[Federal Register Volume 74, Number 159 (Wednesday, August 19, 2009)]
[Notices]
[Pages 41919-41924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19818]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[Docket No. DHS-2009-0102]


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.

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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

[[Page 41920]]

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:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 703-483-2999.
    <bullet> Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
    <bullet> 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.
    <bullet> 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

[[Page 41921]]

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 41922]]

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

[[Page 41923]]

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:
    <bullet> An explanation of why you believe the Department would 
have information on you,
    <bullet> Identify which component(s) of the Department you believe 
may have the information about you,
    <bullet> Specify when you believe the records would have been 
created,
    <bullet> Provide any other information that will help the FOIA 
staff determine which DHS component agency may have responsive records,
    <bullet> 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

[[Page 41924]]

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.
[FR Doc. E9-19818 Filed 8-18-09; 8:45 am]
BILLING CODE 9111-28-P