Federal Register, Volume 74 Issue 159 (Wednesday, August 19, 2009)

[Federal Register Volume 74, Number 159 (Wednesday, August 19, 2009)]
[Notices]
[Pages 41919-41924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19818]

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

[Docket No. DHS-2009-0102]

Privacy Act of 1974; U.S. Immigration and Customs Enforcement-003
General Counsel Electronic Management System, System of Records

AGENCY: Privacy Office, DHS.

ACTION: Modification to an existing system of records.

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SUMMARY: In accordance with the Privacy Act of 1974, U.S. Immigration
and Customs Enforcement is updating an existing system of records
titled General Counsel Electronic Management System (March 31, 2006) to
reflect changes in the system that provide Immigration and Customs
Enforcement attorneys and other Immigration and Customs Enforcement
personnel with additional information regarding immigration cases and
with additional means of accessing the information. General Counsel
Electronic Management System is a case management system used primarily
by attorneys in the Immigration and Customs Enforcement

[[Page 41920]]

Office of the Principal Legal Advisor to litigate cases before U.S.
immigration courts. In conjunction with the next release of General
Counsel Electronic Management System, Immigration and Customs
Enforcement is modifying the General Counsel Electronic Management
System system of records notice to describe the collection of
additional information on immigration cases and the aliens involved in
them. This General Counsel Electronic Management System system of
records notice updates the system of records number; categories of
individuals; categories of records; purpose of the system; routine
uses; retention and disposal; system manager and address; and record
source categories. Several of the routine uses that were in the
original GEMS SORN have been updated to reflect new standard language
at DHS. The other new routine uses have been proposed in order to
permit sharing in circumstances such as for audit purposes; when
information in the system may have been compromised; in the course of
an immigration, civil, or criminal proceeding, sharing with courts,
counsel, parties, and witnesses; with attorneys acting on behalf of an
individual covered by the system; with foreign governments in order to
remove aliens from the United States; with the Department of State in
the processing of petitions or applications for benefits under the
Immigration and Nationality Act; and to assist with redress requests. A
Privacy Impact Assessment that describes the changes to General Counsel
Electronic Management System is being published concurrently with this
notice. It can be found on the DHS Web site at http://www.dhs.gov/privacy. This system is included in the Department of Homeland
Security's inventory of record systems.

DATES: Submit comments on or before September 18, 2009. This system
will be effective September 18, 2009.

ADDRESSES: You may submit comments, identified by docket number DHS-
2009-0102 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: Mary Ellen Callahan, 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 to 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), Privacy Officer, U.S. Immigration and
Customs Enforcement. For privacy issues please contact: Mary Ellen
Callahan (703-235-0780), Chief Privacy Officer, Privacy Office, U.S.
Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

Immigration and Customs Enforcement (ICE) attorneys are responsible
for the prosecution and/or management of immigration cases litigated
under the Immigration and Nationality Act before U.S. immigration
courts and the Board of Immigration Appeals. General Counsel Electronic
Management System (GEMS) was developed to help ICE attorneys manage
their cases. In addition to having personal information about the
aliens involved with the cases, GEMS has information on individuals
associated with the case such as witnesses, informants, and judges,
documentation related to the cases, and logistical information
regarding hearings. The ICE Office of Detention and Removal Operations
(DRO) is responsible for identifying illegal aliens, apprehending them
and managing them while they are in custody, and removing them from the
United States. DRO personnel use GEMS to stay abreast of changes in
custody decisions for a particular alien and to help with the execution
of final removal orders.
Since the GEMS SORN was last published, several changes have been
made to GEMS to enable ICE attorneys and DRO personnel to better manage
immigration cases and remove aliens. The changes fall into two
categories--new functionality and new or updated system-to-system
interfaces. The pieces of new functionality are important because they
allow ICE attorneys to better manage their cases and assist DRO with
the removal of aliens. Previously, ICE attorneys could only access and
update GEMS data while at their desk. The new GEMS Courtroom Mobility
component enables ICE attorneys to download GEMS case data to a secure
laptop and to use and update it as needed while they are in court. The
Web View component is also new and allows GEMS users to access a read-
only version of the GEMS data via the ICE intranet thus making access
to GEMS more convenient for ICE attorneys and DRO personnel. The last
piece of new functionality is the Project Management component which is
used to manage ancillary projects such as annual reports and budgets
that are unrelated to attorney cases. This component can also be used
to manage immigration cases when the alien has not yet been assigned an
Alien Registration Number. These projects track the key information for
these cases including the individuals involved and events surrounding
the cases.
Since the GEMS SORN was last published, GEMS' system-to-system
interfaces have been expanded. GEMS now has interfaces with the U.S.
Citizenship and Immigration Services' (USCIS) Refugee, Asylum, and
Parole System (RAPS), the Customs and Border Protection's (CBP) TECS,
and the Department of Justice's (DOJ) Case Access System for EOIR
(CASE). RAPS provides GEMS with new personal information regarding
individuals involved in asylum cases. TECS provides additional
biographical information on individuals with immigration-related issues
and CASE provides additional schedule information regarding hearings.
In accordance with the Privacy Act of 1974, DHS is amending the
General Counsel Electronic Management System (GEMS) SORN to reflect the
changes in the types of personal information maintained in GEMS as a
result of these upgrades. The SORN includes revised category of
individuals, category of records, routine uses, and retention and
disposal sections to reflect changes to the system and ICE's
operational protocols. Several of the routine uses that were in the
original GEMS SORN have been updated to reflect new standard language
at DHS. The other new routine uses have been proposed in order to
permit sharing in circumstances such as for audit purposes; when
information in the system may have been compromised; in the course of
an immigration, civil, or criminal proceeding, sharing with courts,
counsel, parties, and witnesses; with attorneys acting on behalf of an
individual covered by the system; with foreign governments in order to
remove aliens from the United States; with the Department of State in
the processing of petitions or applications for benefits under the
Immigration and Nationality Act; and to assist with redress requests.
This amended SORN also changes the system number from DHS/ICE/OPLA-001
to DHS/ICE-003. This amended system of records supports the ability of
ICE attorneys to litigate cases before

[[Page 41921]]

U.S. immigration courts and helps with the execution of final removal
orders. This amended SORN is being published concurrently with the GEMS
Privacy Impact Assessment (PIA) update.
Consistent with DHS's information sharing mission, information
stored in GEMS may be shared with other DHS components, as well as
appropriate Federal, State, local, tribal, foreign, or international
government agencies. This sharing will only take place after DHS
determines that the receiving component or agency has a need to know
the information to carry out national security, law enforcement,
immigration, intelligence, or other functions, consistent with the
routine uses set forth in this SORN.

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 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 to
which their records are put, and to assist individuals to more easily
find such files within the agency. Below is the description of the DHS/
ICE-003, General Counsel Electronic Management System (GEMS) system of
records.
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 and to
Congress.
System of Records
DHS/ICE-003

System name:
General Counsel Electronic Management System (GEMS).

Security classification:
Unclassified.

System location:
Records in GEMS are maintained in electronic form at the U.S.
Immigration and Customs Enforcement headquarters in Washington, DC and
at field offices.

Categories of individuals covered by the system:
Categories of individuals covered by this system include: (1)
Individuals covered by provisions of the Immigration and Nationality
Act; (2) individuals who are under investigation by ICE, who were
investigated by ICE in the past, and those who are suspected of
violating the criminal or civil provisions of statutes, treaties,
Executive Orders, and regulations administered by ICE; (3) witnesses,
informants, or other third parties who may have knowledge of such
violations; (4) ICE attorneys and other employees who have been
assigned to represent the agency in litigation relating to aliens and
other individuals whose files are contained in the system; and (5)
defense attorneys, asylum officers, and immigration judges involved
with immigration cases.

Categories of records in the system:
Categories of records in this system include:
The alien's biographical information such as name, A-
number, date and place of birth, date and port of entry, nationality,
language, race, gender, height, and weight; identification information
including social security number, driver's license number, and passport
number; employment information; flags regarding the individual's status
including if the person is legally sufficient, if a final order has
been issued, or if a stay is in effect; flags regarding the individual
including if the person is a convicted felon, a terrorist, an interest
of the Federal Bureau of Investigation (FBI), has a gang affiliation,
or is a child predator; information on relief; comments about the alien
by CBP officers at the border; and events associated with the alien
such as court appearances. If the alien has applied for asylum, the
system also collects religion, marital status, address, the date of the
request for asylum, the asylum officer assigned to the case, the
alien's persecution code, the basis of the claim, information on the
person's interviews and court appearances, the results of various
database checks done on the person as part of the case, and the final
decision code and the date of the final decision.
Personal information on other people associated with the
alien including family members, witnesses, and informants. For each
person, GEMS contains the person's name, gender, role, contact
information, and notes about the person.
Personal information on attorneys and immigration judges
associated with the alien including the person's name, gender, role,
contact information, and notes about the person.
Hearing information including the language the alien
speaks, the hearing start time and end time, the hearing location and
address, the immigration judge hearing the case, the prosecuting and
defending attorneys, and a flag indicating if the alien was battered or
not.
Subsets or complete sets of information also contained in
the hard copy A-File that may include the alien's official record
material, such as naturalization certificates, various forms and
attachments such as photographs, applications and petitions for
benefits under the immigration and nationality laws, reports of
investigations, statements, arrest reports, correspondence, and
enforcement documents.
Attorney work products consisting of pre-trial, trial, and
post-trial notes, memoranda stating positions for litigation, notes to
investigators, information related to immigration cases that have been
obtained from hardcopy or online research, legal opinions, and policy
memos.

Authority for maintenance of the system:
Immigration And Nationality Act of 1952, as amended.

Purpose(s):
The purposes of the system are (1) to support the litigation of
immigration cases before U.S. administrative and Federal courts,
including immigration courts and the Board of Immigration Appeals; (2)
to support the tracking, processing, and reporting of case information
for internal management, reporting, planning, and analysis purposes;
and (3) to support the ICE mission by maintaining and sharing
information that supports the identification, arrest, apprehension,
detention, and removal of aliens who

[[Page 41922]]

are subject to removal under the Immigration and Naturalization Act.

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 or
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 (including United States Attorney
Offices) 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 that rely 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 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 other Federal, State, tribal, and local government law
enforcement and regulatory agencies and foreign governments,
individuals and organizations during the course of an investigation or
the processing of a matter, or during a proceeding within the purview
of the immigration and nationality laws, to elicit information required
by ICE to carry out its functions and statutory mandates.
I. To an appropriate Federal, State, local, tribal, foreign, or
international agency, if the information is relevant and necessary to a
requesting agency's decision concerning the hiring or retention of an
individual, or issuance of a security clearance, license, contract,
grant, or other benefit, or if the information is relevant and
necessary to a DHS decision concerning the hiring or retention of an
employee, the issuance of a security clearance, the reporting of an
investigation of an employee, the letting of a contract, or the
issuance of a license, grant or other benefit and when disclosure is
appropriate to the proper performance of the official duties of the
person making the request.
J. To a former employee of DHS, in accordance with applicable
regulations, for purposes of responding to an official inquiry by a
Federal, State, or local government entity or professional licensing
authority; or facilitating communications with a former employee that
may be necessary for personnel-related or other official purposes where
the Department requires information or consultation assistance from the
former employee regarding a matter within that person's former area of
responsibility.
K. To a Federal, State, tribal, local or foreign government agency
or organization, or international organization, lawfully engaged in
collecting law enforcement intelligence information, whether civil or
criminal, or charged with investigating, prosecuting, enforcing or
implementing civil or criminal laws, related rules, regulations or
orders, to enable these entities to carry out their law enforcement
responsibilities, including the collection of law enforcement
intelligence.
L. To a court, magistrate, administrative tribunal, opposing
counsel, parties, and witnesses, in the course of an immigration,
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.
M. To clerks and judges of courts exercising naturalization
jurisdiction for the purpose of filing petitions for naturalization and
to enable such courts to determine eligibility for naturalization or
grounds for revocation of naturalization.
N. To an attorney or representative (as defined in 8 CFR 1.1(j))
who is acting on behalf of an individual covered by this system of
records in connection with any proceeding before USCIS or the Executive
Office for Immigration Review.
O. 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

[[Page 41923]]

in the collection and dissemination of intelligence concerning criminal
activity.
P. 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.
Q. 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.
R. To foreign governments for the purpose of coordinating and
conducting the removal of aliens from the United States to other
nations.
S. To a Federal, State, tribal, local, international, or foreign
government agency or entity for the purpose of consulting with that
agency or entity: (1) To assist in making a determination regarding
redress for an individual in connection with the operations of a DHS
component or program; (2) for the purpose of verifying the identity of
an individual seeking redress in connection with the operations of a
DHS component or program; or (3) for the purpose of verifying the
accuracy of information submitted by an individual who has requested
such redress on behalf of another individual.
T. To the Department of State in the processing of petitions or
applications for benefits under the Immigration and Nationality Act,
and all other immigration and nationality laws including treaties and
reciprocal agreements.
U. 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.
V. To the Office of Management and Budget in connection with the
review of private relief legislation as set forth in OMB Circular No.
A-19 at any stage of the legislative coordination and clearance process
as set forth in the Circular.

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 in a central
database.

Retrievability:
Records in the system are indexed and retrieved by an individual's
alien number, name, case information (such as hearing location and type
of hearing), and other criteria that can identify an individual in
proceedings in a court or adjudicative body before which ICE is
authorized to appear.

Safeguards:
Records in this system are safeguarded in accordance with
applicable rules and policies, including all applicable DHS automated
systems security and 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:
The records will be retained for seventy-five (75) years after the
last administrative action has been taken on the case. The seventy-five
(75) year retention period is consistent with the retention period for
the physical A-File. This retention period ensures that sufficient
information is available to conduct meaningful analysis if needed.
Records are destroyed appropriately after the retention period.

System Manager and address:
Principal Legal Advisor, ICE Office of the Principal Legal Advisor,
500 12th Street, SW., Washington, DC 20536.

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, ICE will consider
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 the Headquarters or component's FOIA
Officer, whose contact information can be found at http://www.dhs.gov/foia under ``contacts.'' If an individual believes more than one
component maintains Privacy Act records concerning him or her the
individual may submit the request to the Chief Privacy Officer,
Department of Homeland Security, 245 Murray Drive, SW., Building 410,
STOP-0550, Washington, DC 20528.
When seeking records about yourself from this system of records or
any other Departmental 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,
Identify which component(s) of the Department you believe
may have the information about you,
Specify when you believe the records would have been
created,
Provide any other information that will help the FOIA
staff determine which DHS component agency may have responsive records,
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 component(s) 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:
Records in this system are supplied by several sources. ICE
attorneys provide information regarding the cases that they are
working. Other records are derived from the alien file maintained on
individuals and may include investigative material that provides the
basis for the legal proceedings. Records are also obtained from other
Federal agency information systems including USCIS' Refugee, Asylum,
and Parole

[[Page 41924]]

System (RAPS), Custom and Border Protection's Treasury Enforcement
Communication System (TECS), and the Department of Justice's Case
Access System for EOIR (CASE).

Exemptions claimed for the system:
The Secretary 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), and
(g) of the Privacy Act. These exemptions apply only to the extent that
records in the system are subject to exemption pursuant to 5 U.S.C.
Sections 552a (j)(2) and (k)(1) and (k)(2).

Dated: August 11, 2009.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E9-19818 Filed 8-18-09; 8:45 am]
BILLING CODE 9111-28-P