The Boston Globe called on President-elect Donald Trump on Tuesday to make immigration arrests and court records public, a historic step that would shine light on a system long shrouded in secrecy.
“President Obama should not have allowed this vast system to jail and deport people in secret, and you should not, either,” Globe editor Brian McGrory said in the letter to Trump. “We urge you to end this secrecy once and for all.”
In judicial proceedings, criminal arrests and court records are public — while immigration agencies fall under the executive branch, where officials have long insisted on keeping such records private. But the Globe has found that the secrecy — which officials say protects immigrants’ privacy — has endangered Americans as well as immigrants.
Trump has pledged to swiftly deport 2 million to 3 million immigrants with criminal records, which could exceed the number of immigrants expelled from the United States during Obama’s two terms. Under current practice, the names of people arrested and the evidence against them are not available in public records.
Federal immigration enforcement, which began more than 125 years ago, has expanded over the past three decades, from 30,000 deportations in 1990 to over 400,000 in 2012, at a cost of billions of dollars to taxpayers.
Dozens of immigrants have died in detention, and hundreds of thousands have faced deportation without legal aid, according to federal statistics. Indigent immigrants are not entitled to lawyers at the government’s expense.
“Records of immigration arrests and hearings should be public,” said Kate Martin, a senior fellow at the Center for American Progress in Washington and a lawyer who has fought the secret immigration arrests in federal court. “Secret arrests are anathema to democracy. Public information about who the government arrests, and why, is fundamental to having an accountable government.”
Others said lifting the secrecy would also hold the government accountable for its policies. For years, officials have secretly released thousands of foreign criminals to American communities, without informing the public, because their home countries refused to take them back.
After filing a federal lawsuit to get the criminals’ names, the Globe found that they reoffended at a much higher rate than government officials had told Congress. Trump cited that report in his August speech on immigration in Phoenix.
“To me, it’s a public safety issue,” said Thomas Dupree, a Washington lawyer and a former deputy assistant attorney general during the Bush administration. “In the vast majority of cases, there is no privacy interest that is strong enough to outweigh the serious public safety concerns.”
Lawyers say nothing in federal law prohibits the US government from changing its policies and disclosing the arrests of illegal immigrants and other temporary noncitizens.
The Department of Homeland Security is in charge of detaining and deporting immigrants, mainly through Customs and Border Protection and Immigration and Customs Enforcement, while the Department of Justice runs the immigration courts under its Executive Office for Immigration Review.
One argument against making immigration arrest and court records public centers on the idea that immigrants here illegally could become targets for hate crimes.
Advocates of that view also point out that identifying immigrants expelled from the United States might put them at risk in their homelands. In asylum cases, for instance, people may reveal information about sexual assaults, sexual orientation, and government persecution that could be used against them or their families.
“I’d be nervous about it, especially where somebody has applied for political asylum or other sensitive applications,” said Harvey Kaplan, a retired immigration lawyer who practiced for over 40 years in Massachusetts.
But Martin, the Washington lawyer who fought secret arrests, alongside the American Civil Liberties Union and other groups, said the immigration courts could seal sensitive records that could put immigrants at risk back home if they are deported.
She was director of the Center for National Security Studies when the government rounded up people thought to be Arab and Muslim in the aftermath of the Sept. 11, 2001, terror attacks. Officials did not identify 762 people arrested for civil immigration violations.
The center and others sued to get the detainees’ names, but they lost on appeal.
The Globe’s letter follows years of efforts by the newspaper to crack open the immigration system, starting in 2012 with a series on the secrecy. The Globe detailed deaths in detention, immigration courts far from public view, and the release of criminals without notifying their victims.
The Globe letter to Trump references the case of 29-year-old Irene Bamenga, a French citizen who had lived in Massachusetts. She had never committed a crime but was jailed in 2011 for overstaying her visa.
She said she needed heart medication, but a federal report found that she either did not get it, or got reduced doses. Twelve days later, she died in her bunk in a New York jail.
Her arrest was made public only after her death.