On Thursday, the Department of Homeland Security’s Immigration and Custom’s Enforcement (ICE) struck a new blow against transparency by refusing to release blank copies of forms their agents use to record the detention and deportation of non-citizens.
ICE denied a Freedom of Information Act (FOIA) request filed by the Government Accountability Project (GAP) for copies of 14 commonly used immigration enforcement documents, saying the information GAP requested was “not under the purview of ICE.”
This is not true. ICE even appeared to acknowledge this in its FOIA response, where it referred to the documents it was denying access to as “ICE forms.”
GAP obtained a copy of one requested form, the I-205 (a deportation warrant), from local law enforcement. That warrant had also been labeled by ICE as an ICE form.
ICE isn’t concealing these records as part of a specific cover-up. Blank forms won’t contain evidence of any specific abuse or violation of the law. Instead, this decision appears to be driven by a general opposition to transparency.
GAP requested copies of these forms because they show what data the government possesses and how it is stored. That information will allow our future public records requests to drill down specifically on documents and data.
ICE regularly mishandles FOIA requests – according to a three-year analysis by the Transactional Records Access Clearinghouse’s FOIA Project, each year ICE ignores thousands of records requests until just before the agency’s annual report is due. ICE then closes out thousands of requests all at once, with the goal of making the numbers look good, rather than providing information to the public. Most requesters are unlikely to appeal these closed requests, meaning ICE is able to get away with ignoring FOIA requests on a massive scale.
These problems are the latest in a string of recent incidents where ICE and the Department of Homeland Security have allegedly attempted to destroy or restrict access to information, in order to avoid scrutiny.
The Department of Homeland Security is facing a FOIA lawsuit, filed by the National Immigration Law Center, over the case of Juan Manuel Montes. Montes, a DACA recipient who had been living in Calexico, California, was allegedly illegally deported to Mexico in the middle of the night, despite his protected immigration status.
Initially, Department of Homeland Security officials claimed Montes wasn’t protected by DACA, but after his status was confirmed, they found a new excuse. They said the deportation never actually happened and there was no record of it. Instead, they alleged Montes crossed into Mexico voluntarily.
Now, a judge has ordered Montes brought back into the United States to tell the court his story. Montes’ lawyers have asked to interview Border Patrol agents and review surveillance video, according to NBC News.
ICE made another anti-transparency move in August, when it asked the National Archives and Records Administration (NARA) for permission to destroy copies of records after a certain time period, including records of sexual assaults and deaths in ICE custody and detainee detention logs.
Rapes and deaths in custody “do not document significant actions of Federal officials,” ICE said in its request to destroy the records. Officials said destroying records was “adequate from the standpoint of legal rights and accountability.”
NARA has preliminarily granted ICE’s request to destroy this information.
ICE also argued individuals’ rights to privacy allowed it to restrict public access to the records about sexual assault and abuse, calling them “highly sensitive.” These records, officials argued, shouldn’t be preserved because of that.
Sexual assault records are sensitive and victims should have privacy, but ICE regularly uses privacy protections to shield itself from scrutiny rather than to protect detainees.
In this case, sexual abuse records could be released with identifying information redacted, rather than destroyed. Accountability for ICE and privacy for the victims shouldn’t be mutually exclusive.
Meanwhile, privacy justifications for withholding records ring even more hollow because President Trump has issued an Executive Order stripping privacy protections from immigrants. “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents,” the order said.
None of this paints a picture of an agency inviting scrutiny and oversight.
ICE was unable to provide a response before GAP published this post.
One way or another, ICE will have to answer for this. GAP has filed an appeal of its FOIA denial and will continue pushing to access these documents.
Note: GAP received word our appeal was successful on October 24th, 2017. GAP has had a number of successful appeals after our requests were originally closed.
The Government Accountability Project protects whistleblowers. Contact GAP’s Investigator, Zack Kopplin, on Signal at 225-715-5946 if you have information about misconduct or abuse within ICE.