Ken Cuccinelli, the hardline acting director of US Citizenship and Immigration Services, is seeking a new power — to unilaterally publicize personal information about asylees, refugees, and their family members in the US who are being prosecuted for certain crimes, according to a memorandum obtained by BuzzFeed News.
Currently, only the DHS secretary has the ability to disclose this type of information on a discretionary basis to the media. Though federal regulations and DHS policy currently prohibit USCIS officials from making these disclosures, Cuccinelli wants the ability to do so.
In a “Memorandum For The Secretary,” signed by Cuccinelli on Sept. 10 and intended for acting Department of Homeland Security Secretary Kevin McAleenan, Cuccinelli said the information he wants to reveal may include, but will not be limited to, the people’s dates of birth, whether they were granted asylum status or admitted as refugees, are family members of asylees or refugees “and if so, who the principal applicant was on the case,” and the date of the asylum grant or admission.
It’s unclear whether McAleenan has made a decision on the memo yet.
“DHS Privacy Policy already permits the release of certain information if the public interest outweighs the individual’s privacy interest, such as when two dozen members of the MS-13 gang were arrested in California for brutal murders,” a USCIS spokesperson told BuzzFeed News. “Many of the individuals in that case had illegally entered the United States or entered and sought to stay in the US using asylum or refugee status. Due to the abuse of the refugee and asylum programs by MS-13, terrorist organizations, and cartels, the acting director requested the same authority in order to educate the American public, lawmakers, and media about the dangerous criminals who came to the United States by abusing our legal immigration system.”
In his memo to McAleenan, Cuccinelli states that “DHS’s ability to effectively preserve confidence in the integrity of DHS or demonstrate the accountability of DHS’s officers or employees is hampered when the Director or the Acting Director of USCIS is unable to disclose asylum and refugee-related information to courts and in press materials related to prosecutions involving crimes pertaining to national security or public safety.”
Cuccinelli requests he be able to “disclose asylum and refugee-related information, including information related to credible fear and reasonable fear claims, to courts and in press materials in connection with prosecutions involving crimes relating to national security or that threaten public safety.”
Such details are currently protected from disclosure by federal regulations and USCIS has previously explained that releasing such details could lead to “retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated or endanger the security of the claimant’s family members who may still be residing in the country of origin.”
Ur Jaddou, the former chief counsel with USCIS, said such an overarching request by Cuccinelli was inappropriate.
“They are going to put people in danger,” she said. “This undermines the very purpose of the asylum claim and the purpose of the prohibitions on the disclosure. I’m shocked.”
Since he began as acting director, Cuccinelli has pushed policies that cut back the time immigrants have to consult with attorneys before their initial asylum interviews and implored asylum officers to be stricter in the interviews. He has maintained an active Twitter feed where he has attacked the asylum officers’ union for criticizing a policy that forces immigrants to remain in Mexico, advertised his TV appearances, and repeatedly criticized local jurisdictions for policies that limit their cooperation with Immigration and Customs Enforcement.
Cuccinelli also requested authorization letting him release the information of individuals who were previously asylees and refugees.
Cuccinelli states in the memo that he should be given the ability to disclose the information because they could come into play in the criminal prosecutions themselves.
“This authorization would help to ensure that these individuals are not granted bail during criminal proceedings without full consideration by the court of all relevant information and would allow the disclosure of such information to the media in press releases and other press-related materials in connection with their prosections,” Cuccinelli wrote in the memo.
Criminal justice experts, however, said Cuccinelli’s reasoning was unclear.
“It’s hard to imagine a scenario where somebody's asylum or refugee status would be relevant in a bail proceeding,” said Michael Romano, a lecturer at Stanford Law School who teaches criminal justice policy. “The primary consideration of bail proceedings is the threat to public safety and obviously local officials are in the best position to evaluate that.”
John Sandweg, who once headed US Immigration and Customs Enforcement and was acting DHS General Counsel under the Obama administration, said Cuccinelli’s request lacked any purpose. The regulation on the privacy of asylee and refugee information allows for disclosures to be made to criminal investigators and courts on a need-to-know basis, beyond the DHS Secretary’s discretionary power.
“This is 100% about the media. This memo is in the guise of a public safety matter, but it’s really to publicize cases where asylum seekers were arrested or prosecuted for a criminal offense,” he said, after being told about the memo. “They are trying to undermine faith in the asylum and refugee system to suggest it is a public safety threat and the data does not support that.”
Cuccinelli also wrote to McAleenan about the case of three individuals arrested in connection with a counterterrorism investigation recently and that he had previously sought to disclose their “refugee-related information.” The individuals were admitted to the US as “refugee derivatives” — or family members of an individual who arrived as a refugee — but Cuccinelli did not provide further information on their cases.
The memo ends with a section for McAleenan to sign, which includes language that says McAleenan authorizes the “director (or acting director) of the United States Citizenship and Immigration Services to disclose information contained in or pertaining to applications for asylum or refugee resettlement or any credible fear or reasonable fear determinations with respect to prosecutions relating to national security and public safety including, but not limited to, dates of birth and dates of grants of asylum status or of admission as refugees, for purposes related to facilitating the subject alien’s prosecution and raising public awareness.”