff check to see if Chernykh had checked in for her appointment and it was determined that neither she nor Marquez were there. The conversation then switched from HSI access to the building to HSI access to USCIS information.

According to HSI, the agents then requested information from the USCIS file on Marquez's wife, but the Field Office Director was not forthcoming with information and would not provide the file. She did provide them with a photo. Agents also asked for known addresses, but the Field Office Director would only confirm the address provided by the agents and did not offer any additional information.

HSI believed that the Field Office Director was not going to cooperate in their effort to locate Marquez, so they left the building and regrouped in the parking lot.

Meanwhile, in Washington, DC, the USCIS Associate Director - Field Operations determined that it was permissible for HSI to have access to the file. He then contacted the Regional Director in California and told her to give HSI whatever they wanted. The Regional Director relayed this to District Director who relayed this to the Field Office Director. More than an hour after HSI arrived at the building, the Field Office Director called one of the HSI agent's cell phone and told them that they could return to look through the file. HSI returned and viewed the file, hand-copying information they deemed relevant to the investigation. HSI then left USCIS.

If this was the response of USCIS for information in connection with a well-publicized mass shooting at a holiday party the day before, imagine a line adjudicator's response for information involving an unknown suspect, with a $10,000 fine on the line for an improper disclosure of DACA amnesty information.

Section 10 of the SUCCEED Act also raises the question of how law-enforcement and national security agencies will be aware that an alien has applied for DACA given the restrictions on "publication whereby the information provided by any particular individual pursuant to an application under this Act can be identified."

Given these facts, even information that could be shared with law-enforcement agencies likely will not be.

Finally, any confidentiality provision will lead to years of litigation, costing the United States millions of dollars, as the IRCA provisions did.

Simply put, confidentiality provisions should not be a part of any DACA amnesty bill: They promote fraud, hinder law-enforcement and national-security activities (regardless of how they are phrased), will lead to costly litigation, and are simply unnecessary. The Senate should learn from the mistakes of IRCA.