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National News

U.S. Must ID Criminal Aliens Who Never Left

July 10, 2013 posted by Steve Brownstein

The media can learn the identities of thousands of criminal immigrants released in the United States after their home countries refused to take them back, a federal judge ruled.

Boston Globe reporter Maria Sacchetti submitted a request under the Freedom of Information Act in September 2011, seeking "a list of convicted criminal aliens" released but not deported since 2008.

Under the Supreme Court 2001 ruling in Zadvydas v. Davis, individuals found unlawfully in the United States and scheduled for removal may not be detained for longer than six months when there is no "significant likelihood" of removal in the reasonably foreseeable future.

After six months, the individual is to be released "unless special circumstances exist, i.e., risk of flight or danger to the community," according to the ruling.

The Globe reporter's interest stemmed from her investigation into the government's handling of immigration matters, focusing on the procedures for releasing aliens convicted of crimes who were set to be removed to their home country.

"Sacchetti was interested in learning whether, for instance, 'aliens with a history of violent crimes were being released, whether repeat offenders were being released on more than one occasion, and whether sentencing decisions that had been affected by the court's belief that removal would follow were being undermined by release," Scheindlin wrote.

Though the Department of Homeland Security produced a spreadsheet on 6,843 such individuals - listing the most serious crime for which each was convicted, the date of release and the jurisdiction - it redacted each immigrant's name.

Saccchetti and her employer, The New York Times Co., filed suit in November 2012 after the agency refused to give up more information.

U.S. District Judge Shira Scheindlin granted Sachetti and the Times summary judgment last week.

"It is well-established that an individual has a privacy interest in controlling information concerning his or her person, where release of that information may cause 'embarrassment in their social and community relationships' or result in 'retaliatory action,'" the ruling states.

"At the same time, such privacy interest may be limited or eliminated entirely where the information at issue is already public, or where the individual has forfeited the right to control the relevant information no matter how potentially harmful," Scheindlin added.

Although DHS argued that the name redactions avoids embarrassment or retaliation "caused by the government's publicly identifying them both as convicted criminals and illegal aliens," Sachetti and the Times were argued that "any criminal information about the individuals - specifically, their arrests, convictions and sentences - is a matter of public record, and information regarding their immigration status is routinely disclosed in those public proceedings as well," Scheindlin wrote.

"As such, disclosure would simply 'make public what is already a matter of public record' with the sole new information being that the individual has not been removed from the United States," she added.

The public moreover has an interest in knowing how the federal government "handles aliens convicted of crimes who are required to be released pursuant to Zadvydas when their detention period exceeds six months," the ruling continues.

"Plaintiffs have established that they would use the individual names in combination with other public information to draw conclusions about the performance of the DHS - information which the government agency, for whatever reason, is disinclined to disclose on its own," Sheindlin added.

Disclosure of the names additionally "would further the legitimate public interest in knowing how government agencies make decisions," according to the ruling.

"Thus, DHS has not carried its burden of showing that this diminished privacy interest outweighs the public interest," Scheindlin wrote

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