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Week 19: Federal government and New York State in showdown over data-sharing
Immigration news, in context.
This is the nineteenth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture, we look at the clash between New York and the Trump administration over access to DMV data, and the law and mechanics of data-sharing between localities and the federal government.
In Under the Radar, we examine ICE’s decision to stop holding detainees in a local jail that was known for blanket bond denials and abuse, and the decline in federal prosecutions for illegal entry and re-entry.
In Next Destination, we probe a recent State Department program to assist Laos with reintegration of returning citizens, and what it could mean for Laotian immigrants in the U.S., as well as a new bill in Congress that seeks to significantly alter the immigration enforcement system.
The Big Picture
The news: Last week, the Trump administration announced it would stop allowing New York residents to apply for certain trusted traveler programs. The move was in response to the state’s new law allowing undocumented immigrants to apply for drivers licenses, which also cut ICE and CBP’s access to the state DMV database. New York has sued the administration over the move.
Through its recently enacted Green Light law, New York began allowing people without a record of lawful immigration status to obtain non-commercial driver’s licenses. The bill specified that “[a]ny portion of any record retained by the commissioner in relation to a non-commercial driver's license or learner's permit application or renewal application… is not a public record and shall not be disclosed in response to any request for records.” There are exceptions for the person who is the subject of the records, to comply with the REAL ID Act (more on that later) and “where necessary to comply with a lawful court order, judicial warrant signed by a judge appointed pursuant to Article III of the United States Constitution, or subpoena for individual records issued pursuant to the criminal procedure law or the civil practice law and rules.”
Immigration-related administrative requests do not fall under these categories, effectively cutting the database off completely from use for immigration enforcement purposes. In response, Acting Homeland Security Secretary Chad Wolf announced that the agency would stop allowing New York residents to enroll in the Trusted Traveler Programs, which include NEXUS, SENTRI, and Global Entry, supposedly because the access was necessary to make sure applicants were eligible. State Attorney General Letitia James responded by suing the administration, arguing that there was no security basis for the move, and it was simple retaliation. Yesterday, Governor Andrew Cuomo met with President Trump to discuss the issue, though no resolution appears to have been reached.
Information-sharing between localities and federal immigration authorities is a murky, tangled mess. Despite widespread misconceptions, no laws or regulations require that states or other localities forward any information to the federal government for immigration enforcement purposes. The closest federal law comes to addressing this is in 8 U.S.C. §§ 1373 & 1644, which both prohibit the enactment of laws or policies that restrict government entities or officials from sending and receiving “information regarding the citizenship or immigration status, lawful or unlawful,” of any individual to the Immigration and Naturalization Service (the precursor to the current ICE, CBP, and USCIS).
Section 1373 goes farther in also prohibiting restrictions on whether this information can be maintained and shared with other federal, state, and local government entities. However, this is merely a ban on preventing the sharing of this information, and not a requirement that it be shared. In the 1999 Second Circuit decision in City of New York v. United States, the court found that localities could plausibly make an argument that the sharing of such data even on a voluntary basis would interfere with state and local government functions and the ability of these governments to manage their workforces, though the judges ultimately found that New York failed to meet this threshold and declined to strike down the laws.
These statutes prevent limits on maintaining and sharing this data, but not on collecting it. Therefore, states and localities that want to stop immigration status data from being sent to the federal government can and do simply forbid their agencies and officers from gathering any of it in the first place. They also reference only information on citizenship and immigration status, and not any of the other data of value to federal immigration agents, such as criminal justice information and data from motor vehicles registrations and licensing.
How we got here
New York’s “Green Light” law allowing undocumented immigrants to apply for driver’s licenses was signed into law in June 2019, amid cheers and chants of “Si se pudo" in the Senate gallery. After the law went into effect in December 2019, hundreds of immigrants, able to legally drive in the state for the first time, lined up outside DMV offices across the state for hours.
Despite the jubilation among progressive legislators, organizations like Make the Road, and people affected by the law, the six months between the law’s passage and its implementation were fraught with legal challenges. Some county clerks vowed to continue refusing driver’s licenses to undocumented immigrants and accused the state government of flouting federal immigration law. (New York is one of 15 states that allows undocumented immigrants to apply for driver’s licenses; doing so is not unlawful.)
The Rensselaer County Clerk filed a federal lawsuit against New York in July 2019, claiming that the bill violated federal immigration law and would lead to voter fraud. The Justice Department weighed in in December, calling certain aspects of the bill, including a provision limiting information-sharing with federal immigration agencies, “legally suspect.” A federal judge threw out the case shortly before the bill went into effect.
Beyond the statutory requirements to share immigration data mentioned above, formal conduits of information from local governments to federal immigration authorities are largely voluntary. Probably the largest of these is participation in the 287(g) program [8 U.S.C. § 1357(g)], which essentially allows state and local employees to be deputized as federal immigration agents under a “written agreement” with Homeland Security. So-called ICE detainers, which request that localities provide information on when a particular person will be released from law enforcement custody (and often, that they be held a little longer for ICE agents to arrive and pick them up) can be lawfully disregarded. The administration has repeatedly attempted to withhold federal grants to states and cities as retaliation for a failure to cooperate on immigration, an effort which has been consistently crushed by the courts.
One of these areas of voluntary data-sharing is driver data. Despite sanctuary postures, several states that provide driver's licenses to immigrants have been found to be furnishing ICE with access to DMV information, without making much of a distinction between criminal investigations and civil immigration investigations.
The agency has turned this access into a crucial operative tool via facial recognition software. Many localities also provide ICE with the ability to query local criminal justice databases, a situation ICE itself considers integral to its ability to find, detain, and deport undocumented immigrants. New York State’s criminal justice agency, despite repeated denials, as of last year still had multiple active data-sharing agreements with ICE, including a system to actively alert ICE when a prior deportee was fingerprinted anywhere in the state. ICE has also bought DMV data from cooperative states; it purchased a year’s worth of access to North Carolina’s driver’s license data for just $26.50 in 2017.
Even when localities don’t provide this access, it’s not difficult for ICE to get its hands on at least some local criminal justice information. Under the Secure Communities program, criminal data that localities are required to feed to the FBI is automatically shared with ICE for immigration enforcement purposes. Beyond that, federal databases like the National Counterterrorism Center (NCTC) and the Law Enforcement National Data Exchange (N-DEx) allow ICE routine access to all sorts of local data. But ICE’s access to driver data is particularly crucial given the Trump administration’s directive that ICE agents target “all removable aliens” for deportation, as opposed to just those with criminal records. For immigrants without criminal contact, ICE has to resort to other measures, including mining DMV data and other databases, to carry out arrests. This data can also be more up-do-date and include crucial information like a recent photo and address.
There’s also the added layer of the REAL ID Act of 2005. Among other provisions, it imposes certain federal standards for all state identifications. Undocumented immigrants cannot fulfill the requirements to receive a REAL ID-compliant identification, but states are still permitted to issue non-compliant identifications provided that they are marked as not valid for federal purposes, which is how states that provide licenses to undocumented immigrants are able to do so. The catch is that states are required to open up their DMV databases to other states for license verification purposes, and the federal government can obtain the information from friendlier states.
This is exactly what was laid out in a leaked memo DHS from last month, obtained by BuzzFeed News this week, which discussed how to circumvent state limitations on access to driver information and how to punish states that imposed such restrictions. The memo also discusses how to put pressure on “uncooperative states,” including an option of terminating the enrollment into Trusted Traveler programs; this appears to be what took place with new York.
Unsurprisingly, the face-to-face between the governor and the president didn’t yield anything conclusive. Fundamentally, the question states and localities are grappling with is to what extent the information-sharing of local data is serving a public safety goal versus enabling an administration agenda of tracking, detaining, and removing mass quantities of immigrants, documented and undocumented. Criminal justice data is easier to fit into a broader public safety framework, and to an extent it’s impossible to cut off federal access. There’s a much weaker argument for the sharing of DMV data, and, in the crucible of local public opinion, state and municipal leaders will probably increasingly decide to shut the administration out.
New York appears to be the only state that has codified DMV information-sharing restrictions into state law, but it tends to be somewhat of a bellwether on immigration legislation. It wouldn’t be surprising if other states follow suit, particularly if there are indications of a positive outcome in New York’s federal case against the administration. While the case is not litigating whether states can block access to local DMV data — it’s pretty clear that they can — it is litigating how the federal government can respond to it. If, as in the cases involving withholding of federal grants, the courts rule in the localities’ favor, the administration’s threats become toothless (though, as some have argued, Trump may like the optics of battling sanctuary states even if he ultimately loses).
An interesting legal question, which has yet to be tested, is how states can limit information-sharing among other state DMVs. REAL ID mandates that such databases be made available to other states, but — especially now that the leaked memo makes clear that the federal government may use this to get around restrictions — sanctuary states may try to impose some limitations, such as requiring that out-of-state queries be justified for purposes like verifying identity, and not be used to share information with the federal government for immigration enforcement purposes.
Under the Radar
ICE stops using a local jail where immigrants were pepper sprayed for protesting
Immigration and Customs Enforcement recently stopped sending immigrant detainees to the Bossier Parish Corrections Center, a facility where asylum seekers were beaten and pepper sprayed for protesting ICE’s refusal to grant migrants parole, Mother Jones reports. ICE had been using the facility in June 2018 and paid the parish $60 per night per detainee.
Bossier isn’t a dedicated ICE detention center; instead, it’s a maximum-security jail run by the Bossier Parish Sheriff’s Office that, until recently, held people with criminal charges alongside immigrants, who are detained on civil grounds. As Mother Jones previously reported, immigrant detainees at Bossier had staged a protest over their lengthy detention by ICE. The agency’s New Orleans field office, which oversees operations in 5 states including Louisiana, has been categorically denying parole to asylum seekers despite a September 2019 court order forbidding it from doing so. In practice, this has led to indefinite stays in detention for asylum seekers, who are confined to these facilities while their case plays out in court — a process that can sometimes last years.
A review by the Nakamoto Group, a private company ICE contracts to inspect its detention facilities, revealed that 158 Cuban asylum seekers participated in the protest. Another Nakamoto inspection found 122 deficiencies at Bossier.
Although ICE is no longer sending detainees to Bossier, the agency has rapidly expanded its footprint in Louisiana. A 2017 criminal justice law reduced the state’s use of criminal detention, which encouraged local jails and prisons to begin holding immigrant detainees for ICE. Several privately run facilities have opened in the state over the last year as well.
ICE Stops Using Jail Where Detainees Were Beaten and Pepper-Sprayed — Mother Jones
As fewer inmates fill Louisiana jails, wardens turn to immigration officials to fill bunks, budgets, The Advocate
Criminal immigration prosecutions dropped in 2019
The number of prosecutions federal immigration agencies referred to the Department of Justice dropped last year, according to government data recently analyzed by the Transactional Records Access Clearinghouse at Syracuse University.
Just over 8,300 new immigration prosecutions were filed last October, a 37% reduction from October 2018, when 13,286 prosecutions were filed. Almost all the prosecutions were referred by CBP; in fact, 91% of all October 2019 prosecutions came from five judicial districts along the U.S.-Mexico border.
The decline in prosecutions for criminal immigration violations — such as illegal entry, a federal misdemeanor, and illegal re-entry, a federal felony under 8 U.S.C. §§ 1325 and 1326, respectively — doesn’t mean migrants who enter the U.S. without authorization are shielded from deportation. Immigration cases are handled by civil courts (or individual agents in expedited removals), not criminal courts, and removal proceedings are civil, not criminal. (ICE detention is therefore only supposed to be used in cases where the person in question is deemed a flight risk or a danger to public safety, though plenty of people who fit neither criteria are detained in facilities across the country anyway.)
When migrants are prosecuted for illegal entry, they’re charged with a federal crime and put in deportation proceedings. Migrants who aren’t given criminal charges can still be deported, and often are; the criminal prosecution is an additional punishment on top of deportation.
These prosecutions were the basis of the Trump administration’s 2018 “zero tolerance” policy of separating children from their families at the U.S.-Mexico border. Parents caught crossing between ports of entry were prosecuted and briefly held in criminal custody. Since children can’t be held in criminal detention simply because their parents have been charged with a crime, the children were then deemed “unaccompanied minors” and sent to shelters operated by the Office of Refugee Resettlement.
This is also why some 2020 candidates have promised to decriminalize unauthorized entry, a policy that has erroneously been equated with “open borders.” The DOJ currently chooses whether to prosecute migrants for entering the U.S. without authorization, and often finds that doing so is more trouble than it’s worth. In fact, prosecutions didn’t start declining in 2019 — the downturn began after former Attorney General Jeff Sessions resigned in November 2018.
Sharp Decline in Criminal Immigration Prosecutions — TRAC
Why Julián Castro started a Democratic debate fight over repealing “Section 1325” — Vox
A “reintegration” program with Laos could lead to deportations of Laotian and Hmong refugees
The State Department is reportedly funding a reintegration program in Laos, stoking fears that Laotian immigrants — many of them refugees — with final orders of removal could soon be deported to the country. Laos currently doesn’t have a repatriation agreement with the United States, meaning it doesn’t accept deportees. Laotians and Hmong who are given final orders of removal are essentially caught in limbo: they’ve been ordered deported, but the U.S. can’t send them to their country of origin.
Katrina Dizon Mariategue, the director of national policy at the Southeast Asia Resource Center, told NBC News that the organization worries a reintegration agreement would “make refugees who have not lived in Laos for a long time susceptible to targeting.”
The Trump administration has put pressure on countries that don’t accept deportees — including Laos, Cambodia, and Vietnam — over the past three years, and NBC reports that deportations and detentions of Southeast Asians have increased under the Trump administration. Though it’s still unclear what will come of the reintegration program, activists say they’re preparing for a potential repatriation agreement and an increase in deportations as a result.
U.S. funding reintegration program in Laos for Laotian and Hmong refugees — NBC News
ICE Could Deport Him to a Country He’s Never Been To—Unless California’s Governor Steps In —Mother Jones
A Democratic bill seeks make substantial changes to ICE detention and deportation policies
The New Way Forward bill, introduced by Illinois Rep. Chuy García in December, would make sweeping changes to ICE standards for detention and deportation. The bill would end mandatory detention, require that ICE put immigrants who are deemed flight risks or dangers to public safety in “the least restrictive conditions” possible to ensure they show up in court, and stipulates that judges must consider an immigrant’s “financial resources and ability to pay bond without imposing hardship” when making bond determinations.
The bill also seeks to reduce the types of criminal offenses that can lead to deportation, particularly “aggravated felonies.” In short, the goal of the bill is to scale back the prison-to-deportation pipeline — a term that refers to the process through which immigrants who come into contact with the criminal justice system are put into deportation proceedings, sometimes on the basis of years-old convictions. This is just a cursory overview; we’ll have a more in-depth explanation of the bill, its provisions, and its potential effect in a later edition.
Though the bill has attracted several co-sponsors from the Democratic Party’s progressive wing, including New York Rep. Alexandria Ocasio-Cortez and Washington Rep. Pramila Jayapal, it’s unlikely to garner any Republican support and, given a second Trump term, is all but dead on arrival if it makes it to the Senate.