Providing More Privacy Protection for Illegal Aliens An Infuriating Reality

I am providing you with a news report that was posted by Fox News on June 22, 2011 and is of extreme importance on a number of levels.

First of all, the news report deals with a country legislator who is clearly and understandably upset by the policy of the federal government that prevents the disclosure of any information about illegal aliens that is not made by the federal government. Here is the passage from the news report that explains the case that triggered the reaction by this law maker, Corey Stewart, the Chairman of the Prince William County in Virginia, to prepare to file a lawsuit that would require the federal government to release files relating to illegal aliens:

Corey Stewart, chairman of the Prince William County Board of Supervisors, is gearing up for a lawsuit over immigration documents for the second time this year. His county filed a lawsuit in March to obtain documents about an illegal immigrant charged last year with killing a nun in an drunken driving crash. He said Wednesday that the county plans to file a second lawsuit in the coming weeks in federal court. Officials want more detailed information about the 3,800 illegal immigrants turned over to federal immigration agents since 2007.

What you need to know is that the Privacy Act which was enacted in 1974 protects United States citizens and Lawfully Admitted Permanent Resident Aliens from the disculosure of certain sorts of information that are not already in the public realm. Illegal aliens are not covered by the Privacy Act.

I recall that as an INS officer I was mandated to attend a training session that was conducted to provide guidance about the Privacy Act. The point was made as crystal clear as possible that information about United States citizens and lawful immigrants was to be protected but that information about illegal aliens was not covered by that law.

The obvious question is, “If illegal aliens are not covered by the Privacy Act, under what authority is the federal government acting to refuse to disclose such information claiming privacy concerns when the law does not apply?”

The answer can be found in a news article that was posted by CNS News on October 29, 2009. For your convenience, I have provided you with that article after the Fox News article that formed the predication for my commentary today. The CNS news report was entitled: “Homeland Security Department Gags Local Law Enforcement to Protect ‘Privacy’ of Illegal Aliens”

Here is how that news report begins:

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, 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.

There certainly appears to be a tendency of the federal government and especially various administrations from both sides of the political aisle, to use policy decisions when the laws on the books don’t provide them with the authorities that they want! I am not an attorney but it certainly would appear that this sort of action is improper. There is an established way of enacting laws- and sweeping regulations often appear to conflict with the laws that are on the books.

If it is inappropriate to “legislate from the bench” is it any less inappropriate to legislate via regulation?

Furthermore, the fact that should rile all citizens of our country is how when citizens and lawful immigrants are arrested for various crimes, when these defendants are brought into court to be arraigned the media is often present to video tape and photograph citizens and resident aliens who, under our system of justice, enjoy the “presumption of innocence” yet may well find those images of themselves on the front page of newspapers and on their television sets that inform all of their family members, friends, neighbors and associates at work that they were arrested and are being charged with all sorts of crimes!

They may have been arrested for committing misdemeanors or felonies and they are protected by the Privacy Act, yet there they are, for the whole world to see, handcuffed to other defendants, who also may or may not have actually committed crimes.

Even if they are ultimately acquitted of the crime(s) that landed them in the public eye as they do, what is referred to in New York as the “Perp Walk,” their reputations may permanently suffer.

It is therefore particularly infuriating that illegal aliens, whose presence in our country, in and of itself, represents a violation of our laws are provided with far more privacy protections than are United States citizens and lawful immigrants- even though the Privacy Act requires the exact opposite!

Next we should give some thought to the question that I have asked repeatedly about the press releases that ICE often posts, boasting about how they launched some tough sounding field operation to take “fugitives” into custody. The question is how did these illegal aliens who had been previously in custody, ultimately wind up at large, on the streets of American cities and towns across our country where they may well have committed more crimes and injured or killed more innocent victims?

It is precisely this sort of situation that apparently prompted Corey Stewart and his county’s fellow legislators to decide to reportedly initiate a lawsuit against the federal government.

I recall being invited to appear on the Fox News program, “Your World With Neil Cavuto” to discuss this very case- in which a nun was killed by an illegal alien who had been in custody. I recall Neil asking me with great anger and frustration how this could happen.

It is also worth considering the point made about how ICE recently issued a press release touting a major field operation to round up 2,400 illegal aliens. Consider this quote from the news report”

DHS has acknowledged that not every illegal immigrant turned over to them will necessarily stay in federal custody. While violent criminals are detained on a mandatory basis, those charged with less severe crimes are evaluated on a case-by-case basis, according to the department.

The department has sought to sweep up and deport the most serious criminal offenders. The administration on Tuesday announced that federal agents in May swept up 2,400 illegal immigrants in what was described as the largest operation of its kind. Many will be automatically put on the list for deportation, though some will have their cases brought before an immigration judge.

I wrote a commentary about the ICE press release that addressed that field operation. Here is the link to my commentary that appeared on my website:

For years the policy known as “Catch & Release” infuriated our citizens and some of our politicians. The focus of this was the way that the Border Patrol would arrest illegal aliens and then serve them with a document known as the NTA (Notice To Appear). Angry and frustrated Border Patrol agents often sarcastically referred to the NTA as the “Notice To Disappear!”

What many people did not realize was that it was not only the Border Patrol that engaged in the lunacy of Catch & Release. The interior enforcement mission of the Special Agents of the INS and now ICE also engage in this madness!

When ICE touts the statistics as to how many illegal aliens are arrested, you have to ask how many were repeatedly arrested only to be re-arrested, quite possibly after they killed or injured someone?

Not long ago an ICE news release made note of the following statistics:

“Between Oct. 1, 2010 and April 30, ICE returned to their countries of origin more than 215,900 aliens, including 109,700 aliens with criminal convictions. Of those, 585 were convicted of homicide, 3,177 were convicted sex offenders, and 24,593 were convicted of serious drug offenses.”

Given the insane Catch & Release policy of the federal government, I would love to known how many of those criminal aliens may have been released back onto the street by ICE before they went on to commit the crimes that they were subsequently convicted of?

Many years ago when Doris Meissner was the commissioner of the former INS, she talked often about the need to make certain that the Immigration and Naturalization met the needs of its “customers!”

I was almost always in disagreement with Ms Meissner but I did agree with the concept of being customer oriented- the point of disagreement was that she thought our customers were the illegal aliens and I thought that the customers were the citizens of the United States!

There is a saying that the more things change, the more they remain the same!

The time has come for the enforcement of our nation’s immigration laws to meet the needs of the citizens of our nation!

I may be naive here, but isn’t that what a “Government of the people, for the people and by the people” is supposed to do?

A final thought- there are unknown millions of illegal aliens who are currently present in the United States. Their true names, countries of citizenship and other relevant information is unknown and unknowable including their potential affiliation with criminal or terrorist organizations. The magnitude of this crisis is also unknown and unknowable with estimates of this illegal population ranging from 12 million to two or perhaps three times as many illegal aliens being present in our country. Many of these illegal aliens availed themselves of the services of smugglers not unlike those whose arrests were chronicled in the news release. It is obvious that there are huge numbers of aliens smugglers operating to enable illegal aliens to penetrate our nation’s borders thereby creating havoc for our nation- have a serious deleterious impact on issues ranging from national security, criminal justice and hence community safety to the economy, the environment, healthcare, education and other important threats to the well being of our nation and our citizens.

The question to be asked is how many special agents of ICE are “out there” on the hunt for these smugglers and the aliens who circumvented the inspections process that is supposed to prevent the entry of aliens into our country whose presence would be harmful or dangerous to the United States and all who live, work or visit our country? *

Title 8, United States Code section 212 is the section of law (the INA) that enumerates the various categories of aliens who, under the Immigration and Nationality Act, are supposed to be prevented from entering the United States and are supposed to be removed if they are found here:

Here is a link to that section of law:

Please take the time to review the contents of this section of the Immigration and Nationality Act (INA).

Among the categories of aliens who are supposed to be kept out of the United States are aliens with dangerous communicable diseases, aliens who suffer serious mental illness and are prone to violence, aliens who are convicted felons, aliens who fugitives from justice in other countries, aliens who are human traffickers and drug smugglers, aliens who are war criminals and aliens who have committed human rights violations. Also aliens who are engaged in terrorism and espionage are among those who are, by law, supposed to be prevented from entering our country and are supposed to be removed if they manage to evade the Border Patrol and enter the United States.

It must be presumed that an alien who would pay many thousands of dollars to a smuggler to evade the inspections process rather than seeking to enter our country lawfully knows that they would not be able to lawfully enter the United States because they fall under one or more categories of aliens who are statutorily ineligible to enter the United States.

Yet the President, members of his administration and members of Congress, at the behest of special interest groups and deep-pocketed contributors have made it clear that they cannot wait to provide these unknown millions of illegal aliens with lawful status and a “pathway to United States citizenship!” *

A country without secure borders can no more stand than can a house without walls!

If our country is to survive and if our children and their children are to get their share of the “American Dream” the citizens of this nation must take their citizenship seriously!

We the People must be the best citizens we can be, citizens who are worthy of the gallantry demonstrated by our valiant men and women in the military, law enforcement and firefighters, who routinely go in harm’s way in defense of this nation and our citizens.

My goal in writing this and other commentaries is to point out our nations many failings before more victims pay the ultimate price for the incompetence and ineptitude of our government.

The first step in problem-solving is to first identify the problems and vulnerabilities and then devise strategies to overcome them.

If you find yourself to be in agreement with this commentary, I ask that you forward it to as many of your friends and family members as possible and encourage them to do the same. We need to create a “Bucket Brigade of Truth!”

The practice of good citizenship does not end in the voting booth, it only begins there.

The large scale apathy demonstrated by citizens of this nation has emboldened elected representatives to all but ignore the needs of the average American citizen in a quest for massive campaign funds and the promises of votes to be ostensibly delivered by special interest groups. There is much that we cannot do but there is one thing that We the People absolutely must do- we must stop sitting on the sidelines!

The collective failure of We the People to get involved in make our concerns known to our politicians have nearly made the concerns of the great majority of the citizens of this nation all but irrelevant to the politicians. I implore you to get involved!

I believe our nation’s is greatly benefited by the rich diversity of our people which is why I could never imagine living anywhere except New York City, arguably the most diverse city in our nation if not, in fact, the world. However, my idea of diversity most certainly does not include members of MS-13, the Mexican drug cartels or members of other transnational gangs or members of al-Qaeda!

If our government’s failures to secure our nation’s borders and effectively enforce our immigration laws concerns you or especially if it angers you, I ask you to call your Senators and Congressional “Representative. This is not only your right- it is your obligation!

All I ask is that you make it clear to our politicians that we are not as dumb as they hope we are!

We live in a perilous world and in a perilous era. The survival of our nation and the lives of our citizens hang in the balance.

This is neither a Conservative issue, nor is it a Liberal issue- simply stated, this is most certainly an AMERICAN issue!

You are either part of the solution or you are a part of the problem!

Democracy is not a spectator sport!

Lead, follow or get out of the way!

Additionally- this summer, on Friday afternoons from 4:00 PM until 5:00 PM Eastern Daylight Savings Time, I will be filling in for Tom Garcia as the host on The USA Talk Radio Network’s excellent radio show, “The American Hour.”

I hope you will be joining my cohost, Paula Lauzon Ostman and me, on Fridays this summer!

Here is the link for this program:

Virginia Official Prepares to Sue Feds Over Illegal Immigrant Files

Michael Cutler

Michael Cutler, a former Senior INS Investigator, an expert witness in more than a dozen Congressional Hearings is a Fellow at the Center for Immigration Studies and an advisor to the ‘911 Families for a Secure America.’ He writes about the nexus between immigration and national security.