At DHS, Perps Have Rights That Citizens Don't

By David North on May 9, 2010

The Department of Homeland Security has some interesting rules about what is private and what is public in its record-keeping systems. Let's look at three imagined scenarios:

#1. You are an illegal alien actively engaged in human smuggling. One of your coyote colleagues was picked up by Immigration and Customs Enforcement and is in jail somewhere. You want to keep him sweet, so that he does not reveal your name. You want to find where he is and you want to make sure he has plenty of money to buy stuff at the facility commissary and to use the phone.

Will DHS help you do these things?

#2. You are a different kind of open-borders person, an honorable immigration lawyer in, say, El Paso. You have a client with a problem beyond your expertise – he's trying for an O-1 visa, for an "alien of extraordinary ability," and you need someone to handle his appeal from a staff-level negative decision. You want to refer him to another lawyer who has won O-1 petition appeals in the DHS Office of Administrative Appeals. You know that records of individual cases are published on the net and you figure that the appeals records will show you the names of lawyers winning and losing those kinds of cases.

Will DHS help you with this totally legitimate, pro-immigrant bit of research?

#3. You are an academic or a congressional staffer and you are interested in the extent to which DHS approves or denies petitions filed for, say, O-1 visa applicants. You know that the State Department, dealing with the same population at a different point in the process, routinely publishes data on approvals and denials of visas, including O-1 cases.

Will DHS provide the same kind of data that State does routinely?

The Smuggler. The answer is that the smuggler will be able to make those payments to his companion-in-crime, after June 1, but the member of the immigration bar and the academic cannot get the bland information they want. All three are experiencing DHS's odd ways of handling public data.

As to the first case, I should add that the apprehended illegal alien's wife, and his/or lawyer, will have the same access to the kind of information as the smuggler; and the smuggler, too, would be thwarted were he to want the lawyer-specific, or group-decision information, sought in the second and third scenarios.

The DHS data-release system is not pro-smuggler, it is just non-rational.

I was reminded of these anomalies by the publication, in the Federal Register of May 4, of a DHS item: "Notice of amendment of Privacy Act system of records." What ICE is proposing to do, and presumably will do, starting June 1, is to make available to the (internet-savvy) public a data system which will allow people to locate ICE prisoners if they have the person's full name and date of birth or the person's Alien Number. Other jail and penitentiary systems have similar systems, and that is probably a good thing.

In the ICE system you can find out about the prisoner's location, and if you feel like it, you can send the prisoner money for the commissary and for telephone calls. If the prisoner has been moved out of the system in the last 60 days, you can find out where he went.

While DHS has gone to considerable trouble and expense to provide these data to its law-breaking prisoners, their friends, colleagues, and relatives, it is no help at all to our law-abiding immigration lawyer and the academic in the second and third scenarios.

The Lawyer. Unlike virtually every other American administrative appeals and judicial system, the DHS Office of Administrative Appeals not only blocks out the name of the aliens involved in its cases, it blocks out the names of the lawyers, too. It makes perfectly good sense to eliminate the names of young kids or rape victims in certain judicial records, but the lawyers, too?

OAA is so gun-shy, as we noted in an earlier blog, about reporting the appeals from R-1 (religious worker) petition decisions that it not only eliminates the names of the alien and his or her lawyer, but that of the employing church as well. In these cases high-level DHS secrecy decisions are often disregarded at the staff level, so that the names of the churches, in the text of the decisions, sometimes avoid redactation.

The Academic. USCIS, unlike ICE and the Office of Immigration Statistics, seems to have a lot of data about its decision-making that it hides from the public. It must know how many, say, O-1 petitions it denies and grants, but it never publishes these data, and if you ask for them, you are told to try the Freedom of Information Act route. I have, and calculate that at the rate the request is moving – you can follow it on the net – it will be another three months before I hear whether the agency is going to provide the information or not.

Now if I had a solid connection to the system, like a buddy in one of its jails . . .