#Transaction Record Analysis Center (trac)

[xtruss]

The “Unusual Nonprofit” That Helps “U.S. Immigration and Customs Enforcement (ICE)” Spy On Wire Transfers

A Little-Known Database Logs Hundreds of Millions of Wire Transfers Sent To or From Mexico, Arizona, California, New Mexico, and Texas.

— Shawn Musgrave | April 14, 2025

Photo Illustration: Fei Liu, Getty Images

When Immigration And Customs Enforcement (ICE) agents are trying to track down undocumented immigrants, they seek out all the data they can find. In Arizona, they’ve found a special trove that’s ripe for abuse.

The Transaction Record Analysis Center, or TRAC, database offers a rare glimpse into the financial lives of millions of immigrants and U.S. citizens alike. The database contains details about more than 340 million wire transfers sent via Western Union and more than two dozen other companies that immigrants rely on to send money back home.

The database contains a record of every transfer of $500 or More sent using these services to or from Mexico, Arizona, California, New Mexico, and Texas. For each transaction, TRAC captures the name and home address for both the sender and the recipient, plus dozens of other sensitive data points.

“This Database Is A Loaded Weapon Lying Around For The Taking.”

“This database is a loaded weapon lying around for the taking,” said Nathan Freed Wessler, Deputy Director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project, which has called for TRAC to be shut down. “This is a data collection program that disproportionately sweeps in the records of poor people and immigrants, groups that the Trump administration is going out of its way to target.”

TRAC is Unusual in Many Ways.

The data dragnet is powered by Arizona’s state attorney general using administrative subpoenas, which do not require a judge’s sign-off. But TRAC operates as a nonprofit and a clearinghouse for ICE and hundreds of other law enforcement agencies around the country to access the data. The current Arizona Attorney General, Kris Mayes, a Democrat, is aggressively suing the Trump administration on numerous fronts — yet the database is an invaluable potential resource for its anti-immigrant campaign. And despite being a target of privacy advocates and lawsuits for years, TRAC has continued to suck up data.

ICE has played an outsized role in TRAC over the years, chipping in data of its own at times. ICE agents have also been top users of the database, served on TRAC’s board, and even funded its operations.

But Mayes’s office and TRAC downplayed concerns that ICE might use the data to target immigrants for deportation. The database does not contain details about immigration status, they noted, and it’s intended exclusively to investigate money laundering along the border, which was how TRAC first started more than a decade ago. Before searching the data, agents must promise not to abuse their access and declare the “underlying predicate offense” for a given query, under an agreement Mayes’s office signed with TRAC in 2023.

“The Transaction Record Analysis Center (TRAC) Offers Officials A Massive Grab-Bag of Data to Root Around In.”

But privacy advocates told The Intercept that TRAC has insufficient safeguards and unacceptable risks, particularly under President Donald Trump. The Trump administration has been shifting agents at ICE and other agencies away from investigating money launderers, with orders to prioritize deportations and raids. Agents who are grabbing U.S. citizens, lawful permanent residents, and visa holders off the streets on pretext; shipping people to a mega-prison in El Salvador based on “administrative errors”; and filing questionable search warrant applications might simply lie to access data that makes the deportation machine run a bit more smoothly. On Monday, ICE inked an agreement with the IRS to obtain data about undocumented workers, including their home addresses.

“The Trump administration has already shown that it is acting recklessly at best with who it deports and why,” said Abigail Kunkler, a legal fellow at the Electronic Privacy Information Center. “TRAC offers officials a massive grab-bag of data to root around in for transactions it can label suspicious, and there isn’t currently any oversight.”

“Limitless” Investigative Power

TRAC’s origin story is a testament to that familiar bipartisan itch to expand surveillance powers. Despite an early loss in state court over the dragnet, Mayes and her predecessors — one fellow Democrat and two Republicans — used settlement agreements and administrative subpoenas to build the database into a go-to resource for cops and federal agents nationwide.

It started with one subpoena to a single company. In 2006, then-Arizona Attorney General Terry Goddard, a Democrat and former mayor of Phoenix, demanded data from Western Union about all wire transfers of $300 or More to any location in the Mexican border state of Sonora from any location worldwide over a three-year period. He did this under the state racketeering law, A.R.S. § 13-2315, which requires financial institutions to produce records in response to “reasonable” requests from the attorney general’s office.

Western Union initially proposed providing partially anonymized data to protect its customers’ privacy.

This wasn’t acceptable to Goddard and a task force of federal and state agencies, which wanted as much data as possible — including about innocent customers’ transactions — to establish “control groups.”

Western Union fought the subpoena, and in 2007 a state appellate court ruled Goddard had exceeded his authority under the racketeering law. The Arizona Court of Appeals was concerned at the subpoena’s sheer breadth, especially its geographic coverage far beyond Arizona state lines, and ruled it was not “reasonable” under the law.

“It Would Provide A Justification For Requesting Financial Data From Anywhere In The World.”

“The argument the Attorney General makes here would make the investigative power granted in A.R.S. § 13-2315 limitless,” the court found. “It would provide a justification for requesting financial data from anywhere in the world merely because it might serve to provide a baseline of ‘innocent data.’”

After losing the court battle over the subpoena, Goddard turned up the pressure on Western Union by suing it directly. In 2010, Western Union settled with the attorney general’s office and agreed to comply with subpoenas for data about Wire Transfers Above $500.

Beside the higher threshold amount, the scope of data sharing under the settlement agreement was even broader than what Goddard had previously sought. Western Union agreed to share five years’ worth of historical data and give Goddard’s office “near real time” data about transactions sent to or from ��the area within 200 miles north and south of the United States/Mexico border,” plus all of Arizona. Unlike the prior subpoena, this included portions of every state on both sides of the border.

The state attorney general’s office now had a data pipeline from one of the biggest players in the wire transfer industry. And it was just the beginning.

“Unorthodox Arrangement”

In early 2014, Western Union signed a second settlement with Goddard’s successor, Republican Tom Horne. This agreement expanded the data sharing to its current scope: all wire transfers above $500 to and from the entire country of Mexico plus the entirety of four U.S. southern border states — Arizona, California, New Mexico, and Texas — regardless of proximity to the border.

By this point, the dragnet had expanded beyond Western Union too. Horne’s office sent subpoenas to at least five of its competitors in late 2013, records show, including to MoneyGram, Sigue, and Continental Exchange Solutions.

The 2014 agreement also marked the establishment of TRAC as a separate nonprofit entity, initially bankrolled by Western Union and under the control of the attorney general’s office through its board. TRAC’s first director and president served simultaneously as a special agent supervisor at the agency, records show.

In 2015, Republican Mark Brnovich took over as Arizona’s attorney general. An early advocate for the argument that undocumented immigrants constitute an “invasion” under the U.S. Constitution, Brnovich was recently tapped as Trump’s ambassador to Serbia.

During Brnovich’s tenure, TRAC expanded rapidly, from 75 million transaction records compiled from 14 different companies in 2017 to 145 million records from 28 firms in early 2021, according to meeting minutes of TRAC’s board. In 2021 alone, TRAC added a “25% increase of data,” other minutes show. TRAC’s user base also exploded, from 300 different law enforcement agencies and 600 users in 2017 to nearly 700 agencies and 11,600 users in late 2021.

As of 2018, ICE Was The Top Agency Using The Database.

As of 2018, ICE was the top agency using the database, with almost 950 active user accounts, records show. During the Brnovich years, the agency became a key player in other ways. A top ICE agent in Phoenix joined TRAC’s board in 2017. In summer 2019, when the Western Union settlement concluded and the company was no longer on the hook to finance TRAC, ICE kicked in a year of funding.

Around this time, ICE also started contributing data about millions of wire transfers to TRAC using its own legally dubious administrative subpoenas, according to findings published by Sen. Ron Wyden, D-Ore. in 2022 and 2023. Between 2019 and 2021, agents at two different offices of ICE’s Homeland Security Investigations sent a type of federal subpoena called a “customs summons” to multiple companies, including Western Union. By law, this type of subpoena is limited to investigations related to merchandise imports and customs duties, a limitation which agents at ICE and other DHS components have flagrantly ignored before.

Some of ICE’s subpoenas covered transactions thousands of miles from the U.S.–Mexico border, demanding data for more than a dozen additional countries spanning from the Caribbean to China and parts of Europe.

The Drug Enforcement Administration and FBI had also demanded data from certain companies, Wyden found.

“This unorthodox arrangement between state law enforcement, DHS and DOJ agencies to collect bulk money-transfer data raises a number of concerns about surveillance disproportionately affecting low-income, minority and immigrant communities,” Wyden wrote in a letter to the Justice Department’s inspector general.

After Wyden raised concerns about the legality of their subpoenas, ICE withdrew them. A few months later, an HSI agent received an award from the White House for his “innovation, creativity, and foresight” in getting TRAC access to “an additional stream of millions of financial transaction records.”

Arizona Attorney General Kris Mayes during an interview with The Associated Press on November 21, 2024, in Philadelphia. Photo: Matt Slocum/AP

TRAC Under Mayes

Mayes narrowly won the state attorney general’s race in 2022, and she was sworn in as Wyden and the ACLU brought renewed scrutiny to TRAC. Once a Republican, Mayes switched parties in 2019, a change she attributed recently to her revulsion at the first Trump administration’s immigration crackdown.

From the beginning of her administration, Mayes has defended TRAC. Like her predecessors, Mayes has overseen its continued expansion using administrative subpoenas under A.R.S. § 13-2315, but her office declined to comment on how the agency squares these subpoenas with the state appellate court’s decision from 2007. As of July 2024, 22 companies were “actively producing records” to TRAC, according to an HSI newsletter.

“The subpoenas are just as illegal now as they were several years ago,” the ACLU’s Wessler said.

Mayes has also taken steps to protect TRAC against legal challenges.

Shortly before she took office, four people whose data was swept up in TRAC filed a class-action lawsuit in federal court against Western Union, MoneyGram, and other companies the plaintiffs used to send money to family abroad, as well as DHS and ICE. The plaintiffs alleged TRAC’s data sharing violates both federal and California financial privacy laws. In their defense, the companies pointed to the subpoenas they received over the years, including from Mayes’s staff.

TRAC wasn’t a defendant in the lawsuit, nor was the Arizona attorney general’s office. But in September, Mayes submitted a letter to the court defending TRAC. Mayes emphasized that she had “embraced and furthered” the program and claimed her office’s success at combating transnational criminal groups was “highly dependent” on her “ability to issue and enforce the subpoenas.”

“Because a primary issue before this Court is the legality of the Defendant [companies’] compliance with these subpoenas, it is difficult to identify a party more interested in such litigation than the State of Arizona,” Mayes wrote.

Wessler called the letter a “pretty aggressive attempt to shut litigants out of court,” particularly since this was “private litigation in a different court in a different state.”

Mayes’s letter cited a handful of federal prosecutions in which TRAC has played a role. One in particular, which resulted in drug trafficking and money-laundering convictions in California last October, shows the sheer scope of the database.

In December 2020, two informants told federal agents that they used a small money transmitter business in Oakland to launder drug proceeds to Mexico. Cashiers had been using an unsuspecting victim’s ID and personal information as cover for the transactions.

A table included in court filings shows the data that TRAC already had on this innocent third party, along with the fraudsters. There were more than a dozen entries for wire transfers she sent to “family or friends in Mexico,” as an IRS agent wrote, as early as five years prior and for amounts between $650 and almost $3,000.

“I would be worried about whose hands this data would get into,” said Sarah Lopez, a migration scholar at the University of Pennsylvania who has studied remittances from Mexican immigrants to their communities back home, of the detailed data compiled by TRAC. “There are millions of people sending repeat transactions” via wire transfers each year between Mexico and the U.S., she said, “then multiply it by two because people are being tracked on both sides of border.”

Lopez was skeptical that the $500 threshold amount in the TRAC subpoenas — unchanged for more than a decade — was a meaningful screen to prevent excessive surveillance of immigrants’ remittances. “Five hundred dollars is not a lot of money to send,” she said, noting that immigrants often send money to help with significant one-time expenses like housing and health care, and that service fees incentivize larger transfers.

TRAC’s president, Rich Lebel, defended the $500 threshold as “striking the right balance” based on recent data about average remittance amounts to Mexico and recent discussions he had with companies that share their data. Two companies told TRAC that, in 2024, “nearly 80% of all of their transactions are below $500, which means TRAC only has insight into approximately 20% of all transactions,” Lebel wrote in an email.

Mayes’s letter to the court proved fatal to the class-action lawsuit over TRAC. In late September, the court dismissed the case entirely, ruling that her office had “a legally protected interest” in defending the subpoenas but could not be added to the case. In November, shortly after the election, Mayes submitted a similar letter in another federal lawsuit regarding TRAC, which is ongoing.

“Despite the lawsuit and the public scrutiny of its actions, AG Mayes’ office is doubling down on its surveillance tactics,” said Daniel Werner, a senior staff attorney with Just Futures Law, which represented the plaintiffs in the dismissed class action lawsuit.

A Model of Secrecy

When it comes to TRAC, Mayes has distinguished herself from Brnovich, her Republican predecessor, in one key respect: secrecy.

Under Brnovich, the attorney general’s office released hundreds of documents about TRAC’s internal operations to the ACLU. These included nearly 140 subpoenas sent to more than 20 companies, meeting minutes from the TRAC board, and user lists.

Over the past year, The Intercept submitted multiple records requests to Mayes’s office, seeking updated versions of many of these materials plus other records. The agency sent the same documents it released to the ACLU and materials about TRAC’s operations under prior administrations. But it refused to release almost any records about how TRAC currently works, including documents that would show how its database has grown and shed light on its relationship with ICE and the Department of Homeland Security.

Mayes’ office now claims it would violate A.R.S. § 13-2315 itself to disclose any more of the TRAC subpoenas. “We are correcting the previous administration’s error and following the law,” wrote Richie Taylor, Mayes’s communications director, in an email.

“Their argument is wrong and borderline frivolous,” Wessler told The Intercept, noting that the statute clearly shields the data obtained by the subpoenas but says nothing about the subpoenas themselves. “An attempt to shield these subpoenas behind a spurious claim of secrecy is galling.”

For basic materials like TRAC’s meeting minutes, Mayes’s office now claims that it has no obligation under Arizona law to provide them since TRAC is formally a separate entity. When The Intercept asked TRAC directly for these same materials, it claimed, in turn, not to be subject to public records requests given its nonprofit status.

“The Public Records Law is an important part of Arizona law, but it simply doesn’t apply to TRAC,” wrote attorney Andy Gaona, which represents TRAC, in a letter in December.

Although a distinct creature on paper, TRAC has been “supervised directly” by the attorney general’s office, as a 2019 manual described the relationship. For years, TRAC’s bylaws gave the attorney general the power to personally select its board of directors and designate its chair. These provisions were still in TRAC’s bylaws as of September 2019, the most recent copy released by the attorney general’s office.

The current TRAC board chair, defense attorney Andrew Pacheco, who took the role in 2022, was chief of the attorney general’s criminal division before going into private practice. While working at the agency, he “supervised the activities of the Transaction Record Analysis Center,” according to his firm bio. The prior TRAC chair, Paul Ahler, served simultaneously as the agency’s criminal division chief.

“It just can’t be that the AGO can shield these public records by creating a nonprofit entity whose board it controlled, and that exists solely to ingest records obtained by the AGO,” Wessler argued, referring to the attorney general’s office.

Mayes’s office said that the attorney general no longer has this level of authority over TRAC but said it did not have a copy of the current bylaws to substantiate this. “TRAC is governed entirely independent of the Attorney General’s Office,” Lebel, TRAC’s president, wrote. TRAC declined to provide its current bylaws as part of The Intercept’s records request.

Other records show close coordination over the years between agency officials and TRAC staff — who sometimes used official government email addresses — including on the subpoenas that fuel the database.

TRAC’s deputy director, Liz Barrick, who joined TRAC in 2018 after several years working at the attorney general’s office, drafted many of the administrative subpoenas herself, records show, which she would forward to her former colleagues at the agency to review and sign before they were sent to the companies.

At one point in early 2018, Lebel and Barrick worked up subpoenas for wire transfers to and from an entirely new state: Georgia, which TRAC wanted to investigate as a “hub of racketeering activities.” For weeks, the pair emailed the attorney general’s office about the proper scope of the subpoenas. When one of the companies expressed concerns, Barrick responded with the agency’s position about modifying the subpoena.

TRAC staff also coordinated with ICE as the agency prepared to send its own data demands to Western Union, emails show. In 2019, Barrick emailed an ICE official some “language to be included in the subpoena.” A few months later, Ahler checked in with Barrick: “What is the status of our federal administrative subpoena to Western Union?”

And in 2021, when Western Union’s lawyer requested a meeting with the attorney general’s office about a recent subpoena, Barrick was added to the call.

TRAC and Mayes’s office both declined to answer whether their staff still collaborate on the subpoenas.

“TRAC really appears to operate more like a Department of the Attorney General Office (AGO) and Not an Independent Organization,” said EPIC’s Kunkler. “The AG’s attempt to weaponize technicalities to avoid disclosing information looks an awful lot like intentionally laundering their actions through a nonprofit to avoid disclosure.”

[neptunecreek]

Here’s How ICE Illegally Obtained Bulk Financial Records from Western Union

Senator Ron Wyden has released a letter to the U.S. Department of Homeland Security’s (DHS) Inspector General voicing his concern over a previously-unknown bulk data collection program that was carried out by Homeland Security Investigations(HSI), a unit within DHS’s U.S. Immigration and Customs Enforcement (ICE). For more than two  years, HSI used administrative subpoenas to acquire millions of financial records from two companies involved in money transfers, Western Union and Maxitransfers Corporation (Maxi). This is a blatantly illegal exploitation of government subpoena power–and an all too familiar one that must stop.

Beginning in 2019, HSI sent eight administrative subpoenas to these financial services companies asking that they turn over all records for money transfers over $500 to or from California, Texas, New Mexico, Arizona, and Mexico. Each administrative subpoena sought records for six-months at a time. In response, Western Union and Maxi provided 6.2 million financial records, including personal information such as names and addresses, to HSI. All of the information was entered into a database called Transaction Record Analysis Center (TRAC), which is run by a non-profit and facilitates law enforcement access to bulk financial data for 5 years. According to Sen. Wyden, HSI terminated the program in January 2022 after his office contacted HSI about it.

This practice presents real-world harms to people who, for good reason, would like to keep private the transfer of money and the identifying information that goes with it. Sharing financial and other personally identifying records of domestic violence survivors, asylum seekers, and human rights activists could expose them to danger, particularly given that TRAC allows hundreds of law enforcement agencies unfettered access to these records. 

Moreover, this kind of bulk surveillance is illegal. By statute, these administrative subpoenas must seek records “relevant” to an agency investigation. Simply put, there is no way these broad requests for bulk records would turn up only documents “relevant” to specific investigations; instead it put everyone who transferred money, including U.S. persons, under surveillance.

This is not the first time government agencies have floated overly-broad interpretations of what records are, and are not, “relevant” in order to collect as much information as possible. In 2015, after a lawsuit brought by EFF, the Drug Enforcement Administration purged a database containing billions of Americans’ international call records that had been in operation since the 1990’s. The NSA also infamously stretched the limits of what calls were and were not “relevant” to investigations when it collected hundreds of millions of call detail records from telecommunications providers, a practice that the Second Circuit called “unprecedented and unwarranted.”

U.S. Customs and Border Protection (CBP), another DHS subagency, has even been previously reprimanded for sending the exact same type of administrative subpoena as in this case to Twitter to demand the company unmask an anonymous user that ran an account critical of another DHS subagency.

What Should Be Done?

There are several things that can be done to remedy this harm and minimize the endless cycle of government agencies’ illegal collection of bulk data.

First, we reiterate Sen. Wyden’s call for an investigation into the HSI program. The public has a right to know how and why this program happened, and what steps are being taken to ensure this violation doesn’t happen again.

Second, the records collected under this illegal program must be immediately purged, both from TRAC and any other agencies that possess copies of the information.

Third, companies like Western Union and Maxi should stop caving to these overbroad administrative subpoenas for sensitive customer information by filing motions to quash. These administrative subpoenas are government requests—not official warrants, signed by a judge, that legally compel the company to hand over all of this data. Companies should answer only when compelled by law to do so. Until then, they have an obligation to protect their customers’ information, and that obligation should extend to protections from overly-broad and easily rebuttable government fishing expeditions.

Finally, lawmakers need to prioritize strong consumer data privacy legislation to prevent a situation like this one from recurring. Such privacy legislation must protect the most vulnerable among us, including the low-income, immigrant, and unbanked populations that often rely on money transfer services such as Western Union to go about their daily lives. 

from Deeplinks https://ift.tt/gRZonQ1

[fenrislorsrai]

According to federal law enforcement data recently compiled by the Transactional Records Access Clearinghouse (TRAC) research center at Syracuse University, separating families was the clear priority for immigration enforcement officers.

During the six-week period when family separations reached their procedural height at the U.S.-Mexico border, Customs and Border Protection (CBP) focused their attention on separating immigrants who brought their children with them. The separations of adults from their children appears to have occurred at the expense of prosecuting adults who attempted to enter the United States without children–and prosecutions generally.

During the month of April, the number of undocumented adults without children apprehended by CBP was 24,299; the number of adults with children apprehended by CBP was 4,536. In April, the administration only chose to prosecute 8,298 adults total. During the month of May, the number of undocumented adults without children apprehended by CBP was 24,265; the number of adults with children apprehended by CBP was 4,458. In May, the administration only chose to prosecute 9,216 adults total.

TRAC’s report sums up these findings:

[S]ince less than a third of adults apprehended illegally crossing the border were actually referred for prosecution, the stated justification does not explain why this Administration chose to prosecute parents with children over prosecuting adults without children who were also apprehended in even larger numbers…Thus, the so-called zero-tolerance policy didn’t as a practical matter eliminate prosecutorial discretion. Since less than one out of three adults were actually prosecuted, CBP personnel had to choose which individuals among those apprehended to refer to federal prosecutors. The Administration has not explained its rationale for prosecuting parents with children when that left so many other adults without children who were not being referred for prosecution.

But that’s not all. The stated “zero tolerance” explanation for the family separation policy further withers as more data is brought to bear upon the excuse.

Individualized prosecution data for May has not yet been analyzed, but a different TRAC analysis shows the administration only prosecuted one adult with children during the entire month of April. Again, despite claims of “zero tolerance” and procedural handcuffs due to enforcing the law to the hilt at the border, only one adult member of a family with children was prosecuted during April.

[douglasacogan]

TRAC releases intriguing new report on "Equal Justice and Sentencing Practices Among Federal District Court Judges"

The Transactional Records Access Clearinghouse (TRAC) at Syracuse University is a research center that keeps track of a lot of federal criminal case processing data. Today TRAC released this notable short data report under the title "Equal Justice and Sentencing Practices Among Federal District Court Judges." Here are snippets from the start and end of the report:

This report examines very recent data on federal trial judges and their sentencing practices. The existence of judge-to-judge differences in sentences of course is not synonymous with finding unwarranted sentencing disparity....  But a fair court system always seeks to provide equal justice under the law, working to ensure that sentencing patterns of judges not be widely different when they are handling similar kinds of cases.

In reality, sometimes the goal of equal justice under the law is achieved, and other times the actual sentences handed down depart markedly from this goal. Using case-by-case, judge-by-judge, data updated through December 2020, a new analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University identifies federal courthouses where wide judge-to-judge sentencing differences currently occur, and courthouses where there is wide agreement in sentencing among judges.

While special circumstances might account for some of these differences, half of the courthouses in the country had median differences in prison sentences of 16 months or more, and average differences of 21 months or more.

Results further showed that currently seven (7) federal courthouses out of 159 compared had perfect agreement among judges in the typical or median sentences assigned. In an additional thirty (30), judge-to-judge sentences differed by six months or less.... At the other extreme, five (5) courthouses showed more than 60 months difference in the median prison sentence handed out across judges serving on the same bench....

This study largely replicates the findings from TRAC's first national judge-by-judge examination of the differences among federal judges in sentencing practices that appeared in the Federal Sentencing Reporter. That study was published almost a decade ago. While it is true that some specific courthouses show greater agreement today, others show less agreement. Many of these changes appear to reflect changes in the judges currently serving there.

Yet answering the question of whether significant intra-judge differences in sentencing practices exist is not sufficient to establish that such differences are indeed unwarranted sentencing disparities. Much more research and a great deal more time is needed for a thorough examination of the actual details of judge-by-judge sentencing patterns.

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2021/09/trac-releases-intriguing-new-report-on-equal-justice-and-sentencing-practices-among-federal-district-1.html via http://www.rssmix.com/

[plusorminuscongress]

New story in Politics from Time: Hundreds of Their Workers Were Arrested In Mississippi ICE Raids, But No Employers Have Been Charged Yet

Hundreds of employees at seven worksites across Mississippi were swept up Wednesday in the largest immigration raid in at least a decade. Their employers are yet to be charged. They might never be. They typically aren’t.

Immigration and Customs Enforcement (ICE) arrested 680 people but has released just over 300 of them since then. Those who have been let go are still required to appear in court at a later date before a federal immigration judge, a spokesman for ICE tells TIME in an emailed statement

Although undocumented immigrants often face deportation in the aftermath of raids like these, the consequences faced by the employers who hire them are usually “really minimal,” Victor Narro, a project director with the UCLA Labor Center, tells TIME.

Just 11 employers were prosecuted for hiring undocumented immigrants between April 2018 and March 2019, and only three were sentenced to serve any prison time, according to an analysis by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. More than 120,000 people were prosecuted for illegal entry or reentry during that same time period.

However, federal court documents do mention several employment problems at the plants. Federal officials say evidence from electronic monitoring bracelets showed that people who had already been arrested for immigration violations, and others who were not allowed to work in the U.S. were working at all of the Mississippi plants raided. Documents unsealed Thursday in federal court allege that six of the seven plants were “willfully and unlawfully” employing undocumented immigrants and two of them appeared to be actively participating in fraud.

Per the Associated Press:

Investigators allege the most brazen fraud took place at two smaller chicken processing plants — PH Food Inc. in Morton and A&B Inc. in Pelahatchie. Sworn statements identify Huo You Liang of California, known to his Mississippi employees as Victor, as the owner of both.

A PH Food employee, acting as a confidential informant, told Homeland Security investigators that the vast majority of the 240 employees at PH’s plant in Morton and the 80 employees at A&B’s plant in Pelahatchie didn’t have proper work documents.

Asked whether employers may be charged in the case, a spokesperson at the Department of Justice said Friday in an emailed statement to TIME that “law enforcement operations can take time” but did not specify whether any case would be opened involving employers.

Rogelio V. Solis—APHandcuffed workers await transportation to a processing center following a raid by U.S. immigration officials at Koch Foods Inc., plant in Morton, Miss.

Two other plants raided on Wednesday belong to Koch Foods, one of the largest poultry suppliers in the world. The private company, which is headquartered in Illinois, agreed last year to pay a $3.75 million settlement after being slapped with a federal Equal Employment Opportunity Commission lawsuit that the agency filed on behalf of workers.

The company was charged with sexual harassment, national origin and race discrimination and retaliation against some Hispanic workers at a Morton, Miss. chicken processing plant, which employed more than 1,000 people. The EEOC alleged that supervisors touched or made sexually suggestive comments to female Hispanic employees, hit Hispanic employees and charged many of them money for “normal everyday work activities.”

The court eventually ordered Koch Foods to implement new policies aimed at preventing racial, sexual and ethnic discrimination and to create a 24-hour hotline for reporting discrimination complaints in English and Spanish.

Koch Foods did not respond to a request for comment Friday but a statement on their website says that “Koch Foods is cooperating with the government’s ongoing investigation.” It cited “being an early adopter of the government’s own E-Verify program which screens new hires through the Social Security Administration, as well as the Department of Homeland Security to ensure they are compliant.”

Labor unions have condemned the recent raids.

The United Food and Commercial Workers, which represents workers at a Koch Foods plant in Morton and a Peco Foods plant in Canton urged the “President and Congress to work together to fix our country’s broken immigration system.”

“Workers across this country are too scared to stand up for their rights and to report wage theft, dangerous work conditions, and other workplace issues,” said UFCW president Marc Perrone in a statement. “We must act now to end this dangerous climate of fear.”

Narro, the UCLA professor, says that this fear and exploitation is often made worse due to the threat of immigration crackdowns. He says the current system allows employers to continue making profits by exploiting low-wage workers and paying any negligible fines. It’s a calculated cost — and one that employers may be willing to pay without making any significant changes.

“If there are industries where workers have complained about working conditions, we should disconnect the immigration enforcement” policies, Narro says.

“The message needs to be clear: employers cannot violate the labor standards of the workplace because they feel like ICE is going to back them up,” Narro says. “That may be the Trump way of looking at this, but [it is] creating unsafe and very egregious working conditions.”

Rogelio V. Solis—APA young woman cries while standing outside the Koch Foods Inc., plant as U.S. immigration officials raid the plant in Morton, Miss., Wednesday, Aug. 7, 2019.

L. Patricia Ice, legal project director for the Mississippi Immigrants Rights Alliance, has worked with the state’s immigrant community for more than two decades and has visited several of the state’s chicken factories in that time. Poultry plants are one of the main employers in the area, Ice says.

“It’s wet in there. There’s chicken blood on the floor. People are cutting chickens into pieces. Then they’re packing the chickens in plastic wrap. It’s tedious,” Ice says.

“Poultry processing plants are really slaughterhouses. This is the work that none of us want to do,” Narro adds.

Koch Foods will hold a job fair in Mississippi on Monday, less than a week after the raids. Meanwhile, any undocumented workers who were caught up in the raids and later released likely cannot go back to their original jobs, Ice tells TIME. Government agencies will be watching these companies to make sure they do not rehire people without the proper papers, she explains.

“The person arrested may be the main breadwinner in his or her household,” Ice says, adding that they will be forced have to find work again in other industries, like construction or hospitality, because “you can’t stay without food for very long.”

“This is affecting everybody. My clients, they’re traumatized. That traumatizes me,” Ice says.

By Sanya Mansoor on August 09, 2019 at 07:46PM

[rightsinexile]

EOIR data release on asylum so deficient public should not rely on accuracy of court records

The following analysis was published on 3 June 2020 by the Transactional Records Access Clearinghouse (TRAC), a non-partisan, non-profit data center at the University of Syracuse.

TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem. We also wish to alert the public that any statistics EOIR has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified. [Read more here.]

[rolandfontana]

Environment Prosecutions Sink to Historic Low Under Trump

Illustration by Giorgio Tadieski via Flickr

Federal prosecutions of environmental crimes have sunk to historic lows under the Trump administration.

The number of such cases in fiscal year 2019 was lower than in any year during the Obama, Bush or Clinton administrations going back to the mid-1990s, reports Syracuse University’s Transactional Records Access Clearinghouse (TRAC).

There were 302 environmental prosecutions in the year that ended Sept. 30, a 10 percent drop from five years ago, 38.5 percent from the level of 491 reported in FY 2009, and a 64.5 percent decline from the 850 reported in FY 1999.

Better compliance by industries could account for part of the drop, but the Trump administration’s drive to favor working with industries over policing them probably plays a bigger role, Brett Hartl of the Center for Biological Diversity told  Courthouse News Service.

“There’s a pretty good signal from this administration that enforcement of violations is not the priority,” Hartl said. “The priority is working with industry to green light projects.”

But the downward trend in environmental prosecutions was evident well before President Trump took office.

An analysis in 2014 by The Crime Report of thousands of records compiled by the Environmental Protection Agency (EPA), revealed that enforcement of corporate environmental crime was already “extremely rare.”

More than 64,000 facilities are currently listed in agency databases as being in violation of federal environmental laws, but in most years, fewer than one-half of one percent of violations trigger criminal investigations, according to EPA records, TCR reported.

While every violation can technically be treated as a crime, federal environmental law gives agencies discretion to pursue civil or administrative charges instead. According to environmental law experts, former EPA investigators and advocates contacted by The Crime Report, in practice this has meant most corporate violators can avoid criminal prosecution.

As a result, the vast majority of corporate environmental transgressions — even cases that involve the releases of large amounts of toxic chemicals — are relegated to civil administrative enforcement.

Environmental criminal prosecutions FY 2019 by lead agency. Graphic courtesy TRAC

The most active federal agencies policing the environment are the Environmental Protection Agency (EPA) which focuses on violations of clean air and water rules, hazardous waste disposal and controlling toxic substances; and the Interior Department, which concentrates on the protection of fish, wildlife and endangered species, through the Fish and Wildlife Service, and polices the use of public lands through the Bureau of Land Management.

Another reason for the decline could be years of budget shortfalls for the EPA since Republicans took control of Congress in 2015, Hartl said.

Similar budget squeezes have been in effect at the Department of Interior. Both agencies have been headed by cabinet secretaries who have made no secret of their belief that the federal government has over-regulated the environment. Many agency employees either quit or were forced out since the election of Trump.

In some areas of the country, Department of Interior agents have been the sole enforcement officers monitoring illegal cultivation of marijuana in national forest lands.

Fish and Wildlife SWAT teams arrested 745 armed felons involved in then-illicit marijuana grows in northern California’s remote national forests between 2013 and 2017. But agents complained that low budgets and staffing have seriously weakened efforts to prevent marijuana cartels from exploiting public lands for drug smuggling.

See The Thin Green Line could Use Some Help, The Crime Report, Nov. 30, 2016

According to TRAC, the Interior Department Fish and Wildlife Service was responsible for over half of federal environmental prosecutions (154) during FY 2019.  The EPA was responsible for one out of every five cases brought during the same period.

Civil fines and penalties for environmental violations have also gone down, TRAC reported.

The EPA fined polluters $69 million in fiscal 2018, the lowest since the agency created its enforcement office in 1994. The agency carried out 22 civil investigations that year, compared to 125 in 2016 during the Obama administration.

Over the 30-year period covered by the report, the third most active environmental policing agency was the Federal Bureau of Investigation, which largely monitored illegal operation of vehicles on public lands—a misdemeanor. But the FBI has reduced its oversight over environmental offenses since 2001 when resources were diverted to counter-terrorim activities.

One legal expert believes the downward trend could endanger public health.

“There’s a risk that unenforced violations could lead to fires, leaks, spills, and contamination,” Ethan Elkind of the University of California, Berkeley School of Law told Courthouse News.

The complete TRAC report, with tables, can be downloaded here.

Environment Prosecutions Sink to Historic Low Under Trump syndicated from https://immigrationattorneyto.wordpress.com/

[nicholemhearn]

Do Immigrants Fraudulently Use Public Benefits?

For well over 100 years, the United States has denied entry to immigrant applicants who may become primarily dependent on the government for subsistence, on the grounds that they will likely become a “public charge.” To reduce the likelihood, all family visa applicants must have a sponsor provide an Affidavit of Support that makes the sponsor liable to the government and the immigrant for failure to support the immigrant financially; failure to provide this affidavit will result in an inadmissibility determination. Similarly, an individual can be deported if he becomes a public charge within five years of entering the United States.

In recent months, the Trump administration has indicated a renewed interest in cracking down on the fraudulent use of immigration benefits that the administration alleges is rampant. Is it? By one metric—prosecutions for fraud—the answer is no.

Background

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), commonly known as welfare reform, introduced tight restrictions on recent immigrant use of virtually all public benefits. Qualified aliens, like lawful permanent residents (LPRs) or green card holders, are banned from means-tested programs for 5-years from their date of legal entry. The ban and subsequent tweaks to the rule sowed confusion among aliens who worried about the risk of deportation from obtaining such basic services as emergency medical assistance, or immunizations against communicable diseases.

Recognizing a potential risk to public health and other federal policy goals, clear definitions and standards for determining a public charge were laid down in a 1999 rulemaking by Immigration and Naturalization Service (INS, now U.S. Citizenship and Immigration Services or USCIS) after extensive inter-agency consultations. INS ultimately determined public charge to refer to being “primarily dependent on the government for subsistence” — not mere use of supplementary or non-cash benefits.

To deport or deny admission on public charge grounds requires an analysis of the immigrant’s “totality of circumstances” including age, health, family status, assets, resources, financial status, education, and skills. According to contemporary USCIS guidance, no single factor is sufficient for identifying a public charge.

Cash assistance and long-term institutionalization are the primary grounds for categorizing an individual as a public charge. Public charge determinations only affect those applying for a green card or seeking entry into the United States; not nonimmigrant visa applicants. Public benefits that do not count towards a public charge calculation are primary subsidized benefits, like transit and childcare subsidies.

Health services like immunization, testing and treatment of communicable diseases, and prenatal care also do not count towards the public charge determination. The same is true — for now — of nutrition programs like school meals, housing benefits, emergency disaster relief, job training programs, Title II Social Security, and community programs like soup kitchens and crisis counseling.

Prosecutions for fraud/false statements by immigrants are very low

Using prosecutions is a striking tool in measuring the credibility of fraud claims because the prosecutorial numbers are not influenced by politics. Furthermore, there is no dependable evidence that contradicts prosecutorial figures.

The illegal use of a benefit by an immigrant is not in and of itself criminal per se, but using false or misleading information to apply for the benefit is a felony, making it criminal for all intents and purposes.

Immigration prosecutions under 8 U.S.C. § 1001 — Fraud/false statements or entries generally  — are low. Both the recent levels of prosecutions are low, and the yearly trends have been consistently decreasing over the past decade. Even at peak levels, prosecutions for fraud were fewer than 400 cases annually. You look at both levels and recent changes.

As of August 2018, there have been 35 prosecutions that lead with this charge, a 6 percent decrease from last year; a -33.8 percent decrease from 5 years ago; and an -87.1 percent decrease from 10 years ago, according to Transaction Records Access Clearinghouse (TRAC) which uses FOIA information to provide the following information.

It’s important to put this number in perspective. Give or take, there are roughly 43 million immigrants residing in the United States, which account for 13.5 percent of the population. Of those 43 million, there were 35 prosecutions for fraud, meaning that were was one case of fraud for every 1.228 million immigrants.

To be clear, there are mitigating factors. Immigrants cannot accept benefits for the first five years they are in the United States, so that changes the calculation slightly. Furthermore, there are additional cases whereby prosecutions under this statute are not the primary charge, but a secondary charge. Although the numbers of those cases is similarly low, it does skew the numbers slightly as well.

Immigration Prosecutions under 8 U.S.C. § 1001

The long-term trend, again according to TRAC, demonstrates a gradual decline in the number of immigration prosecutions for this crime.

Immigration Prosecutions under 8 U.S.C. § 1001 over 20 years

When you break it down by judicial districts, the relatively few cases prosecuted in 2018 are even more stark. During the first nine months of 2018, the district with the highest number of prosecutions—16— occurred in the Southern District of Florida. The next closest was seven prosecutions in Texas.

In 2017, the Justice Department said the government obtained 1.6 fraud-federal program prosecutions for every one million people in the United States; which is expected to drop to 1.5 per one million this year.

To be clear, that is not to say that immigrants are not committing fraud, but it does make clear that the prosecutions under the primary statute are exceedingly low, and arguably, do not justify the draconian changes to regulations on public charge that the administration released last Saturday night.

Given that the number of prosecutions of immigrants and Americans for fraud are very low, the purpose behind the government’s proposed regulation overhauling the the regulation to make determination as a public as a means of reducing said fraud is unfounded, and the rule itself, overly broad.

The post Do Immigrants Fraudulently Use Public Benefits? appeared first on Niskanen Center.

from nicholemhearn digest https://niskanencenter.org/blog/do-immigrants-fraudulently-use-public-benefits/

[venusinorbit]

The Trump administration’s push to prosecute people for crossing the border without authorization is limiting the government’s ability to prosecute people who commit other crimes, according to government data obtained by the Transactional Records Access Clearinghouse, a research center at Syracuse University.

TRAC’s analysis of the data shows that the number of immigration-related prosecutions filed along the border spiked by 79 percent between March and June. During the same period, the number of non-immigration prosecutions declined by 35 percent. Non-immigration offenses accounted for just 6 percent of prosecutions in districts along the Mexican border in June, compared to 14 percent in March.

TRAC concluded that unless non-immigration crime is “suddenly less prevalent” than before, the figures imply that more non-immigration crimes in the border regions are going unprosecuted. In Arizona, for example, the data show that drug prosecutions under a statute that is usually enforced by US Customs and Border Protections have declined sharply in recent months.

[titheguerrero]

The March of Legal Settlements Made by Pharmaceutical Companies is Diminishing - Presaging Even Less Accountablity for Top Health Care Organizational Leaders?

Introduction We have long been discussing the legal settlements made by health care organizations of alllegations like fraud, bribery, and kickbacks.  Despite the unsavory nature of the behaviors revealed by most settlements, which often appeared to risk patient harms, the companies involved usually have had to pay fines that were tiny relative to their multi-billion dollar revenues.  They companies only seldom have had to admit responsibility, and almost never did a settlement cause company managers and leaders to  suffer any negative consequences for enabling, authorizing, directing or implementing the bad behavior. So these settlements also provided a window onto the impunity of top leaders of health care organizations.  Lack of deterrence caused by such impunity appears to be a major cause of  the epidemic of continuing unethical behavior, crime and corruption on the part of large health care organizations. However, at least these settlements seemed to be useful markers of the such bad behavior apparently sanctioned by the leadership of these organizations.  But now even these markers seem to be fading away.  We had an ongoing enterprise trying to discuss what appeared to be the most interesting and significant legal settlements by major health organizations.  This year, however, things have seemed slow. Our last major wrap-up of recent legal settlements appeared on October 1, 2017.  On December 3, 2017, we did comment on a significant but barely noticed settlement by Pfizer of allegations of fraud done to prevent generic competition.  But since then it has seemed very quiet. A new settlement by Pfizer was just announced yesterday.  This inspired me to review the files I had lying around, which did include a few US settlements by pharmaceutical companies from 2017 which I had not discussed.  However, I found nothing from 2018.  Fortuitously while I considered all this, I found a new article that corroborates my perception that things are changing, probably not for the better.  That I will discuss below.  But first I will review the latest single entry in the march of legal settlements,   (Note that the missed 2017 cases appear at the end of this post in an Appendix.) Pfizer Settled Charges of Giving Kickbacks to Patients Through Disease Advocacy Organization to Mask the Prices of Its Drugs On May 24, 2018, Bloomberg reported a rather unusual case involving a company that has often provided grist for our mill,

Pfizer Inc. used a 'purportedly independent' charity to help it sharply raise the price of a heart drug, shielding patients from the increase while Medicare picked up the higher costs, the U.S. Justice Department said Thursday in a civil settlement announcement. Pfizer will pay about $24 million in the anti-kickback settlement, the government said in a statement. It’s the latest agreement in a long-running U.S. investigation into drugmaker ties to patient charities. Pfizer will also enter into a five-year monitoring agreement with the Department of Health and Human Services Office of Inspector General.

In particular,

The Pfizer settlement is focused on three drugs: Sutent and Inlyta for kidney cancer, and the heart-rhythm drug Tikosyn. Sutent had U.S. sales of $374 million last year, while Inlyta sold $126 million. Tikosyn sold $153 million in 2016, according to the company. In the case of the heart rhythm drug, Pfizer worked with the Patient Access Network Foundation to finance a fund for heart patients at the same time it was taking a huge price increase. The drugmaker raised the price of Tikosyn -- by 44 percent during the last three months of 2015, according to the government. 'Pfizer coordinated the timing of the opening of the fund for these patients with the implementation of a Tikosyn price increase,' the government said. For the next nine months, patients on the drug accounted for virtually all the beneficiaries of the charitable fund, the Justice Department said. In 2015, Pfizer gave more than $10 million to the Patient Access Network Foundation, according to a summary by the drugmaker. It doesn’t specify how much of that went to the heart drug fund. In the case of the kidney cancer drugs, the New York-based drugmaker worked with a third-party pharmacy company to steer patients to the foundation for financial help, instead of giving out free drug. It tracked data from the pharmacy to confirm that some that Pfizer’s donations were going to patients on its products, according to the Justice Department.

As is usual in legal settlements made by big health care organizations,

Pfizer said the settlement isn’t an admission of liability. None of the company’s executives were charged or fined.

So the company got to say

This resolution reflects the company’s desire to put this legal matter behind it and focus on the needs of patients,...

And the impunity of managers of big health organizations continues. Also, the amount of money involved in the settlement, $24 million, seems to be a drop in the bucket compared to the money Pfizer was making from the drugs involved, thus making it unlikely to deter future bad behavior by Pfizer or other organizations.  

The settlement doesn’t mention price increases for the cancer drugs, which can cost tens of thousands of dollars a year. Inlyta currently costs about $239 per 5-milligram tablet, or more $14,000 a month, according to data compiled by Bloomberg Intelligence. Sutent costs more than $600 for a 50-milligram capsule, or more than $17,000 for a six-week treatment cycle that includes four weeks on the drug and two off.

It also is an even tinier drop in the bucket compared to Pfizer's revenues,which were $52.5 billion in 2017, according to Pfizer. Finally, the settlement did not seem informed by Pfizer's long track record of bad behavior, including settlements almost too numerous to count, and involving billions in fines.  For our most recent summary of this, look here.    But the settlement at least provided some insight into the clever, if likely unethical ways pharmaceutical companies are now using to maintain the extremely high prices of drugs, an important reason US health care is the most expensive, if not the best in the world. But why have there been so few settlements in 2018 besides this one?   Drop in Law Enforcement Targeting White Collar Crime Under the Trump Administration Today, I also noticed the report of a study that provides a bit of evidence that my perception of recent diminution of the march of legal settlements was not far off.  It suggests that there has been a recent drop-off not just in settlements, but in law enforcement efforts targeting white-collar crime in general. As reported by Bloomberg, with the headline, "White-Collar Prosecutions Fall to 20-Year Low Under Trump," on May 25, 2018,

The number of white-collar prosecutions is on track to hit a 20-year low under President Donald Trump, after reaching a high in 2011 during the Barack Obama administration, according to a nonprofit research center that analyzes government data. A total of 3,249 cases were brought during the first seven months of the U.S. government’s 2018 fiscal year, which runs from October 2017 to April 2018, according to a case-by-case analysis of government data by Syracuse University’s Transactional Records Access Clearinghouse, or TRAC. That’s a 4.4 percent drop from the same period in 2017, a decline of 33.5 percent from five years ago, and 40.8 percent fewer cases than in 1998, according to the report. The analysis is of data obtained by TRAC under the Freedom of Information Act.

Discussion So my perceptions that the number of the sorts of legal settlements of interest to us has likely been diminishing was accurate.  Unfortunately, rather than the decrease being due to better behavior, decresed reporting, or my laxity in case-finding, it now looks that US government efforts to combat bad behavior by big health care corporations and to hold top leaders of these organizations accountable is getting even more lax. So once again, with feeling...   We seem to be sliding backwards in efforts to make the leaders of large health care organizations accountable, and particularly to combat the worse manifestation of their lack of accountability, impunity.  The system appears to be rigged to favor of leadership and management of large companies, as opposed to health professionals, and particularly as opposed to patients.  For years now we have discussed stories like this, which include allegations of severe misbehavior by large health care companies affirmed by legal settlements, but which only involve paltry financial penalties to the companies, and almost never any negative consequences to any humans. Furthermore, as in this case, these stories are often relatively anechoic, noted often only briefly in the media, and have inspired no real action by the US government.    

This adds to the evidence suggesting that US health care, at least, is rigged to benefit its top insiders and cronies, and as such, is part of a larger rigged system.  We have previously discussed how market fundamentalism (or neoliberalism) led to deregulation, which enabled deception, fraud, bribery, and intimidation to become standard business practices, and allowed increasing concentration of power by large corporations. Managerialism allowed the top leaders of these corporations and their insider cronies to amass increasing power and money. Everyone else, other employees, stockholders of public corporations, customers, vendors and suppliers, and the public at large lost out.   In health care, these changes led to an increasingly costly system which produced increasingly bad results for patients and the public.  

 We have called for years for what we sometimes term "true health care reform" to derig the system. Unfortunately, despite our hopes, perceptions of a rigged system may not always inspire honest reform. Instead, they can enable the rise of demagogues and would be dictators who promise only they can solve the problem.  Donald Trump cried out that only he could fix our problems and drain our swamps.  However, at least in terms of policing white-collar crime, particularly in health care, he seems to be letting the swamp waters rise. While we thus have bigger problems to solve than the impunity of health care leaders, let us remember the need for wholesale, real health care reform that would make health care leaders accountable for what their organizations do, particularly when these organizations misbehave. Appendix - For the Record, Previously Missed US Settlements from 2017  (January) Shire paid $350 million to settle allegations that it gave kick-backs to physicians and clinics to promote Dermagraft, and promoted it for unapproved uses (per the Wall Street Journal) .  One unusual aspect of this case was that three executives of a Shire subsidiary which sold this product were also convicted. (April) Sanofi agreed to pay $19.8 million to settle allegations it overcharged the US Department of Veterans Affairs (per Modern Healthcare). (May) Merck and Upsher-Smith Laboratories agreed to pay $60.2 million to settle an anti-trust class action lawsuit alleging they conspired  to delay a generic version of a potassium product.  Note that the FTC had sued the companies over this matter, but lost their case. (per Reuters). (June) Allergan agreed to pay $13 million to settle allegations that it paid kick-backs to promote sales of various opthalmic preparations (per the Philadelphia Inquirer). Article source:Health Care Renewal

[nicholemhearn]

Asylum Fraud Isn’t What You Think It Is

By nature, I am a skeptic. When I read the statistics on the numbers of individuals being denied asylum every year, my first thought was how frustrating and difficult it must be for asylum officers to encounter so many people whose stories were untrue, and to weed out those who were honest.

At the same time, as a new parent myself, I could understand why a desperate mother might tell a story borrowed from a friend or relative who secured asylum in America. Even though this is—in part— what I expected when I left to help mothers and children seeking asylum, it could not have been further from the truth. Without exception, every woman I met was genuinely terrified to return home. Unfortunately, that fear—albeit credible—is not reason enough for the U.S. to protect them because the law does not provide protection for everyone seeking safety.

To illustrate the intricacies of this nuanced difference, I’ll use a story I heard during the week I spent working with asylum applicants at the South Texas Family Residential Center in Dilley, Texas. Being one of a handful of family-friendly detention facilities, it was a place where a child could remain with their mom; a blessing for many families crossing the border and facing months of potential separation.

One scorching morning in Texas, I met Maria (named changed) and her six-year-old daughter who both received a negative determination following their initial interview with the asylum officer, and were facing removal proceedings.

In her initial credible fear interview, Maria told the asylum officer about her neighbor and close friend, the wife of a high-ranking official in the MS-13 gang. The wife, Sarah (name changed), became increasingly frustrated with the extreme physical and sexual violence inflicted on her by her husband, and she began to drink heavily and provoke him and the gang. She even had an affair.

MS-13 began stalking her; they would not let Sarah leave her home except to visit Maria. The controlled what she ate, what she wore, and who she spoke to. The watchful gang members regularly let themselves into Maria’s home to make sure Sarah was obeying their rules.

Then Sarah disappeared. In Maria’s neighborhood, that means the gang murdered her. Days later, when Maria was on her way to work in the dark early morning hours, an MS-13 member with an assault rifle stood in the middle of the road with his gun pointed at her car, forcing her to stop. He told her in no uncertain terms that she had fifteen days to leave any area controlled by the gang, or they would kill her, her mother, and her two children. Maria swore that Sarah never talked to her about the gang, but the members who stalked their homes believed the were conspirators. She insisted she knew nothing, but the man did not listen.

Terrified, Maria sped home. She could not sleep or eat for days. She finally decided she could afford to flee to the United States with just one child—her daughter.  She prayed that she could hide her young son with his father in another city. She was forced to leave her mother, who she had not spoken with in over a month; she hoped she was not dead.

Maria’s tale is hair-raising. Having to choose a child and leave your mother in imminent danger is unthinkable for most Americans. Few rational people would question Maria for fleeing her home in the night with nothing but the clothes on her back and a spare set for her daughter. She was—is—terrified to go home.

Even though Maria’s fear was palpable, and the threats against her life and that of her family credible,  Maria’s life was not threatened because of one of five protected grounds, and she did not qualify for asylum based on that story.

Asylum is a legal status that the U.S. (and many other countries) grant to a person based on evidence of past harm or credible evidence of future harm (like a death threat) because of  that person’s race, religion, nationality, membership in a particular social group, or political opinion. Generally, someone claiming asylum must also credibly demonstrate that the police cannot help them—or are the aggressors—and that relocation within their home country is not a viable option.

As an attorney well-versed in immigration law, I understand the mechanics of asylum, but the women I met did not. Many told me stories about years of traumatic abuse, violence, threats of death, inaction by their government and their police, and the moment that finally forced them to flee hundreds of dangerous miles to the U.S. Unfortunately, these harrowing tales do not qualify them for protection.

In fact, given our tight asylum definition, nearly half of all applicants do not meet the legal requirements for asylum; on average, we granted just 26,000 asylum requests each year.

The Trump administration wants the public to believe that because claims for asylum are up and the rate of denial of asylum claims are also up, and that there is rampant fraud in the asylum process. Namely, the administration wants Americans to believe that people claiming asylum are making up or exaggerating their stories. These fraudulent seekers, claims the administration, “game the system” because asylum status allows them immediate legal entry, access to certain benefits and assistance programs, and a path to becoming U.S. citizens.

He is not entirely wrong. There’s been nearly an 1,700% increase in asylum claims over the past decade. But the increase in the number of asylum applicants is due to a number of  a number of reasons; the most obvious reason is that there is unprecedented violence and gang activity in Northern Triangle countries just south of the border. Asylum requests by citizens of El Salvador, Guatemala and Honduras made up 72.9 percent of total claims in fiscal year 2016. In my experience, all but one woman I worked with in the Dilley facility was from a Northern Triangle country.

Despite the influx of asylum seekers, the rate of denial of asylum claims has remained relatively steady, hovering around 50 percent over the past decade. According to the Transactional Records Access Clearinghouse (TRAC), an immigration data analysis arm of Syracuse University, the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) reported the following rates of denial per a Freedom of Information Act (FOIA) request. As of the end of September 2016, overall asylum denial rates for FY 2016 rose to about 57 percent.

Looking at the rate of denials alone is superficial because it ignores a lot of procedural inefficiencies. The data here refers to the denials issued by an immigration court, not the to the initial screenings conducted by an asylum officer at detention facilities. In Dilley, positive credible fear determinations neared 90 percent in May.  

One of those procedural inefficiencies is time. Immigration court hearings often occur years after a person or family is granted initial status at the border. In that time, witnesses and paperwork are often lost or destroyed, making it more difficult for a judge to assess the validity of an asylum seeker’s complaint.

Contrary to popular belief, it is extraordinarily difficult for someone to qualify for asylum in the United States. But a denial does not mean their claim was fraudulent. For Maria, the story she recounted to the asylum officer was her most terrifying encounter, but not the one that could potentially qualify her for asylum.

This is a big problem. Even if asylum officers—many of whom are empathetic individuals—spend extra time with an applicant trying to tease out more information, they are not successful. It takes time for anyone to open to a stranger, let alone to relive a traumatic experience. Using a translator—which officers are required to do—can also stunt the interview. Maria told me she did not want to tell her asylum officer more because the translator was a man, and she was scared and embarrassed. Another woman mentioned that while she spoke Spanish, it wasn’t her native language, and she did not know what questions were being asked. She did not know how to tell the asylum officer that she spoke an indigenous language, and was embarrassed because of the stigma of some indigenous people face at home.

The presence of a child in the interview also silences many mothers. During my interview with Maria, we hustled her daughter into a nearby playroom with tv and toys. Maria wanted to spare her daughter from knowing about threats made to the child’s life. Within minutes, her daughter—like so many other anxious children—panicked when she could not see her mom. Inevitably, a helpful guard paraded the child around the room, door to door, holding her up to the small glass windows until she found Maria. Although comforting in the moment, the presence of a child in the interview is a detriment to open and honest preparation and disclosure.

More than anything else though, having a lawyer makes a difference.

Success Often Turns on Having a Lawyer

Asylum applicants who are represented in any immigration proceeding have significantly higher chances of getting a positive determination. According to TRAC, the evidence shows that have an attorney is almost a necessity to winning asylum in court.

And let me cut you off at the pass—it is not because attorneys are telling clients what to say—it is because attorneys are telling clients what not to say.

Maria had unintentionally used her time with the asylum officer—over an hour—telling a story that does not matter. By parsing through the rest of Maria’s life—which was punctuated by violence due to her sexual orientation—it was much easier to highlight other details that provided for a more succinct, likely successful case.

For the unrepresented, there has been a steady upward march in denial rates, from 73 percent in FY 2001, to 90 percent in FY 2011. In 2016, more than five out of every ten represented asylum seekers were successful, as compared to only one out of ten who were unrepresented.

Highlighting the absurdity of the interview process of pro se clients are the questions that are occasionally posed to the children of asylum seekers in order to establish credibility for particularly difficult cases.  In Maria’s case, the asylum officer asked her six-year-old who her mom was afraid of at home. Pausing to consider the question, the child responded, “the police.” The asylum officer presumably found the child’s response undercut her mother’s stories about threats from the gang.

When I asked the girl and her mother what the child meant when she said that her mom was afraid of the police, her mom told me that many children confuse the police with gang members because they both carry large guns and wear uniforms.

When I asked her daughter if she understood the interview questions, she said in no uncertain terms  that she had no idea what the asylum officer was asking, and just answered “yes” to her questions because the officer smiled when the child said yes.

And, of course, this is magnified when a child faces an immigration judge or asylum officer alone. In the now infamous clip of Last Week Tonight with John Oliver, John Oliver highlighted cases of pro se clients as young at two years of age, including one where a child asked to be returned to the country of “Pizza.”

Fixing the mess…

…is easier said than done, but a fix is urgent.  All of the changes imposed by the administration in recent months—separating children from their families, instituting the zero tolerance policy, and changing who qualifies as members of a particular social group—must be countered (at the very least) by increasing the procedural safeguards available to individuals seeking a legal immigration pathway. Chief among them is providing counsel. 

For Maria and her daughter, earlier counsel might have saved her and her daughter from removal to a home where they may be killed by one of the same enemies we condemn in the U.S.

The post Asylum Fraud Isn’t What You Think It Is appeared first on Niskanen Center.

from nicholemhearn digest https://niskanencenter.org/blog/asylum-fraud-isnt-what-you-think-it-is/