Privacy Act of 1974; Department of Homeland Security U.S. Immigration and Customs Enforcement-009 External Investigations System of Records

AGENCY:

Privacy Office, DHS.

ACTION:

Notice of Privacy Act system of records.

SUMMARY:

In accordance with the Privacy Act of 1974 the Department of Homeland Security is updating and reissuing a system of records notice titled, “Department of Homeland Security U.S. Immigration and Customs Enforcement—009 External Investigations System of Records.” Categories of individuals, purpose, and routine uses of the system of records have been updated to clarify the nature of the law enforcement investigatory records maintained by U.S. Immigration and Customs Enforcement. Specifically, the amended system of records will include certain investigatory records that are generated prior to the creation of an official case file, certain records pertaining to immigration status inquiries that do not constitute an official criminal investigation, and certain records pertaining to immigration and criminal background checks that are conducted on behalf of the legislative and executive branches of the U.S. Government. The Privacy Act exemptions for this system go unchanged and the Final Rule remains in place. This updated system will continue to be included the Department's inventory of record systems.

DATES:

Written comments must be submitted on or before February 4, 2010. This amended system will be effective February 4, 2010.

ADDRESSES:

You may submit comments, identified by docket number DHS-2009-0127 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: 703-483-2999.
• Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
• Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received will be posted without change to http://www.regulations.gov,, including any personal information provided.
• Docket: For access to the docket to read background documents or comments received go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For general questions please contact: Lyn Rahilly (202-732-3300), Privacy Officer, U.S. Immigration and Customs Enforcement, Washington, DC 20536. For privacy issues please contact: Mary Ellen Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

U.S. Immigration and Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland Security (DHS). The agency was created to more effectively enforce our immigration and customs laws and to protect the United States against terrorist attacks. ICE does this by targeting the people, money and materials that support terrorism and other criminal activities. ICE investigates on its own and in conjunction with other agencies a broad range of illegal activities, such as terrorism, organized crime, gangs, child exploitation, and intellectual property violations.

DHS is updating and reissuing a system of records notice titled “DHS/ICE—009 External Investigations System of Records.” The purpose of this update is to add and modify the categories of individuals, purpose statement, and routine uses for the system of records in order to clarify the nature of the law enforcement investigatory records maintained by ICE. The general purpose of this system of records is to document external audits, inquiries and investigations performed by ICE pertaining to suspected violations of laws regulating the movement of people and goods into and out of the United States in addition to other violations of other laws within ICE's jurisdiction; to facilitate communication between ICE and foreign and domestic law enforcement agencies for the purpose of enforcement and administration of laws, including immigration and customs laws; and to provide appropriate notification to victims in accordance with Federal victim protection laws. With this amendment, the purpose statement has been updated to include the following: To support inquiries and investigations performed to enforce the administrative provisions of the Immigration and Nationality Act (INA); to support requests from the U.S. Congress relating to potential recipients of private immigration relief; and to identify potential criminal activity, immigration violations, and threats to homeland security; to uphold and enforce the law; and to ensure public safety.

The legal authority for the operation of this system is the Homeland Security Act of 2002 (6 U.S.C. 201-203); the Immigration and Nationality Act, as amended (Title 8, United States Code, “Aliens and Nationality”); Title 18, United States Code, “Crimes”; Title 19, United States Code, “Customs Duties”; 22 U.S.C. 2778; 40 U.S.C. 1315; 50 U.S.C. 1701 and 2410.

With this update and republication of the DHS/ICE—009 External Investigation System of Records, the categories of records and individuals has been expanded to cover certain investigatory records that are generated prior to the creation of an official case file, certain records pertaining to immigration status inquiries that do not constitute an official criminal investigation, records pertaining to employment eligibility inquiries and investigations, records pertaining to law enforcement investigations of U.S. export control violations, and certain records pertaining to immigration and criminal background checks that are conducted on behalf of the legislative and executive branches of the U.S. Government.

New routine uses are proposed to:

(1) Cover data sharing between ICE and other Executive Branch Departments for the purpose of facilitating their missions, including the Department of State (DOS) and the Department of Justice's (DOJ) Organized Crime Drug Enforcement Task Force (OCDETF) Program and the International Organized Crime Intelligence and Operations Center (IOC-2). This routine use is compatible with the general criminal and immigration law enforcement purposes of this system of records.

(2) Allow for sharing with Federal law enforcement and/or regulatory agencies, technical or subject matter experts, or any other entities involved in or assisting with ICE's law enforcement efforts pertaining to suspected or confirmed export violations in accordance with Federal export laws. This routine use is compatible with the purpose of the system of records in that it allows ICE to obtain information necessary to carry on its investigations into violations of Federal export laws.

(3) Allow for sharing of information with the U.S. Senate Committee on the Judiciary or the U.S. House of Representatives Committee on the Judiciary and the Office of Management and Budget (OMB) on individuals who are potential recipients for private immigration relief. This routine use is compatible with the purpose of the system of records in that it allows ICE to provide information from this system of records requested by Congress about an individual Congress is considering for private immigration relief.

(4) Allow data sharing between ICE and other organizations for the purpose of law enforcement intelligence. This routine use is compatible with the stated purpose of the system to identify criminal activity and other threats and to ensure public safety.

(5) Allow data sharing between ICE and other law enforcement agencies for the purpose of collaboration, coordination, and de-confliction of cases. This routine use is compatible with the stated purpose of the system to identify criminal activity and other threats and to ensure public safety.

An existing routine use is updated to cover all potential data sharing partners ICE may engage with, including organizations and authorities that may not be law enforcement agencies.

This system is exempt from certain provisions of the Privacy Act to avoid compromise of law enforcement interests and information.

II. Privacy Act

The Privacy Act embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency for which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass United States citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of DHS by complying with DHS Privacy Act regulations, 6 CFR Part 5.

The Privacy Act requires each agency to publish in the Federal Register a description denoting the type and character of each system of records that the agency maintains, and the routine uses that are contained in each system in order to make agency record keeping practices transparent, to notify individuals regarding the uses to which personally identifiable information is put, and to assist individuals to more easily find such files within the agency. Below is the description of the DHS/ICE—009 External Investigations System of Records.

In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget (OMB) and to Congress.

System of Records

DHS/ICE-009

SYSTEM NAME:

ICE External Investigations.

SECURITY CLASSIFICATION:

Unclassified, and Law Enforcement Sensitive (LES).

SYSTEM LOCATION:

Records are maintained at U.S. Immigration and Customs Enforcement Headquarters in Washington, DC and in field offices.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Categories of individuals covered by this system include:

(1) Individuals who are the subjects of current or previous law enforcement investigations into violations of U.S. customs and immigration laws, as well as other laws and regulations within ICE's jurisdiction, including investigations led by other domestic or foreign agencies where ICE is providing support and assistance;

(2) Individuals who are the subjects of investigatory referrals from other agencies, tips, and other leads acted on by ICE pertaining to potential violations of U.S. customs and immigration law, as well as other laws and regulations within ICE's jurisdiction;

(3) Individuals who are or have been the subject of inquiries or investigations conducted by ICE related to the enforcement of the employment control provisions of the Immigration and Nationality Act (INA) and related criminal statutes including individuals who are being investigated or have been investigated to determine whether their employment-related activities are in violation of the employment control provisions of the INA and/or related criminal statutes; individuals who employ others in their individual capacity whether related to a business activity or not; and individuals who have submitted completed Form I-9 (Employment Eligibility Verification Form) and other documentation to establish identity and work eligibility/authorization under the employment control provisions of the INA;

(4) Individuals who are being considered for private immigration relief by the U.S. Senate Committee on the Judiciary or the U.S. House of Representatives Committee on the Judiciary;

(5) Victims and witnesses in ICE law enforcement investigations described above;

(6) Fugitives with outstanding Federal or State warrants;

(7) Operators of vehicles crossing U.S. borders who are the subject of an ICE investigation, including but not limited to, drivers of automobiles, private yacht masters, private pilots arriving in or leaving the United States; and

(8) Regulatory and licensing agency personnel and other individuals who are involved with or supporting law enforcement investigations pertaining to U.S. export control matters conducted by ICE.

CATEGORIES OF RECORDS IN THE SYSTEM:

Categories of records in this system may include:

Subject Information:

• Name and Aliases;
• Addresses;
• Social Security Number;
• Armed Forces Number;
• Alien Registration number;
• Date and place of birth;
• Citizenship;
• Passport and visa information;
• License information for owners and operators of vehicles, aircraft, and vessels;
• Information related to the subject's entry and exit of the United States; and
• Other biographical information.

Victim and Witness Records:

• Name;
• Contact information, including address and telephone numbers;
• Sworn statements, reports of interview, and testimony; and
• Other relevant biographical and background information, such as employment, and education.

Investigatory and Evidentiary Records:

• ICE case number;
• Incident reports;
• I-9 Forms and other records pertaining to employment control audits, inquiries, and investigations;
• Reports and memoranda prepared by investigators during the course of the investigation or received from other agencies participating in or having information relevant to the investigation;
• Law enforcement intelligence reports;
• Electronic surveillance reports;
• Asset ownership information such as registration data and license data, for vehicles, vessels, merchandise, goods and other assets;
• Information about duties and penalties owed, assessed, and paid;
• Information about goods and merchandise, such as import and export forms and declarations filed, lab or analytical reports, valuation and classification of goods, and other relevant data;
• Correspondence and court filings;
• Information received from other governmental agencies, confidential sources, and other sources pertaining to an investigation, as well as investigatory referrals from other agencies, tips, and other leads pertaining to potential violations of U.S. customs and immigration law, as well as other laws and regulations within ICE's jurisdiction; and
• Any other evidence in any form, including papers, photographs, electronic recordings, electronic data, or video records that was obtained, seized, or otherwise lawfully acquired from any source during the course of the investigation.

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

5 U.S.C. 301; 6 U.S.C. 201-203; 18 U.S.C. 554; 19 U.S.C. 66; 19 U.S.C. 1431; 19 U.S.C. 1603; 19 U.S.C. 2072; 22 U.S.C. 2778; 40 U.S.C. 1315; 50 U.S.C. 1701; 50 U.S.C. 2410; Title 18, United States Code; Title 19, United States Code; 31 CFR part 103; Title 40 United States Code.

PURPOSE(S):

(1) To document external audits, inquiries and investigations performed by ICE pertaining to suspected violations of laws regulating the movement of people and goods into and out of the United States in addition to other violations of other laws within ICE's jurisdiction;

(2) To facilitate communication between ICE and foreign and domestic law enforcement agencies for the purpose of enforcement and administration of laws, including immigration and customs laws;

(3) To provide appropriate notification to victims in accordance with Federal victim protection laws;

(4) To support inquiries and investigations performed to enforce the administrative provisions of the INA;

(5) To support requests from the U.S. Senate Committee on the Judiciary and the U.S. House of Representatives Committee on the Judiciary relating to proposed recipients of private immigration relief; and

(6) To identify potential criminal activity, immigration violations, and threats to homeland security; to uphold and enforce the law; and to ensure public safety.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records of information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:

A. To the Department of Justice or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when:

1. DHS or any component thereof;

2. Any employee of DHS in his/her official capacity;

3. Any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee; or

4. The United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and DHS determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which DHS collected the records.

B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.

C. To the National Archives and Records Administration or other Federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.

D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.

E. To appropriate agencies, entities, and persons when:

1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;

2. The Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) that rely upon the compromised information; and

3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.

G. To an appropriate Federal, State, Tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.

H. To an appropriate Federal, State, local, Tribal, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit, or if the information is relevant and necessary to a DHS decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant or other benefit and disclosure is appropriate to the proper performance of the official duties of the person making the request.

I. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena.

J. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the officer making the disclosure.

K. To an appropriate Federal law enforcement and/or regulatory agency, technical or subject matter expert, or any other entity involved in or assisting with law enforcement efforts pertaining to suspected or confirmed export violations in accordance with Federal export laws, including the Arms Export Control Act, 22 U.S.C. 2778 and the Export Administration Act, 50 U.S.C. 2410.

L. To Federal and foreign government intelligence or counterterrorism agencies or components where DHS becomes aware of an indication of a threat or potential threat to national or international security, or where such use is to assist in anti-terrorism efforts and disclosure is appropriate to the proper performance of the official duties of the person making the disclosure.

M. To victims regarding custodial information, such as release on bond, order of supervision, removal from the U.S., or death in custody, about an individual who is the subject of a criminal or immigration investigation, proceeding, or prosecution.

N. To any person or entity to the extent necessary to prevent immediate loss of life or serious bodily injury, such as disclosure of custodial release information to witnesses who have received threats from individuals in custody;

O. To international, foreign, and intergovernmental agencies, authorities, and organizations in accordance with law and formal or informal international arrangements.

P. To a public or professional licensing organization when such information indicates, either by itself or in combination with other information, a violation or potential violation of professional standards, or reflects on the moral, educational, or professional qualifications of an individual who is licensed or who is seeking to become licensed.

Q. To a Federal, State, Tribal, local or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence information, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence.

R. To the Department of State when it requires information to consider and/or provide an informed response to a request for information from a foreign, international, or intergovernmental agency, authority, or organization about an alien or an enforcement operation with transnational implications.

S. To a criminal, civil, or regulatory law enforcement authority (whether Federal, State, local, territorial, Tribal, international, or foreign) where the information is necessary for collaboration, coordination, and de-confliction of investigative matters, to avoid duplicative or disruptive efforts, and for the safety of law enforcement officers who may be working on related investigations.

T. To the Department of Justice to facilitate the missions of the Organized Crime Drug Enforcement Task Force (OCDETF) Program and the International Organized Crime Intelligence and Operations Center (IOC-2).

U. To the U.S. Senate Committee on the Judiciary or the U.S. House of Representatives Committee on the Judiciary when necessary to inform members of Congress about an alien who is being considered for private immigration relief.

V. To the Office of Management and Budget (OMB) in connection with the review of private relief legislation as set forth in OMB Circular No. A-19 at any stage of the legislative coordination and clearance process as set forth in the Circular.

W. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information or when disclosure is necessary to preserve confidence in the integrity of DHS or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.

DISCLOSURE TO CONSUMER REPORTING AGENCIES:

None.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

Records in this system are stored electronically or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.

RETRIEVABILITY:

Records are retrieved by individual's name, date of birth, ICE investigative file number, Social Security Number, driver's license number, pilot's license number, vehicle license plate number, address, home telephone number, passport number, citizenship, country of birth, armed forces number, and date of entry into the United States.

SAFEGUARDS:

Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated system security access policies. Strict controls have been imposed to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions. The system maintains a real-time auditing function of individuals who access the system. Additional safeguards may vary by component and program.

RETENTION AND DISPOSAL:

Investigative files concerning munitions control cases are permanent records that are transferred to the Federal Records Center after one year, and then transferred to the National Archives and Records Administration (NARA) fifteen years after case closure. Records for other closed investigative cases are maintained in the investigating ICE Headquarters or field office for either one year or five years after the end of the fiscal year in which the related investigative file is closed, depending on the category of the case. Those records are then transferred to the Federal Records Center where they are held for periods of time ranging from five to twenty-five years, depending on the category of the case, after which they are destroyed. Destruction is by burning or shredding. DHS is proposing to retain electronic records associated with law enforcement investigations for seventy-five years after case closure, after which they will be destroyed. An updated schedule for investigative records is under review and will be submitted to NARA for approval.

SYSTEM MANAGER AND ADDRESS:

Immigration and Customs Enforcement, Mission Support Division, Unit Chief, Executive Information Unit/Program Management Oversight (EIU/PMO), Potomac Center North, 500 12th Street, SW., Washington, DC 20536.

NOTIFICATION PROCEDURE:

The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, ICE will consider requests to determine whether or not information may be released. Thus, individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the U.S. Immigration and Customs Enforcement FOIA Officer, whose contact information can be found at http://www.dhs.gov/foia under “contacts.” If an individual believes more than one component maintains Privacy Act records concerning him or her, the individual may submit the request to the Chief Privacy Officer and Chief Freedom of Information Act Officer, Department of Homeland Security, 245 Murray Drive, SW., Building 410, STOP-0550, Washington, DC 20528.

When seeking records about yourself from this system of records or any other Departmental system of records your request must conform with the Privacy Act regulations set forth in 6 CFR Part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief Freedom of Information Act Officer, http://www.dhs.gov or 1-866-431-0486. In addition you should provide the following:

• An explanation of why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created;
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records; and
• If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his/her agreement for you to access his/her records.

Without this bulleted information, the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.

RECORD ACCESS PROCEDURES:

See “Notification procedure” above.

CONTESTING RECORD PROCEDURES:

See “Notification procedure” above.

RECORD SOURCE CATEGORIES:

ICE may receive information in the course of its law enforcement investigations from nearly any source. Sources of information include: domestic and foreign governmental and quasi-governmental agencies and data systems, public records, commercial data aggregators, import and export records systems, immigration and alien admission records systems, members of the public, subjects of investigation, victims, witnesses, confidential sources, and those with knowledge of the alleged activity.

EXEMPTIONS CLAIMED FOR THE SYSTEM:

The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(5) and (e)(8); (f); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2). To the extent a record contains information from other exempt systems of records, ICE will rely on the exemptions claimed for those systems.