Nantel said that although illegal aliens are not protected under the Privacy Act, it is the policy of the Department of Homeland Security to extend the privacy protection to individuals who are in the country illegally, a policy she said was put into place by former DHS Secretary Michael Chertoff, who served under President Bush.

“Any information regarding individuals encountered through the enforcement of federal law is ultimately protected,” Nantel said. “We need to be sure that prior to the release of information, an appropriate determination is made regarding those protections.”

The DHS’s agreements with local law enforcement agencies–known as Memorandums of Agreement (MOA)–guide the 287(g) program, which was created in 2003 as an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The 287(g) program trains and certifies state and local law enforcement personnel to enforce federal immigration law.

Earlier this month, President Obama’s Justice Department and the Department of Homeland Security have decided to strip Sheriff Joe Arpaio of “official authority” to capture illegal immigrants because he was too successful.  In the last three years has handed over 30,000 illegal immigrants to Immigration for deportation, but the Obama administration says the priority for local law enforcers should be illegal aliens arrested for or convicted of crimes not people arrested in task force sweeps simply for being in the U.S. illegally (Sheriff Joe’s “Mistake”).

DHS has sent out a directive announcing their new priorities informing local law enforcement that they will only assume custody of “criminal aliens”
“ICE will assume custody of an alien 1) who has been convicted of a State, local or Federal offense only after being informed by the alien’s custodian that such alien has concluded service of any sentence of incarceration; 2) who has prior criminal convictions and when immigration detention is required by statute; and 3) when the ICE Detention and Removal  Field Office Director or his designee decides on a case-by-case basis to assume custody of an alien who does not meet the above criteria.” asked Nantel if the Obama administration, DHS, and ICE support the arrest and deportation of individuals who are in the country illegally, regardless of whether they have committed a crime. Nantel did not give a simple yes-or-no answer to this question, saying instead that the administration will remove illegal aliens according to “DHS priorities.”

The revised MOAs given to all of DHS’s local law enforcement “partners” includes the following language governing the “release of information to the media and other third parties.”

“The [state or local agency] hereby agrees to coordinate with ICE prior to releasing any information relating to, or exchanged under, this MOA, including any SOPs (Standard Operating Procedures) developed for the implementation of this MOA. Information obtained or developed as a result of this MOA is under the control of ICE and shall be subject to public disclosure only pursuant to the provisions of applicable federal laws, regulations, and executive orders. Insofar as any documents created by the [state or local agency] contain information developed or obtained as a result of this MOA, such documents shall not be considered public records.”