VI. ICE exploited the trust of unaccompanied children and their family members to target those family members for deportations

In January 2017, a teenager fleeing his violent uncle in Guatemala crossed the Sonora Desert and showed up alone at the Arizona border. He hoped to reach his older brother, Gari, who was living in Santa Fe, New Mexico.294

The 17-year-old was taken in by border officials and later transferred to the custody of the Office of Refugee Resettlement (ORR), which is run by HHS. Upon arrival, ORR officials asked the teenager whether he had any close family members living in the U.S. who could take him in. Unaccompanied minors at the border are often afraid to answer that question, especially if their relatives are undocumented, because the children understand that sharing any information with government officials could put their family members in jeopardy. But the children have few alternatives. They are desperate to see their families. So, they take the risk.295 The teenager told the officials that he had a brother in the U.S. and gave them Gari’s name and phone number.

When Gari received the call about his brother, he was struck with concern, but he was also worried about what it would mean to step forward and take the boy under his care. Gari had a family of his own—a wife, a 7-year-old son and an infant daughter—and he was afraid that participating in the extensive application and background check process would put him at risk of deportation. 

But HHS officials had assured him that that would not be the case. Gari was told that his participation in the process wouldn’t affect his own safety. It was simply necessary to place his brother with a caretaker during the boy’s immigration case. With that in mind, Gari decided to accept legal guardianship of his brother, whom he hadn’t seen in more than a decade.

Just a few months later, however, Gari’s fears were realized. After his brother told the government his name and after Gari agreed to step forward as a sponsor, ICE went after him. That August, ICE agents arrived at his home, arrested him, detained him in an ICE facility in Chaparral, New Mexico and placed him in deportation proceedings.296 The immigration agents even looked for his wife, Marisol, before they finally took Gari away.

Marisol holds her seven-year old son's legs over her own as she holds him in her lap.
Marisol holds her 7-year-old son as she speaks to immigration attorneys at the Santa Fe Dreamers Project. (Photo: Gabriela Campos/The New Mexican)

A. ICE mined child welfare records to target deportations.

In the last two decades, the number of unaccompanied children fleeing violence and poverty by crossing the U.S. border has risen by an order of magnitude, from just under 5,000 in 2003 to nearly 50,000 in 2018.297 Those children are often covering vast distances and dangerous terrain to seek asylum or other protections in the U.S. and join family members on the other side of the border.298 When they arrive, they are traumatized and exhausted. 

Historically, when unaccompanied children arrived at the border, the now-defunct INS was the only agency responsible for their care and custody. The agency kept children in conditions so dire that they ultimately led to a class-action lawsuit, Flores v. Reno, which alleged deplorable conditions in INS facilities, including children being housed in the same facilities as adults, being subjected to strip searches, and lacking education and recreation – all while INS refused to release them to responsible adult guardians who wanted to care for them properly.299

The suit ultimately ended in a settlement agreement that set the standards for how children in INS custody should be treated, including requirements for clean water, food and the prioritization of the placement of a child with a relative or guardian so as to minimize their time in detainment.300 With the Homeland Security Act of 2002, the job of caring for unaccompanied children arriving in the U.S. was separated from federal immigration enforcement and instead placed with ORR within HHS,301 an agency better suited to care for children.

Today, under the framework established by that law, unaccompanied children are required to be moved from the custody of immigration enforcement agencies like CBP or ICE and into the care of ORR as quickly as possible. When an unaccompanied child reaches the U.S. border and is encountered by border patrol or another arm of DHS, they must be referred to ORR within 72 hours for care while they await legal review of their case.302 ORR has binding obligations, via the Flores settlement and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), to find the “least restrictive setting that is in the best interest of the child” and to release the child into that setting promptly.303 Whenever possible, that means that ORR should find family members or guardians who can sponsor the child.304

To find potential sponsors, ORR relies on information that the minors themselves are able to provide. Upon intake, staff members ask the child if they have relatives or guardians with whom they intend to live within the U.S. If the child is able to provide this information, ORR will contact the potential sponsor to ask if they are willing to step up and take care of the child.305

But before releasing a child into a sponsor’s custody, ORR is responsible for assessing the suitability of the sponsor and, when relevant, verifying that the adult is a relative or guardian of the child. Those who apply to sponsor a child must provide ORR extensive personal documentation: their contact information, proof of address, information about others living in the household, financial information, and information about their relationship to the child.306 The sponsor is also subjected to a public records check and fingerprints are collected for a criminal background check.307 Sharing such personal data is in many cases a difficult choice but one that thousands of people have made as they understand that they may offer the only way out of a detention facility for a child they care about. In sharing that information, they must trust that ORR has only the child’s best interests in mind.

Under the Trump administration, ICE exploited that trust to target deportations of the family members who came forward to care for unaccompanied children. In May 2017, ICE began its Human Smuggling Disruption Initiative, supposedly intended to target human smuggling and trafficking organizations. That initiative was an “interagency 90- to 120-day operation” with a focus on the “identification, investigation, and arrest of human smuggling facilitators, including, but not limited to, parents and family members.”308

ICE agents mined data provided by unaccompanied children and their sponsors to build “target packages” of sponsors.

Under this operation, ICE agents mined years of ORR records containing information provided by unaccompanied children and their potential sponsors. The agency used Nlets to receive information submitted by ORR and compiled the data in the form of “target packages” on potential sponsors.309 ICE took those target packages and opened cases in Palantir’s Investigative Case Management (ICM) software, a system that helps agents manage investigations and that integrates a multitude of other data streams from sources within law enforcement.310

In the end, despite its stated purpose, ICE used the initiative almost exclusively to target potential sponsors of unaccompanied children rather than human smuggling operatives. Out of the more than 400 people who were arrested during this program, the vast majority were never charged with smuggling crimes but rather only with civil immigration infractions.311 ICE not only targeted potential sponsors, but it also made “collateral arrests” of people found to be living in a potential sponsor’s household.312

ICE’s actions had immediate effects on the well-being of children and their potential sponsors. In a December 2017 letter to the DHS’ Office of Civil Rights and Civil Liberties, eight civil rights organizations documented the harms already occurring to children and sponsors. The letter noted that potential sponsors grew fearful that stepping up to care for a child would lead to their own arrest or the arrest of their family members, and they were less likely to come forward, leaving children to languish for lengthening amounts of time in detention. Their prolonged stays also contributed to severe bed shortages in government shelters, creating a backlog of children in crowded cells at Border Patrol stations that lacked basic equipment for their care.313

The data-sharing policy also had devastating impacts on sponsors and the members of their households. Families who had already been reunited with a child through ORR began receiving unexpected visits from ICE, and sponsors who had committed to caring for a child were rewarded with interrogation and arrest, separating them not only from their sponsor child but also often from their own children as well. In the face of new and unexpected legal challenges, families faced financial and housing instability, and children reported experiencing significant mental health consequences.314

“... the increase in prosecutions would be reported by the media and it would have a substantial deterrent effect.”

The harm ICE was causing to these children and that their U.S. sponsors faced was not the byproduct of ill-conceived border security measures; it was an intentional part of the policy. A memo leaked to Senator Jeff Merkley (D-OR) in 2019 shows that the targeting of potential sponsors for deportation was intentionally designed to deter future asylum seekers, with the full knowledge that it would negatively impact children already in custody.315 The memo, dated December 2017, details how a formal data-sharing agreement with ORR furthers that goal.

An excerpt from a DHS internal memo, “Policy Options to Respond to Border Surge of Illegal Immigration,” is depicted. The excerpt details the impacts of using background checks to identify and remove sponsors of unaccompanied migrant children.
Excerpt from “Policy Options to Respond to Border Surge of Illegal Immigration,” a DHS internal memo obtained and released by Senator Jeff Merkley (D-OR) in January 2019. (Photo: Office of Sen. Merkley)

In the face of mounting evidence of the harms this policy caused, ORR and ICE decided to formalize the policy. In a Memorandum of Agreement dated April 2018, ORR agreed to provide ICE with “the name, date of birth, address, fingerprints […], and any available identification documents or biographic information regarding the potential sponsor and all adult members of the potential sponsor’s household.”316 That gave ICE not only access to historical ORR data but ongoing information about potential sponsors and the members of their households.

With the information provided directly from the agency statutorily bound to serve the “best interests of the child,” ICE proceeded to target and arrest hundreds of potential sponsors who had stepped up to care for children who otherwise would have remained in detention. According to congressional testimony from Matthew Albence, the then-acting director of ICE, the agency had arrested approximately 330 potential sponsors based on information obtained via the data-sharing program before it ended.317 That is in addition to the roughly 400 arrested during the pilot program.

With every passing month, the negative consequences of the ICE-ORR data-sharing policy continued to accumulate. Fewer and fewer potential sponsors were willing to step up for fear of risking arrest themselves or for others in their family. A survey conducted by the Women’s Refugee Commission and NIJC of people working with unaccompanied children (e.g., child advocates, lawyers, biometric technicians) found that 75% of respondents knew of potential sponsors who had not come forward for fear of the data-sharing agreement, and two-thirds of those knew of multiple cases.318 The fear was not limited to sponsors who were themselves undocumented; because the sponsorship application asks for all members of the household the child would join, sponsors could be deterred from stepping up as a result of the need to protect other relatives living in their home.

Unaccompanied minors were left to spend prolonged time in ORR facilities. The average length of time a child spent in detention more than doubled between 2017 and 2019.319 The number of children kept in detention also soared; between summer 2017 and summer 2018, the number of migrant children in detention increased fivefold, from 2,400 to 12,800.320 Meanwhile, the backlog continued to grow at Border Patrol stations, where thousands of children sat in cramped holding cells waiting for space to open up in ORR shelters.321

As it became more and more glaringly evident that the ICE-ORR data-sharing policy violated the Flores settlement and TVPRA322 and as the public outcry grew louder, lawmakers attempted to intervene. The FY19 Appropriations Bill barred DHS from using funds to “place in detention, remove, refer for a decision whether to initiate removal proceedings, or initiate removal proceedings against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child.”323 (The Center on Privacy & Technology is proud to have partnered with the Brennan Center for Justice, NIJC and a coalition of dozens of other civil society organizations to press for this provision.)

Still, the appropriations rider did not legally bar the agencies from sharing data for this purpose, nor did it cut off funding in every instance. It wasn’t until March 2021 that the Memorandum of Agreement was officially ended and replaced by one that no longer commits ORR to sharing sponsor data like fingerprints and biographic information with ICE.324

Unfortunately, this story is not the only one of its kind. The fact that the ICE-ORR data-sharing agreement deterred potential sponsors from coming forward to care for unaccompanied children, causing them to languish in prolonged detention at the border, must not be viewed as an isolated atrocity. It must be understood as part of a much broader pattern by which ICE uses surveillance to target, coerce and exploit some of the most vulnerable people in our country.

B. ICE surveillance causes clear and measurable chilling effects on people’s ability to access basic necessities.

Originating in First Amendment doctrine, the phrase “chilling effects” captures the idea that some law or government action deters people from engaging in activity protected by the Constitution, largely for fear of prosecution or due to uncertainty about the legal process.325 When it comes to surveillance, that sense of uncertainty—around what is known by the surveiller, where and how one might be watched, as well as what the consequences of that observation may be—is what makes it especially effective at chilling behaviors.326

However, as was made clear by the deterrent effects of the ICE-ORR data-sharing agreement, surveillance by immigration enforcement chills actions far beyond those protected by the First Amendment alone. In addition to inhibiting speech or assembly, ICE surveillance—or even just the possibility of surveillance—also deters people from participating in a broad range of basic activities necessary for health and well-being.

  • 325. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the Chilling Effect, 58 B.U.L.Rev. 685, 685–732 (1978).
  • 326. Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 491–499 (2006).

1. Surveillance drives immigrants to avoid institutional systems, regardless of the purpose of those systems.

The sociologist Sarah Brayne introduced the concept of “system avoidance” to capture how concerns about law enforcement surveillance can dampen individuals’ willingness to participate in essential activities.327 Through two longitudinal, nationally representative surveys with American youth, Brayne found that individuals who have had any contact with the criminal legal system—ranging from being stopped briefly on the street to being incarcerated—are less likely to interact with record-keeping institutions such as banks, hospitals, employers and schools compared to people who have not had contact with the criminal legal system. At the same time, contact with the criminal legal system did not decrease the rate at which people interacted with non-record-keeping institutions like volunteer organizations and religious groups, which suggests that individuals’ avoidance is closely tied with the act of record-keeping and concerns about how that information may be used.

Similarly, sociologist Asad L. Asad observed that fears about deportation correlated with immigrants’ concerns about being “in the system.”328 Drawing on 50 in-depth interviews with Latin American immigrants in Dallas, Asad found that undocumented participants described a feeling of safety in keeping their information private from record-keeping institutions. Some undocumented immigrants even avoided processes that could legalize their status, because participation would require them to become visible to an institution that could deport them. Among authorized immigrants, such as lawful permanent residents or individuals with DACA protections, Asad observed that being “documented” could actually increase fear. Immigrants with legal status expressed concerns that any misstep—misfiled paperwork, an unpaid traffic ticket—could be noted in their records and put their status at risk. 

Those fears can last for generations. In a survey of adult children of immigrants, many of whom are themselves U.S. citizens, Desai et al. found that system avoidance is associated with having an undocumented parent.329

Those studies offer a lens through which we can begin to understand what has been reported both anecdotally and in the academic literature: Concerns about data sharing cause immigrants to avoid record-keeping institutions that are critical to the well-being of themselves and their families. That fear persists even when it comes to engaging with institutions that are unrelated to immigration. The rest of this section demonstrates how surveillance chills participation in three specific contexts: child welfare, health care, and access to legal systems.

  • 327. Sarah Brayne, Surveillance and System Avoidance: Criminal Justice Contact and Institutional Attachment, 79 Am. Socio. Rev. 367–391 (2014).
  • 328. Asad L. Asad, On the Radar: System Embeddedness and Latin American Immigrants’ Perceived Risk of Deportation, 54 L. & Soc’y Rev. 133–167 (2020).
  • 329. Sarah Desai, Jessica Houston Su & Robert M. Adelman, Legacies of Marginalization: System Avoidance among the Adult Children of Unauthorized Immigrants in the United States, International Migration Rev. (Dec. 11 2019).

2. Surveillance chills people’s use of services that promote children’s well-being.

Research suggests that fears about ICE surveillance deter undocumented families from seeking benefits to support their own and their children’s well-being. The children of undocumented parents are often U.S. citizens, which means that they may be eligible for programs like food assistance. However, the willingness of households to sign up for those programs can be influenced by the fear of surveillance by immigration enforcement. A study that used data from a nationally representative, longitudinal survey of household food consumption for families with children found that food insecurity in Mexican noncitizen households with children increased nearly 10 percentage points in metro areas where local law enforcement had entered into 287(g) agreements to share data with and cooperate with immigration enforcement.330

  • 330. Stephanie Potochnick, Jen-Hao Chen & Krista Perreira, Local-Level Immigration Enforcement and Food Insecurity Risk among Hispanic Immigrant Families with Children: National-Level Evidence, 19 J. Immigrant & Minority Health 1042–1049 (2017).

Sidebar 3. Harms of Chilling Effects Reach Far Beyond Undocumented People

Avoidance of record-keeping institutions hurts individuals, but those harms also reverberate throughout entire families and communities. Many immigrant families are mixed-status families, which means that different members of the household have different legal statuses and therefore face different levels of risk of deportation. The impacts of system avoidance by undocumented parents therefore extend to their children, almost 90% of whom are themselves U.S. citizens.331 Those impacts are likewise felt throughout the community. If some community members avoid seeking health care, for example, otherwise preventable health issues can become debilitating and costly for the rest of the community.332 In schools, food insecurity that a particular child experiences can disrupt the learning environment for all students.333

  • 331. Jeffrey S. Passel & D’Vera Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, Pew Research Center (Nov. 27 2018), https://www.pewresearch.org/hispanic/2018/11/27/u-s-unauthorized-immigrant-total-dips-to-lowest-level-in-a-decade/.
  • 332. Mónica Ruiz-Casares, Cécile Rousseau, Ilse Derluyn, Charles Watters & François Crépeau, Right and Access to Healthcare for Undocumented Children: Addressing the Gap Between International Conventions and Disparate Implementations in North America and Europe, 70 Soc. Sci. & Med. 329–36 (2010).
  • 333. K. Alaimo, C.M. Olson, E.A. Frongillo Jr., & R.R. Briefel, Food Insufficiency, Family Income, and Health in U.S. Preschool and School-Aged Children, 13 Fam. Econ. & Nutrition Rev. 44–53 (2001).

3. Surveillance drives people to avoid health care.

Concerns about data sharing between hospitals or clinics and government agencies also deter immigrants and their families from seeking health care. A review of studies that examined barriers to health care for undocumented immigrants found that a majority of those studies report immigrants’ concerns that providing documentation or using a health care or benefit service could result in them being reported to immigration authorities.334

Health care providers also offer anecdotal reports about how fears about immigration enforcement can impact individuals’ willingness to seek care. The Mile High Health Alliance, a multi stakeholder collaboration in Denver aimed at addressing challenges to health care access, conducted a survey of member and partner clinics about immigrant and refugee utilization of health services beginning in 2017.335 In the survey, many clinics reported that patients expressed concerns about information sharing, which led them to opt out of Medicaid and other benefits they were entitled to for fear of being in a “government system.” Some patients even refused to answer some questions from their own doctors, such as questions about their country of birth. One patient whose child was undocumented spent their appointment asking about sanctuary policies that restrict information sharing and other forms of cooperation with immigration enforcement.

Denver clinics reported that some patients opted out of Medicaid for fear of being in a “government system.”

The deterrent effect of surveillance has also been demonstrated at a larger scale and not just among people with precarious immigration statuses. A 2015 survey of Latinx U.S. citizens found that respondents would be less likely to make an appointment at a health care provider if immigration were mentioned during the scheduling process.336 The effect is even more pronounced in those who have seen immigration enforcement activities up close. Latinx U.S. citizens who knew someone who was undocumented or who had been deported were found to be more skeptical of the security of the information they share with health care providers, expecting that it might be shared beyond the provider.

  • 336. Francisco I. Pedraza, Vanessa Cruz Nichols & Alana M. W. LeBrón, Cautious Citizenship: The Deterring Effect of Immigration Issue Salience on Health Care Use and Bureaucratic Interactions among Latino US Citizens, 42 (5) J. Heath Pol. Pol’y & L. 925–60 (2017).

4. Surveillance deters people from interacting with the legal system and other government entities.

Data sharing among government agencies and immigration enforcement has been shown to discourage immigrants from interacting with government entities and participating in legal processes. A survey by the Urban Institute showed that families with immigrant members were less likely to participate in a number of routine activities like applying for a driver’s license, talking to police, reporting crime, using public transportation and talking to school officials for fear of needing to disclose their immigration status—even though many of those institutions are not formally connected to federal enforcement.337

People with immigrant family members were less likely to drive, apply for a driver’s license, talk to the police, visit a doctor, report a crime, use public transportation or talk to school officials for fear of needing to disclose their immigration status.

Other studies have demonstrated that the fear of data sharing plays a key role in deterring immigrants and their families from interacting with bureaucratic systems. A survey of Latinx immigrants found that respondents reported they would be less likely to interact with legal and bureaucratic systems if they knew that the entities were sharing data with ICE.338 Specifically, their findings describe the way that ICE data sharing chills willingness to report a crime to police, testify in court and access resources for child care.

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