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The Department of Homeland Security initiative: Increasing inter-agency cooperation to share information on immigrant status in violation of civil liberties, privacy interests and due process

Vikas S. Dhar is a Boston attorney, focusing his practice on immigration and criminal litigation in Boston. He has appeared on Boston Community News, delivered lectures on First Amendment rights and is a member of the American Immigration Lawyers Association. He wishes to thank Timothy P. Smith and Audrey C. Murillo for assisting research for this article.
Historically, the configuration of legal immigration into the United States has accounted for fueling the labor force, increasing the tax base and creating the proverbial cultural melting pot that has made the U.S. as strong as it is today. We are a country of immigrants, or at least that is the adage referred to when we wish to boast our collective efforts on national achievements. After all, many of the advancements in significant areas of national importance, such as technology, economics and defense can be attributed to foreign-born talent and expertise.

Recent levels of immigration have been higher than ever. U.S. immigration in the 1990s exceeded the previous historical peak decade of 1901-1910, when 8.8 million legal immigrants were admitted.1 With an increase of undocumented immigrants, the economically healthy 1990s became the period of greatest immigration in U.S. history. For some time, especially post-9/11, the debate over the influx of undocumented or non-permanent immigrants concerns the ways in which it may affect national security and the continued growth of our society, i.e., cultural non-assimilation.2 With the onset of more stringent policies, the U.S. has not only seen limits on new immigration, but more focused efforts have been implemented by security agencies to control the re-entry of existing immigrants within our borders through surveillance and background checks.

Consistent with our birth as a nation founded by immigrants and as related policies remain central to our success as the world's leading power, the U.S. must continue to place immigration atop a list of national priorities. During Bush Administration II, the Department of Homeland Security may seek to expand its powers to oversee the security of our nation and continue to shape the domestic war on terror. The development and approach that DHS has taken with respect to seeking information on individual immigrant status has resulted in a recent trend to increase inter-agency cooperation, initiated by DHS, in order to establish a network of shared information between federal and state government agencies.3 DHS has expressed that unchecked increases in the undocumented population will lead directly to a tear in the national security blanket.

However, state and federal authorities, in an attempt to identify and apprehend existing immigrants within our borders, have begun efforts in establishing tools to share information on potential arrestees. One such example, the CLEAR Act, is a pending bill before the House that would allow law enforcement officials and other state officials to detain and interrogate an individual with illegal status.4 This could mean that a simple speeding violation would result in a person being put into removal proceedings in U.S. Immigration Court.

In one case, nightmares and school failure continue to plague the youngest of six children whose father, a cab driver with 20 years' residence in the United States, was deported to Nigeria for unpaid traffic fines six hours after he reported for a permanent residence interview.5 In a 2004 case, charges were brought against an individual by a joint investigative effort between Immigration and Customs Enforcement, the Internal Revenue Service, the Puerto Rico Police Department, the San Juan Municipal Police and the Tax Division of the Department of Justice.6 Further, the passage of the CLEAR Act essentially gives local law enforcement a "bonus incentive" in the form of more federal funding and budget increases to assume the roles of immigration officers. Although no authority exists in federal legislation that requires local law enforcement agencies to devote any resources to the enforcement of federal immigration laws, when local law enforcement agencies do arrest individuals on suspicion of violations of immigration law prior to transfer to federal law enforcement, it has been the practice of the federal government to reimburse local agencies for costs incurred.7

Currently, more than 20 states have now effected strict regulations on the issuance of drivers' licenses and do not allow undocumented immigrants to obtain licenses. In Florida, law enforcement officials may ask for immigration documentation prior to issuing license and are given 30 days to investigate individuals' identification and history in the country prior to issuing a permanent valid driver's license.8 Local law enforcement in Alabama are given explicit permission to "arrest and detain immigrants for immigration violations."9

In Massachusetts, the Registry of Motor Vehicles has mandated that a Social Security card is required to obtain a license.10 Further, state police have developed the Criminal Justice Information System (CJIS), a tool to assist cross-agency information sharing. The system implements handheld personal digital assistants and allows officers to access security photographs. More than 30 police departments and 200 state cruisers are using these PDAs in this first stage of the program. This new technology is expected to be useful in catching traffic violators and improving the quality and speed of homeland security investigations.11

Further, in January 2004, the RMV began directly serving letters to Massachusetts drivers whose information (name, Social Security number, date of birth) do not match up with information provided by the Social Security Administration database.12 Driving is a job for many immigrants and their family members, and without valid licenses, many immigrants would be out of work, could not financially support their families and hence could not financially sponsor for immigration petitions (assuming many petitioners also have jobs involving driving). This chain reaction is a likely result for what would be an increase of unlicensed drivers, an increase on uninsured drivers and racial stereotyping and stigma. These policies also present a disadvantage for those unwilling local law enforcement agencies that feel pressured and risk cuts in funding should they decide to not assume the role of immigration policy "enforcers."

In addition to law enforcement agencies receiving potential financial benefits through interagency cooperation, private sector institutions may benefit as well. VIISAGE, a Massachusetts corporation, announced on Feb. 17, 2004, their acquisition of Trans-Digital Technologies Corp., the sole provider of passport production and technology for the Department of State. VIISAGE performs the cornerstone service of ensuring that false passports are not in circulation by providing high-tech photographs. However, with the onset of these cooperative efforts, new customers include, but are not limited to, DHS, the Department of Defense, the RMVs of 15 states and the Massachusetts Collaboration of Sheriffs. It is anticipated that more than $1 billion in biometric applications fees will be paid by applicants to VIISAGE by 2005.

Further, DHS recently created the Office of Interoperability and Compatibility (OIC) and the wireless communications SAFECOM program, stating it would be fully active by November 2004.13 The ostensible purpose of the OIC and SAFECOM is to establish the precedent that interoperability lies at the state level, for local governments to provide a broad input because "incidents of any level of severity originate at the local level with states as the primary source of support."14 Again, these policies do not take into account civilian rights of privacy and present a disadvantage for those unwilling state and local law enforcement agencies who risk cuts in funding should they decide to not implement SAFECOM. In the absence of guidelines to follow and in the face of a compelling interest of privacy, DHS fails to establish or define the roles of SAFECOM missions in relation to the goals of other agencies.

At a recent speech in Lake Harmony, Penn., Secretary Tom Ridge touted the recent efforts of DHS. Ridge claimed that the key to a promising and secure future is "mutual cooperation, sharing resources - equipment, supplies, training, people."15 But it seems that recent collaborations between agencies are undermining many of the values that shaped our nation's foundation and do not set forth security measures that rigorously protect civil liberties, privacy interests and due process, especially during immigration-related proceedings.16

As many are aware, the decisions of an U.S. Immigration judge in removal or deportation proceedings are subject to the eventual review of the Attorney General, who also serves as the chief prosecutor in the U.S. Immigration Court. This unique subversion of the judicial process, along with the fact that some proceedings are held in secrecy without affording the respondent the assistance of counsel, is in direct contravention to the ideals of justice and specifically, due process.17 Since Sept. 11, it has become increasingly difficult for permanent residents to receive fair hearings while in proceedings.18

We now anticipate changes in a few of the nations' top offices. At the time of this article, President Bush has nominated Albert Gonzales to succeed John Ashcroft to lead DHS as the nation's top law enforcement official. The legal challenges to the recent derisive approach that DHS has taken with respect to immigrants' civil liberties will undoubtedly continue.

End notes

1. See Immigration History, Center for Immigration Studies, located at www.cis.org.[back]

2. See L.I Clash on Immigrants Is Gaining Political Force, New York Times (Nov. 29, 2004); where a wave of Hispanic immigrants have "swept Long Island," and residents are furious about overcrowded homes and lines of day laborers in their towns; where the issue of illegal immigration is gathering political force in Long Island's patchwork of historically white suburban hamlets; and as the complaints grow, politicians are responding with get-tough rhetoric, crackdowns and new laws. [back]

3. U.S. Department of Homeland Security Strategic Plan, 2004 ("We will receive, assess and analyze information from law enforcement, the intelligence community and non-traditional sources (e.g. state and local, private sector) to increase situational awareness of terrorist threats and specific incidents."). [back]

4. See 2003 HR 2671, pending at time of this article.[back]

5. See A Mother Deported, and a Child Left Behind, New York Times (Nov. 24, 2004).[back]

6. See Abdurahman Alamoundi Sentenced to 23 Years in Prison in Terror Financing Case, ICE News Release, located at www.ice.gov, (Oct. 15, 2004).[back]

7. See Kris W. Kobach, State and Local Authority to Enforce Immigration Law: A Unified Approach for Stopping Terrorists, Center for Immigration Studies (June 2004).[back]

8. See John L. Pinnix, ed., Ethics in a Brave New World, American Immigration Lawyers Association, Advocacy Department Publication (2004).[back]

9. Id. at 108.[back]

10. Id. at 108.[back]

11. See Massachusetts Unveils New Crime Fighting Database, located at www.govtech.net, (Apr. 19, 2004).[back]

12. See RMV Issues Social Security Notices to Drivers, located at www.mass.gov (Jan. 5, 2004).[back]

13. William O. Jenkins, Jr., Homeland Security-Federal Leadership and Intergovernmental Cooperation Required to Achieve First Responder Interoperable Communications, GAO Study (July 20, 2004).[back]

14. Id. at 9. (Requirements for interoperable communications also may change with expanding definition of first responders - from the traditional police, fire and emergency medical providers to include such professions as health care providers and other professions-the evolution of new technology") and ("State and local officials consider a standard database of interoperable communications frequencies to be essential to frequency planning and coordination for interoperability frequencies and for general public safety purposes.") Id. at 12.[back]

15. Tom Ridge, Secretary of Homeland Security, located at www.dhs.gov (Sept. 21, 2004) ("Harmony is what we are looking for … And tools like our Homeland Security Information Network and the Patriot Act have allowed us to share information between federal agencies and among state and local and private sector partners like never before.").[back]

16. See Bourgeois v. Peters, 2004 WL 2320265 (11th Cir.) ("We cannot simply suspend or restrict civil liberties until the war on terror is over, because the war on terror is unlikely ever to be truly over."). [back]

17. See U.S. v. Ahumada-Aguiler, 295 F.3d. 943 (9th Cir. 2002) (failure to accord an alien the right to representation by counsel at no expense to the government may, in the light of the entire administrative record, be an abuse of discretion, requiring remand; if the prejudice to the alien is sufficiently great, there may indeed be a denial of due process itself); see also Castro-O'Ryan v. U.S. Dept. of Immigration and Naturalization, 847 F.2d 1307 (9th Cir. 1988) (Since 1931, the law on deportation has not become simpler. With only a small degree of hyperbole, the immigration laws have been termed "second only to the Internal Revenue Code in complexity." E. Hull, Without Justice For All 107 (1985)); see also Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985) (petitioner's right to counsel is a statutory right granted by Congress under 8 U.S.C. ß 1362, and it is a right protected by the Fifth Amendment due process requirement of a full and fair hearing).[back]

18. See Landon v. Plasencia, 459 U.S. 21, where a continuously present resident alien is entitled to a fair hearing when threatened with deportation. "Once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing…"; see also Kwong Hai Chew v. Colding, 344 U.S. 598, "although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation"; see also United States ex rel. Tisi v. Tod, 264 U.S. 131 (1924).[back]

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