Judge Tells DHS to Stop Shooting Itself in the Foot

By David North, February 20, 2013

This one is a little convoluted.

The government wants some detained aliens, under some conditions, to be released on bond while their status is being sorted out.

With that in mind, the government has licensed certain bail-bond insurance companies to do this work.

Gonzales and Gonzales (G&G) is a licensed agent in California for the American Surety Company, which has DHS approval to issue such bonds. It seems safe to assume that G&G's clients (the aliens in trouble with the government) mostly behave as they are supposed to and report to DHS and/or the courts when asked to do so.

But some do not, and that's the problem.

Under those circumstances, G&G, essentially a handmaiden to the DHS, frequently wants information from its collection of A-files (these are the basic set of documents that DHS possesses for every alien in the country; with A standing for alien) to, among other things, find the aliens in question. If an alien absconds, it is G&G's legal obligation to try to find that person. If the alien remains at large, G&G and/or American Surety owes the government the full dollar figure of the bond.

And, of course, there's another illegal alien, in this case also a bail-bond-abuser, running around loose.

One might think the government would be interested in finding the absconding alien and would help or at least cooperate with the bail-bondsmen, an entity performing a (sometimes difficult) task for the government, but apparently not.

It is under these circumstances that G&G has, since June 23, 2009, filed approximately 571 Freedom of Information Act (FOIA) requests with DHS for information needed from the A-files.

According to the complaint, "DHS has improperly failed to respond to many requests. As to the requests it has responded to, DHS has improperly withheld A-file documents. Many of DHS's incomplete responses were untimely."

The government's excuse for this behavior, to paraphrase it in non-legal terms, is that information in the A-file may be issued to a "person" (such as G&G) only if the alien has consented to such a release. The judge assigned to the case, Federal Magistrate Judge Donna M. Ryu, has ruled that "the court finds the Consent Provision within 6 C.F.R. ยง 5.3(a) invalid as interpreted" and ordered DHS to provide the information requested by the bail-bondsmen.

Although I must admit that I did not read every word of the 180-page complaint (including numerous exhibits), all the verbiage I saw related to the legalities of the conflict, and not to the practical consequences of the DHS's peculiar position.

But whatever the rationale, the judge got it right, and now DHS files can be used to help find aliens who have absconded from DHS custody. For subscribers to the federal courts' data system, PACER, the file number is 4:11-cv-02267-DMR.