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The Cruel Irony of the DACA Database

The Obama administration convinced hundreds of thousands of undocumented immigrants to submit their personal information to the government for protection from deportation. Now that very same data could be used to track them down.

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Societies are built on trust. Without it, no one would bother to cast a ballot in an election, pay college tuition to learn a vocation, or invest a portion of their paycheck in a retirement account. We stake our lives on these labyrinthine systems not because they’re fair—they fail us regularly—but because they tend to reward risk rather than punish it.

Immigrants who are in the United States illegally, typically shut out from accessing the fragile institutions that American citizens take for granted, may soon be punished for making a very American leap of faith. The Deferred Action for Childhood Arrivals program, implemented in 2012, has convinced hundreds of thousands of people residing in the United States illegally to provide the federal government their names, current and past addresses, immigration status, biometric data, and other personal identifiers, based on the understanding that the information would be used to grant them temporary legal residence in the country. On Tuesday, President Trump and Attorney General Jeff Sessions announced that DACA would be ended, meaning that about 800,000 immigrants who have been in the U.S. since they were children could be at risk of job termination, college expulsion, or deportation.

The data provided by the DACA recipients is now the permanent property of the federal government. The Department of Homeland Security, which both provides legal shelter to immigrants via DACA and rounds them up for deportation by deploying Immigration and Customs Enforcement, has said it won’t explicitly target DACA recipients as it continues its crackdown on undocumented immigrants. But that’s unlikely to assuage the fears of young adults who have built lives here in the United States. The question of who has a right to the DACA data and how they are authorized to use it will be a key point of contention as the immigration debate is renewed yet again. “As long as they have this information, it’s going to be a temptation to be used,” says Julián Gustavo Gómez, a 25-year-old Argentine who grew up in Miami and signed up for DACA in 2013. “I think there’s obviously a lack of trust between people with DACA and the Trump administration right now, considering what they’ve just done.”

Applying to college is supposed to be a time for sizing up opportunities, but for Gómez, before DACA the process became more about identifying limitations. As an undocumented immigrant, he was forced to attend a local school since he didn’t have the proper identification to board a plane. He had to pay out-of-state tuition, even though he’d lived in Miami since he was a child. And he didn’t know exactly what he planned to do with a college degree since he wouldn't qualify for legal employment. “I didn’t really know what I was going to do after college,” he says. “I was just kind of waiting and hoping for something to happen.”

The summer before his freshman year, something did happen. DACA, the result of an executive action by President Obama in June 2012, emerged as a stopgap solution to help people like Gómez gain a more lasting foothold in society. Though Obama has always voiced empathy for the nation’s undocumented immigrants, his first term actually saw a spike in immigrant removals. At the same time the DREAM Act (which would have provided a path to citizenship for people brought to the country illegally as children) died in the Senate in 2010, as immigration bills tend to do. Obama proved surprisingly tough on immigration enforcement but incapable of brokering a reform compromise to protect the immigrants already here.

DACA was something of an end-run around congressional intransigence on the issue. The program granted a two-year stay to qualifying immigrants who were 30 or younger, had lived in the U.S. for at least five years, and were younger than 16 when they arrived. DACA recipients could use their status to legally get a driver’s license, enroll in college, or apply for a job. However, they also had to renew their DACA status every two years (at a cost of about $500 in application fees) and were still not on a path to citizenship. Soon enough, immigrant activists hoped, the government would come up with a more permanent fix. “This would be the bridge between executive action and broader congressional action on the issue,” says Deep Gulasekaram, a law professor at Santa Clara University specializing in immigration law.

To become DACA recipients, young residents who had spent most of their lives avoiding government scrutiny had to offer detailed personal information to U.S. Citizenship and Immigration Services (USCIS), the subdivision of the Department of Homeland Security that manages the DACA program. Gómez decided to take a chance. “I had to weigh the risks, and to me, I was already living with a lot of risks being undocumented my whole life,” he says. “It just was worth it to me at that point.”

Gómez’s data—fingerprints, photographs, bank accounts, school records, his original Argentine birth certificate—would become a permanent part of his Alien File, the name for the dossier that the U.S. government keeps on each non-citizen. His fingerprints would be shared with the FBI to check whether he had an arrest record. His name would be checked across 26 different federal agencies to determine whether he was a suspected terrorist or a sex offender. Though his data would be housed within USCIS, ICE could get access to it if he was suspected of a crime. He was on the grid, for life.

That wouldn’t have been quite so nerve-racking if Congress had decided to cement the ideals of DACA in legislation. But another effort for immigration reform in 2013 passed the Senate and stalled in the House. Obama’s attempt to extend DACA’s benefits to an older group of immigrants was rebuffed by the Supreme Court in 2016. And as Donald Trump used the demonization of immigrants as a stepping stone to the White House, it became clear that the United States’ treatment of illegal residents was about to change drastically.

Following Trump’s election, Gómez, who now works for the immigration advocacy nonprofit Define American, penned an op-ed in The Washington Post urging Obama to delete the DACA database before Trump could use it as part of his deportation agenda. He wasn’t alone in demanding action—111 members of Congress penned a letter to Obama asking him to pass an executive order ensuring that the DACA data would be used only for its original intent. Such steps have been taken before: When New York launched a municipal ID program in 2015 to aid undocumented immigrants, it included a provision allowing for personal data to be destroyed at the end of 2016. But Obama took no such action.

Now DACA is on its way out, but the data gathered through the program remains. In an FAQ about the DACA wind-down released by the Department of Homeland Security, the agency notes that “Information provided to USCIS in DACA requests will not be proactively provided to ICE and Customs and Border Protection for the purpose of immigration enforcement proceedings.” The word “proactively,” which was not included in the original version of the DACA data-use policy in the Obama years, is doing a lot of work in this sentence. According to a former senior official in USCIS under Obama, ICE agents can already search the database of DACA recipients for a specific person if they have a name without having to first get clearance from USCIS. “If ICE wanted to examine an individual's record—let's say they had a name of someone that interested them—that is something that they could do,” the official said. “There is not a legal barrier to their obtaining that information.”

In response to questions about the department’s data-use practices, a current ICE official said the department is not generally targeting “active DACA beneficiaries” for deportation, absent any law enforcement interests. However the official would not specify when and how ICE agents can access immigrant data. “The transfer of information, from USCIS to ICE for purposes of enforcement action, is only going to be contemplated in instances where there is a significant law enforcement or national security interest,” the ICE official said. “Beyond that, we really can’t speak to our investigative procedures or tactics—certainly how we conduct national security investigations is law enforcement sensitive.”

Even the policy that ostensibly protects DACA data is impermanent. The Department of Homeland Security FAQ also notes that its current pledge to limit ICE’s access to DACA recipients “may be modified, superseded, or rescinded at any time without notice.” This was always part of the deal—the old DACA boilerplate has the same disclaimer—but the threat of a policy reversal looms much larger under Trump. It was only five days after his inauguration that the president issued an executive order to “[e]nsure the faithful execution of the immigration laws … against all removable aliens,” an order that DHS made sure to cite in its memo explaining the rescinding of DACA.

Put plainly, the fate of the DACA data is subject to the whims of the Trump administration. “The government … always has with it a caveat, and that caveat is we can modify this rule at any time,” says Gulasekaram. “That’s the fear when you house both the benefit (adjudication [and] the giving of DACA) and the enforcement (ICE and prosecution) within the same government agency.”

But even in this era when nothing feels private, playing fast and loose with people’s personal data can still run afoul of the law.

Societies are built on trust. That’s not just a feel-good axiom; it’s an important legal distinction as well. In contract law, a notion known as “reliance” stipulates that a person can be held responsible for breaking a promise if the person they brokered a deal with took action based on the assumption that the promise would be kept. The government promised to use DACA data to grant people residency, not deport them. Reneging on that promise after all these years might be ruled unlawful by a court, despite the disclaimer that enforcement policies can change in the future. “There are really strong arguments that the main thing that counts is the promise that they made—that people who provide the information reasonably rely on that assurance of confidentiality,” says Hiroshi Motomura, an immigration law professor at UCLA. “If someone were to file a lawsuit protecting that information, I think the chances are pretty good that the information would be protected. … The arguments are strong that the confidentiality promise is more robust and [takes precedence] over the boilerplate that the government puts into hundreds of documents.”

Other legal experts agree. “Once you start acting in a certain way, you might create reliance interest on behalf of certain people,” Gulasekaram says. “In this case the government has created a reliance interest on behalf of people who gave their information underneath the promise that the government wasn’t going to share it unless it fit narrow criteria. To go back on that would violate that reliance interest.”

Already lawsuits that make this argument are being filed. On Wednesday, 15 states and the District of Columbia filed a suit to block Trump’s decision, claiming in part that the government has not made it clear that DACA recipients’ data won’t be used for immigration enforcement. The suit also argues that the DACA decision is motivated by Trump’s racial animus, citing the president’s invective against Mexicans during his campaign. Words still matter, as Trump discovered when his attempted executive order to restrict travel from a handful of majority-Muslim countries was struck down in part due to his xenophobic campaign rhetoric. The new case’s route through the courts is likely to be long and arduous, and it will run in parallel to a six-month deadline for Congress to somehow solve immigration reform—an issue that has vexed legislators for decades—before the protections for DACA recipients begin to elapse.

The lawsuit is a preemptive strike against the worst assumptions about the Trump administration’s plans. If the DACA data is indeed used to target immigrants for deportation, engaging residents in collective action that requires a bit of faith will only be harder in the future. “If you breach that wall you have set up for the information that went to USCIS and you start to give it out, I don't think you can reasonably expect at any time in the future that anyone would ever trust the federal government and especially [the Department of Homeland Security] with any information about themselves,” says Gulasekaram. “Any future program like this I think is going to be scrutinized.”

In the meantime, DACA recipients must sit and wait as the knots in their stomachs once again grow tight. Gómez was granted a green card in August, so he’s now safe in the country he’s called home since age 3. But hundreds of thousands of his peers aren’t so lucky. They took a gamble putting their names on a list they were told could protect them. Now, it could expose them.

An earlier version of this piece incorrectly described DACA as granting recipients legal residency; it granted them a temporary stay.