This being the case, further blog posts will be put up there at bankstonimmigration.com.
Happy reading!
Sunday, January 5, 2014
This blog has been migrated to our website
A few months ago, Bankston Immigration had a brand new website created. Included in this was a new blog directly on the website.
Sunday, January 20, 2013
Is immigration reform good for my business?
Several people have asked me whether immigration reform will be good for my business? Some seem to think that I won't have any clients left because everyone will simply get a work permit and no one will need immigration services.
Here is why I think immigration reform would actually be good for business.
1. Congress never does anything easy. While it sounds simple to just create a pathway to citizenship for 11 million people, it's going to be really complicated. How do I know this? It's always complicated! That's just the way of things. So I will have plenty of work trying to help people navigate whatever legal hurdles Congress and the government agencies institute for immigrants to jump through.
2. There will not ever be a law passed that actually applies to everyone. Again, how do I know? Because it's never happened before. There will be qualifiers - length of time, family relationships, criminal history, etc. When there are qualifiers, there will be legal arguments to be made as to why some borderline cases qualify. There's some more work for me.
3. Even if everyone got a green card just by showing up somewhere and that was that, people would still need help immigrating family members from abroad. They would also want help with naturalization (becoming a citizen). Some would still face deportation proceedings. There will also be new people who want to enter or came after a broad amnesty.
So, in conclusion, don't worry about me. There will always be plenty of immigration work as long as there are immigration regulations. If you want to put me out of business, then lobby for open borders.
Here is why I think immigration reform would actually be good for business.
1. Congress never does anything easy. While it sounds simple to just create a pathway to citizenship for 11 million people, it's going to be really complicated. How do I know this? It's always complicated! That's just the way of things. So I will have plenty of work trying to help people navigate whatever legal hurdles Congress and the government agencies institute for immigrants to jump through.
2. There will not ever be a law passed that actually applies to everyone. Again, how do I know? Because it's never happened before. There will be qualifiers - length of time, family relationships, criminal history, etc. When there are qualifiers, there will be legal arguments to be made as to why some borderline cases qualify. There's some more work for me.
3. Even if everyone got a green card just by showing up somewhere and that was that, people would still need help immigrating family members from abroad. They would also want help with naturalization (becoming a citizen). Some would still face deportation proceedings. There will also be new people who want to enter or came after a broad amnesty.
So, in conclusion, don't worry about me. There will always be plenty of immigration work as long as there are immigration regulations. If you want to put me out of business, then lobby for open borders.
Friday, January 4, 2013
The new provisional waiver and how it has affected my clients
Yesterday, United States Citizenship and Immigration Services (USCIS) published a new rule. Currently, there are many people in the United States who are married to U.S. citizens but entered the country illegally. These people are required to leave the country and apply for a visa at the consulate in their home country if they wish to obtain a green card. They cannot receive a green card inside the country without leaving.
When someone who has been in the United States more than one year unlawfully leaves the country, he becomes subject to the "10-year bar" meaning he cannot reenter for 10 years. However, a spouse of a US citizen can get a waiver for this 10-year bar. The new rule will allow these spouses of US citizens to apply for this waiver before leaving the country. It can take many months to process this waiver. Before this new rule, everyone had to wait outside the country for the processing time. As you can imagine, this was very inconvenient for the immigrant as well as the U.S. citizen spouse.
I have been keeping a waiting list of people that have come to me expressing interest in this new provisional waiver which allows these certain people to apply inside the U.S. before leaving. Yesterday, I went through my list to begin deciding who would qualify for the waiver. However, I found that many people on the list did not qualify. Here are the top reasons that people do not qualify for the waiver from what I've seen:
1. The US citizen spouse filed a family petition already. Often, people married to US citizens filed petitions in the past. When the interview came up in Ciudad Juarez or some other consulate, the immigrant didn't go because he didn't want to get stuck outside the country. These people are in the same position as before. No provisional waiver is available.
2. The immigrant has a criminal conviction. USCIS will not grant the provisional waiver to anyone with any convictions other than for traffic violations. The most common crime I see are DUIs.
3. The immigrant is in deportation proceedings. The only way to fix this issue is to terminate the proceedings.
4. The immigrant has a removal order. The only way to fix this issue is to reopen and then terminate the proceedings.
5. The immigrant stayed in the United States for more than one year, then left, then reentered illegally. People who do this are permanently inadmissible to the U.S. and must wait outside for 10 years before asking for a waiver. This also applies to people who got removal orders and then reentered illegally.
So my list went from a lot to not as many as I had expected after a more thorough evaluation of each person's facts based on the new rule.
All of the disqualifiers aside, I'm very excited to help the people that do qualify - it's an awesome policy that USCIS has instituted.
When someone who has been in the United States more than one year unlawfully leaves the country, he becomes subject to the "10-year bar" meaning he cannot reenter for 10 years. However, a spouse of a US citizen can get a waiver for this 10-year bar. The new rule will allow these spouses of US citizens to apply for this waiver before leaving the country. It can take many months to process this waiver. Before this new rule, everyone had to wait outside the country for the processing time. As you can imagine, this was very inconvenient for the immigrant as well as the U.S. citizen spouse.
I have been keeping a waiting list of people that have come to me expressing interest in this new provisional waiver which allows these certain people to apply inside the U.S. before leaving. Yesterday, I went through my list to begin deciding who would qualify for the waiver. However, I found that many people on the list did not qualify. Here are the top reasons that people do not qualify for the waiver from what I've seen:
1. The US citizen spouse filed a family petition already. Often, people married to US citizens filed petitions in the past. When the interview came up in Ciudad Juarez or some other consulate, the immigrant didn't go because he didn't want to get stuck outside the country. These people are in the same position as before. No provisional waiver is available.
2. The immigrant has a criminal conviction. USCIS will not grant the provisional waiver to anyone with any convictions other than for traffic violations. The most common crime I see are DUIs.
3. The immigrant is in deportation proceedings. The only way to fix this issue is to terminate the proceedings.
4. The immigrant has a removal order. The only way to fix this issue is to reopen and then terminate the proceedings.
5. The immigrant stayed in the United States for more than one year, then left, then reentered illegally. People who do this are permanently inadmissible to the U.S. and must wait outside for 10 years before asking for a waiver. This also applies to people who got removal orders and then reentered illegally.
So my list went from a lot to not as many as I had expected after a more thorough evaluation of each person's facts based on the new rule.
All of the disqualifiers aside, I'm very excited to help the people that do qualify - it's an awesome policy that USCIS has instituted.
Tuesday, December 18, 2012
Prospects for bi-national same-sex couples in 2013
In my practice, I have a lot of gay clients. I also deal with a lot of spousal petitions. Today I want to discuss two developments, one potential and one definitely happening, that will affect US citizens and their same-sex spouses.
The first development will affect many undocumented individuals who are married to US citizens. Currently, an individual who entered illegally and then married a US citizen cannot apply for a green card inside of the United States. That person must leave the country and come back through the consulate. However, upon leaving, the person will become subject to the "10-year bar." He will have to stay out of the country for ten years before returning unless he can show that staying out of the country will cause extreme hardship to his American spouse. If he can show extreme hardship, he will be granted a waiver. This waiver can take many months to process.
Starting very soon (maybe in the next few days), the government will begin allowing these individuals to apply for the waiver inside the country. If the waiver is granted, the individual will still need to travel to the consulate. However, he will already have a waiver and will be out of the country for a much shorter time.
This is a great development and we're looking forward to helping our clients that have already put their names on our waiting list as well as the many that will come to us in the near future.
However, this benefit cannot help undocumented individuals who are marred to US citizen same-sex spouses. This leads to the second development. The U.S. Supreme Court has taken up the section of the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriages which are valid in the state where performed. This includes immigration benefits, which are federal.
Should the Supreme Court decide that the federal government must recognize same-sex marriages that are valid in the state where performed in connection with federal benefits, same-sex couples will also be eligible to take advantage of the new waiver process.
We are hopeful that this should be the case. It is unclear how helpful this change in the law will be to many Californians since same-sex marriage is currently not allowed. However, the government may choose to recognize same-sex domestic partnerships for immigration benefits if DOMA is struck down. Even better, the Supreme Court may uphold the lower courts and decide that Prop 8 is unconstitutional in some way which would allow many of our gay clients to get married in California.
As you can see, this coming year has the potential to be very good for bi-national same-sex couples!
The first development will affect many undocumented individuals who are married to US citizens. Currently, an individual who entered illegally and then married a US citizen cannot apply for a green card inside of the United States. That person must leave the country and come back through the consulate. However, upon leaving, the person will become subject to the "10-year bar." He will have to stay out of the country for ten years before returning unless he can show that staying out of the country will cause extreme hardship to his American spouse. If he can show extreme hardship, he will be granted a waiver. This waiver can take many months to process.
Starting very soon (maybe in the next few days), the government will begin allowing these individuals to apply for the waiver inside the country. If the waiver is granted, the individual will still need to travel to the consulate. However, he will already have a waiver and will be out of the country for a much shorter time.
This is a great development and we're looking forward to helping our clients that have already put their names on our waiting list as well as the many that will come to us in the near future.
However, this benefit cannot help undocumented individuals who are marred to US citizen same-sex spouses. This leads to the second development. The U.S. Supreme Court has taken up the section of the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriages which are valid in the state where performed. This includes immigration benefits, which are federal.
Should the Supreme Court decide that the federal government must recognize same-sex marriages that are valid in the state where performed in connection with federal benefits, same-sex couples will also be eligible to take advantage of the new waiver process.
We are hopeful that this should be the case. It is unclear how helpful this change in the law will be to many Californians since same-sex marriage is currently not allowed. However, the government may choose to recognize same-sex domestic partnerships for immigration benefits if DOMA is struck down. Even better, the Supreme Court may uphold the lower courts and decide that Prop 8 is unconstitutional in some way which would allow many of our gay clients to get married in California.
As you can see, this coming year has the potential to be very good for bi-national same-sex couples!
Saturday, December 8, 2012
How I analyze an undocumented person's immigration situation
For someone in the country without papers, there are only so many possibilities. While I am always looking for ways to be creative and find new ways to help, in this post I will explain what types of things I look for in an initial consultation with an undocumented person. Hopefully, I'll have new things to look for if we get some immigration reform this year but, as of right now, this is what I've got.
1. What country are you from?
In this question, I'm looking to see if the person might be from a place that has a special immigration benefit or is a common source of asylum-seekers.
2. When and how have you entered the U.S including all entries and exit dates and all times caught by immigration?
This question is very important to determine to identify a potential removal order or the permanent bar which can cut off some immigration options.
3. Have you had any contact with immigration?
This question helps to know if the person is in proceedings or has ever been in proceedings and might have a removal order. Also, I check whether the person has ever filed any applications in the past or been on any applications. I'm especially looking for those that have 245(i) eligibility (meaning the person can obtain a green card without leaving the country due to a past immigration petition). I'm also looking for complications in the case because of past applications.
4. Have you ever been arrested?
Crimes can do a number on immigration options in some situations so I have to know everything.
5. List you spouse or partner and children. Do your siblings or parents have legal status in the U.S.?
Here I'm looking for family immigration options such as immigration through marriage or a parent. I also make sure the uncommon situation of deriving/acquiring citizenship from parents is not at issue. I always want to know about the siblings and parents having status to clue me off on any potential benefits the person I'm speaking with might qualify for. I will also inquire into the health of any US citizen or permanent resident children or spouses as there is a possible form of relief in Immigration Court for those with certain family members who have health problems.
6. Next I probe for asylum which will be different for each person. If I know a person is gay or transgender, I will go into the situation more. If the person is indigenous Guatemalan, I'll ask him or her about the past. I usually ask women about any problems with domestic violence. At the least, I will usually ask if someone is afraid to go back to their country and look for reasons other than general violence.
7. How old were you when you entered the U.S.?
Here I'm checking for deferred action eligibility, the newest benefit available.
8. Have you ever been a victim of a crime?
Here I'm looking for a U-visa eligibility which can be given to people who are victims of certain crimes and help the police.
While there may be some obscure situations not enumerated here, this is the general method for determining if anyone has possibilities, at least in my book. Cross you fingers for more options in the future!
Wednesday, May 23, 2012
We need stronger protections for biometric information
Biometrics are physical identifying characteristics of a person. The most common type is fingerprints. This also includes iris prints, voice prints, and DNA. Most of my clients need to get biometrics taken during their time with me. I send off fingerprints to the FBI regularly to check for criminal records. The Department of Homeland Security also requires most applicants to submit their biometrics for identification purposes.
While biometrics are very useful, I have serious concerns about privacy in the future. DHS and the FBI now share data. The FBI and DHS also have data sharing agreements with many countries. Information on millions of people is being put in the system. Without proper safeguards, this could lead to a loss of privacy and misuse of information. This will also increase the risk of errors. Interestingly, 3600 American citizens have been mistakenly caught up in the Secure Communities program (a program that requires local law enforcement agencies to share fingerprint information with DHS and used to identify immigrants that may be deportable).
The pasted report below has some interesting recommendations to protect biometrics and our privacy. I especially agree with the suggestion to segregate data whenever appropriate and delete data as soon as its use has been served.
The Immigration Policy Center’s Special Reports are our most in‐depth publication, providing detailed analyses of special topics in U.S. immigration policy.
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project. In addition to government transparency, Jennifer has written and spoken frequently on government surveillance programs, intelligence community misconduct, and biometrics collection. Prior to joining EFF, Jennifer was the Clinical Teaching Fellow with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law. She has published academically on identity theft and phishing attacks (20 Berkeley Tech. L.J. 259) and sovereign immunity in civil rights cases (62 Fla. L. Rev. 203).
Blending the expertise of lawyers, policy analysts, activists, and technologists, the Electronic Frontier Foundation achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing more than 140,000 concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, EFF educates the press and public.
The Immigration Policy Center, established in 2003, is the policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policymakers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion‐makers, and the media. IPC is a non‐partisan organization that neither supports nor opposes any political party or candidate for office. Visit our website at www.immigrationpolicy.org and our blog at www.immigrationimpact.com.
The collection of biometrics—such as fingerprints, DNA, and face recognition‐ready photographs—is becoming more and more a part of the society in which we live, especially for immigrants. As of January 2012, the Federal Bureau of Investigation (FBI) has been working with several states to collect face recognition‐ready photographs of all suspects arrested and booked. The Department of Homeland Security (DHS) collects approximately 300,000 fingerprints per day from non‐U.S. citizens crossing U.S. borders. State and local law‐enforcement agencies are quickly adopting and expanding several biometrics databases to collect much more information, including face prints, iris scans, and even DNA records. Undocumented people living within the United States, as well as immigrant communities more broadly, are more immediately and uniquely affected by the expansion of biometrics collection programs than the rest of society.
The rapid expansion of programs that collect, store, and share biometric data has raised important concerns over privacy and data accuracy for citizens and non‐citizens alike. This report summarizes these programs and their implications, and outlines best practices for developing effective and responsible biometrics programs in the future.
Biometrics are unique markers that identify or verify the identity of people using intrinsic physical or behavioral characteristics. Fingerprints are the most commonly known biometric, and they have been used regularly by criminal justice agencies to identify suspects for over a century. Other biometrics include face prints (facial recognition‐ready photographs), iris scans, palm prints, voice prints, wrist veins, hand geometry, a person’s gait, DNA, and others.
There are many ways to collect biometrics, though each falls into one of three general categories:
invasive biometrics, i.e. blood sample, taken to collect a person’s DNA.
minimally or non‐invasive biometrics, i.e. a fingerprint or iris scan.
biometrics collected without the subject’s knowledge, i.e. photographs taken from a distance or DNA collected from discarded biological material.
Once biometric information is collected, it can be used for one of two purposes—verification or identification:
1.
A verification system seeks to answer the question “Is this person who she says she is?” The system checks her biometric (such as an iris scan) against the biometric already in the database linked to that person’s file (her iris print) to try to find a match.
2.
An identification system seeks to identify an unknown person (or unknown biometric). The system tries to answer the questions “Who is this person?” or “Who generated this biometric?” and must check the biometric presented against all others already in the database.
Before September 11, 2001, the federal government had many policies and practices in place to silo data and information within each agency. Since that time the government has enacted several measures that allow—and in many cases require—information sharing within and among federal intelligence and federal, state, and local law‐enforcement agencies. For example, currently the FBI, DHS, and Department of Defense’s biometrics databases are interoperable, which means the systems can easily share and exchange data. This has allowed information sharing between FBI and DHS under Immigration and Customs Enforcement’s Secure Communities program.
Private companies and foreign governments also collect extensive amounts of biometric data. The FBI’s Criminal Justice Information Service (CJIS) division has information‐sharing relationships with 77 countries. One of the best‐known private biometrics databases is maintained by Facebook, whose face‐recognition service allows users to find and tag their friends. The government regularly mines this data to verify citizenship applications, for evidence in criminal cases, and to look for threats to U.S. safety and security.
As a result of data sharing between agencies, biometric data collected for non‐criminal purposes, such as immigration‐related records, are combined with and used for criminal or national‐security purposes with little to no standards, oversight, or transparency. When some of this data comes from sources such as local fusion centers and private security guards in the form of Suspicious Activity Reports (SARs), it can perpetuate racially motivated targeting of immigrant communities. The addition of crowd and security camera photographs means that anyone could end up in the database—even if they’re not involved in a crime—by just happening to be in the wrong place at the wrong time.
If biometrics become standardized, they could replace social security numbers as the primary form of identification. The next time someone applies for insurance, sees her doctor, or fills out an apartment rental application, she could be asked for her thumbprint or iris scan. Data standardization also increases the ability of government or private companies to locate and track a given person throughout their lives.
DNA presents privacy issues different from those involved in other biometrics collection. Depending on the quality of the sample collected, it can contain information about a person’s entire genetic make‐up, including gender, familial relationships and other hereditary information, race, health, disease history and predisposition to disease, and perhaps even sexual orientation. As one circuit court has recognized, “[t]he concerns about DNA samples being used beyond identification purposes are real and legitimate.”
Data fluidity within and among federal, state, and local agencies can increase the probability that data inaccuracies—such as notoriously inaccurate and out‐of‐date immigration records—will be perpetuated throughout all systems. This has happened with the Secure Communities program, where approximately 3,600 United States citizens have been caught up in the program due to incorrect immigration records.
Facial recognition technology can lead to a particularly high rate of false positives. In a 2009 New York University report on facial recognition, the researchers noted that facial recognition “performs rather poorly in more complex attempts to identify individuals who do not voluntarily self‐identify.” The researchers concluded that an accurate face recognition system will not be an “operational reality for the foreseeable future.”
Data‐sharing agreements with other countries mean that receiving governments will immediately know the identity of people deported from the U.S., possibly putting them at risk. Immigration and Customs Enforcement (ICE) and the FBI have a draft agreement allowing them to share information on deportees with the countries to which they are deported, and DHS has entered into agreements with foreign governments to provide such information on deportees upon repatriation. This kind of biometrics sharing could prove disastrous for repatriated refugees or immigrants from countries with a history of ethnic cleansing.
The Fourth Amendment’s protection against unreasonable searches and seizures presents the baseline protection for biometrics collection in the United States. Yet while the Fourth Amendment applies to everyone in the United States regardless of citizenship or immigration status, there are significant exceptions to its protections that are relevant, both for biometrics and for immigrants.
Courts have found that the government’s interest in protecting United States borders justifies a broad exception to the Fourth Amendment’s warrant requirement. According to case law, the government may stop and search individuals and their possessions at the borders without suspicion and may search a person’s body based only on reasonable suspicion (rather than probable cause). This exception to the Fourth Amendment’s warrant requirement has broad implications for immigrants in the United States because so much data on travelers is collected at the borders.
A case recently decided by the Supreme Court, United States v. Jones, could provide some insight into how courts might apply the Fourth Amendment to technologies such as biometrics that enable advanced surveillance and intrusive data collection, often in public without an initial detention or seizure. In Jones the Court addressed whether a GPS device planted on a car without a warrant and used to track a suspect’s movements constantly for 28 days violated the Fourth Amendment. Nine justices held that it did. For five of those justices, a person’s expectation of privacy in not having his movements tracked constantly—even in public—was an important factor in determining the outcome of the case. The fact that several members of the Court were willing to reexamine the reasonable expectation of privacy test in light of newly intrusive technology could prove important for future legal challenges to biometrics collection.
This report identifies several principles based in part on key provisions of the Wiretap Act and in part on the Fair Information Practice Principles (FIPPs), an internationally recognized set of privacy‐protection principles:
Limit the collection of biometrics to the minimum necessary to achieve the government’s stated purpose.
Define clear rules on the legal process required for collection, such as a court order or a warrant; collection and retention should be specifically disallowed without legal process.
Limit the amount and type of data stored to avoid the retention of data beyond identification and limit the collection of identifying information from people unrelated to the investigation.
Limit the combination of more than one biometric in a single database to keep different types of biometric data in separate databases and to keep biometric data separate from non‐biometric, contextual data.
Limit data retention times to a period no longer than necessary to achieve the goals of the program.
Define clear rules for use and sharing so that biometrics collected for one purpose are not used for another purpose.
Enact robust security procedures to avoid data compromise.
Mandate notice procedures to alert people to the fact that their biometrics have been collected.
Define and standardize audit trails and accountability throughout the system so that all database transactions, including biometric input, access to and searches of the system, data transmission, etc. are logged and recorded in a way that assures accountability.
Ensure independent oversight so that every entity that collects or uses biometrics is subject to meaningful oversight from an independent entity.
While biometrics are very useful, I have serious concerns about privacy in the future. DHS and the FBI now share data. The FBI and DHS also have data sharing agreements with many countries. Information on millions of people is being put in the system. Without proper safeguards, this could lead to a loss of privacy and misuse of information. This will also increase the risk of errors. Interestingly, 3600 American citizens have been mistakenly caught up in the Secure Communities program (a program that requires local law enforcement agencies to share fingerprint information with DHS and used to identify immigrants that may be deportable).
The pasted report below has some interesting recommendations to protect biometrics and our privacy. I especially agree with the suggestion to segregate data whenever appropriate and delete data as soon as its use has been served.
The Immigration Policy Center’s Special Reports are our most in‐depth publication, providing detailed analyses of special topics in U.S. immigration policy.
Jennifer Lynch is a staff attorney with the Electronic Frontier Foundation and works on open government, transparency and privacy issues as part of EFF’s FOIA Litigation for Accountable Government (FLAG) Project. In addition to government transparency, Jennifer has written and spoken frequently on government surveillance programs, intelligence community misconduct, and biometrics collection. Prior to joining EFF, Jennifer was the Clinical Teaching Fellow with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley School of Law. She has published academically on identity theft and phishing attacks (20 Berkeley Tech. L.J. 259) and sovereign immunity in civil rights cases (62 Fla. L. Rev. 203).
Blending the expertise of lawyers, policy analysts, activists, and technologists, the Electronic Frontier Foundation achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations. By mobilizing more than 140,000 concerned citizens through our Action Center, EFF beats back bad legislation. In addition to advising policymakers, EFF educates the press and public.
The Immigration Policy Center, established in 2003, is the policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policymakers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion‐makers, and the media. IPC is a non‐partisan organization that neither supports nor opposes any political party or candidate for office. Visit our website at www.immigrationpolicy.org and our blog at www.immigrationimpact.com.
The collection of biometrics—such as fingerprints, DNA, and face recognition‐ready photographs—is becoming more and more a part of the society in which we live, especially for immigrants. As of January 2012, the Federal Bureau of Investigation (FBI) has been working with several states to collect face recognition‐ready photographs of all suspects arrested and booked. The Department of Homeland Security (DHS) collects approximately 300,000 fingerprints per day from non‐U.S. citizens crossing U.S. borders. State and local law‐enforcement agencies are quickly adopting and expanding several biometrics databases to collect much more information, including face prints, iris scans, and even DNA records. Undocumented people living within the United States, as well as immigrant communities more broadly, are more immediately and uniquely affected by the expansion of biometrics collection programs than the rest of society.
The rapid expansion of programs that collect, store, and share biometric data has raised important concerns over privacy and data accuracy for citizens and non‐citizens alike. This report summarizes these programs and their implications, and outlines best practices for developing effective and responsible biometrics programs in the future.
Biometrics are unique markers that identify or verify the identity of people using intrinsic physical or behavioral characteristics. Fingerprints are the most commonly known biometric, and they have been used regularly by criminal justice agencies to identify suspects for over a century. Other biometrics include face prints (facial recognition‐ready photographs), iris scans, palm prints, voice prints, wrist veins, hand geometry, a person’s gait, DNA, and others.
There are many ways to collect biometrics, though each falls into one of three general categories:
invasive biometrics, i.e. blood sample, taken to collect a person’s DNA.
minimally or non‐invasive biometrics, i.e. a fingerprint or iris scan.
biometrics collected without the subject’s knowledge, i.e. photographs taken from a distance or DNA collected from discarded biological material.
Once biometric information is collected, it can be used for one of two purposes—verification or identification:
1.
A verification system seeks to answer the question “Is this person who she says she is?” The system checks her biometric (such as an iris scan) against the biometric already in the database linked to that person’s file (her iris print) to try to find a match.
2.
An identification system seeks to identify an unknown person (or unknown biometric). The system tries to answer the questions “Who is this person?” or “Who generated this biometric?” and must check the biometric presented against all others already in the database.
Before September 11, 2001, the federal government had many policies and practices in place to silo data and information within each agency. Since that time the government has enacted several measures that allow—and in many cases require—information sharing within and among federal intelligence and federal, state, and local law‐enforcement agencies. For example, currently the FBI, DHS, and Department of Defense’s biometrics databases are interoperable, which means the systems can easily share and exchange data. This has allowed information sharing between FBI and DHS under Immigration and Customs Enforcement’s Secure Communities program.
Private companies and foreign governments also collect extensive amounts of biometric data. The FBI’s Criminal Justice Information Service (CJIS) division has information‐sharing relationships with 77 countries. One of the best‐known private biometrics databases is maintained by Facebook, whose face‐recognition service allows users to find and tag their friends. The government regularly mines this data to verify citizenship applications, for evidence in criminal cases, and to look for threats to U.S. safety and security.
As a result of data sharing between agencies, biometric data collected for non‐criminal purposes, such as immigration‐related records, are combined with and used for criminal or national‐security purposes with little to no standards, oversight, or transparency. When some of this data comes from sources such as local fusion centers and private security guards in the form of Suspicious Activity Reports (SARs), it can perpetuate racially motivated targeting of immigrant communities. The addition of crowd and security camera photographs means that anyone could end up in the database—even if they’re not involved in a crime—by just happening to be in the wrong place at the wrong time.
If biometrics become standardized, they could replace social security numbers as the primary form of identification. The next time someone applies for insurance, sees her doctor, or fills out an apartment rental application, she could be asked for her thumbprint or iris scan. Data standardization also increases the ability of government or private companies to locate and track a given person throughout their lives.
DNA presents privacy issues different from those involved in other biometrics collection. Depending on the quality of the sample collected, it can contain information about a person’s entire genetic make‐up, including gender, familial relationships and other hereditary information, race, health, disease history and predisposition to disease, and perhaps even sexual orientation. As one circuit court has recognized, “[t]he concerns about DNA samples being used beyond identification purposes are real and legitimate.”
Data fluidity within and among federal, state, and local agencies can increase the probability that data inaccuracies—such as notoriously inaccurate and out‐of‐date immigration records—will be perpetuated throughout all systems. This has happened with the Secure Communities program, where approximately 3,600 United States citizens have been caught up in the program due to incorrect immigration records.
Facial recognition technology can lead to a particularly high rate of false positives. In a 2009 New York University report on facial recognition, the researchers noted that facial recognition “performs rather poorly in more complex attempts to identify individuals who do not voluntarily self‐identify.” The researchers concluded that an accurate face recognition system will not be an “operational reality for the foreseeable future.”
Data‐sharing agreements with other countries mean that receiving governments will immediately know the identity of people deported from the U.S., possibly putting them at risk. Immigration and Customs Enforcement (ICE) and the FBI have a draft agreement allowing them to share information on deportees with the countries to which they are deported, and DHS has entered into agreements with foreign governments to provide such information on deportees upon repatriation. This kind of biometrics sharing could prove disastrous for repatriated refugees or immigrants from countries with a history of ethnic cleansing.
The Fourth Amendment’s protection against unreasonable searches and seizures presents the baseline protection for biometrics collection in the United States. Yet while the Fourth Amendment applies to everyone in the United States regardless of citizenship or immigration status, there are significant exceptions to its protections that are relevant, both for biometrics and for immigrants.
Courts have found that the government’s interest in protecting United States borders justifies a broad exception to the Fourth Amendment’s warrant requirement. According to case law, the government may stop and search individuals and their possessions at the borders without suspicion and may search a person’s body based only on reasonable suspicion (rather than probable cause). This exception to the Fourth Amendment’s warrant requirement has broad implications for immigrants in the United States because so much data on travelers is collected at the borders.
A case recently decided by the Supreme Court, United States v. Jones, could provide some insight into how courts might apply the Fourth Amendment to technologies such as biometrics that enable advanced surveillance and intrusive data collection, often in public without an initial detention or seizure. In Jones the Court addressed whether a GPS device planted on a car without a warrant and used to track a suspect’s movements constantly for 28 days violated the Fourth Amendment. Nine justices held that it did. For five of those justices, a person’s expectation of privacy in not having his movements tracked constantly—even in public—was an important factor in determining the outcome of the case. The fact that several members of the Court were willing to reexamine the reasonable expectation of privacy test in light of newly intrusive technology could prove important for future legal challenges to biometrics collection.
This report identifies several principles based in part on key provisions of the Wiretap Act and in part on the Fair Information Practice Principles (FIPPs), an internationally recognized set of privacy‐protection principles:
Limit the collection of biometrics to the minimum necessary to achieve the government’s stated purpose.
Define clear rules on the legal process required for collection, such as a court order or a warrant; collection and retention should be specifically disallowed without legal process.
Limit the amount and type of data stored to avoid the retention of data beyond identification and limit the collection of identifying information from people unrelated to the investigation.
Limit the combination of more than one biometric in a single database to keep different types of biometric data in separate databases and to keep biometric data separate from non‐biometric, contextual data.
Limit data retention times to a period no longer than necessary to achieve the goals of the program.
Define clear rules for use and sharing so that biometrics collected for one purpose are not used for another purpose.
Enact robust security procedures to avoid data compromise.
Mandate notice procedures to alert people to the fact that their biometrics have been collected.
Define and standardize audit trails and accountability throughout the system so that all database transactions, including biometric input, access to and searches of the system, data transmission, etc. are logged and recorded in a way that assures accountability.
Ensure independent oversight so that every entity that collects or uses biometrics is subject to meaningful oversight from an independent entity.
Wednesday, May 16, 2012
Good news for TPS and adjustment of status
Here's the scenario:
A person has temporary protected status (TPS). However, before getting that status, he accrued more than one year of unlawful presence in the U.S. With TPS, he can travel internationally if he applies and received advance parole. However, if he leaves the country, he will trigger the 10-year-bar. This bar is triggered when someone accrues more than one year of unlawful presence and then leaves the country. He is allowed to return with the advance parole.
Let's say this person has an immediate relative. He is in the United States legally so he should be able to adjust. However, if he traveled, he now has a 10-year-bar. If he didn't travel, he still can't adjust because he's inadmissible for entering without inspection when he initially came to the U.S.
Generally, a person who had returned on advance parole could apply for adjust status as an immediate relative only if he received a waiver for the 10-year-bar. Is this still necessary?
Maybe not! The Board of Immigration Appeals recently released a case, Matter of Arrabally, which establishes that leaving the country on advance parole does not trigger the 10-year-bar. This could mean that a person can now adjust without needing a hardship waiver.
We'll have to see if this actually works.
A person has temporary protected status (TPS). However, before getting that status, he accrued more than one year of unlawful presence in the U.S. With TPS, he can travel internationally if he applies and received advance parole. However, if he leaves the country, he will trigger the 10-year-bar. This bar is triggered when someone accrues more than one year of unlawful presence and then leaves the country. He is allowed to return with the advance parole.
Let's say this person has an immediate relative. He is in the United States legally so he should be able to adjust. However, if he traveled, he now has a 10-year-bar. If he didn't travel, he still can't adjust because he's inadmissible for entering without inspection when he initially came to the U.S.
Generally, a person who had returned on advance parole could apply for adjust status as an immediate relative only if he received a waiver for the 10-year-bar. Is this still necessary?
Maybe not! The Board of Immigration Appeals recently released a case, Matter of Arrabally, which establishes that leaving the country on advance parole does not trigger the 10-year-bar. This could mean that a person can now adjust without needing a hardship waiver.
We'll have to see if this actually works.
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