In our last installment, we looked at the benefits which “Get Out the Count” advocates cite in encouraging immigrants to participate in the upcoming U.S. census. However, any benefits of participation must be balanced against the potential harm those immigrants may suffer as a result of participating; today, we will examine those potential harms in greater detail.
The risks of getting out the count: a documented series of abuses
At first glance, the state’s punitive approach to immigration might seem an argument to encourage support for the U.S. census, as an arguably positive — or at least neutral — attempt to foster civic participation among immigrants. But the U.S. Census Bureau is hardly the ideal bureaucracy, nor the survey instrument the ideal tool, to help immigrants feel like valued members of U.S. society. Briefly put, the risks of participating in the census are understated; the benefits are overstated; and the Census Bureau appears likely to disregard calls for sensitivity among undocumented immigrant participants.
First, the risks to immigrants by participating in the U.S. census are almost certainly understated. Each “get out the count” campaign publication has echoed the refrain that “[y]our personally identifiable information (PII) is protected by law and cannot be shared outside of the Census Bureau. Title 13 of the U.S. Code imposes steep penalties for anyone who shares personally identifiable information.” On one hand, this invocation of Title 13 is perhaps reassuring on a systemic level. U.S. Immigration and Customs Enforcement (ICE, an agency distinct from USCIS but within the Department of Homeland Security) would face a difficult, if not impossible, legal battle to obtain personally identifiable census data en masse. But on the other hand, it presupposes there are no bad actors within state and federal agencies willing to bend or break such codes to expose individual participants. Evidence is growing nationwide that this is not the case. Moreover, these violations are occurring in a context of data sharing that is unprecedented in both its scale and ease.
ICE can currently obtain access to a broad array of databases that contain personally identifiable data at the federal, state, and local levels. Depending on the database, this access can be systematic or ad hoc, formal or informal. While a comprehensive list of all personally identifiable records to which ICE has access is not publicly available, evidence suggests it is extensive. Widely known is the interoperability of state and federal law enforcement databases with DHS’s own internal database, meaning that every time a person without lawful immigration status is arrested on a criminal charge, ICE is notified. Perhaps less widely known is ICE’s ability to obtain access to Department of Motor Vehicles records; real-time license-plate readers affixed on toll roads, within parking garages, etc.; and other non-criminal databases in most states. Thanks to Connecticut’s COLLECT database, for example, ICE has access to records as innocuous as boating certifications, hunting licenses, and fishing licenses.
Within this current data-sharing environment, there are documented abuses. Two instances — uncovered recently — stand out.
The first clearly demonstrates the racialization involved in immigration enforcement, and the untenably thin justification required to share data with ICE. In late November 2018, off-duty Grand Rapids, Mich., police captain Curt VanderKooi contacted U.S. Immigration and Customs Enforcement from his home after he saw a television report that showed a picture of an apparently Latino man in police custody. VanderKooi had not been personally involved in the case. If he had been, he would have known the man was a U.S. citizen and a veteran of the U.S. Marine Corps, as the man was carrying his passport and military tags at the time of his arrest. Perhaps even more surprisingly, ICE officials detained this man two days later, and VanderKooi voluntarily passed along his record to the agency — again, with no apparent attempt to examine the record first, which would have cleared the man of any immigration-related charges.
The second instance of abuse involves immigration authorities assembling dossiers on journalists, immigration attorneys, and human rights activists in the border region. These individuals, who had been reporting on or following the “migrant caravan” in 2018, were then targeted for increased scrutiny at the U.S.-Mexico border and, in some instances, were denied entry into Mexico after Mexican authorities were tipped off by DHS employees. According to an anonymous source within DHS, this “intelligence gathering” was conducted as part of “Operation Secure Line,” meant to monitor the caravan and bring together information on targets’ vehicles, parents, and work and travel histories. “We are a criminal investigation agency, we’re not an intelligence agency,” said the source. “We can’t create dossiers on people and they’re creating dossiers. This is an abuse of the Border Search Authority” (para. 19).
In addition to misuse of data-sharing agreements already in place, ICE agents also rely on “bad actors” within government institutions to access personally identifiable data and apprehend undocumented immigrants. For example, from at least 2014 to 2018, several DMV employees in Vermont “forwarded names, photos, car registrations, and other information on migrant workers” to ICE, despite an accord reached with the state Human Rights Commission to stop this information-sharing years ago. Vermont is one of a dozen states that permit undocumented immigrants to obtain driver’s licenses, and DMV workers apparently rebelled with ethnically motivated vigilantism. One DMV worker, for example, stated in an email to ICE that they were forwarding “south of the border names” to the agency in the hope that some of those listed would turn out to be undocumented. Some DMV workers went further, and alerted ICE agents when alleged undocumented immigrants scheduled appointments, so immigration authorities could apprehend them at the DMV office.
Evidence suggests such this “bad actor” arrangement is not an isolated case, but rather is an accepted modus operandi within ICE. For example, the ACLU of Michigan and the Michigan Immigrant Rights Center recently learned that Capt. Curt VanderKooi’s inappropriate interaction with ICE went far beyond the case detailed above, and violated Grand Rapids Police Department policy as well as federal legal norms. In his role as the GRPD’s liaison to ICE, VanderKooi also served as “U visa certifier.” A “U visa” is a remedy available to immigrants of any legal status who are the victims of serious crimes in the United States. This remedy provides a path to permanent legal residence for those victims and their families who cooperate with law enforcement authorities — designed to both incentivize individual cooperation with authorities and foster better relations between those authorities and the broader immigrant community. A number of immigrants who had been victimized, and whose cases were handled by the GRPD, lawfully pursued this legal remedy and sought the GRPD’s certification of their assistance in the investigation. According to the DHS handbook on U visas, a U visa certifier’s only responsibility is to the victim: to complete and sign the form if applicable, and return it to the victim or the victim’s representative. The U visa certifier should contact ICE only if the victim is actively being pursued by the agency and is at risk of being deported.
Instead, VanderKooi “regularly communicated directly with the local U.S. Immigration and Customs Enforcement (‘ICE’) field office about U visa certification decisions,” as the ACLU of Michigan and the Michigan Immigrant Rights Center learned. This behavior, of course, violates federal policy and subverts the law, which was intended to support immigrant victims — not entrap them. It also violates GRPD policy. VanderKooi was temporarily placed on administrative leave, and the department has shifted responsibility for U visas to another division.
Regrettably, such abuses only come to light when ICE apprehends a U.S. citizen by mistake, or someone with rapid access to an attorney. While there is yet no way for the public to uncover all such “bad actor” arrangements between ICE and private and public entities, we can be sure that ICE has not ceased such practices.Meanwhile, the U.S. Census Bureau will hire some 500,000 temporary employees to assist with the decennial census, in addition to nearly 4,300 permanent staff members. Is it altogether unlikely that at least a few of them will tip off a friend in ICE to check out that house over there — the one with the folks who have a “south of the border name” and do not seem especially eager to answer the door?
Now that we have seen some of the risks that immigrants face from the Department of Homeland Security and from bad actors in law enforcement and even some state regulatory agencies, there are several questions we need to ask. Are the benefits of participation in the census worth the risk? Can immigrants trust the U.S. Census Bureau with their personal information, or can that information be used against immigrants and their families? Should non-profit agencies be encouraging immigrant to “get out the count?” We will address these questions in our next and final installment.
Authors: Aaron Yore-Van Oosterhout & Christopher Boies, Esq.
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