Immigrants gave the government personal details to get DACA. Will it be used to deport them?

Originally published by VOX

For the five years that young unauthorized immigrants were able to apply for protection from deportation and work permits under the Deferred Action for Childhood Arrivals (DACA) program, there was always a low, buzzing fear of the nightmare scenario: What if the federal government ended DACA and used the information we provided to the government to track us down for deportation?

With the Trump administration winding DACA down over the coming months, and 800,000 beneficiaries poised to lose their deportation protections and work permits over the next two-plus years, that nightmare scenario suddenly seems real.

For now, the Trump administration is strongly indicating it won’t send all DACA applicants’ information, en masse, to Immigration and Customs Enforcement. But it’s not exactlypromising it won’t – and it’s clear that the information of individual DACA recipients isn’t exactly safe.

To liberals, Trump’s apparent betrayal of Obama’s promise is one of the most wicked things he’s done in office; to conservatives, the fault lies with Obama for making such a feckless, foolish promise to begin with.

But among immigrants themselves, the uncertainty of deportation and distrust of the government has been around far longer than President Donald Trump. They constantly have to weigh the need to go about their lives and support their families against the odds they’ll be caught by ICE agents. After DACA, how high those odds are will depend in part on what ICE chooses to do – and immigrants are not extending much trust to ICE to do the right thing.

The upswell of panic spurred by the coming end of DACA seems to have caught politicians of both parties by surprise. House Minority Leader Nancy Pelosi urged Donald Trump to reassure DACA recipients that they wouldn’t be deported in the next six months (thoughTrump garbled the message). But the debate over how DACA recipients information could be used against them, and whose fault it would be if it is, shows how belatedly some politicians and members of the public are waking up to the anxiety that’s been part of immigrants’ daily lives for years.

Many of them applied for DACA not because they trusted the federal government, but in spite of their wariness of it. And now, the nightmare scenario is all the more painful for having worried it was coming.

The Trump administration says it will not simply hand over lists of former DACA recipients to ICE

It’s easy to imagine the worst-case scenario after the federal government ends DACA: US Citizenship and Immigration Services looks at all the data that DACA applicants included in their applications – everything from fingerprints and retinal scans to a current home address and cell phone number – makes a spreadsheet and sends it to ICE agents around the country, who fan out to find newly-deportable ex-DACA recipients.

That scenario is almost certainly not going to happen. The Trump administration is all but promising it’s not going to happen. It’s just that the administration won’t actually make that promise official – and nothing short of that is likely to satisfy a community that doesn’t trust the administration one bit.

USCIS is going to retain DACA recipients’ information even after they lose their protections – it’s standard practice for them not to destroy records like that. But for that information to be used in deportation proceedings, it would need to be known by ICE. That means there are two questions: When is USCIS simply going to volunteer information about DACA recipients to the agency that could deport them, and how much power ICE has to ask USCIS to provide DACA records.

John Moore/Getty

Right now, there is a confidentiality policy included on every DACA application: Information provided in a DACA request is protected from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings – unless it’s a matter of law enforcement or national security, or unless the immigrant meets one of the existing standards for USCIS referring immigrants to ICE to be hauled into immigration court.

With DACA ending, however, that policy is being limited – to apply only to the USCIS-to-ICE direction. An FAQ on the DHS website says that, with the same exceptions, Information provided to USCIS in DACA requests will not be proactively provided to ICE and CBP.

Those exceptions, in theory, keep USCIS from printing off records of all DACA applicants. According to Kate Voigt at the American Immigration Lawyers Association, the standards for USCIS to refer someone to ICE for immigration court (per the last exception listed) are pretty narrow, and it would be hard for USCIS to abuse them to refer large numbers of ex-DACA recipients. (She warns, though, that the standards are currently under review, and a new iteration might be much more permissive.)

The federal government almost certainly has already used the law enforcement exception to get the information of people who have lost DACA protections – but its use shows that the loophole, while it’s not tiny, is limited. Over the first two months of the Trump administration, the Los Angeles Times reported in April, 43 people had been arrested and deported after losing their DACA protections. All 43 had been convicted of crimes or identified (using highly suspect law enforcement databases) as affiliated with gangs.

The Trump administration won’t issue clear guidance on what information sharing rules will be

The question that the administration leaves unanswered is when USCIS can give information about DACA recipients when ICE asks for it.

That’s led many analysts to conclude that there are no limits, and that USCIS will give over info whenever ICE wants. Theoretically, that could result in ICE simply asking for information on anyone whose DACA protection has expired, and getting a long list.

But DHS is taking pains to say it won’t be doing that.

On a call with reporters on Tuesday, in advance of Attorney General Jeff Sessions’s announcement, officials stressed that in terms of how noncriminal persons are targeted in the future, we intend to continue with our current enforcement methodology – targeting people who have existing orders of deportation, or who recently arrived in the US. Immigrants who’d grown up in the US and had no criminal records were low priorities for deportation before DACA, and according to DHS they’d be low priorities after.

However, as of Tuesday, the Trump administration wasn’t planning on issuing any written guidance that would make it clear that immigrants wouldn’t be targeted for deportation upon losing their DACA protections. With an administration whose immigration-enforcement policy has been defined by allowing ICE agents a lot of autonomy over how they do their jobs, that’s key. The administration is saying it won’t sweep up ex-DACA recipients – but not that it will keep that from happening.

Immigration and Customs Enforcement

The bigger threat isn’t coordinated sweeps, it’s a silently elevated risk

The fear that the Trump administration will use DACA recipients’ information against them is especially understandable given that the Trump administration’s approach to immigration enforcement appears to be to pick up as much low-hanging fruit as possible – in other words, picking up the immigrants they don’t have to track down.

That’s why ICE is so frustrated by sheriffs who limit their access to county jails: ICE can pick up an immigrant after he or she has been released from jail, but it takes longer (and is riskier) to sit outside a home and wait than it does to take him or her from a jail cell to an ICE van. That’s why they’ve started arresting immigrants showing up for annual check-ins at courthouses, waiting for immigrants who they know will show up for court dates.

By this logic, DACA recipients would be an easy next target. (Though, from ICE’s perspective, it doesn’t look like arresting immigrants in their own neighborhoods counts as low-hanging fruit.)

But even if arresting people who’d lost DACA were ICE’s top priority, it still wouldn’t be able to get to all of them – not without a much bigger budget and the kind of manpower it can’t readily acquire in six months.

In April through June of 2017, ICE arrested 39,795 immigrants – including the ones who literally walked into ICE offices. If they put all of that effort into arresting DACA recipients, they still couldn’t get to half the people slated to lose their DACA during those three months of 2018. And certainly ICE isn’t going to stop targeting the criminal aliens that they say are their top priority.

The point of this exercise isn’t to figure out the precise risk that someone will be targeted for deportation after they lose DACA. That is not something anyone can know. That’s exactly the point: The problem that immigrants face upon losing DACA protections isn’t that they will definitely be deported, but that they might get arrested and that nothing will necessarily save them if they are.

It’s a totally different understanding of the threat posed by the end of DACA.

Many well-meaning progressives who aren’t as familiar with immigration policy, or with the deportation threat immigrants have faced for the past decade or longer, have jumped headlong into fantasies of saving DACA recipients, by adopting or harboring them. But those fantasies (often imported from the Holocaust context) assume that when ICE comes for DACA recipients, it will be something everyone can see: huge numbers of arrests, sweeping raids, deportation buses.

Those Who Can Must Take a DREAMER In2 Their Home & Protect Them??I’m Ready 2 Do This & ??Others in MY BUSINESS WILL DO THE SAME??SANCTUARY

— Cher (@cher) September 5, 2017

The reality is that when wide-scale deportations have happened, people outside immigrant communities don’t necessarily notice. They happen one by one, in and out of neighborhoods or in places (like jails) out of public sight.

The threat of deportation is never a 100 percent certainty, but it’s never at zero either. At the same time, though, immigrants can’t simply hide away from the world forever: They have to help support their families, care for their children, move on with their lives. People may stay in their homes after a raid, but eventually they are prevailed upon to send their children to school.

Living secluded in a kindly citizen’s attic might be an appealing alternative to certain deportation. But it might not be appealing to stay there, month after month, putting a life on hold just in case the worst should happen.

Each unauthorized immigrant has to balance, minute by minute, the risk of deportation against everything else. That’s often invisible (at least outside immigrant communities) and incredibly psychologically taxing.

And that’s the decision that DACA recipients are facing right now and in the coming months. One DACA recipient I’ve spoken to this week said that his mother has just paid off their home loan; when he’s trying to figure out how much to worry about ICE coming to get him, he’s really thinking about whether his family can afford to leave the place they just secured. Maybe it’s worth it to make himself that much harder to deport; maybe it isn’t.

Can DACA applicants prevent their data being used to seal their fate?

Short of ICE asking USCIS for people who have lost DACA more generally, there’s not a lot that ICE can do to find people who’ve lost DACA and pick them up for deportation. The concern that immigration lawyers have, instead, is that once someone has been picked up by ICE, they’ll be able to ask USCIS for her records – and build the deportation case against her using information from her DACA application.

A DACA application could be used to prove that someone doesn’t have legal status in the US – something that ICE has to prove in immigration court to get someone formally deported – or that they’re ineligible for certain immigration benefits because they entered the US illegally.

In practice, ICE doesn’t usually have much trouble proving these things (especially for Mexican and Central American immigrants, who make up the overwhelming majority of DACA recipients) even without a handy signed government document swearing to them.

But having the DACA application in hand eliminates one of an immigrant’s few good options for prevailing in immigration court – a process that, while it takes a long time, is ultimately more likely to result in deportation than not.

Unless ICE could be barred from using DACA applications in court, because they’d obtained the information unconstitutionally.

That’s the possibility that some lawyers have flagged in the wake of the Trump administration’s announcement that it was ending DACA – and one of the reasons cited in the lawsuit filed against the administration by 15 states and the District of Columbia, trying to force Trump to keep the program alive. They point to the confidentiality agreement in the DACA application itself: Under long-standing Supreme Court precedent, former federal prosecutor Renato Mariotti told Vox’s Sean Illing, it is a violation of due process to take advantage of a citizen’s reliance on prior government assurances or directives.

But is the confidentiality policy on the DACA application really an assurance? Right after the part about when USCIS will share information, it says, This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter. In other words, the policy was deliberately written to not constitute a promise that a future government would be obligated to accept.

The disclaimer might not work. The legal question, Homeland Security Secretary Jeh Johnson explained to Rachel Maddow in December, is whether that boilerplate overrides any representations in the document, or whether, when somebody applies and they rely on the representations made to them about the limited uses of that, that is an enforceable promise by the US Government.

Ultimately, the fight within the courtroom over the constitutionality of using DACA applications against them would become the same fight that’s been happening, indirectly, in the public discussion of the government having a list of deportable people: whether DACA recipients put foolish faith in Barack Obama to protect them.

Photo by John Moore/Getty Images

Immigrants didn’t apply for DACA because they trusted the government, but because they didn’t

Going back to the birth of the program, many immigrants were leery of the proposition of DACA.

Obama administration officials like former Homeland Security Secretary Jeh Johnson went out of their way to assure immigrants who might apply or had applied for DACA that their information would be safe.

But from the perspective of immigrants themselves, Obama’s promises were already suspect. The reason that DACA existed to begin with, after all, is that Obama promised he wasn’t deporting DREAMers but ICE kept doing just that. The existence of DACA was better than simply crossing their fingers and hoping not to be deported, but it wasn’t enough to erase abiding distrust of the government’s immigration-enforcement apparatus.

And DACA was rolled out during the course of a presidential election in which the Republican candidate promised to end the program if elected; in fact, in many communities, application rates for DACA were low until after it was clear that Obama’s promises wouldn’t be ignored by President Mitt Romney.

Ultimately, what brought immigrants who were initially suspicious on board wasn’t the words of a president, but the experiences of their neighbors: People started seeing other people who’d benefited from it and who actually got their status, who actually saw the program working, Adam Luna, then the director of Own the DREAM, an outreach campaign to help people apply for DACA, told me in 2014.

The immigrants who have DACA now lived (and often, worked) without protection before DACA. They knew the life they had without it, and they saw the life they could have with it. They ultimately decided that even if neither option was risk-free, one was better than the other.

But the distrust never wholly went away: DACA recipients fretted over the fates of their parents (often more easily profiled as unauthorized immigrants than US-raised DREAMers themselves); they followed the cases of DREAMers arrested after failing to renew their DACA protection, or who ICE tried to strip of protections by claiming they were affiliated. Many of them worried that the government would one day use their application data against them.

That wasn’t enough to prepare them, emotionally. It’s difficult to overstate the amount of distress and panic many DACA recipients are feeling right now; the questions about whether they should move are only the narrowest articulation of the anxiety many are feeling. In some ways, it’s worse than having been taken by surprise by a government they trusted – they knew this was a possibility, and yet could not prevent it.

DACA recipients are preparing to return to a life where they were constantly weighing the risk of deportation, at any given time, against everything else in their lives. But they aren’t being reassured by the government that the risk of deportation is low – and the Trump administration can’t credibly reassure them without undoing its plans to end DACA to begin with.

In a best-case scenario, DACA recipients will be in as much danger of deportation as they were before DACA. They fear they’ll be in more. And it’s impossible to say just how much.

Read more: https://www.vox.com/policy-and-politics/2017/9/8/16256982/daca-application-ice-deport-privacy