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###### Department of Homeland Security

###### Office of the Secretary

          - [Docket No. DHS-2008-0184]

# AGENCY:

Privacy Office; DHS.

# ACTION:

Notice of Privacy Act system of records.

# SUMMARY:

In accordance with the Privacy Act of 1974 and as part of the Department of Homeland Security's ongoing effort to review and update legacy system of records notices, the Department of Homeland Security is giving notice that it proposes to update and reissue the following legacy record system, Justice/INS-012 Deportable Alien Control System (July 31, 2000), as a Department of Homeland Security/Immigration and Customs Enforcement system of records notice titled, DHS/ICE-011 Removable Alien Records System. Categories of individuals and categories of records have been reviewed, and the routine uses of this legacy system of records notice have been updated to better reflect the current status of these records. The exemptions for the legacy system of records notices will continue to be applicable until a notice of proposed rulemaking and the final rule for this SORN have been completed. This new system will be included in the Department of Homeland Security's inventory of record systems.

# DATES:

Written comments must be submitted on or before March 2, 2009. This new system will be effective March 2, 2009.

# ADDRESSES:

You may submit comments, identified by docket number DHS-2008-0184 by one of the following methods:
      -  Federal e-Rulemaking Portal: http://www.regulations.gov.                          Follow the instructions for submitting comments.                    
      -  Fax:                          703-483-2999.                    
      -  Mail:                          John W. Kropf, Acting 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 and may be read at                          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), United States Immigration and Customs Enforcement Privacy Officer, United States Immigration and Customs Enforcement. For privacy issues please contact: John W. Kropf (703-235-0780), Acting Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528.

# SUPPLEMENTARY INFORMATION:

## I. Background

Pursuant to the savings clause in the Homeland Security Act of 2002, Public Law 107-296, Section 1512, 116 Stat. 2310 (November 25, 2002), the Department of Homeland Security (DHS)/Immigration and Customs Enforcement (ICE) have relied on preexisting Privacy Act systems of records notices (SORN) for the collection and maintenance of records that concern information pertaining to aliens who are removable pursuant to the Immigration and Nationality Act.

As part of its efforts to streamline and consolidate its record systems, DHS is updating and reissuing a legacy Immigration and Naturalization Service system of records under the Privacy Act (5 U.S.C. 552a) that deals with aliens who are removable and have been removed from the United States. This record system will allow DHS/ICE to continue to collect and maintain records regarding individuals removed or deemed removable by DHS/ICE. The collection and maintenance of this information assists DHS/ICE in meeting its obligation to manage the status and/or disposition of removed and removable aliens.

In accordance with the Privacy Act of 1974 and as part of DHS's ongoing effort to review and update legacy system of records notices, DHS is giving notice that it proposes to update and reissue the following legacy record system, Justice/INS-012 Deportable Alien Control System (65 FR 46738 July 31, 2000), as a DHS/ICE system of records notice titled, DHS/ICE-011 Removable Alien Records System. Categories of individuals and categories of records have been reviewed, and the routine uses of this legacy system of records notice have been updated to better reflect the DHS/ICE removable alien records. The exemptions for the legacy system of records notices will continue to be applicable until the notice of proposed rulemaking and the final rule for this SORN have been completed. This new system will be included in DHS's inventory of record systems.

## 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                           ( print page 5666)                        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 of their records, and to assist individuals to more easily find such files within the agency. Below is the description of the DHS/ICE Removable Alien Records System.                

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 (OMB) and to Congress.

### System of Records

DHS/ICE-011.

### System name:

DHS/ICE-011 Removable Alien Records System.

### Security classification:

Unclassified.

### System location:

Records are maintained at the United States Immigration and Customs Enforcement Headquarters in Washington, DC and in field offices.

### Categories of individuals covered by the system:

Categories of individuals covered by this system include aliens removed and alleged to be removable by DHS/ICE.

### Categories of records in the system:

Categories of records in this system may include:
    - Alien's name;
    - Alien file number;
    - Date of birth;
    - Country of birth;
    - United States addresses;
    - Foreign addresses;
    - ICE case file number;
    - Subject ID and Person ID;
    - Fingerprint Identification (FINS) number;
    - Bureau of Prisons/U.S. Marshals Service number;
    - FBI number;
    - Event ID;
    - Immigration bond number;
    - Charge;
    - Amount of bond;
    - Hearing date;
    - Case assignment;
    - Scheduling date;
    - Sections of law under which excludability/removability is alleged;
    - Data collected to support DHS/ICE's position on excludability/removability, including information on any violations of law and conviction information;
    - Date, place, and type of last entry into the United States;
    - Attorney/representative's contact information (Last Name; First Name; Middle Name; Suffix; Law Firm; Dates of representation; whether a G-28 has been filed)
    - Family data;
    - DHS/ICE agents assigned;
    - Employer Information: (Employer Name; Employment Start Date and End Date; County; Address; Zip Code; Telephone number; Compensation Type; Salary/Wage;);
    - Government decisions concerning an individual's request for immigration benefits and information about other immigration-related actions by the Government ( e.g. , dismissals, entry of orders of removal, etc.); and                    
    - Other case-related information.

### Authority for maintenance of the system:

5 U.S.C. 301; 44 U.S.C. 3101; 8 U.S.C. 1103, 1227, 1228, 1229, 1229a, and 1231.

### Purpose(s):

The purpose of this system is to assist DHS/ICE in the removal and detention of aliens in accordance with immigration and nationality laws. This system also serves as a docket and control system by providing management with information concerning the status and/or disposition of removable aliens.

### 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 of 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 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 who relies 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                               ( print page 5667)                            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 a court, magistrate, administrative tribunal, opposing counsel, parties, and witnesses, in the course of a 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.

I. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings.

J. To other Federal, State, local, or foreign government agencies, individuals, and organizations during the course of an investigation, proceeding, or activity within the purview of immigration and nationality laws to elicit information required by DHS/ICE to carry out its functions and statutory mandates.

K. 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.

L. To other Federal agencies for the purpose of conducting national intelligence and security investigations.

M. 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.

N. 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.

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

P. To family members and attorneys or other agents acting on behalf of an alien to assist those individuals in determining whether (1) the alien has been arrested by DHS for immigration violations, and (2) the location of the alien if in DHS custody, provided however, that the requesting individuals are able to verify the alien's date of birth or Alien Registration Number (A-Number), or can otherwise present adequate verification of a familial or agency relationship with the alien.

Q. 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.

### 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 or on paper in secure facilities in a locked drawer behind a locked door. The records are stored on magnetic disc, tape, digital media, and CD-ROM.

### Retrievability:

Records are retrieved by Name, A-file number, alien's Bureau of Prisons/U.S. Marshal number, case number, subject ID, person ID, FINS number, event ID, state ID, FBI number, and/or bond number.

### Safeguards:

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

Cases that have been closed for a year are archived and stored in the database for 75 years, then deleted. Copies of forms used within this system of records are placed in the alien's file. Electronic copies of records (copies from electronic mail and word processing systems) which are produced and made part of the file are deleted within 180 days after the recordkeeping copy is produced.

### System Manager and address:

Director, Detention and Removal Operations, Immigration and Customs Enforcement Headquarters, 500 12th Street, SW., Washington, DC 20024.

### 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, CBP will consider requests individual 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 United States Immigration and Customs Enforcement, Freedom of Information Act Office, 800 North Capitol Street, NW., Room 585, Washington, DC 20536.

                        When seeking records about yourself from this system of records or any other ICE 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,
    - Specify when you believe the records would have been created,       ( print page 5668)      
    - 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 ICE 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:

Alien; alien's attorney/representative; DHS/ICE agent; other Federal, State, local and foreign agencies; and the courts.

### Exemptions claimed for the system:

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

Dated: January 27, 2009.

John W. Kropf,

Acting Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E9-2029 Filed 1-29-09; 8:45 am]

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