The Center for Democracy & Technology (CDT) appreciates the opportunity to comment on this notice of proposed rulemaking (NPRM), Apprehension, Processing, Care and Custody of Alien Minors and Unaccompanied Alien Children. Our comments focus on one section of the NPRM: 45 CFR 410.302—Sponsor Suitability Assessment Process Requirements Leading to Release of an Unaccompanied Alien Child From ORR Custody to a Sponsor. This section addresses U.S. Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) vetting of prospective sponsors of unaccompanied children in ORR custody. The NPRM formally expands extensive suitability assessments to all prospective sponsors of unaccompanied children. Past practice limited these assessments only to distant relatives or non-relatives that sought sponsorship of a child. These suitability assessments require prospective sponsors to allow ORR to share their fingerprints with the Department of Homeland Security (DHS), which uses the data to run a criminal and immigration background check.
At the center of this proposed rule is a practice that has long concerned the Center for Democracy & Technology and other advocates of privacy: the use of sensitive personal information given to a governmental entity for one purpose for an entirely different purpose. This re-purposing of data, as it does in other circumstances, will undermine the goals the government is seeking to accomplish. In this case, the goal of placing an unaccompanied minor with his or her parents or another close family member, will be undermined, and at great cost to taxpayers.
HHS’s aims with this NPRM are no doubt admirable—complying with its responsibility to place children in ORR’s custody with a caregiver that will provide for the well-being of the child and ensure their attendance at their upcoming removal hearing. However, HHS has not demonstrated that an expansion of the suitability assessments is legally or practically necessary. Rather, what superficially appears to be an innocuous policy change places prospective sponsors—the vast majority of whom are either parents or close family members of the unaccompanied child—at incredible risk. Many of these individuals are in the United States unlawfully, and due in part to changes in immigration enforcement priorities, they are targets for enforcement. Further, in April 2018, ORR and Immigration and Customs Enforcement (ICE) executed a data sharing a Memorandum of Agreement (MOA), wherein ICE is a partner in the vetting of sponsors and a recipient of HHS data. ICE maintains it is free to use this data for enforcement purposes and has already used this data to arrest sponsors of unaccompanied children. This NPRM will codify the expanded suitability assessments that subjects sponsors to ICE review.
Data collected for the purpose of assessing the suitability of a sponsor should not be repurposed for enforcement; a program designed to focus on child welfare should not be co-opted for enforcement. Parents and family members are put in an impossible position: choose separation from your child or relative, or risk alerting ICE to you and your housemates’ presence. We urge HHS not to expand these assessments, or in the alternative, to limit the use of information gathered in connection with these assessments solely to vetting sponsors. Without either of these changes this NPRM in concert with the MOA will chill sponsors from engaging with HHS. Children will be separated from loved ones, and spend more time in detention. And HHS will need to expend significantly more resources to host unaccompanied children.