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Analysis

Department of Homeland Security Must Stop Targeting Communities of Color

With limited oversight and broad powers, DHS investigations often target immigrants of color and violate civil liberties.

April 1, 2022

This article was first published at Just Secur­ity. 

Senator Ron Wyden (D-OR) recently revealed that, over the past two years, Home­land Secur­ity Invest­ig­a­tions (HSI) – the law enforce­ment arm of the Depart­ment of Home­land Secur­ity’s Immig­ra­tion and Customs Enforce­ment unit – conduc­ted an “indis­crim­in­ate” surveil­lance drag­net that swept up some six million money trans­fers between people in Mexico and four south­west­ern states. Wyden called on the DHS inspector general to invest­ig­ate the surveil­lance. That’s a crit­ical step – the program’s bulk collec­tion of inform­a­tion was clearly an abuse of power, targeted at the Latino community. But the prob­lems at HSI go much deeper. The money trans­fer drag­net is only the latest over­reach by a depart­ment that’s long over­due for systemic reform.

HSI, which has rarely been in the spot­light, takes an expans­ive view of its mandate to combat transna­tional crime. It uses this author­ity to start crim­inal invest­ig­a­tions into ordin­ary finan­cial trans­ac­tions, travel, and family rela­tion­ships. These can have drastic consequences, from crim­inal charges to deport­a­tion, for those targeted.

In the case of the money trans­fers, HSI deman­ded that compan­ies like West­ern Union provide sender and recip­i­ent names, addresses, and trans­ac­tion amounts on all money trans­fers over $500 enter­ing or leav­ing Arizona, Cali­for­nia, New Mexico, Texas, and Mexico. The legal tool used was an admin­is­trat­ive subpoena, which is not approved by a court and is only supposed to be used to seek inform­a­tion needed for an active customs invest­ig­a­tion – a require­ment that Wyden notes does­n’t seem to have been met. The agency has not claimed (nor could it cred­ibly argue) that all of these trans­ac­tions were part of an active invest­ig­a­tion. On the contrary, HSI appears to have sought and saved the data for its agents – and other local, state, and federal officers with whom it shares inform­a­tion – to trawl through whenever they choose and use in any way they want. This would appear to viol­ate the Fourth Amend­ment to the U.S. Consti­tu­tion, which prohib­its the govern­ment from scoop­ing up inform­a­tion about people in the absence of any suspi­cion of crim­inal activ­ity.

This is part of HSI’s pattern. The agency often uses its transna­tional crime mission to invest­ig­ate immig­rants of color who are not suspec­ted of crim­inal activ­ity. Start­ing in 2017, for example, HSI led an oper­a­tion that targeted the parents and relat­ives of unac­com­pan­ied immig­rant chil­dren who were enter­ing the United States to reunite with family after flee­ing unstable living condi­tions in their home coun­tries. Although this oper­a­tion was a blatant attempt to penal­ize vulner­able chil­dren and their famil­ies for seek­ing refuge in the United States, HSI cloaked the oper­a­tion in language emphas­iz­ing transna­tional crim­inal organ­iz­a­tions, saying it was aimed at human smug­gling oper­a­tions, despite the absence of any focus on smug­gling organ­iz­a­tions or networks.

Simil­arly, since at least 2017, HSI has inser­ted itself into young immig­rants’ removal proceed­ings and applic­a­tions for immig­ra­tion relief by produ­cing “HSI memos,” which are used by immig­ra­tion offi­cials to justify detain­ing youth without bond and deny­ing them immig­ra­tion bene­fits that provide legal resid­ency, like Special Immig­rant Juven­ile Status and Deferred Action for Child­hood Arrivals. As reflec­ted in these memos, HSI uses vague criteria to brand young immig­rants as gang members – criteria such as wear­ing colors or cloth­ing asso­ci­ated with gangs, being present in an area frequen­ted by gangs, or being seen with known gang members.

These types of programs are not just a product of former Pres­id­ent Donald Trump’s anti-immig­rant agenda. HSI’s Oper­a­tion Second Look program star­ted during the admin­is­tra­tion of Pres­id­ent Barack Obama. It invest­ig­ates natur­al­ized citizens, look­ing for incon­sist­en­cies in their docu­ments or old deport­a­tion orders as grounds to strip them of citizen­ship. The program reportedly focuses on immig­rants from “special-interest” nations – a list that consists over­whelm­ingly of coun­tries with substan­tial Muslim popu­la­tions.

HSI has also been implic­ated in invas­ive airport searches, which activ­ists have alleged are deployed punit­ively against journ­al­ists, activ­ists, and trav­el­ers of color – another prac­tice dating back to the Obama admin­is­tra­tion. HSI uses its expans­ive border search author­ity, which is meant to prevent people and items posing an immin­ent danger from enter­ing or leav­ing the coun­try, to seize, break into, and copy the contents of trav­el­ers’ cell phones, laptops, and other elec­tronic devices.

Finally, for years, partic­u­larly under the George W. Bush and Trump admin­is­tra­tions, HSI conduc­ted work­place raids and mass arrests of work­ing immig­rants. Last year, Pres­id­ent Biden’s Secret­ary of Home­land Secur­ity Alejandro Mayor­kas ordered an end to this prac­tice, a welcome and import­ant change.

Despite news report­ing on these troub­ling prac­tices, HSI has faced limited over­sight. A review of invest­ig­a­tion reports made public by DHS’s Inspector General reveals that the office has never invest­ig­ated HSI’s civil rights and civil liber­ties record. The lack of invest­ig­a­tions isn’t due to lack of expert­ise: the Office of Inspector General routinely conducts these types of reviews into how Enforce­ment and Removal Oper­a­tions – ICE’s other half – treats detain­ees. DHS’s Office for Civil Rights and Civil Liber­ties also does not seem to have reviewed HSI’s oper­a­tions, although not every review by that office is made public.

Urgent action is needed to rein in this part of DHS that has too much power and is subject to too little over­sight. Mayor­kas should issue a clear direct­ive paus­ing HSI’s initi­at­ives that are alleged to involve civil rights and civil liber­ties abuses and commis­sion an inde­pend­ent review of HSI’s author­it­ies and oper­a­tions. Increased over­sight, stronger protec­tions against profil­ing, and concrete consequences for civil rights and civil liber­ties viol­a­tions should be the start­ing point, not the end, of forward-look­ing reforms.