Deferred Action for Childhood Arrivals ("DACA")

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  • EPIC Joins Coalition Urging Congress to Investigate Destruction of Records on Family Separation: EPIC and a coalition of organizations sent a letter to Congress urging an investigation of the Department of Homeland Security's records management practices. The concern follows the administration's "zero-tolerance" immigration enforcement policy and family unification efforts. Recent reports indicate that border agents are improperly destroying records of the separated families, making it difficult to reestablish family connections. "The purposeful deletion of records by border agents would be a clear violation of the [Federal Records Act], with dire humanitarian consequences," the group stated. The letter also encouraged Congress to ensure DHS is fulfilling its transparency obligations by making its policy guidances available to the public. EPIC has previously warned the Senate about the misuse of immigrant data by the DHS. (Jul. 12, 2018)
  • Republican DACA Bill Would Expand Use of Drones, Biometrics: The Secure and Succeed Act (S. Amdt. 1959 to H.R. 2579), sponsored by several Republican Senators, would link DACA with hi-tech border surveillance. Customs and Border Protection would use facial recognition and other biometric technologies to inspect travelers, both US citizens and non-citizens, at airports. The bill also establishes "Operation Phalanx" that instructs the Department of Defense—a military agency—to use drones for domestic surveillance. EPIC has pursued many FOIA cases on border surveillance involving biometrics, drones, and airport body scanners, In a statement to Congress, EPIC warned that "many of the techniques that are proposed to enhance border surveillance have direct implications for the privacy of American citizens." (Feb. 21, 2018)
  • More top news

  • Nominee for DHS Secretary Favors Less Wall, More Surveillance Tech at Border + (Nov. 9, 2017)
    Today Congress considered the nomination of Kirstjen M. Nielsen as Secretary at the Department of Homeland Security. Ms. Nielsen opposes a border wall but suggested an expansion of border surveillance. "Technology, as you know, plays a key part, and we can't forget it," she said. EPIC is pursuing a FOIA request regarding the use of DHS drones for border surveillance. Earlier EPIC cases - including EPIC v. DHS which led to the removal of x-ray body scanners in US airports - revealed that technologies for border surveillance invariably impact the privacy rights of Americans. Ms. Nielsen views on the use of DACA applicant data for enforcement remains unclear. EPIC recently warned that 800,000 DACA applicants face privacy risks as a result of the decision to end the Deferred Action for Childhood Arrivals.
  • No Plans to Target Dreamers Using DACA Data + (Oct. 4, 2017)
    A Department of Homeland Security official told the Senate Judiciary Committee today that the agency has no "plans to target any Dreamers based on any information [they] have received." James McCament Acting Director of Immigration Services said that DHS will adhere to the 2012 Privacy Impact Assessment, which limits the use of personal data obtained from DACA applicants. EPIC earlier recommended that DHS comply with the Privacy Impact Assessment and the federal Privacy Act.
  • EPIC Asks Senate to Enforce Privacy Safeguards for "Dreamers" + (Oct. 3, 2017)
    EPIC warned the Senate Judiciary Committee that 800,000 DACA applicants face privacy risks as a result of the decision to end the Deferred Action for Childhood Arrivals. According to EPIC, the Department of Homeland Security has failed to ensure that DACA applicant's information will be used exclusively for the purpose it was disclosed, as set out in the 2012 privacy impact assessment. EPIC urged the Committee to uphold Privacy Act safeguards for DACA applicants.
  • End of DACA Program Poses Privacy Risks to Dreamers + (Sep. 20, 2017)
    The recent Department of Homeland Security memo rescinding the Deferred Action for Childhood Arrivals program creates new privacy risks for at least 800,000 individuals. At issue is the personal data provided to DHS by DACA applicants. In the 2012 Privacy Impact Assessment, the DHS stated that personal data would be "protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings." Now that the program is set to expire, the personal data provided by DACA applicants is at risk of use for unauthorized purposes, implicating the federal Privacy Act. EPIC has long supported vigorous enforcement of the federal Privacy Act and opposed efforts that target individuals in immigrant communities.
  • EPIC FOIA: EPIC Seeks Details of ICE, Palantir Deal + (Aug. 15, 2017)
    EPIC has submitted a Freedom of Information Act request to Immigration and Customs Enforcement seeking details of the agency's relationship with Palantir. The federal agency contracted with the Peter Thiel company to establish vast databases of personal information, and develop new capabilities for searching, tracking, and profiling. EPIC is seeking the ICE contracts with Palantir, as well as training materials, reports, analysis, and other documents. The ICE Investigative Case Management System and the FALCON system now connect personal data across federal government, oftentimes in violation of the federal Privacy Act. The Intercept reported that FALCON "will eventually give agents access to more than 4 billion 'individual data records.'" In FOIA lawsuit EPIC v. CBP, EPIC uncovered Planter's role in Analytical Framework for Intelligence, a program that assigns "risk assessment" scores to travelers. EPIC continues to advocate for greater transparency in computer-based decision making.
  • EPIC, Coalition Focus on Immigration Orders, Data Practices, and Government Accountability + (Mar. 22, 2017)
    In a letter to DHS Secretary Kelly and Attorney General Sessions, EPIC and a coalition of 25 open government organizations expressed concerns about the lawfulness and objectivity of data practices under several recent immigration Executive Orders. Official memos reveal the Orders are being implemented in "manner that is unlawful and inconsistent with federal information quality guidelines, raising serious privacy, transparency, and accountability concerns." The coalition urged Secretary Kelly and the Attorney General to align data practices with privacy safeguards, open data, and data quality requirements. "Public data allows the public to hold its government accountable - but that is only possible if government information is released in a complete, consistent, unbiased, and open manner," the group stated. Earlier this year, EPIC also collaborated with other open government advocates to push for greater transparency in federal dispute resolution services and to preserve access to government information online.
  • White House to End Controversial "Secure Communities" Program + (Nov. 24, 2014)
    President Obama's executive action on immigration will end the "Secure Communities" program. Secure Communities is a controversial deportation program that relies on extensive data collection and biometric identification. Many states, including Illinois, New York, and Massachusetts, withdrew from the Homeland Security program, warning that it undermined public safety and encouraged racial profiling. Secure Communities will be replaced by the Priority Enforcement Program, a targeted program that will focus on removing convicted criminals. EPIC, joined by a coalition of 70 organizations, previously urged the Inspector General of the Department of Justice to review the Secure Communities program. For more information, see EPIC: Secure Communities and Privacy; See also TRAC: Immigration.
  • Senate Adopts Immigration Bill with E-Verify Requirement + (Jul. 5, 2013)
    The Senate has passed an expansive immigration bill that includes employment verification by the federal government for all U.S. employees -- "E-Verify" -- within five years. In testimony before Congress, EPIC warned of inaccurate employment determinations in the E-Verify system and said that Privacy Act safeguards must be strengthened to ensure fairness and accountability. In June 2011, EPIC filed comments with the Department of Homeland Security in opposition to the expansion of E-Verify. For more information, see EPIC: E-Verify and Privacy and EPIC: Spotlight on Surveillance - E-verify System.

Summary

On September 5, 2017 the Department of Homeland Security ('DHS") published a memo rescinding the Deferred Action for Childhood Arrivals ("DACA") program. Established in 2012, the program collected personal data of for at least 800,000 individuals. These individuals provided federal agencies with personally identifiable, including biometric, data in order to obtain deferred action, work-permits, and the ability to travel outside of the United States with guaranteed reentry.

In the 2012 Privacy Impact Assessment, the DHS stated that personal data would be "protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings." The PIA also stated that DACA recipient's personal information would be protected by the Privacy Act because it was entered into "mixed databases." In a January 25, 2017 Executive Order President Trump stated that "Agencies shall . . .  ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information."

The Privacy Act of 1974 protects United States Citizens and lawful permanent residents. On September 6, 2017 the Dream Act of 2017, H.R. 3440, was referred to the Subcommittee on Immigration and Boarder Security. The adjust the status of DACA recipients ("Dreamers") from deferred action, to conditional permanent residency. The Dream Act of 2017, and other acts that move Dreamers from deferred action to lawful permanent resident status require collection of personally identifiable information, including biometric information, and medical examinations.

Background

On June 15, 2012, Janet Napolitino, then secretary of the Department of Homeland Security ("DHS"), in a memo titled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, established DACA program. DACA granted two year renewable residential and work permits to undocumented people who were under thirty; came to the United States before the age of sixteen; had lived in the United States for at least five years; were enrolled at school or graduated from high school or were honorably discharged from the Coast Guard or Armed forces of the United States; and had not been convicted of a felony, significant misdemeanor, or multiple misdemeanor offences or otherwise posed a threat to public safety. These permits were to be renewable, and DACA recipients could apply for advance parole that would allow them to travel abroad.

On January 9, 2017 USCIS published Instructions for Consideration of Deferred Action for Childhood Arrivals, which instructed DACA applicants on the application process. The instructions outlined the "Evidence" required to verify an applicant's eligibility and included biometric and historical information such as fingerprints, photographs, and more.  In the 2012 Privacy Impact Assessment, the DHS stated that personal data would be "protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings." Now that the program is set to expire, the personal data provided by DACA applicants is at risk of use for unauthorized purposes, implicating the federal Privacy Act.

EPIC's Interest

EPIC has long supported vigorous enforcement of the federal Privacy Act and opposed efforts that target individuals in immigrant communities. Privacy threats presented by the end of DACA highlight and reinforce EPIC's challenges to the multiple databases that hold DACA recipient's personally identifiable information.

Among these, EPIC engaged in litigation with the FBI over their Next Generation Identification ("NGI") database which resulted in EPIC obtaining information upon which EPIC has identified several problems with the NGI database in statements to Congress oversight Committees, which have indicated strong concern about the FBI's facial recognition program. The program which is currently in use has a 20% error rate in facial recognition searches.

EPIC has submitted a FOIA requests regarding the use of algorithms, FALCON, in immigration proceedings. EPIC has also petitioned for accuracy in the National Crime Information Center (NCIC). EPIC has urged FOIA Compliance on Immigration Enforcement.

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