E9-19818. Privacy Act of 1974; U.S. Immigration and Customs Enforcement-003 General Counsel Electronic Management System, System of Records

AGENCY:

Privacy Office, DHS.

ACTION:

Modification to an existing system of records.

SUMMARY:

In accordance with the Privacy Act of 1974, U.S. Immigration and Customs Enforcement is updating an existing system of records titled General Counsel Electronic Management System (March 31, 2006) to reflect changes in the system that provide Immigration and Customs Enforcement attorneys and other Immigration and Customs Enforcement personnel with additional information regarding immigration cases and with additional means of accessing the information. General Counsel Electronic Management System is a case management system used primarily by attorneys in the Immigration and Customs Enforcement Office of the Principal Legal Advisor to litigate cases before U.S. immigration courts. In conjunction with the next release of General Counsel Electronic Management System, Immigration and Customs Enforcement is modifying the General Counsel Electronic Management System system of records notice to describe the collection of additional information on immigration cases and the aliens involved in them. This General Counsel Electronic Management System system of records notice updates the system of records number; categories of individuals; categories of records; purpose of the system; routine uses; retention and disposal; system manager and address; and record source categories. Several of the routine uses that were in the original GEMS SORN have been updated to reflect new standard language at DHS. The other new routine uses have been proposed in order to permit sharing in circumstances such as for audit purposes; when information in the system may have been compromised; in the course of an immigration, civil, or criminal proceeding, sharing with courts, counsel, parties, and witnesses; with attorneys acting on behalf of an individual covered by the system; with foreign governments in order to remove aliens from the United States; with the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act; and to assist with redress requests. A Privacy Impact Assessment that describes the changes to General Counsel Electronic Management System is being published concurrently with this notice. It can be found on the DHS Web site at http://www.dhs.gov/​privacy. This system is included in the Department of Homeland Security's inventory of record systems.

DATES:

Submit comments on or before September 18, 2009. This system will be effective September 18, 2009.

ADDRESSES:

You may submit comments, identified by docket number DHS-2009-0102 by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: [phone].
• 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. 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

Immigration and Customs Enforcement (ICE) attorneys are responsible for the prosecution and/or management of immigration cases litigated under the Immigration and Nationality Act before U.S. immigration courts and the Board of Immigration Appeals. General Counsel Electronic Management System (GEMS) was developed to help ICE attorneys manage their cases. In addition to having personal information about the aliens involved with the cases, GEMS has information on individuals associated with the case such as witnesses, informants, and judges, documentation related to the cases, and logistical information regarding hearings. The ICE Office of Detention and Removal Operations (DRO) is responsible for identifying illegal aliens, apprehending them and managing them while they are in custody, and removing them from the United States. DRO personnel use GEMS to stay abreast of changes in custody decisions for a particular alien and to help with the execution of final removal orders.

Since the GEMS SORN was last published, several changes have been made to GEMS to enable ICE attorneys and DRO personnel to better manage immigration cases and remove aliens. The changes fall into two categories—new functionality and new or updated system-to-system interfaces. The pieces of new functionality are important because they allow ICE attorneys to better manage their cases and assist DRO with the removal of aliens. Previously, ICE attorneys could only access and update GEMS data while at their desk. The new GEMS Courtroom Mobility component enables ICE attorneys to download GEMS case data to a secure laptop and to use and update it as needed while they are in court. The Web View component is also new and allows GEMS users to access a read-only version of the GEMS data via the ICE intranet thus making access to GEMS more convenient for ICE attorneys and DRO personnel. The last piece of new functionality is the Project Management component which is used to manage ancillary projects such as annual reports and budgets that are unrelated to attorney cases. This component can also be used to manage immigration cases when the alien has not yet been assigned an Alien Registration Number. These projects track the key information for these cases including the individuals involved and events surrounding the cases.

Since the GEMS SORN was last published, GEMS' system-to-system interfaces have been expanded. GEMS now has interfaces with the U.S. Citizenship and Immigration Services' (USCIS) Refugee, Asylum, and Parole System (RAPS), the Customs and Border Protection's (CBP) TECS, and the Department of Justice's (DOJ) Case Access System for EOIR (CASE). RAPS provides GEMS with new personal information regarding individuals involved in asylum cases. TECS provides additional biographical information on individuals with immigration-related issues and CASE provides additional schedule information regarding hearings.

In accordance with the Privacy Act of 1974, DHS is amending the General Counsel Electronic Management System (GEMS) SORN to reflect the changes in the types of personal information maintained in GEMS as a result of these upgrades. The SORN includes revised category of individuals, category of records, routine uses, and retention and disposal sections to reflect changes to the system and ICE's operational protocols. Several of the routine uses that were in the original GEMS SORN have been updated to reflect new standard language at DHS. The other new routine uses have been proposed in order to permit sharing in circumstances such as for audit purposes; when information in the system may have been compromised; in the course of an immigration, civil, or criminal proceeding, sharing with courts, counsel, parties, and witnesses; with attorneys acting on behalf of an individual covered by the system; with foreign governments in order to remove aliens from the United States; with the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act; and to assist with redress requests. This amended SORN also changes the system number from DHS/ICE/OPLA-001 to DHS/ICE-003. This amended system of records supports the ability of ICE attorneys to litigate cases before U.S. immigration courts and helps with the execution of final removal orders. This amended SORN is being published concurrently with the GEMS Privacy Impact Assessment (PIA) update.

Consistent with DHS's information sharing mission, information stored in GEMS may be shared with other DHS components, as well as appropriate Federal, State, local, tribal, foreign, or international government agencies. This sharing will only take place after DHS determines that the receiving component or agency has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions, consistent with the routine uses set forth in this SORN.

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 individuals' records. 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 their records are put, and to assist individuals to more easily find such files within the agency. Below is the description of the DHS/ICE-003, General Counsel Electronic Management System (GEMS) 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 and to Congress.

System of Records

DHS/ICE-003

System name:

General Counsel Electronic Management System (GEMS).

Security classification:

Unclassified.

System location:

Records in GEMS are maintained in electronic form at the U.S. Immigration and Customs Enforcement headquarters in Washington, DC and at field offices.

Categories of individuals covered by the system:

Categories of individuals covered by this system include: (1) Individuals covered by provisions of the Immigration and Nationality Act; (2) individuals who are under investigation by ICE, who were investigated by ICE in the past, and those who are suspected of violating the criminal or civil provisions of statutes, treaties, Executive Orders, and regulations administered by ICE; (3) witnesses, informants, or other third parties who may have knowledge of such violations; (4) ICE attorneys and other employees who have been assigned to represent the agency in litigation relating to aliens and other individuals whose files are contained in the system; and (5) defense attorneys, asylum officers, and immigration judges involved with immigration cases.

Categories of records in the system:

Categories of records in this system include:

• The alien's biographical information such as name, A-number, date and place of birth, date and port of entry, nationality, language, race, gender, height, and weight; identification information including social security number, driver's license number, and passport number; employment information; flags regarding the individual's status including if the person is legally sufficient, if a final order has been issued, or if a stay is in effect; flags regarding the individual including if the person is a convicted felon, a terrorist, an interest of the Federal Bureau of Investigation (FBI), has a gang affiliation, or is a child predator; information on relief; comments about the alien by CBP officers at the border; and events associated with the alien such as court appearances. If the alien has applied for asylum, the system also collects religion, marital status, address, the date of the request for asylum, the asylum officer assigned to the case, the alien's persecution code, the basis of the claim, information on the person's interviews and court appearances, the results of various database checks done on the person as part of the case, and the final decision code and the date of the final decision.
• Personal information on other people associated with the alien including family members, witnesses, and informants. For each person, GEMS contains the person's name, gender, role, contact information, and notes about the person.
• Personal information on attorneys and immigration judges associated with the alien including the person's name, gender, role, contact information, and notes about the person.
• Hearing information including the language the alien speaks, the hearing start time and end time, the hearing location and address, the immigration judge hearing the case, the prosecuting and defending attorneys, and a flag indicating if the alien was battered or not.
• Subsets or complete sets of information also contained in the hard copy A-File that may include the alien's official record material, such as naturalization certificates, various forms and attachments such as photographs, applications and petitions for benefits under the immigration and nationality laws, reports of investigations, statements, arrest reports, correspondence, and enforcement documents.
• Attorney work products consisting of pre-trial, trial, and post-trial notes, memoranda stating positions for litigation, notes to investigators, information related to immigration cases that have been obtained from hardcopy or online research, legal opinions, and policy memos.

Authority for maintenance of the system:

Immigration And Nationality Act of 1952, as amended.

Purpose(s):

The purposes of the system are (1) to support the litigation of immigration cases before U.S. administrative and Federal courts, including immigration courts and the Board of Immigration Appeals; (2) to support the tracking, processing, and reporting of case information for internal management, reporting, planning, and analysis purposes; and (3) to support the ICE mission by maintaining and sharing information that supports the identification, arrest, apprehension, detention, and removal of aliens who are subject to removal under the Immigration and Naturalization Act.

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 or 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 (including United States Attorney Offices) or other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:

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) or harm to the individual 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 other Federal, State, tribal, and local government law enforcement and regulatory agencies and foreign governments, individuals and organizations during the course of an investigation or the processing of a matter, or during a proceeding within the purview of the immigration and nationality laws, to elicit information required by ICE to carry out its functions and statutory mandates.

I. 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 when disclosure is appropriate to the proper performance of the official duties of the person making the request.

J. To a former employee of DHS, in accordance with applicable regulations, for purposes of responding to an official inquiry by a Federal, State, or local government entity or professional licensing authority; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.

K. 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.

L. To a court, magistrate, administrative tribunal, opposing counsel, parties, and witnesses, in the course of an immigration, civil, or criminal proceeding before a court or adjudicative body when:

(a) DHS or any component thereof; or

(b) any employee of DHS in his or her official capacity; or

(c) any employee of DHS in his or her individual capacity where the agency has agreed to represent the employee; or

(d) the United States, where DHS determines that litigation is likely to affect DHS or any of its components, is a party to litigation or has an interest in such litigation, and DHS determines that use of such records is relevant and necessary to the litigation, provided however that in each case, DHS determines that disclosure of the information to the recipient is a use of the information that is compatible with the purpose for which it was collected.

M. To clerks and judges of courts exercising naturalization jurisdiction for the purpose of filing petitions for naturalization and to enable such courts to determine eligibility for naturalization or grounds for revocation of naturalization.

N. To an attorney or representative (as defined in 8 CFR 1.1(j)) who is acting on behalf of an individual covered by this system of records in connection with any proceeding before USCIS or the Executive Office for Immigration Review.

O. To the appropriate foreign government agency charged with enforcing or implementing laws where there is an indication of a violation or potential violation of the law of another nation (whether civil or criminal), and to international organizations engaged in the collection and dissemination of intelligence concerning criminal activity.

P. To any Federal agency, where appropriate, to enable such agency to make determinations regarding the payment of Federal benefits to the record subject in accordance with that agency's statutory responsibilities.

Q. To an actual or potential party or his or her attorney for the purpose of negotiation or discussion on such matters as settlement of the case or matter, or informal discovery proceedings.

R. To foreign governments for the purpose of coordinating and conducting the removal of aliens from the United States to other nations.

S. To a Federal, State, tribal, local, international, or foreign government agency or entity for the purpose of consulting with that agency or entity: (1) To assist in making a determination regarding redress for an individual in connection with the operations of a DHS component or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.

T. To the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act, and all other immigration and nationality laws including treaties and reciprocal agreements.

U. 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.

V. To the Office of Management and Budget 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.

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 in a central database.

Retrievability:

Records in the system are indexed and retrieved by an individual's alien number, name, case information (such as hearing location and type of hearing), and other criteria that can identify an individual in proceedings in a court or adjudicative body before which ICE is authorized to appear.

Safeguards:

Records in this system are safeguarded in accordance with applicable rules and policies, including all applicable DHS automated systems security and 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.

Retention and disposal:

The records will be retained for seventy-five (75) years after the last administrative action has been taken on the case. The seventy-five (75) year retention period is consistent with the retention period for the physical A-File. This retention period ensures that sufficient information is available to conduct meaningful analysis if needed. Records are destroyed appropriately after the retention period.

System Manager and address:

Principal Legal Advisor, ICE Office of the Principal Legal Advisor, 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 Headquarters or component's 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, 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 Director, Disclosure and FOIA, 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,
• 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:

Records in this system are supplied by several sources. ICE attorneys provide information regarding the cases that they are working. Other records are derived from the alien file maintained on individuals and may include investigative material that provides the basis for the legal proceedings. Records are also obtained from other Federal agency information systems including USCIS' Refugee, Asylum, and Parole System (RAPS), Custom and Border Protection's Treasury Enforcement Communication System (TECS), and the Department of Justice's Case Access System for EOIR (CASE).

Exemptions claimed for the system:

The Secretary has exempted this system from subsections (c)(3) and (4), (d), (e)(1), (2), and (3), (e)(4)(G) and (H), (e)(5) and (8), and (g) of the Privacy Act. These exemptions apply only to the extent that records in the system are subject to exemption pursuant to 5 U.S.C. Sections 552a (j)(2) and (k)(1) and (k)(2).

Dated: August 11, 2009.

Mary Ellen Callahan,

Chief Privacy Officer, Department of Homeland Security.