The Biden administration is pushing back against a demand by a conservative legal group that it reveals information about the illegal immigrants being considered for arrest and deportation, including their terror, cartel and gang affiliations -- arguing that, among other concerns, it could violate their privacy rights.
America First Legal in 2021 filed a Freedom of Information Act request for weekly reports of proposed enforcement actions submitted by Immigration and Customs Enforcement (ICE) officers to headquarters before they could arrest or deport those illegal immigrants.
This approval process took effect with the implementation of new guidance from DHS which narrowed ICE priorities to focusing on recent border crossers, public safety threats and national security threats. Information in those weekly reports includes names, addresses, visa information, and any gang, cartel or terror affiliations.
In its document production to AFL, DHS significantly redacted much of the personal identifying information. AFL has challenged this in a U.S. District Court, and DHS is in turn seeking to have that denied.
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"ICE compiled the Spreadsheet Report for law enforcement purposes, and disclosure of noncitizens’ names, court case numbers, A-numbers and other identifying numbers, dates of birth, residential addresses, gang, cartel, and terrorist group affiliations, and monikers would seriously invade personal privacy without serving the public interest in understanding ICE’s operations," the agency argued in an August court filing.
"ICE properly withheld gang, cartel, and terrorist group affiliations of noncitizens under Exemption 7(C), because disclosure would invade noncitizens’ personal privacy without any countervailing public interest," it said addressing the affiliations specifically.
Separately, it argued that the disclosures overall would "disclose techniques and procedures for law enforcement investigations and would disclose guidelines for law enforcement investigations that could reasonably be expected to risk circumvention of the law."
But in a court filing on Friday, AFL pushed back against those arguments, saying ICE had not identified any such law enforcement technique that would be implicated, and arguing that the records were created for political, not law enforcement, purposes. It also argued that the public’s right to know about the potential gang ties of those in the approval process outweighed any privacy rights of the immigrants involved.
"The Court should reject the notion that cartel and gang members have any privacy interest in hiding their identity under FOIA, and thus no balancing is required. But even if the Court proceeds to balancing, the Plaintiff should prevail because the interests of a cartel member to be free from harassment cannot outweigh the American public’s right to know about matters of public safety," the filing says.
In a statement to Fox News Digital, AFL Vice President and General Counsel Gene Hamilton said that the American people "have every right to know the criminal history or gang affiliations of illegal aliens in the United States."
"The simple fact is that every single crime they commit is a crime that wouldn’t have happened if our immigration laws were enforced, and the privacy interests of a cartel member or a gang member can never outweigh the need of the American people to know what is happening in their own country," he said.
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The administration has faced significant legal challenges over its ICE enforcement, with the Supreme Court ultimately deciding in the administration’s favor this year over a major case challenging the guidelines after states challenged it on the basis that it had led to a sharp drop in deportations. DHS said it does not comment on pending litigation.
DHS Secretary Alejandro Mayorkas said when the case was decided that the guidelines have been "effectively applied by [ICE] officers to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security."
"The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress," he said.
The lawsuit by AFL marks the latest battle that conservative groups and Republicans in Congress and at the state level have launched in order to receive more information from the administration about issues such as the ongoing crisis at the southern border and the enforcement policies of the administration. Fox News Digital reported on Tuesday that 25 governors have urged President Biden to provide more data and information on migrant releases into the interior, as well as numbers on deportations and asylum claims. DHS officials have previously rejected accusations of a lack of transparency, pointing to responses to over 1,400 letters and dozens of witnesses across multiple congressional hearings, including over 8,000 pages of documents.
But Matt O’Brien, director of investigations at the Immigration Reform Law Institute (IRLI), told Fox News Digital that his organization has been facing similar issues that AFL has faced in getting information, and said it coincided with the administration's policies becoming more known to the public.
"They have been increasingly resistant to releasing any kind of information. We've asked them for policy documents, which should be a matter of public record in a lot of instances, and they've never been published the way they should have, and they won't release them on FOIA requests. So this has been an ongoing problem, and it's really not the way the government of the United States is supposed to work."
Former ICE Director Thomas Homan, who served under multiple administrations and is now a senior fellow at IRLI, told Fox News Digital that he believes that data is being withheld for political reasons.,
"I truly believe as a guy who used to be the director of ICE, the guy who has been with ICE most of my career, that this administration has personally been nontransparent because of data that's going to embarrass this administration," he said. "It's going to show that they're not enforcing the law the way they should be enforcing the law. And the number of arrests of criminal aliens is way below prior years. So this is their way of using a privacy declaration as a way to hide their failure."
