Does a Data Breach Give 6,000 Illegal Aliens a Free Pass?

April 11, 2023

IRLI shows opportunistic lawsuit has no basis

WASHINGTON—Today, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in DC federal district court in a case in which illegal aliens are trying to reopen their asylum cases on favorable terms because of a brief, accidental data breach of their personal information by Immigration and Customs Enforcement (ICE).

The breach of about 6,000 illegal aliens’ personal information lasted only five hours, but the alien plaintiffs are suing under the Fifth Amendment to the U.S. Constitution, the Privacy Act, and immigration law to have their asylum cases reopened with presumptions in their favor that would likely result in their being granted asylum.

In its brief, IRLI takes issue with plaintiffs’ claims under the Constitution. IRLI makes the key point that plaintiffs do not allege in their complaint that they had even entered the country in a legal sense when the data breach happened. Thus, they fail to claim that they had any rights under our Constitution to be deprived of.

In immigration law, “entry” is a term of art, generally defined as presence in this country and freedom from official restraint. For example, a traveler at an American airport waiting to go through customs has not “entered” the United States. And a basic principle of constitutional law is that it is the American people—not aliens who have never entered the country in a legal sense, and have no substantial connection to it—who have rights under our Constitution.

Here, most of the plaintiffs were in ICE custody when the data breach happened, some had been removed from the country, and the rest fail to allege facts implying that, though released from detention and physically in the country, their freedom was unrestrained by immigration officials. Thus, according to the leading legal definition of “entry,” plaintiffs fail to claim that they had effected entry into the U.S.—a prerequisite for coming under the protection of our Constitution.

“Illegal aliens are trying to use this data breach to their own advantage, but, even assuming that every factual assertion they make in their complaint is true, they lack any basis in law, including the Constitution, for the windfall they are after,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We hope the court clearly sees the prohibitive legal problems with all of these claims, and throws out this blatantly opportunistic attempt to game the system.”

The case is Asylum Seekers Trying to Assure their Safety v. Johnson, No. 23-cv-00163 (D.D.C.).