The Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) are collaborating to re-purpose sensitive personal information given to the government for one purpose for an entirely different purpose. In this case, as we explain below, information originally provided in connection with the sponsorship of an unaccompanied minor entering the U.S. without lawful status is being used to remove the sponsor (or family members) from the U.S. The practice of using personal information collected by the government for an entirely different purpose than originally intended has long concerned the Center for Democracy & Technology (CDT). In this case, it has particularly cruel results.
CDT joined the Brennan Center for Justice at New York University of Law, the Center on Privacy & Technology at Georgetown Law, the National Immigrant Justice Center, and 108 other civil liberties, civil rights, human rights, immigrant rights, privacy, and government transparency organizations to demand that DHS and HHS stop the inhumane and illegal policy of questioning vulnerable immigrant children about their family and using that information to find, arrest, and try to deport their parents and relatives when they come forward to assume responsibility for the children.
Unaccompanied minors are children under the age of 18 without lawful immigration status or a legal guardian. If apprehended by U.S. Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE), they are asked for the contact information of an adult who can care for them in the United States. They are then transferred to the custody of HHS’s Office of Refugee Resettlement (ORR). These children have pending removal hearings and, in order to leave federal custody in the interim, require a sponsor who is typically a parent or close relative already in the country. HHS uses the contact information the children provided to CBP or ICE, or again asks the child if there is anyone who can care for them in the U.S. HHS then screens these prospective sponsors to ensure the child’s safety.
Two recent decisions – at the heart of which is inappropriate repurposing of data – are transforming HHS from a child welfare agency to an arm of immigration enforcement. Consequently family reunification in this context is difficult, if not impossible.
First, in April 2018 ORR executed a data sharing Memorandum of Agreement (MOA) with ICE, whereby the two agencies agreed to share data about sponsors and their adult housemates. Specifically, for some categories of sponsors, ORR mandates a criminal and immigrant database background check. Under the MOA, ICE will carry out the criminal and immigration database check using data prospective sponsors submitted to ORR. The MOA does not restrict ICE’s ability to then use the data it receives from ORR to further its separate enforcement mission. This means that if a prospective sponsor is in the United States unlawfully, ICE will be alerted to their presence and can then arrest them. Kids in Need of Defense sounded the alarm on ICE’s targeting of sponsors in the fall of 2017 prior to this MOA, and immigrants’ rights groups were concerned the MOA would formalize this targeting. They were right. Testimony in September revealed that ICE has operationalized the MOA to arrest 41 prospective sponsors, 70% of which were categorized as “administrative” arrests, or arrests for simple immigration violations.
Second, the Department of Homeland Security (DHS) and HHS issued a notice of proposed rulemaking that would subject all sponsors and their adult housemates to the review process described above. In the past, HHS applied a streamlined screening to a parent of an unaccompanied child because children are often safest with their family. The proposed rule would codify a policy change adopted this summer: instead of streamlining the screening of parents who step forward to sponsor their children, all sponsors and their household members will undergo criminal and immigration checks, and consequently have their data provided to ICE.
We submitted a comment and joined the coalition letter to DHS and HHS to point out that this re-purposing of data will compromise the goal of placing an unaccompanied minor with their parents or another close family member, and at great cost to taxpayers.
This data sharing and re-purposing will have a pronounced chilling effect and deter sponsors from interacting with HHS. Sponsors are put in an impossible position: interact with HHS and risk alerting ICE to your presence, as well as the adults you live with, or leave a child, very often your own child, in a federal facility. When sponsors are chilled from coming forward out of fear that they or their family members will be deported if they do, children will be separated from their loved ones and will spend prolonged time in federal custody pending the identification of alternative care. And should their loved ones come forward and be deported or arrested, these children will then also have to bear the guilt that their own struggle for protection harmed their loved ones. Taxpayers will foot the bill as HHS will have to increase its capacity to host all of the children that will remain in their custody.
We asked HHS to shield sponsor data from immigration enforcement and pointed to other entities that refuse to share data with ICE in order to further their own mission or the public interest. These include police departments that refuse to share data with ICE in order to encourage immigrants to report crimes they witness or are victimized by, the protection of DACA recipients’ data which enabled hundreds of thousands of undocumented youth to come forward and access employment and higher education to society’s benefit, and the shielding of IRS data to encourage even those without lawful status to pay taxes. Indeed, even ICE recognizes the need to limit absolute enforcement with its Sensitive Locations Memorandum, which is an acknowledgment that it is important that all people in the United States, regardless of their immigration status, be able to safely access vital services like medical care and education.
This abuse of the government’s power has not escaped Congress’ notice. Senators Kamala Harris (D-CA) and Ron Wyden (D-OR) recently introduced S. 3624 the Families, not Facilities Act of 2018, a bill that would ensure the information that sponsors or unaccompanied children provide to ORR for the purpose of determining sponsor eligibility is not used for civil immigration enforcement. Representative Debbie Wasserman Schultz (D-Fla.) in October introduced H.R. 70340 Prevent CHILD Harm Act of 2018, which would likewise shield sponsor data.
This is a crisis of the government’s own making – currently there are more than 14,000 unaccompanied children in federal custody, which is an all-time high. HHS and DHS should respect the purpose for which sponsors provide their data: to prove their eligibility to care for a child. Protecting this data against re-purposing would reduce the number of unaccompanied children in detention by encouraging their parents and other close family members to come forward as sponsors.