Victory! Court Shuts Down Data Breach Windfall

December 21, 2023

IRLI had shown illegal alien plaintiffs never entered the U.S. in the legal sense

WASHINGTON—A federal district court in Washington, DC, has dismissed a lawsuit brought by illegal aliens demanding a second look at their asylum applications, on favorable terms, because of a brief, accidental data breach of their personal information by Immigration and Customs Enforcement (ICE). The Immigration Reform Law Institute (IRLI) had filed a brief in the case urging that result.

The breach of about 6,000 illegal aliens’ personal information lasted only five hours, but the alien plaintiffs sued 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 took issue with plaintiffs’ claims under the Constitution. IRLI made the key point that plaintiffs did not allege in their complaint that they had even entered the country in a legal sense when the data breach happened. Thus, they failed 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 failed 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 failed to claim that they had effected entry into the U.S.—a prerequisite for coming under the protection of our Constitution.

In ruling on the motion to dismiss, the court did not have to reach such arguments, and did not do so, though it did refer to IRLI’s argument specifically. Instead, the court found that the plaintiffs did not even have standing to be in court in the first place, and accordingly dismissed their case.

“Illegal aliens were trying to use this data breach to their own advantage, but, even assuming that every factual assertion they made in their complaint is true, they lacked any basis in law, including the Constitution, for the windfall they were after,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We are pleased the court threw 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.).