Ninth Circuit To Consider Homeland Security Assertion of ‘Privacy Rights’ Of Freed Criminal Migrants

A court hearing will be held today Monday, June 5, 2017, in the U.S. District Court of Appeals, Ninth Circuit, regarding a Freedom of Information Act (FOIA) lawsuit brought by Judicial Watch seeking the names of 149 criminal alien detainees released by U.S. Immigration and Customs Enforcement (ICE) in late February or early March 2013.

In late February and early March of 2013, ICE released the 149 criminal aliens (during the course of pending removal proceedings) from five Arizona correction facilities, citing “fiscal uncertainty.” According to records obtained by Judicial Watch, the illegals had committed 260 crimes, and 40 of them had been incarcerated for violent crimes. The records were obtained in a FOIA lawsuit filed by Judicial Watch on behalf of Edward “Bud” Tuffly, the treasurer of the National Border Patrol Council, the union that represents Border Patrol agents.

In the appeal process, Judicial Watch asked the court to consider: “Whether the names of criminal alien detainees released from federal facilities in Arizona due to ‘fiscal uncertainty’ are being properly withheld under the personal privacy exemptions of the Freedom of Information Act.”

Judicial Watch argued the names of the criminal aliens were improperly withheld under claims of privacy exemption FOIA exemption B7(C) – “Law enforcement information whose disclosure would constitute an unwarranted invasion of personal privacy:”

The exemptions are not absolute. They require a balancing of the privacy interests at stake with the public’s interest in disclosure. In this case, the criminal aliens have an attenuated privacy interest due to the fact that their prior convictions are already a matter of public record. Further, the release of the names will allow the public to monitor DHS’s conduct in supervising potentially dangerous criminal aliens, who are subject to removal but have been released prior to that removal. The public’s strong interest in disclosure therefore outweighs the minimal privacy interests of the criminal aliens.”

Judicial Watch also argued against a Department of Justice claim on behalf of Homeland Security that would equate the names of illegal criminal aliens with foreign military personnel receiving professional training from the U.S. government.

“The names of criminals are regularly published,” Judicial Watch President Tom Fitton said. “The release of the names of these illegal alien criminals is no different, and will help the public know something about how the government is conducting the supervision of these potentially dangerous criminals. Once again, it looks like the ‘deep state’ is ignoring the Trump administration policies that put the safety of Americans first.”


  1. “Law enforcement information whose disclosure would constitute an unwarranted invasion of personal privacy:”
    Once again the Ninth circuit proves that the live in the upside down and backwards world. If they were released in 2013 “What does it matter at this point anyway?”

    • Like too many officials in our local, state and Federal governments, the 9ht Circuit is ignoring the rule of law, something regular citizens go to jail for, the very foundation of our constitutional government. We can only hope the current Supreme Court dos not find some unique legal reasoning to join in the destruction of this fundamental principle of the U. S. Constitution, the beacon of democratic minded people throughout the world.

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