As Tropical Storm Dorian strengthened and continued towards the United States on Tuesday, President Donald Trump decided to pull millions of dollars from the Department of Homeland Security (DHS) including a disaster relief fund, to boost resources to migrant detention at the southern border.
The Trump administration pulled $271 million from DHS including from the Federal Emergency Management Agency (FEMA) Disaster Relief Fund, according to department officials and a letter California Representative Lucille Roybal-Allard sent to DHS and obtained by NBC News Tuesday.
According to the letter, $155 million would move from FEMA’s disaster relief fund to DHS’s U.S. Immigration and Customs Enforcement (ICE), for more migrant detention space and temporary hearing sites for people seeking asylum. The shift of funds would reportedly allow ICE to hold close to 50,000 migrants at a given time.
Trump’s decision came as Tropical Storm Dorian, potentially strengthening into a Category 1 hurricane, approached Puerto Rico, leading the U.S. territory to declare a state of emergency. Dorian could hit Puerto Rico by Wednesday afternoon, reach the Bahamas by Friday, and southwestern Florida by Sunday, forecasters predict.
Officials in Puerto Rico said Monday they declared a state of emergency in order to coordinate with FEMA for resources.
On Tuesday afternoon, Trump acknowledged Dorian and touted past relief to Puerto Rico, which was devastated by Hurricane Maria in 2017, but did not mention his new drainage of FEMA funds.
“Wow! Yet another big storm heading to Puerto Rico. Will it ever end?” Trump tweeted. “Congress approved 92 Billion Dollars for Puerto Rico last year, an all time record of its kind for ‘anywhere.'”
Trump’s tweet about $92 billion in aid to Puerto Rico was misleading — that amount is an estimate of what could be provided to Puerto Rico through the next 20 years. The island has received $12.6 billion as of May, while the Trump administration has allocated $42.3 billion, according to the Center for a New Economy.
Congress received a notification, not a request, from the Trump administration to shift funds away from FEMA to ICE because the administration thinks it is entitled to do so after Congress refused to approve more funding for detention beds in an emergency funding border bill two months ago, according to NBC News.
DHS would be able to pay for about 6,800 more migrant detainee beds while losing $116 million previously marked for aviation security and the Coast Guard, among other programs.
Trump was widely criticized for a lack of urgency and organization in his response to Hurricane Maria’s destruction in Puerto Rico.
U.S. Government Separating Children From Parents At Border: And One Big Lie/Lyers
Today most of the news on the Google News site that I use is loaded with different articles about the child separation from parents at the U.S. Southern Border. One of the things I wonder about is why is this policy not being followed that same way at our Northern Border with Canada? Is this because most Canadians are white folks and most folks at our Southern Border are not white folks? Even though this is an issue that seems to be a non issue at this time maybe one of the major News Agencies will decide to look at the ‘why’ of this issue at some point. Even though this is an important issue it is not the issue that my article today is about. My article today is about what is going on at our Nations Southern Border with Mexico right now.
Like most all things in life, there are at least two sides to every issue, this disaster at our Southern Border is no exception. Technically any person crossing into our country at a non designated entry point is breaking the law and should be arrested. People wanting to live in a country should enter that country legally so that they do not have to always be worried about being deported. The last I heard the U.S. only allows about 55,000 people to legally migrate through the legal system so that they can become legal citizens. That policy, that kind of a number, in my opinion should be raised to about 250,000 for all Americans, North Americans and South Americans. If the legal number was a more realistic number hopefully most people coming to the U.S Borders would choose to try to come in legally so that they could truly feel free once they started working and living here without having worry about ICE arresting them everyday.
I have spoken with many people from Mexico who are here illegally during my decades as a long haul truck driver (1981-2013). Constantly I heard the same thing from them, that they would rather be at home but there was no way to survive there, meaning that the Mexican economy was/is lousy. They were here trying to find a way to send money back home so that their families could afford to pay rent and to buy groceries. Some U.S. people make fun of the reality of having 10-15 Mexican people living in a two bedroom apartment, it is cruel and ignorant to make such comments even though in many cases it is true. Yet the reason you may have 10 working men living in a two bedroom living quarters is because they are pooling their money together so that they can send more money home to their wife and children. I have just been speaking of Mexican folks so far but the reality reaches to the southern end of the South American Continent. People in Central America and South America face the same issues as the poor people from Mexico face. Example, you don’t see Mexican billionaires trying to sneak across the borders do you? This issue in countries south of the U.S. is not going to change until these southern nations are able to get a good strong working economy so that their people can have livable wage jobs. If you are living in (for example) Guatemala and you have a good paying job to where you have a nice home, good food, vehicles, clothes and the such are you really going to give it all up to try to sneak into the U.S. so that you can be a criminal under constant threat of arrest and deportation?
Now let us get to the point of the children being separated from their parents at the U.S. Southern Border. If you break the laws of a Nation that Nations law enforcement agencies are going to consider you to be a criminal whom they will arrest if they possibly can. Lets get away from the Border for a moment and let us look at another angle. If I am a person who lives in Chicago or New York and I commit a crime to where I am arrested and sent to a prison the law does not allow my minor children to be put into prison with me. If I don’t have someone else here in the States the government will give my children to the (DCS) Department of Children’s Services who are going to take my children and house them until they can find someone to give custody to while I am in prison. Would you want your minor children to be thrown into an adult prison with you? This policy that Donald Trump has put into place is cruel, but, what should our government, any government do in these cases?
Do not fall for the Trump Administration lies, this is a Presidential Policy, it is not a Law, and it is not a Law that was instituted during the Obama Administration, this one is all on the habitual liar, Donald Trump. This morning the Chief of the Department of Homeland Security Kristen Nielsen angerally told reporters that the Trump Administration has no policy in place to separate the children form their parents at the Border. Yet many documents from the DOJ and Jeff Sessions state very clearly for the security personal at the Mexican Border to do exactly that. That I know of there is no good answer for the Trump Administration to follow on this issue. They can either do what they are doing which is angering many people and is a death dart for Republicans this November in the Mid Term Elections or they can just say the heck with it and just open up the Borders to anyone who wishes to cross it. Folks, I don’t know how to be the most humane here on this issue unless North and South American Countries all totally open up their borders sort of like what the EU has done. Here is my single biggest issue with Donald Trump and his flunkies who work for him, just be honest, quit lying all the time, quit trying to blame everyone else for what you yourself are doing.
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The Trump administration has repeatedly denied that its policy is to separate children from their parents when families cross the US border illegally.
But its own internal documents contradict that.
The Department of Homeland Security’s website put out a press release on Friday saying it would separate children from their families.
A “zero tolerance” policy from Attorney General Jeff Sessions mandates that anyone illegally crossing the border be treated like a criminal.
The Trump administration has repeatedly sought to distance itself from its policy separating children from their parents when families cross the US border illegally, but its own internal documents contradict those efforts.
“The Attorney General directed United States Attorneys on the Southwest Border to prosecute all amenable adults who illegally enter the country, including those accompanied by their children, for 8 U.S.C. § 1325(a), illegal entry.
“Children whose parents are referred for prosecution will be placed with the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR).”
Another FAQ section deals with questions including “Why Are Parents Being Separated From Their Children?”; “Where Are Children Going?”; and “What Happens to Children in HHS Custody?”
The DHS made a step-by-step guide for detained adults who are trying to reach their children called “Next Steps for Families.”
Furthermore, the rise of facilities that house children separated from their families at the border during Trump’s administration has been well documented.
Nielsen’s real argument is that border crossers are criminals
Nielsen continued: “For those seeking asylum at ports of entry, we have continued the policy from previous Administrations and will only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken a law.”
Unauthorized border crossings have always been illegal, but previous administrations did not criminally prosecute all border crossers the way Trump’s attorney general, Jeff Sessions, has.
Detainees in the US who are charged with criminal wrongdoing have always been separated from their children; by treating all adult border crossers as criminals, Trump’s administration has therefore crafted a policy that leads families to be separated at the border.
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The Trump administration could be holding 30,000 illegal immigrant children by the end of August as a result of its push to enforce federal immigration laws, which has led to the separation of children from their parents and guardians as those adults are prosecuted.
A senior administration official who asked not to be identified said the Department of Health and Human Services has been taking in about 250 children per day in recent weeks. HHS is the agency that is taking in children when they are separated from their families.
An HHS official added that the agency expects to be taking about 250 kids each day at least for the next two months. If that estimate holds, HHS could be caring for 18,500 more children by the end of August.
The HHS official said as of Friday, HHS was already holding 11,500 children, which means the total could hit 30,000 by August.
The practice of separating children from illegal immigrant adults has become highly controversial in the last few weeks, and is something Democrats have highlighted as a practice that needs to stop.
The Trump administration has defended the policy by saying illegal immigrants need to know that if they try entering the U.S., they will be prosecuted, which could lead to separation from their children. Officials have said U.S. citizens face the same risk when they commit crimes.
But administration officials have also said they support a change to the federal law that requires prosecution and family separation, and have blamed Democrats for current law.
Illegal immigration along the southwestern U.S. border has spiked in the last few months, even though administration officials have said they expect Trump’s zero-tolerance policy to eventually dissuade more from coming. A Justice Department spokesman told the Washington Examiner last week the zero-tolerance policy is not expected to lead to a decline in the number of illegal immigrants attempting to make the trek to the U.S. from primarily Central American countries until early fall.
Under current practice, HHS takes care of unaccompanied illegal immigrant children as well as now those under the age of 18 who must be cared for while the adults they were apprehended with are prosecuted for illegal entry. This spring, Sessions directed federal prosecutors stationed at the border to bring charges against all migrants that U.S. Customs and Border Protection officers took into custody.
However, family units that arrive at ports of entry and request asylum will not be prosecuted because they have not attempted to enter the country illegally, several DHS officials confirmed to the Washington Examiner. They will also be kept together as they go through the asylum process. These groups are detained in DHS facilities while minors are directed to HHS.
In an attempt to secure housing for the coming flood of children, HHS selected the Tornillo Land Port of Entry near El Paso, Texas, last week as the first back-up site to temporarily house around 360 minors.
The Trump administration is also advancing a plan to tentatively house unaccompanied minors in tent cities located on three Texas military bases due to increasing border apprehensions and a shortage of beds for the underage immigrants.
“[Health and Human Services] is running out of space because of the implications of the zero tolerance policy, but also because we continue to see this uptick in numbers,” an official confirmed to the Washington Examiner last week.
HHS officials are looking at Fort Bliss near El Paso, Dyess Air Force Base in Abilene, and Goodfellow Air Force Base in San Angelo, the official confirmed.
President Donald Trump wrongly blamed Democrats for a Trump administration policy that will separate parents and their young children caught entering the U.S. illegally.
“We have to break up families,” Trump claimed, because of “bad laws that the Democrats gave us.” But there is no such law. Instead, it’s the administration’s decision to criminally prosecute all immigrants who cross the border illegally that will cause children to be separated from their parents.
In early May, Department of Homeland Security Secretary Kirstjen Nielsen directed her department to refer all unauthorized immigrants who cross the U.S. border to federal prosecutors. It’s in accordance with the Department of Justice’s new “zero tolerance” policyon illegal immigration at the Southwest border.
Parents would be sent to federal court under the custody of the U.S. Marshals Service and then placed in a detention center, according to a DHS spokesperson. Their children, minors who cannot be housed in a detention center for adults, would be transferred to the Department of Health and Human Services for placement in a juvenile facility or foster care if they have no other adult relative in the U.S. who can take them in.
“It is the government’s choice whether to criminally prosecute someone for illegal entry or reentry,” Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center in Washington, D.C., told us.
Trump made his remarks at a White House meeting on so-called “sanctuary city” policies in California. He told Nielsen, who was in attendance, that Democrats were responsible for the “tough” situation involving immigrant families.
Trump, May 16: I know what you’re going through right now with families is very tough. But those are the bad laws that the Democrats gave us. We have to break up families. The Democrats gave us that law. It’s a horrible thing. We have to break up families.
The Democrats gave us that law and they don’t want to do anything about it. They’ll leave it like that because they don’t want to make any changes. And now you’re breaking up families because of the Democrats. It’s terrible.
Since at least the administration of George W. Bush, a Republican president, Immigration and Customs Enforcement has held many parents and children who crossed the border seeking asylum in family detention centers. Those families have been kept together until they go before an immigration judge or are formally removed from the U.S.
Prior to that, “family units were hardly ever detained, but rather processed and released with a notice to appear at immigration court, especially if they met the credible fear of persecution criteria for a claim to asylum,” according to the Bipartisan Policy Center, a think tank that promotes bipartisan policy solutions.
So, to what Democratic law is Trump referring?
A White House spokesman referred us to a DHS statement regarding a 1997 legal settlement and 2008 antitrafficking law affecting minors who are apprehended without a parent present:
Under the 1997 settlement, DHS could detain unaccompanied children captured at the border for only 20 days before releasing them to foster families, shelters or sponsors, pending resolution of their immigration cases. The settlement was later expanded through other court rulings to include both unaccompanied and accompanied children.
The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 requires unaccompanied minors from countries other than Mexico and Canada to be placed in the care of the Office of Refugee Resettlement, or relatives in the U.S., while they go through removal proceedings. The bipartisan bill was approved by unanimous consent and signed by Bush.
(We wrote about both when Trump also wrongly faulted Democrats for the so-called “catch and release” policy that allows some immigrants caught in the U.S. without proper documentation to be released back into the U.S. while they await an immigration court hearing. See “FactChecking Trump’s Immigration Tweets” for more details.)
But neither the court settlement nor the 2008 law require the Trump administration to “break up families.”
They require the government to release children from custody after a certain period of detainment, said Sarah Pierce, a policy analyst at the Migration Policy Institute. But they don’t require that parents continue to be held in immigration detention.
“The government absolutely has the option to release the parents,” as well, Pierce said. That’s as long as they aren’t a flight or safety risk, she added.
Brown, of the Bipartisan Policy Center, said the Trump administration’s decision to bring criminal charges against the parents — rather than follow the civil removal process — will result in children being separated from their parents.
“It is the government’s choice whether to criminally prosecute someone for illegal entry or reentry,” Brown wrote in an email to FactCheck.org. “That is the quintessential definition of ‘prosecutorial discretion.’”
“Historically, most immigrants were not prosecuted, even when the law allowed for it, they were simply removed in civil proceedings,” she said. “The significant uptick in criminal prosecution began under President George W. Bush, and continued through the early Obama administration.”
U.S Attorney General Jeff Sessions outlined the new enforcement actions on May 7.
“If you cross this border unlawfully, then we will prosecute you. It’s that simple,” Sessions said. “If you smuggle illegal aliens across our border, then we will prosecute you. If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law.”
Because minors cannot be kept in jails for adults, children would be separated from parents charged with committing a crime, Brown explained. Children would then be considered unaccompanied minors and turned over to the refugee resettlement office.
In fact, White House Chief of Staff John Kelly, who was Homeland Security secretary before Nielsen, indicated in March 2017 that DHS was considering splitting up parents and children as a strategy to deter other families from illegally immigrating to the U.S.
Other administration officials — including Nielsen and ICE’s top official, Thomas Homan — have since denied that is the intent.
“I want to be clear. DHS does not have a blanket policy on separating families as a deterrent,” Homan, reportedlysaid at the press event with Sessions. “Every law enforcement agency in this country separates parents from children when they’re arrested for a crime. There is no new policy. This has always been the policy. Now, you will see more prosecutions because of the attorney general’s commitment to zero tolerance.”
Even so, the decision to prosecute all offenders is one that was made by the current administration. It is not a law that “Democrats gave us,” as Trump said.
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President of the United States
“We have to break up families” entering the country illegally, because of “bad laws that the Democrats gave us.”
Marijuana advocates worried that President Donald Trump’s administration will crack down on state weed laws used the unofficial holiday celebrating the drug to call for a “joint session” of Congress — pun intended.
The pro-cannabis rights group DCMJ used April 20th — or 4/20 — to organize a free joint giveaway just steps from the Capitol in an effort to encourage Congress to reauthorize an expiring provision preventing the federal government from meddling in medicinal marijuana programs.
Even as approval ratings for legalized marijuana reach new highs, the new administration is pushing for pro-pot policies to go up in smoke.
Marijuana Legalization Has Record-High Support in New Poll
A CBS News poll released Thursday found 61 percent of Americans support legal marijuana use, up five points from one year ago. More than 70 percent of Americans said they do not think the federal government should block marijuana sales in states that have legalized the drug.
Eighty-eight percent of Americans favor medical marijuana, the poll found.
“Its use and possession is against federal law and until the law is changed by the United States Congress, we in DHS, along with the rest of the federal government, are sworn to uphold all the laws that are on the books,” he said.
Many states, however, have legalized some form of marijuana use. And its acceptance has increasingly become a bipartisan issue.
Four members of the House of Representatives, two Democrats and two Republicans, announced the formation of the Congressional Cannabis Caucus in February to help integrate federal and state laws governing weed.
Oregon Democratic Rep. Earl Blumenauer, a co-founder of the caucus, said in a Reddit “Ask Me Anything” on Thursday said he has issued clear warnings to the White House not to impede on what Oregon and other states have done to legalize the drug.
“We’ve pointed out repeatedly in the press and with advocate groups that marijuana got more votes than Donald Trump last November and that the American people are on our side,” Blumenauer wrote.
Support has come from even the opposite side of the political spectrum, like longtime Trump ally Roger Stone. “Don’t let Jeff Sessions’ draconian views on 420 run roughshod over states,” he tweeted to Trump Thursday.
Though recreational marijuana use is legal in the nation’s capital, it is not legal to consume it in public or to possess more than two ounces. And under federal law it is illegal to possess pot. Capitol Police said they arrested seven volunteers with DCMJ on Thursday, four for possession and two for possession with intent to distribute.
More arrests are expected on Monday when another demonstration is planned on the Capitol.
“Possession of cannabis on the Capitol grounds is not legal. Consuming cannabis anywhere in DC outside of a home is not legal either,” organizers warned in a statement announcing the protest. “But sitting quietly while the Trump administration rolls back our freedoms is not something we plan to do. We need to be loud and proud!”
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Twitter filed a lawsuit Thursday to block an order from the Department of Homeland Security that seeks to reveal the user of an account who has been critical of the Trump administration’s immigration policies.
Tweets from the account — @ALT_uscis — indicate that it is run by someone who is an employee of the U.S. Citizenship and Immigration Services division of Homeland Security.
Free speech advocates said the DHS order appeared to be the first time the government has attempted to use its powers to expose an anonymous critic — a development that, if successful, would have a “grave chilling effect on the speech of that account” as well as other accounts critical of the U.S. government, Twitter said.
DHS is “unlawfully abusing a limited-purpose investigatory tool” to find out who is behind the @ALT_uscis account, according to Twitter’s court filings.
DHS spokeswoman Jenny Burke declined to comment, citing the pending litigation.
The case sets up a potential showdown over free speech between Silicon Valley and Washington, which has tussled over whether tech firms can resist government orders seeking the identity or personal information from criminals and suspected terrorists.
Apple, for instance, declined in early 2016 to unlock the phone of the shooter in San Bernardino, Calif., and has refused to build “back doors” that would enable law enforcement to break into smartphones. The move sparked a pitched battle between the company and the FBI, which eventually paid a private expert to unlock the device.
But the Homeland Security case struck free speech advocates as more remarkable because the information request was about the identity of a government critic, rather than public safety.
“Twitter has a pretty strong argument,” said Andrew Crocker, a staff attorney for the Electronic Frontier Foundation. “It does look and smell like the government is going after a critic. There’s nothing in the summons that CBP [Customs and Border Protection] sent to Twitter that authorizes this request under the power that they have.”
The @ALT_uscis account, which was created in January, has not held back in firing attacks against the Trump administration.
In a Jan. 26 tweet, the @ALT_uscis account tweeted: “Fact: More than 40% of illegal aliens in the US are Visa overstays from other developed countries not sounding like MEXICO #TheResistance.”
The account has also called attention to mismanagement in agency operations. In a March 12 tweet, it said that “USCIS turns down regularly private companies who propose collaboration to streamline the intake process, reducing costs and processing time.”
The account’s description stresses that its views are “Not the views of DHS or USCIS.” As of the time of the court filing, the account had been active for two months and amassed more than 32,000 followers. By 8:15 p.m., that figure had grown to more than 86,000.
In its court filing with the U.S. District Court in the Northern District of California, Twitter said that DHS officials delivered an administrative summons to the social-networking site on March 14, via a CBP agent, demanding that the company provide records that would “unmask or likely lead to the unmasking” of the person or people behind the account.
Twitter maintains that CBP does not have jurisdiction to demand such information, which includes “names, account login, phone numbers, mailing addresses, and I.P. addresses,” associated with the account.
But its primary objection, the company said, is that allowing the government to unmask Twitter critics violates the Constitution’s First Amendment right to free speech. Twitter has defended its users’ rights to free expression — a position it has held for years, notably during the widespread Arab Spring protests in 2011. That right, the company said, is particularly important when discussing political speech.
“First Amendment interests are at their zenith when, as here, the speech at issue touches on matters of public political life,” the filing said.
Twitter added that it feared the government wants to punish the person or people responsible for the account. The summons, Twitter said, “may reflect the very sort of official retaliation that can result from speech that criticizes government officials and agencies.”
The company also has a lot at stake for its business, which could see a huge hit if anonymous users could suddenly be unmasked by the government. Unlike other social networks, Twitter allows its users to create accounts without publicly revealing their true identity.
This isn’t the first time Twitter has tangled with officials over its users’ personal information.
The company in 2012 appealed an order from the state of New York to reveal the identity of Occupy Wall Street protester Malcolm Harris. It lost that appeal. Twitter sued the Justice Department in 2014 for the right to make federal information requests for user data public. And it has lent its support to other companies’ fights against the government, including Apple’s opposition to the FBI order.
The American Civil Liberties Union, which is representing the user in the DHS case, expressed concern that the order is an attempt to curb free speech. “To unmask an anonymous speaker online, the government must have a strong justification,” ACLU attorney Nathan Freed Wessler said in a statement. “But in this case the government has given no reason at all, leading to concerns that it is simply trying to stifle dissent.”
ACLU said it plans to make its own filing in the court on behalf of the user in the next few days.
“It’s about the broader right to speak anonymously on the Internet,” said Esha Bhandari, an ACLU staff attorney.
The @ALT_uscis account is one of many “alternative government” accounts that have popped up since Donald Trump’s election. Accounts apparently run by employees (or former employees) of the National Park Service, the National Weather Service, the Labor Department and other agencies have appeared to question the Trump administration’s policies and fact-check its assertions
on a variety of topics.
American Citizens: U.S. Border Agents Can Search Your Cellphone
byCYNTHIA MCFADDEN, E.D. CAUCHI, WILLIAM M. ARKINandKEVIN MONAHAN
When Buffalo, New York couple Akram Shibly and Kelly McCormick returned to the U.S. from a trip to Toronto on Jan. 1, 2017, U.S. Customs & Border Protection officers held them for two hours, took their cellphones and demanded their passwords.
“It just felt like a gross violation of our rights,” said Shibly, a 23-year-old filmmaker born and raised in New York. But he and McCormick complied, and their phones were searched.
Three days later, they returned from another trip to Canada and were stopped again by CBP.
“One of the officers calls out to me and says, ‘Hey, give me your phone,'” recalled Shibly. “And I said, ‘No, because I already went through this.'”
The officer asked a second time.
Watch Cynthia McFadden on Nightly News for More
Within seconds, he was surrounded: one man held his legs, another squeezed his throat from behind. A third reached into his pocket, pulling out his phone. McCormick watched her boyfriend’s face turn red as the officer’s chokehold tightened.
Then they asked McCormick for her phone.
“I was not about to get tackled,” she said. She handed it over.
Shibly and McCormick’s experience is not unique. In 25 cases examined by NBC News, American citizens said that CBP officers at airports and border crossings demanded that they hand over their phones and their passwords, or unlock them.
The travelers came from across the nation, naturalized citizens and people born and raised on American soil. They traveled by plane and by car at different times through different states. Businessmen, couples, senior citizens, and families with young kids, questioned, searched, and detained for hours when they tried to enter or leave the U.S. None were on terror watchlists. One had a speeding ticket. Some were asked about their religion and their ethnic origins, and had the validity of their U.S. citizenship questioned
What most of them have in common — 23 of the 25 — is that they are Muslim, like Shibly, whose parents are from Syria.
Data provided by the Department of Homeland Security shows that searches of cellphones by border agents has exploded, growing fivefold in just one year, from fewer than 5,000 in 2015 to nearly 25,000 in 2016.
According to DHS officials, 2017 will be a blockbuster year. Five-thousand devices were searched in February alone, more than in all of 2015.
“That’s shocking,” said Mary Ellen Callahan, former chief privacy officer at the Department of Homeland Security. She wrote the rules and restrictions on how CBP should conduct electronic searches back in 2009. “That [increase] was clearly a conscious strategy, that’s not happenstance.”
“This really puts at risk both the security and liberty of the American people,” said Senator Ron Wyden, D-Oregon. “Law abiding Americans are being caught up in this digital dragnet.”
“This is just going to grow and grow and grow,” said Senator Wyden. “There’s tremendous potential for abuse here.”
What CBP agents call “detaining” cellphones didn’t start after Donald Trump’s election. The practice began a decade ago, late in the George W. Bush administration, but was highly focused on specific individuals.
The more aggressive tactics of the past two years, two senior intelligence officials told NBC News, were sparked by a string of domestic incidents in 2015 and 2016 in which the watch list system and the FBI failed to stop American citizens from conducting attacks. The searches also reflect new abilities to extract contact lists, travel patterns and other data from phones very quickly.
But the officials caution that rhetoric about a Muslim registry and ban during the presidential campaign also seems to have emboldened federal agents to act more forcefully.
“The shackles are off,” said Hugh Handeyside, a staff attorney with the ACLU’s National Security Project. “We see individual officers and perhaps supervisors as well pushing those limits, exceeding their authority and violating people’s rights.”
And multiple sources told NBC News that law enforcement and the Intelligence Community are exploiting a loophole to collect intelligence.
Under the Fourth Amendment, law enforcement needs at least reasonable suspicion if they want to search people or their possessions within the United States. But not at border crossings, and not at airport terminals.
“The Fourth Amendment, even for U.S. citizens, doesn’t apply at the border,” said Callahan. “That’s under case law that goes back 150 years.”
Customs and Border officers can search travelers without any level of suspicion. They have the legal authority to go through any object crossing the border within 100 miles, including smartphones and laptops. They have the right to take devices away from travelers for five days without providing justification. In the absence of probable cause, however, they have to give the devices back.
CBP also searches people on behalf of other federal law enforcement agencies, sending its findings back to partners in the DEA, FBI, Treasury and the National Counterterrorism Center, among others.
Callahan thinks that CBP’s spike in searches means it is exploiting the loophole “in order to get information they otherwise might hot have been able to.”
On January 31, an engineer from NASA’s Jet Propulsion Laboratory was pulled into additional screening upon his return to the U.S. after a two-week vacation in Chile. Despite being cleared by the Global Entry program, Sidd Bikkannavar received an “X” on his customs form. He is not Muslim, and he is not from any of the seven countries named in President Trump’s original “travel ban” executive order. Half his family comes from India but he was born and raised in California.
Bikkannavar was brought into a closed room and told to hand over his phone and passcode. He paid particular notice to the form CBP handed him which explained it had the right to copy the contents of the phone, and that the penalty for refusal was “detention.”
“I didn’t know if that meant detention of the phone or me and I didn’t want to find out,” said Bikkannavar. He tried to refuse but the officer repeatedly demanded the PIN. Eventually he acquiesced.
“Once they had that, they had everything,” Bikkannavar said. That access allowed CBP officers to review the backend of his social media accounts, work emails, call and text history, photos and other apps. He had expected security might physically search any travelers for potential weapons but accessing his digital data felt different. “Your whole digital life is on your phone.”
The officers disappeared with his phone and PIN. They returned 30 minutes later and let him go home.Sidd Bikkannavar poses for a portrait in 2014. Takashi Akaishi
CBP also regularly searches people leaving the country.
On February 9, Haisam Elsharkawi was stopped by security while trying to board his flight out of Los Angeles International Airport. He said that six Customs officers told him he was randomly selected. They demanded access to his phone and when he refused, Elsharkawi said they handcuffed him, locked him in the airport’s lower level and asked questions including how he became a citizen. Elsharkawi thought he knew his rights and demanded access to legal counsel.
“They said if I need a lawyer, then I must be guilty of something,” said Elsharkawi, and Egyptian-born Muslim and naturalized U.S. citizen. After four hours of questioning in detention, he unlocked his smartphone and, after a search, was eventually released. Elsharkawi said he intends to sue the Department of Homeland Security.
The current policy has not been updated since 2009. Jayson Ahern, who served in CBP under both Bush and Obama, signed off on the current policy. He said the electronic searches are supposed to be based on specific, articulable facts that raise security concerns. They are not meant to be random or routine or applied liberally to border crossers. “That’s reckless and that’s how you would lose the authority, never mind the policy.”
The Customs & Border Patrol policy manual says that electronic devices fall under the same extended search doctrine that allows them to scan bags in the typical security line.
“As the threat landscape changes, so does CBP,” a spokesperson told NBC News.
Since the policy was written in 2009, legal advocates argue, several court cases have set new precedents that could make some CBP electronic searches illegal.
Several former DHS officials pointed to a 2014 Supreme Court ruling in Riley v California that determined law enforcement needed a warrant to search electronic devices when a person is being arrested. The court ruled unanimously, and Chief Justice John Roberts wrote the opinion.
“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,'” wrote Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
Because that case happened outside of the border context, however, CBP lawyers have repeatedly asserted in court that the ruling does not apply to border searches.
For now a Department of Justice internal bulletin has instructed that, unless border officers have a search warrant, they need to take protective measures to limit intrusions, and make sure their searches do not access travelers’ digital cloud data. The ‘cloud’ is all content not directly stored on a device, which includes anything requiring internet to access, like email and social media.
Former DHS officials who helped design and implement the search policy said they agreed with that guidance.
Wyden Pushes to Change the Policy
On February 20, Sen. Wyden wrote to DHS Secretary John Kelly demanding details on electronic search-practices used on U.S. citizens, and referred to the extent of electronic searches as government “overreach”. As of publication, he had yet to receive an answer.
Now Sen. Wyden says that as early as next week he plans to propose a bill that would require CBP to at least obtain a warrant to search electronics of U.S. citizens, and explicitly prevent officers from demanding passwords.
“The old rules … seem to be on the way to being tossed in the garbage can,” said Senator Wyden. “I think it is time to update the law.”
Asked about the Shibly case, a CBP spokesperson declined to comment, but said the Homeland Security Inspector General is investigating. The spokesperson said the agency can’t comment on open investigations or particular travelers, but that it “firmly denies any accusations of racially profiling travelers based on nationality, race, sex, religion, faith, or spiritual beliefs.”
Explaining the sharp increase in electronic searches, a department spokesperson told NBC News: “CBP has adapted and adjusted to align with current threat information, which is based on intelligence.” A spokesman also noted that searches of citizens leaving the U.S. protect against the theft of American industrial and national security secrets.
After repeated communications, the Department of Homeland Security never responded to NBC News’ requests for comments. Nonetheless, the Homeland Security Inspector General is currently auditing CBP’s electronic search practices.
The Council on American-Islamic Relations (CAIR) also has filed two dozen complaints against CBP this year for issues profiling Muslim Americans. CAIR and the Electronic Frontier Foundation are considering legal action against the government for what they consider to be unconstitutional searches at the border.
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A sweeping set of memos released Tuesday make clear that the vast majority of undocumented immigrants in the United States are at risk of deportation.
Homeland Security Secretary John Kelly unveiled a set of memos directed at each of the department’s agencies which instruct agents to detain and deport every undocumented immigrant they come across, with few exceptions.
Immigrations and Customs Enforcement “will not exempt classes or categories of removal aliens from potential enforcement,” notes a DHS fact sheet. “All of those present in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final order, removal from the United States.”
The memos are essentially instruction manuals for the sweeping executive orders issued by President Trump in late January. The orders themselves call for the hiring of more immigration enforcement officials, empowering local officers to act as immigration enforcement and expediting the deportation of the millions of undocumented immigrants living in the U.S.
An early draft of the memos reported by the Associated Press called for the mobilization of up to 100,000 National Guard troops for immigration enforcement, though that was not included in these memos.
But the memos do make clear that the Department considers any and every undocumented immigrant that crosses paths with enforcement officials to be eligible for removal, a vast shift from Obama Administration policy, which prioritized the removal of criminals and threats to national security. Homeland Security will also expand the list of immigrants who are subject to speedy removal from the U.S. when caught crossing the border illegally. The memos also allow agents to send people who cross from Mexico and Canada back to either nation, regardless of their home country.
While the Trump Administration has made clear it will be tough on immigrants caught in the U.S., it has yet to take action against the class of migrants known as “dreamers” or those who were brought to the U.S. as children by their parents. The memos do not apply to children who received Deferred Action for Childhood Arrivals, or DACA, under the Obama Administration.
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