Homeland Security Department Gags Local Law Enforcement to Protect 'Privacy' of Illegal Aliens

Friday, October 30, 2009

By Penny Starr, Senior Staff Writer


(CNSNews.com/Penny Starr)(CNSNews.com) – The Department of Homeland Security is gagging local law enforcement agencies around the country to protect the privacy of illegal aliens.


Under "revised" 287(g) agreements between the Department of Homeland Security’s Immigration and Customs Enforcement division and state and local law enforcement agencies, any information about local police efforts to enforce federal immigration law must be cleared through ICE before it can be released to the media or the public. DHS says it is doing this to protect the privacy of illegal aliens.


“The Privacy Act and the privacy policy provide protections for U.S. citizens, legal permanent residents and, in the case of the privacy policy, illegal aliens,” Kelly Nantel, press secretary for ICE, told CNSNews.com, referring to the Privacy Act of 1974.


Nantel said that although illegal aliens are not protected under the Privacy Act, it is the policy of the Department of Homeland Security to extend the privacy protection to individuals who are in the country illegally, a policy she said was put into place by former DHS Secretary Michael Chertoff, who served under President Bush.


“Any information regarding individuals encountered through the enforcement of federal law is ultimately protected,” Nantel said. “We need to be sure that prior to the release of information, an appropriate determination is made regarding those protections.”


The DHS's agreements with local law enforcement agencies--known as Memorandums of Agreement (MOA)--guide the 287(g) program, which was created in 2003 as an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The 287(g) program trains and certifies state and local law enforcement personnel to enforce federal immigration law.


In July, DHS Secretary Janet Napolitano announced that the existing agreements with local law enforcement agencies would be “standardized” and reviewed. In a speech in August, Napolitano said the MOAs had been “rewritten and reprioritized to focus on using them in jails and prisons.”


Illegal immigrants handcuffed together are moved into a separate area of Tent City in Phoenix, Ariz., on Feb. 4, 2009 by orders of Maricopa County Sheriff Joe Arpaio. They will be incarcerated there until their sentences are served and they are deported to their home countries (AP Photo/Ross D. Franklin)The Obama administration says the priority for local law enforcers should be illegal aliens arrested for or convicted of crimes -- not people arrested in task force sweeps simply for being in the U.S. illegally.


As CNSNews.com reported earlier, the controvery over task force sweeps erupted earlier this year when ICE stripped the Maricopa County, Ariz., Sheriff's Department of its authority to conduct such sweeps.


The man who heads that department, Sheriff Joe Arpaio, claims to have removed more than 30,000 illegal aliens from the streets in task force operations since he signed on to the 287(g) program in 2007. Complaints of racial profiling have prompted the Obama Justice Department to investigate Arpaio and his department.


The revised MOAs given to all of DHS's local law enforcement “partners” includes the following language governing the “release of information to the media and other third parties.”


“The [state or local agency] hereby agrees to coordinate with ICE prior to releasing any information relating to, or exchanged under, this MOA, including any SOPs (Standard Operating Procedures) developed for the implementation of this MOA. Information obtained or developed as a result of this MOA is under the control of ICE and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations, and executive orders. Insofar as any documents created by the [state or local agency] contain information developed or obtained as a result of this MOA, such documents shall not be considered public records.”


Reporters or members of the public who want information arising from a local law enforcement agency's efforts to enforce immigration law will be forced to file a Freedom of Information Act request to gain access to information that is not classified and which the public is entitled to see.


“The standardized 287(g) Memorandums of Agreement include provisions designed to protect information whose (sic) release would violate privacy laws or hamper the outcome of a law enforcement investigation,” Nantel said. “However, information defined as not public record can be released through a Freedom of Information Act request as long as the release does not violate other laws and DHS policies.”


DHS and ICE officials said enforcement of federal immigration law will concentrate on “criminal aliens” and not on individuals who are simply in the country illegally. Nantel said the treatment of illegal aliens without a criminal record will be handled on a case-by-case basis.


The MOA spells out that policy as follows:

“ICE will assume custody of an alien 1) who has been convicted of a State, local or Federal offense only after being informed by the alien’s custodian that such alien has concluded service of any sentence of incarceration; 2) who has prior criminal convictions and when immigration detention is required by statute; and 3) when the ICE Detention and Removal Field Office Director or his designee decides on a case-by-case basis to assume custody of an alien who does not meet the above criteria.”


CNSNews.com asked Nantel if the Obama administration, DHS, and ICE support the arrest and deportation of individuals who are in the country illegally, regardless of whether they have committed a crime. Nantel did not give a simple yes-or-no answer to this question, saying instead that the administration will remove illegal aliens according to "DHS priorities."


“ICE is first and foremost focused on identifying and removing dangerous criminal aliens who pose a threat to local communities," Nantel said. "ICE will arrest and process for removal any individuals who are found to be in this country illegally in a manner consistent with immigration law and DHS priorities.”