vermont bar association seminar materials immigration hot ... immigration hot topics.pdf · 2.2 all...

Vermont Bar Association

Seminar Materials

Immigration Hot Topics: Border Issues,

DACA, and More

March 22-23, 2018

DoubleTree (formerly Sheraton)

S. Burlington, VT

Speakers:

Sidney Collier, Esq.

Adeline Simenon, Esq.

http://www.escribers.net

America is no longer a 'nation of immigrants'

Kim Hjelmgaard and Alan Gomez, USA TODAY Published 5:00 a.m. ET Feb. 23, 2018 | Updated 11:55 a.m. ET Feb. 23, 2018

"Give me your tired, your poor, your huddled masses yearning to breathe free."

The U.S. is no longer devoted to securing "America's promise as a nation of immigrants."

That's according to the United States Citizenship and Immigration Services (USCIS) anyway, which changed its

official mission statement late Thursday and dropped the language to describe the country.

The federal agency that grants visas and U.S. citizenship now refers to itself as an organization that

"administers the nation's lawful immigration system." The new mission statement also eliminates the word

"customers" to refer to visa applicants.

In a letter to employees, L. Francis Cissna, USCIS's director, said the changes were a "straightforward statement (that) clearly defines the agency's role

in our country's lawful immigration system and the commitment we have to the American people."

There was no specific explanation for why USCIS dropped the phrase. USCIS directed USA TODAY to Cissna's statement when asked to explain the

removal.

"We answer to the American people who look to us to ensure people who are eligible for immigration benefits receive them and those who are not eligible

— either because they don’t qualify or because they attempt to qualify by fraud — don’t receive them, and those who would do us harm are not granted

immigration benefits. Thus, as we begin our work under the banner of our new mission statement, we will also go forward by ending use of the term

'customer' as an agency when referring to applicants or petitioners — a reminder we are always working for the American people," he said.

Cissna became the agency's director in October last year, after President Trump's election. Trump has sought to significantly harden decades of U.S.

policy on legal and illegal immigration. He plans to admit no more than 45,000 refugees in 2018. His predecessor President Obama had set the 2017 cap

at 110,000 admissions, which Trump lowered to 50,000. About 6,700 refugees have been admitted in the U.S. so far this year, according to the latest

available State Department data.

In a statement, Eleanor Acer, director of refugee protection at Washington-based advocacy group Human Rights First, said: "Our nation is one built by

immigrants—removing this language does nothing to change that fact ... It is clear from the language and policies put forth by President Trump and his

hard-line immigration extremists that they will stop at nothing to demonize and dehumanize immigrants and refugees, who have often fled violence and

persecution in search for a better life."

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Page 1 of 2USCIS mission statement removes 'nation of immigrants' language

3/18/2018https://www.usatoday.com/story/news/world/2018/02/23/america-no-longer-nation-immigrants-uscis-sa...

But Chris Chmielenski, director of NumbersUSA, a group that advocates for lower levels of legal and illegal immigration, applauded the move.

"Every government agency should remember that it serves Americans and American interests first and foremost. It’s great to see USCIS doing exactly

that," he said.

The U.S. has been the top worldwide destination for international migrants since at least 1960, with about one-fifth of the world's migrants living there as

of 2017, according to Migration Policy Institute, a think tank.

More than 43 million immigrants lived in the U.S. in 2016, accounting for 13.5% of the total U.S. population of 323 million, according to American

Community Survey data.

USCIS's new mission statement:

"U.S. Citizenship and Immigration Services administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and

fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values."

USCIS's previous mission statement:

"USCIS secures America's promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and

citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system."

More: What's next for 'Dreamers' after Senate immigration bills fail? (/story/news/politics/2018/02/16/dreamers-immigration-congress/344512002/)

More: Here's a new, compassionate idea for dealing with illegal immigration (/story/opinion/2018/02/16/solve-immigration-problem-starting-those-live-

here-already-bob-vander-plaats-column/343360002/)

More: Trump likes Canada's merit-based immigration, but it's not what he thinks (/story/opinion/2018/02/13/canada-merit-based-immigration-worth-

emulating-but-trump-gets-wrong-jeremy-robbins-column/309201002/)

Read or Share this story: https://usat.ly/2or3cXz

Page 2 of 2USCIS mission statement removes 'nation of immigrants' language

3/18/2018https://www.usatoday.com/story/news/world/2018/02/23/america-no-longer-nation-immigrants-uscis-sa...

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February 23, 2018

From Labor & Employment on Bloomberg Law

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

Legal News

Tax & Accounting News

EHS News

HR & Payroll News

Page 1 of 7Immigration Agency Removing Appeals Office Chief | Bloomberg Law

3/18/2018https://www.bna.com/immigration-agency-removing-n57982089157/

By Laura D. Francis

The head of U.S. Citizenship and Immigration Services’ appeals board is being transferred out of his position and moved to an acting director position at one of the agency’s regional service centers.

Ron Rosenberg, who has headed the USCIS’s Administrative Appeals Office since 2013, was told Feb. 21 that he was being detailed to the Potomac Service Center at the behest of USCIS Director Francis Cissna. Barbara Velarde, the current head of the service center, will be assuming Rosenberg’s role at the AAO.

Robert Cohen of Porter, Wright, Morris & Arthur in Columbus, Ohio, said immigration attorneys are “disappointed” in the decision. “We have a great deal of respect for Ron’s work,” Cohen, chairman of the American Immigration Lawyers Association’s USCIS Benefits Liaison Committee, told Bloomberg Law Feb. 23. “He brought an air of professionalism and intellectual integrity to the AAO.”

Also available onDaily Labor Report

Daily Labor Report® is the premier resource that the nation’s foremost labor and employment professionals rely on for authoritative, analytical coverage of top labor and employment news.



A representative for the USCIS wasn’t immediately available for comment.

The decision to move Rosenberg follows closely on the heels of two AAO decisions that appeared to run counter to recent USCIS decision making.

Last summer, USCIS adjudicators started questioning employers’ petitions for H-1B “specialty occupation” visas—which generally go to high-skilled workers—if the worker is being offered an entry-level salary. The USCIS also has indicated it has plans to redefine the term “specialty occupation” to “increase focus on obtaining the best and the brightest foreign nationals.”

Some of that questioning led to denials of the petitions, which were then appealed to the AAO.

“There is no inherent inconsistency between an entry-level position and a specialty occupation,” the AAO said in a Jan. 25 nonprecedential decision. “Most professionals start their careers in what are deemed entry-level positions. That doesn’t preclude us from identifying a specialty occupation,” the office said. “But wage is only one factor and does not by itself define or change the character of the occupation,” it said.



Request Labor & Employment on Bloomberg Law

Rosenberg’s tenure at the AAO was a “real success story,” Greg Siskind of Siskind Susser in Memphis, Tenn., said in a Feb. 22 Twitter post. “AAO has been vocal in questioning the wisdom of some of the most overreaching nonsense coming out of USCIS and now the anti-immigrants that have taken over the agency appear to be exacting their revenge,” said Siskind, who serves on AILA’s board of directors.



Asylum Process Aimed at Fake Work Permits May Not Help Backlog

University of Chicago Professors Reach Tentative Deal (1)

Ex-Minnesota Women’s Hockey Coach Scores $3.7M for Bias (1)

Whole Foods Must Defend Claims About Incentive Program

NYC Pregnancy Bias Case Set for More Trial Court Labor



‘Worker Center or Union’ Probe May be Sign of Things to Come

Q&A With Kalpana Kotagal: Going to the Source for Insights on ‘Inclusion Riders’

Best Practices for Workplace Harassment Investigations

NLRB Shifts Standard for Deciding If Employee Handbook Rules Are Lawful

Sexual Harassment Tax Change Puts Pinch on Confidential Settlements

Is Continued Employment Sufficient Consideration for a Non-Compete Agreement?

Breast-Feeding Accommodation: New Laws Expand Employer Duties



$



U.S. CUSTOMS AND BORDER PROTECTION

CDP DIRECTIVE NO. 3340-049A DATE: January 4, 2018 ORIGINATING OFFICE: FO:TO SUPERSEDES: Directive 3340-049 REVIEW DATE: January 2021

SUBJECT: BORDER SEARCH OF ELECTRONIC DEVICES

1 PURPOSE. To provide guidance and standard operating procedures for searching, reviewing, retaining, and sharing information contained in computers, tablets, removable media, disks, drives, tapes, mobile phones, cameras, music and other media players, and any other communication, electronic, or digital devices subject to inbound and outbound border searches by U.S. Customs and Border Protection (CBP). These searches are conducted in furtherance of CBP's customs, immigration, law enforcement, and homeland security responsibilities and to ensure compliance with customs, immigration, and other laws that CBP is authorized to enforce and administer.

These searches are part of CBP's longstanding practice and are essential to enforcing the law at the U.S. border and to protecting border security. They help detect evidence relating to terrorism and other national security matters, human and bulk cash smuggling, contraband, and child pornography. They can also reveal information about financial and commercial crimes, such as those relating to copyright, trademark, and export control violations. They can be vital to risk assessments that otherwise may be predicated on limited or no advance information about a given traveler or item, and they can enhance critical information sharing with, and feedback from, elements of the federal government responsible for analyzing terrorist threat information. Finally, searches at the border are often integral to a determination of an individual's intentions upon entry and provide additional information relevant to admissibility under the immigration laws.

2 POLICY

2.1 CBP will protect the rights of individuals against unreasonable search and seizure and ensure privacy protections while accomplishing its enforcement mission.

2.2 All CBP Officers, Border Patrol Agents, Air and Marine Agents, Office of Professional Responsibility Agents, and other officials authorized by CBP to perform border searches shall adhere to the policy described in this Directive and any implementing policy memoranda or musters.

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2.3 This Directive governs border searches of electronic devices - including any inbound or outbound search pursuant to longstanding border search authority and conducted at the physical border, the functional equivalent of the border, or the extended border, consistent with law and agency policy. For purposes of this Directive, this excludes actions taken to determine ifa device functions (e.g., turning a device on and off); or actions taken to determine ifphysical contraband is concealed within the device itself; or the review of information voluntarily provided by an individual in an electronic format (e.g., when an individual shows an e-ticket on an electronic device to an Officer, or when an alien proffers information to establish admissibility). This Directive does not limit CBP's authority to conduct other lawful searches of electronic devices, such as those performed pursuant to a warrant, consent, or abandonment, or in response to exigent circumstances; it does not limit CBP's ability to record impressions relating to border encounters; it does not restrict the dissemination of information as required by applicable statutes and Executive Orders.

2.4 ·This Directive does not govern searches of shipments containing commercial quantities ofelectronic devices (e.g., an importation ofhundreds oflaptop computers transiting from the factory to the distributor).

2.5 This Directive does not supersede Restrictions on Importation ofSeditious Matter, Directive 2210-001 A~ Seditious materials encountered through a border search should continue to be handled pursuant to Directive 2210-001 A or any successor thereto.

2.6 This Directive does not supersede Processing Foreign Diplomatic and Consular Officials, Directive 3340-032. Diplomatic and consular officials encountered at the border, the functional equivalent of the border (FEB), or extended border should continue to be processed pursuant to Directive 3340-032 or any successor thereto.

2.7 This Directive applies to searches performed by or at the request of CBP. With respect to searches performed by U.S. Immigration and Customs Enforcement (ICE), Homeland Security Investigations (HSI) Special Agents exercise concurrently-held border search authority that is covered by ICE's own policy and procedures. When CBP detains, seizes, or retains electronic devices, or copies of information therefrom, and conveys such to ICE for analysis, investigation, and disposition (with appropriate documentation), the conveyance to ICE is not limited by the terms of this Directive, and ICE policy will apply upon receipt by ICE.

3 DEFINITIONS

3.1 Officer. A Customs and Border Protection Officer, Border Patrol Agent, Air and Marine Agent, Office of Professional Responsibility Special Agent, or any other official of CBP authorized to conduct border searches.

3.2 Electronic Device. Any device that may contain information in an electronic or digital form, such as computers, tablets, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players.

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3.3 Destruction. For electronic records, destruction is deleting, overwriting, or degaussing in compliance with CBP Information Systems Security Policies and Procedures Handbook, CIS HB 1400-0SC.

AUTHORITY/REFERENCES. 6 U.S.C. §§ 122, 202, 211; 8 U.S.C. §§ 1225, 1357, and other pertinent provisions of the immigration laws and regulations; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a(d), and other pertinent provisions of customs laws and regulations; 31 U.S.C. § 5317 and other pertinent provisions relating to monetary instruments; 22 U.S.C. § 401 and other laws relating to exports; Guidelines for Detention and Seizures of Pornographic Materials, Directive 4410-001 B; Disclosure of Business Confidential Information to Third Parties, Directive 1450-015; Accountability and Control of Custody Receipt for Detained and Seized Property (CF6051 ), Directive 5240-005.

The plenary authority of the Federal Government to conduct searches and inspections ofpersons and merchandise crossing our nation's borders is well-established and extensive; control of the border is a fundamental principle of sovereignty. "[T]he United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity." United States v. Flores-Montano, 541 U.S. 149, 153 (2004). "The Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Time and again, [the Supreme Court has] stated that 'searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border."' Id. at 152-53 (quoting United States v. Ramsey, 431 U.S. 606, 616 ( 1977) ). "Routine searches of the persons and effects ofentrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Additionally, the authority to conduct border searches extends not only to persons and merchandise entering the United States, but applies equally to those departing the country. See, e.g., United States v. Bourne/hem, 339 F.3d 414, 422-23 (6th Cir. 2003); United States v. Odutayo, 406 F.3d 386, 391-92 (5th Cir. 2005); United States v. Oriakhi, 57 F.3d 1290, 1296-97 (4th Cir. 1995); United States v. Ezeiruaku, 936 F.2d 136, 143 (3d Cir. 1991); United States v. Cardona, 769 F.2d 625, 629 (9th Cir. 1985); United States v. Udofot, 711 F.2d 831, 839-40 (8th Cir. 1983).

As a constitutional matter, border search authority is premised in part on a reduced expectation ofprivacy associated with international travel. See Flores-Montano, 541 U.S. at 154 (noting that "the expectation ofprivacy is less at the border than it is in the interior"). Persons and merchandise encountered by CBP at the international border are not only subject to inspection under U.S. law, they also have been or will be abroad and generally subject to the legal authorities of at least one other sovereign. See Boumelhem, 339 F.3d at 423.

In addition to longstanding federal court precedent recognizing the constitutional authority of the U.S. government to conduct border searches, numerous federal statutes and regulations also authorize CBP to inspect and examine all individuals and merchandise entering or departing the United States, including all types ofpersonal property, such as electronic devices. See, e.g., 8 U.S.C. §§ 1225, 1357; 19 U.S.C. §§ 482, 507, 1461, 1496, 1581, 1582, 1589a, 1595a; see also 19 C.F.R. § 162.6 ("All persons, baggage, and merchandise arriving in the Customs territory of

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the United States from places outside thereof are liable to inspection and search by a Customs officer."). These authorities support CBP's enforcement and administration of federal law at the border and facilitate the inspection of merchandise and people to fulfill the immigration, customs, agriculture, and counterterrorism missions of the Department. This includes, among other things, the responsibility to "ensure the interdiction ofpersons and goods illegally entering or exiting the United States"; "detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States"; "safeguard the borders of the United States to protect against the entry of dangerous goods"; "enforce and administer all immigration laws"; "deter and prevent the illegal entry of terrorists, terrorist weapons, persons, and contraband"; and "conduct inspections at [] ports of entry to safeguard the United States from terrorism and illegal entry ofpersons." 6 u.s.c. §' 211.

CBP must conduct border searches of electronic devices in accordance with statutory and regulatory authorities and applicable judicial precedent. CBP' s broad authority to conduct border searches is well-established, and courts have rejected a categorical exception to the border search doctrine for electronic devices. Nevertheless, as a policy matter, this Directive imposes certain requirements, above and beyond prevailing constitutional and legal requirements, to ensure that the authority for border search of electronic devices is exercised judiciously, responsibly, and consistent with the public trust.

5 PROCEDURES

5.1 Border Searches

5.1.1 Border searches may be performed by an Officer or other individual authorized to perform or assist in such searches (e.g., under 19 U.S.C. § 507).

5 .1.2 Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device's operating system or through other software, tools, or applications. Officers may not intentionally use the device to access information that is solely stored remotely. To avoid retrieving or accessing information stored remotely and not otherwise present on the device, Officers will either request that the traveler disable connectivity to any network (e.g., by placing the device in airplane mode), or, where warranted by national security, law enforcement, officer safety, or other operational considerations, Officers will themselves disable network connectivity. Officers should also take care to ensure, throughout the course of a border search, that they do not take actions that would make any changes to the contents of the device.

5 .1.3 Basic Search. Any border search of an electronic device that is not an advanced search, as described below, may be referred to as a basic search. In the course of a basic search, with or without suspicion, an Officer may examine an electronic device and may review and analyze information encountered at the border, subject to the requirements and limitations provided herein and applicable law. ·

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5 .1.4 Advanced Search. An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents. In instances in which there is reasonable suspicion of activity in violation of the laws enforced or administered by CBP, or in which there is a national security concern, and with supervisory approval at the Grade 14 level or higher (or a manager with comparable responsibilities), an Officer may perform an advanced search of an electronic device. Many factors may create reasonable suspicion or constitute a national security concern; examples include the existence of a relevant national security-related lookout in combination with other articulable factors as appropriate, or the presence of an individual on a government-operated and government-vetted terrorist watch list.

5.1.5 Searches of electronic devices will be documented in appropriate CBP systems, and advanced searches should be conducted in the presence of a supervisor. In circumstances where operational considerations prevent a supervisor from remaining present for the entire advanced search, or where supervisory presence is not practicable, the examining Officer shall, as soon as possible, notify the appropriate supervisor about the search and any results thereof.

5 .1.6 Searches of electronic devices should be conducted in the presence of the individual whose information is being examined unless there are national security, law enforcement, officer safety, or other operational considerations that make it inappropriate to permit the individual to remain present. Permitting an individual to remain present during a search does not necessarily mean that the individual shall observe the search itself. Ifpermitting an individual to observe the search could reveal law enforcement techniques or potentially compromise other operational considerations, the individual will not be permitted to observe the search itself.

5.2 Review and Handling of Privileged or Other Sensitive Material

5 .2.1 Officers encountering information they identify as, or that is asserted to be, protected by the attorney-client privilege or attorney work product doctrine shall adhere to the following procedures.

5.2.1.1 The Officer shall seek clarification, if practicable in writing, from the individual asserting this privilege as to specific files, file types, folders, categories of files, attorney or client names, email addresses, phone numbers, or other particulars that may assist CBP in identifying privileged information.

5 .2.1.2 Prior to any border search of files or other materials over which a privilege has been asserted, the Officer will contact the CBP Associate/ Assistant Chief Counsel office. In coordination with the CBP Associate/ Assistant Chief Counsel office, which will coordinate with the U.S. Attorney's Office as needed, Officers will ensure the segregation of any privileged material from other information examined during a border search to ensure that any privileged material is handled appropriately while also ensuring that CBP accomplishes its critical border security mission. This segregation process will occur through the establishment and employment of a Filter Team composed of legal and operational representatives, or through another appropriate measure with written concurrence of the CBP Associate/ Assistant Chief Counsel office.

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5.2.1.3 At the completion of the CBP review, unless any materials are identified that indicate an imminent threat to homeland security, copies ofmaterials maintained by CBP and determined to be privileged will be destroyed, except for any copy maintained in coordination with the CBP Associate/ Assistant Chief Counsel office solely for purposes of complying with a litigation hold or other requirement of law.

5.2.2 Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel office, and this consultation shall be noted in appropriate CBP systems.

5 .2.3 Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure. Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern or restrict the handling of the information. Any questions regarding the handling ofbusiness or commercial information may be directed to the CBP Associate/ Assistant Chief Counsel office or the CBP Privacy Officer, as appropriate.

5 .2.4 Information that is determined to be protected by law as privileged or sensitive will only be shared with agencies or entities that have mechanisms in place to protect appropriately such information, and such information will only be shared in accordance with this Directive.

5.3 Review and Handling of Passcode-Protected or Encrypted Information

5.3.1 Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection ofthe device and its contents. Ifpresented with an electronic device containing information that is protected by a passcode or encryption or other security mechanism, an Officer may request the individual's assistance in presenting the electronic device and the information contained therein in a condition that allows inspection of the device and its contents. Passcodes or other means ofaccess may be requested and retained as needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications present on the device that is being inspected or has been detained, seized, or retained in accordance with this Directive.

5.3.2 Passcodes and other means of access obtained during the course of a border inspection will only be utilized to facilitate the inspection of devices and information subject to border search, will be deleted or destroyed when no longer needed to facilitate the search of a given device, and may not be utilized to access information that is only stored remotely.

5.3.3 Ifan Officer is unable to complete an inspection of an electronic device because it is protected by a passcode or encryption, the Officer may, in accordance with section 5.4 below, detain the device pending a determination as to its admissibility, exclusion, or other disposition.

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5.3.4 Nothing in this Directive limits CBP's ability, with respect to any device pre~ented in a manner that is not readily accessible for inspection, to seek technical assistance, or to use external equipment or take other reasonable measures, or in consultation with the CBP Associate/ Assistant Chief Counsel office to pursue available legal remedies, to render a device in a condition that allows for inspection of the device and its contents.

5.4 Detention and Review in Continuation of Border Search of Information

5.4.l Detention and Review by CBP

An Officer may detain electronic devices, or copies of information contained therein, for a brief, reasonable period of time to perform a thorough border search. The search may take place onsite or at an off-site location, and is to be completed as expeditiously as possible. Unless extenuating circumstances exist, the detention of devices ordinarily should not exceed five (5) days. Devices must be presented in a manner that allows CBP to inspect their contents. Any device not presented in such a manner may be subject to exclusion, detention, seizure, or other appropriate action or disposition.

5.4.1.1 Approval of and Time Frames for Detention. Supervisory approval is required for detaining electronic devices, or copies of information contained therein, for continuation of a border search after an individual's departure from the port or other location ofdetention. Port Director; Patrol Agent in Charge; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or other equivalent level manager approval is required to extend any such detention beyond five (5) days. Extensions of detentions exceeding fifteen (15) days must be approved by the Director, Field Operations; ChiefPatrol Agent; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or other equivalent manager, and may be approved and re-approved in increments ofno more than seven (7) days. Approvals for detention and any extension thereof shall be noted in appropriate CBP systems.

5.4.1.2 Destruction. Except as noted in section 5.5 or elsewhere in this Directive, if after reviewing the information pursuant to the time frames discussed in section 5.4, there is no probable cause to seize the device or the information contained therein, any copies of the information held by CBP must be destroyed, and any electronic device must be returned. Upon this determination, the copy of the information will be destroyed as expeditiously as possible, but no later than seven (7) days after such determination unless circumstances require additional time, which must be approved by a supervisor and documented in an appropriate CBP system and which must be no later than twenty-one (21) days after such determination. The destruction shall be noted in appropriate CBP systems.

5.4.1.3 Notification of Border Search. When a border search of information is conducted on an electronic device, the individual subject to search will be notified of the purpose and authority for such search, how the individual may obtain more information on reporting concerns about their search, and how the individual may seek redress from the agency if he or she feels aggrieved by a search. If the Officer or other appropriate CBP official determines that the fact of conducting this search cannot be disclosed to the individual transporting the device without

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impairing national security, law enforcement, officer safety, or other operational interests, notification may be withheld.

5.4.1.4 Custody Receipt. IfCBP determines it is necessary to detain temporarily an electronic device to continue the search, the Officer detaining the device shall issue a completed Form 6051 D to the individual prior to the individual's departure.

5.4.2 Assistance

Officers may request assistance that may be needed to access and search an electronic device and the information stored therein. Except with respect to assistance sought within CBP or from ICE, the following subsections of 5.4.2 govern requests for assistance.

5.4.2.1 Technical Assistance. Officers may sometimes need technical assistance to render a device and its contents in a condition that allows for inspection. For example, Officers may encounter a device or information that is not readily accessible for inspection due to encryption or password protection. Officers may also require translation assistance to inspect information that is in a foreign language. In such situations, Officers may convey electronic devices or copies of information contained therein to seek technical assistance.

5.4.2.2 Subject Matter Assistance- With Reasonable Suspicion or National Security Concern. Officers may encounter information that requires referral to subject matter experts to determine the meaning, context, or value of information contained therein as it relates to the laws enforced or administered by CBP. Therefore, Officers may convey electronic devices or copies of information contained therein for the purpose of obtaining subject matter assistance when there is a national security concern or they have reasonable suspicion of activities in violation of the laws enforced or administered by CBP.

5.4.2.3 Approvals for Seeking Assistance. Requests for assistance require supervisory approval and shall be properly documented and recorded in CBP systems. Ifan electronic device is to be detained after the individual's departure, the Officer detaining the device shall execute a Form 6051D and provide a copy to the individual prior to the individual's departure. All transfers of the custody of the electronic device will be recorded on the Form 6051D.

5.4.2.4 Electronic devices should be transferred only when necessary to render the requested assistance. Otherwise, a copy of data from the device should be conveyed in lieu of the device in accordance with this Directive. ·

5.4.2.5 When an electronic device or information contained therein is conveyed for assistance, the individual subject to search will be notified of the conveyance unless the Officer or other appropriate CBP official determines, in consultation with the receiving agency or other entity as appropriate, that notification would impair national security, law enforcement, officer safety, or other operational interests. IfCBP seeks assistance for counterterrorism purposes, if a relevant national security-related lookout applies, or if the individual is on a government-operated and government-vetted terrorist watch list, the individual will not be notified of the conveyance, the existence of a relevant national security-related lookout, or his or her presence on a watch list.

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When notification is made to the individual, the Officer will annotate the notification in CBP systems and on the Form 6051D.

5.4.3 Responses and Time for Assistance

5.4.3.1 Responses Required. Agencies or entities receiving a request for assistance in conducting a border search are expected to provide such assistance as expeditiously as possible. Where subject matter assistance is requested, responses should include all appropriate findings, observations, and conclusions relating to the laws enforced or administered by CBP.

5.4.3.2 Time for Assistance. Responses from assisting agencies or entities are expected in an expeditious manner so that CBP may complete the border search in a reasonable period of time. Unless otherwise approved by the Director Field Operations; Chief Patrol Agent; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager, responses should be received within fifteen (15) days. If the assisting agency or entity is unable to respond in that period of time, the Director Field Operations; Chief Patrol Agent; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager may permit extensions in increments of seven (7) days.

5.4.3.3 Revocation of a Request for Assistance. Ifat any time a CBP supervisor involved in a request for assistance is not satisfied with the assistance provided, the timeliness of assistance, or any other articulable reason, the request for assistance may be revoked, and the CBP supervisor may require the as~isting agency or entity to return to CBP all electronic devices provided, and any copies thereof, as expeditiously as possible, except as noted in 5 .5.2.3. Any such revocation shall be documented in appropriate CBP systems. When CBP has revoked a request for assistance because of the lack of a timely response, CBP may initiate the request with another agency or entity pursuant to the procedures outlined in this Directive.

5.4.3.4 Destruction. Except as noted in section 5.5.1 below or elsewhere in this Directive, if after reviewing information, probable cause to seize the device or the information from the device does not exist, CBP will retain no copies of the information.

5.5 Retention and Sharing of Information Found in Border Searches

5.5.1 Retention and Sharing of Information Found in Border Searches

5.5.1.1 Retention with Probable Cause. Officers may seize and retain an electronic device, or copies of information from the 4evice, when, based on a review ofthe electronic device encountered or on other facts and circumstances, they determine there is probable cause to believe that the device, or copy of the contents from the device, contains evidence of a violation of law that CBP is authorized to enforce or administer.

5.5.1.2 Retention of Information in CBP Privacy Act-Compliant Systems. Without probable cause to seize an electronic device or a copy of information contained therein, CBP may retain only information relating to immigration, customs, and other enforcement matters if such retention is consistent with the applicable system of records notice. For example, information

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collected in the course of immigration processing for the purposes ofpresent and future admissibility of an alien may be retained in the A-file, Central Index System, TECS, and/or E3 or other systems as may be appropriate and consistent with the policies governing such systems.

5.5.1.3 Sharing Generally. Nothing in this Directive limits the authority of CBP to share copies of information ·contained in electronic devices (or portions thereof), which are retained in accordance with this Directive, with federal, state, local, and foreign law enforcement agencies to the extent consistent with applicable law and policy.

5.5.1.4 Sharing of Terrorism Information. Nothing in this Directive is intended to limit the sharing of terrorism-related information to the extent the sharing of such information is authorized by statute, Presidential Directive, or DHS policy. Consistent with 6 U.S.C. § 122(d)(2) and other applicable law and policy, CBP, as a component ofDHS, will promptly share any terrorism information encountered in the course of a border search with entities of the federal government responsible for analyzing terrorist threat information. In the case of such terrorism information sharing, the entity receiving the information will be responsible for providing CBP with all appropriate findings, observations, and conclusions relating to the laws enforced by CBP. The receiving entity will be responsible for managing retention and disposition of information it receives in accordance with its own legal authorities and responsibilities.

5.5.1.5 Safeguarding Data During Storage and Conveyance. CBP will appropriately safeguard information retained, copied, or seized under this Directive and during conveyance. Appropriate safeguards include keeping materials in locked cabinets or rooms, documenting and tracking copies to ensure appropriate disposition, and other safeguards during conveyance such as password protection or physical protections. Any suspected loss or compromise of information that contains personal data retained, copied, or seized under this Directive must be immediately reported to the CBP Office of Professional Responsibility and to the Port Director; Patrol Agent in Charge; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager.

5.5.1.6 Destruction. Except as noted in this section or elsewhere in this Directive, if after reviewing information, there exists no probable cause to seize the information, CBP will retain no copies of the information.

5.5.2 Retention by Agencies or Entities Providing Technical or Subject Matter Assistance

5.5.2.1 During Assistance. All electronic devices, or copies of information contained therein, provided to an assisting agency or entity may be retained for the period of time needed to provide the requested assistance to CBP or in accordance with section 5.5.2.3 below.

5.5.2.2 Return or Destruction. CBP will request that at the conclusion of the requested assistance, all information be returned to CBP as expeditiously as possible, and that the assisting agency or entity advise CBP in accordance with section 5.4.3 above. In addition, the assisting agency or entity should destroy all copies of the information conveyed unless section 5.5.2.3 below applies. In the event that any el~ctronic devices are conveyed, they must not be destroyed;

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they are to be returned to CBP unless seizec;l by an assisting agency based on probable cause or retained per 5.5.2.3.

5.5.2.3 Retention with Independent Authority. Ifan assisting federal agency elects to continue to retain or seize an electronic device or information contained therein, that agency assumes responsibility for processing the retention or seizure. Copies may be retained by an assisting federal agency only if and to the extent that it has the independent legal authority to do so - for example, when the inform~tion relates to terrorism or national security and the assisting agency is authorized by law to receive and analyze such information. In such cases, the retaining agency should advise CBP of its decision to retain information under its own authority.

5.6 Reporting Requirements

5.6.1 The Officer performing the border search of information shall be responsible for completing all after-action reporting requirements. This responsibility includes ensuring the completion of all applicable documentation such as the Form 6051D when appropriate, and creation and/or updating records in CBP systems. Reports are to be created and updated in an accurate, thorough, and timely manner. Reports must include all information related to the search through the final disposition including supervisory approvals and extensions when appropriate.

5.6.2 In instances where an electronic device or copy of information contained therein is forwarded within CBP as noted in section 5.4.1, the receiving Officer is responsible for recording all information related to the search from the point of receipt forward through the final disposition.

5.6.3 Reporting requirements for this Directive are in addition to, and do not replace, any other applicable reporting requirements.

5.7 Management Requirements

5.7.1 The duty supervisor shall ensure that the Officer completes a thorough inspection and that all notification, documentation, and reporting requirements are accomplished.

5.7.2 The appropriate CBP second-line supervisor shall approve and monitor the status of the detention of all electronic devices or copies of information contained therein.

5.7.3 The appropriate CBP second-line supervisor shall approve and monitor the status of the transfer of any electronic device or copies of information contained therein for translation, decryption, or subject matter assistance from another agency or entity.

5.7.4 The Director, Field Operations; Chief Patrol Agent; Director, Air Operations; Director, Marine Operations; Special Agent in Charge; or equivalent level manager shall establish protocols to monitor the proper documentation and recording of searches conducted pursuant to this Directive and the detention, transfer, and final disposition ofelectronic devices or copies of

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information contained therein in order to ensure compliance with the procedures outlined in this Directive.

5.7.5 Officers will ensure, in coordination with field management as appropriate, that upon receipt ofany subpoena or other request for testimony or information regarding the border search ofan electronic device in any litigation or proceeding, notification is made to the appropriate CBP Associate/ Assistant Chief Counsel office.

6 MEASUREMENT. CBP Headquarters will continue to develop and maintain appropriate mechanisms to ensure that statistics regarding border searches of electronic devices, and the results thereof, can be generated from CBP systems using data elements entered by Officers pursuant to this Directive.

7 AUDIT. CBP Management Inspection will develop and periodically administer an auditing mechanism to review whether border searches of electronic devices are being conducted in conformity with this Directive.

8 NO PRIVATE RIGHT CREATED. This Directive is an internal policy statement of U.S. Customs and Border Protection and does not create or confer any rights, privileges, or benefits on any person or party.

9 REVIEW. This Directive shall be reviewed and updated, as necessary, at least every three years.

10 DISCLOSURE. This Directive may be shared with the public.

11 SUPERSEDES. Procedures for Border Search/Examination ofDocuments, Paper, and Electronic Information (July 5, 2007) and Policy Regarding Border Search of Information (July 16, 2008), to the extent they pertain to electronic devices; CBP Directive No. 3340-049, Border Searches of Electronic Devices Containing Information (August 20, 2009).

Acting Commissioner

COMMITTEE REPORT

Formal Opinion 2017-5: An Attorney’s Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients’ Confidential InformationJuly 25, 2017

VIEW REPORT

TOPIC: Duty to protect clients’ confidential information from disclosure that the client has not authorized; disclosure when border agents claiming lawful authority request access to clients’ confidential information; obligations upon disclosing clients’ confidential information.

DIGEST: Under the New York Rules of Professional Conduct (the “Rules”), a New York lawyer has certain ethical obligations when crossing the U.S. border with confidential client information. Before crossing the border, the Rules require a lawyer to take reasonable steps to avoid disclosing confidential information in the event a border agent seeks to search the attorney’s electronic device. The “reasonableness” standard does not imply that particular protective measures must invariably be adopted in all circumstances to safeguard clients’ confidential information; however, this opinion identifies measures that may satisfy the obligation to safeguard clients’ confidences in this situation. Additionally, Under Rule 1.6(b)(6), the lawyer may not disclose a client’s confidential information in response to a claim of lawful authority unless doing so is “reasonably necessary” to comply with a border agent’s claim of lawful authority. This includes first making reasonable efforts to assert the attorney-client privilege and to otherwise avert or limit the disclosure of confidential information. Finally, if the attorney discloses clients’ confidential information to a third partyduring a border search, the attorney must inform affected clients about such disclosures pursuant to Rule 1.4.

RULES: 1.1, 1.4, 1.6

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3/18/2018http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/deta...

QUESTION: What are an attorney’s ethical obligations with regard to the protection of confidential information prior to crossing a U.S. border, during border searches and thereafter?

OPINION:

I. Introduction

This opinion considers attorneys’ethical obligations in the context of the following scenario:

An attorney traveling abroad with an electronic device (such as a smartphone, portable hard drive, USB “thumb drive,” or laptop) that contains clients’confidential information plans to travel through a U.S. customs checkpoint orborder crossing. During the crossing, a U.S. Customs and Border Protection (“CBP”) agent claiming lawful authority demands that the attorney “unlock” the device and hand it to the agent so that it may be searched. The attorney has not obtained informed consent from each client whose information may be disclosed in this situation.[1]

Searches of electronic devices at the U.S. border when travelers enter or leave the U.S. may include not only a physical inspection of these devices but also the review of information stored on them, such as emails, text messages, and electronically-stored documents.[2] CBP policy permits U.S. customs agents to review any information that physically resides on travelers’ electronic devices, including those of U.S. citizens, with or without any reason for suspicion, to demand disclosure of social media and email account passwords, and to seize the devices pending an inspection.[3] In recent years, searches of cell phones, laptop computers, and other electronic devices at border crossings into the U.S. have become increasingly frequent. According to the Department of Homeland Security, more than 5,000 devices were searched by CBP agents in February 2017 alone. By way of comparison, that is about as many U.S. border searches of electronic devices as were undertaken in all of 2015, and just under a quarter of the approximately 23,877 U.S. border searches of such devices undertaken in 2016. Further, border agents have access to software tools that increase the effectiveness and thoroughness of device searches, and they have the ability to copy the contents of such devices to be reviewed later. To be sure, the 5000-plus individuals whose devices were searched in February 2017 amounted to only a fraction of the 1,069,266 individuals entering into the United States daily as reported by the CBP.[4] However, depending on the



extent of thesearch, border agents’ review of information stored on, or accessible via, individuals’ electronic devices may lead to the disclosure of substantial information, and therefore constitute a significant intrusion for the selected individuals.[5] Under these circumstances, attorneys would benefit from guidance regarding their ethical obligations prior to crossing a U.S. border and when confronted with a border agent’s request to search electronic devices containing clients’ confidential information.

This Opinion addresses an attorney’s ethical obligations under the Rules with respect to U.S. border searches of electronic devicescontaining clients’ confidential information at three points in time: before the attorney approaches the U.S. border; at the border when U.S. border agents seek to review information on the attorney’s electronic device; and after U.S.border agents review clients’ confidential information.

Before crossing the U.S. border, both Rule 1.6(c), which requires “reasonable effortsto prevent . . . unauthorized access to” clients’ confidential information, and the duty of competence under Rule 1.1, require an attorney to take reasonable measures in advance to avoid disclosing confidential information in the event border agents seek tosearch the attorney’s electronic device. The “reasonableness” standard does not imply that particular protective measures must invariably be adopted in all circumstances to safeguard clients’ confidential information; however, this Opinion identifies measures that may satisfy the obligation to safeguard clients’ confidences in this situation.

At the border, if government agents seek to search the attorney’s electronic device pursuant to a claim of lawful authority,[7] and the device contains clients’ confidential information, the attorney may not comply unless “reasonably necessary” under Rule 1.6(b)(6), which permits disclosure of clients’ confidential information to comply with “law or court order.” Under the Rule, the attorney first must take reasonable measures to prevent disclosure of confidential information, which would include informing the border agent that the device or files in question contain privileged or confidential materials, requesting that such materials not be searched or copied, asking to speak to a superior officer and making any other lawful requests to protect the confidential information from disclosure. To demonstrate that the device contains attorney-client materials, the attorney should carry proof of bar membership, such as an attorney ID card, when crossing a U.S. border.

[6]



Finally, if the attorney discloses clients’ confidential information to a third party during a border search, the attorney must inform affected clients about such disclosures pursuant to Rule 1.4.

II. Before Crossing the U.S. Border Attorneys Must Undertake Reasonable Efforts to Protect Confidential Information

Attorneys have a duty under Rule 1.6 to protect clients’ confidential information.[8] Rule 1.6(a) provides that an attorney may not knowingly use or disclose confidential information without the client’s informed consent or implied authorization. Few principles are more important to our legal system.

Additionally, an attorney’s obligation to safeguard clients’confidential information against unintentional or unauthorized disclosure is implicit in the duty of competence under Rule 1.1. See ABA Formal Op. 11-459 (Aug. 4, 2011) (an attorney’s duty to “act competently to protect the confidentiality of clients’ information . . . is implicit in the obligation of Rule 1.1 to ‘provide competent representation to a client’”); cf. NYCBA Formal Op. 2015-3 (April 2015) (“In our view, the duty of competence includes a duty to exercise reasonable diligence in identifying and avoiding common Internet-based scams, particularly where those scams can harm other existing clients.”).

Further, the obligation to safeguard clients’ confidences is now codified in Rule 1.6(c), as amended January 1, 2017, which specifically requires attorneys to “make reasonable efforts to prevent the inadvertent or unauthorized use or disclosure of, or unauthorized access to,” confidential information obtained from prospective, current, and former clients. See Rule 1.1, cmts.[16] & [17]. The duty to protect client confidences from “unauthorized access” refers to access that is not authorized by the client. Cf.Rule 1.6, cmts. [5] & [13] (indicating that “authorization” must be given by the client, not the lawyer). Consequently, just as lawyers must take reasonable measures to prevent third parties’ unlawful access to client confidences, attorneys must refrain from conduct, including otherwise permissible disclosures, that may result in third parties’ lawful access to a client’s confidential information without the client’s consent. See, e.g., NYCBA Formal Op.2017-2 (Feb. 2017) (an attorney may not report attorney misconduct to the disciplinary authority where doing so might lead the disciplinary authority to require the production of a client’s confidential information without the client’s consent).



Prior opinions have recognized, in particular, that the duty to safeguard clients’confidences includes a responsibility to take reasonable protective measures when engaging in electronic communications with clients and in electronically storing clients’ confidential information. See, e.g., ABA Formal Op. 477R (May 11,2017); ABA Formal Op. 11-459 (Aug. 4, 2011); ABA Formal Op. 99-413 (March 10, 1999); Cal. Ethics Op. 2010-179 (Jan. 1, 2010); NYSBA Ethics Op. 842 (Sept. 10, 2010); NYSBA Ethics Op. 709 (Sept. 16, 1998). To be “reasonable,” protective measures need not be foolproof: making reasonable efforts “does not mean that the lawyer guarantees that the information is secure from any unauthorized access.” NYSBA Ethics Op. 842, supra. Further, the adequacy of an attorney’s efforts to protect clients’ confidences depends upon a multitude of facts. See, e.g., ABA Formal Op. 477R, supra (“Recognizing the necessity of employing a fact-based analysis, Comment [18] to Model Rule1.6(c) includes nonexclusive factors to guide lawyers in making a ‘reasonable efforts’ determination.”); ABA Formal Op. 11-459, supra (“particularly strong protective measures are warranted to guard against the disclosure of highly sensitive matters”).

Rules 1.1 and 1.6(c) require attorneys to make reasonable efforts prior to crossing the U.S. border to avoid or minimize the risk that government agents will review or seize client confidences that are carried on, or accessible on, electronic devices that attorneys carry across the border. Except in the unlikely event that an attorney has each affected client’s consent to disclose confidential information during a border search, such disclosure would be “unauthorized” under Rule 1.6(c) and the attorney would be obligated to make “reasonable efforts” to prevent such disclosure from occurring. In the above hypothetical, the attorney has not obtained informed consent from the clients whose confidential information would be affected, as is required to obtain authorization under Rule 1.6(a)(1). Further, it is hard to imagine a situation where disclosure to a government official during a border search would “advance the best interests of the client” and therefore be “impliedly authorized to advance the best interests of the client” under Rule 1.6(a)(2).

The necessary degree of precaution depends on the circumstances, including the sensitivity of the confidential information that is at risk. See Rule 1.6, cmt. [16] (listing relevant considerations). “Reasonableness” by its nature depends on the multiple facts and circumstances of a given situation and does not lend itself to categorical or bright-line rules. If in doubt, an



attorney may, and would be well-advised to, take more cautious measures than what is minimally required by Rule 1.6(c).

Comment[16] to Rule 1.6 provides guidance by identifying the following non-exclusive list of factors relevant to the reasonableness of an attorney’s efforts:

1. The sensitivity of the information;2. The likelihood of disclosure if additional safeguards are not employed;3. The cost of employing additional safeguards;4. The difficulty of implementing the safeguards; and5. The extent to which the safeguards adversely affect the attorney’s

ability to represent clients (e.g., by making a device or software excessively difficult to use).

Thus, the various facts and circumstances bearing on whether protective efforts are “reasonable” to avoid disclosing client confidences at the border – and therefore minimally required by Rule 1.6(c) – may include the type and nature of the confidential information involved; the need to bring the information across the border inthe first instance; the safeguards used by the attorney; the availability, costs, and challenges associated with implementing additional safeguards; an attorney’s resources and capabilities; and any factors that may affect the likelihood of disclosure, such as the jurisdiction from which the attorney is returning. Among other things, these considerations suggest that an attorney should not carry clients’ confidential information on an electronic device across the border except where there is a professional need to do so, and especially that attorneys should not carry clients’ highly sensitive information except where the professional need is compelling.[9]

Given the rapid pace of technological development and the disparities between the practices, capabilities, and resources of attorneys, it would be difficult or impossible to identify a list of minimum mandatory prophylactic or technical measures foran attorney to adopt before crossing the U.S. border. Not only would such a list run the risk of quickly becoming obsolete, but it would also be of limited use, since “reasonableness” standards are not amenable to a one-size-fits-all analysis. Moreover, expectations regarding reasonable efforts are likely to evolve over time as the relevant technology changes, as practices regarding border searches and knowledge of those practices develop, and as attorneys become increasingly aware of the risks of disclosure and the available means to avoid them. However, as discussed



below, an attorney must generally (i)evaluate the risks presented by traveling with confidential information and (ii)based on the risk analysis, consider what safeguards to employ to limit or reduce the risk that confidential information will be accessed or disclosed inthe event of a search. While no particular safeguard is invariably required by the Rules as long as the attorney’s protective efforts are “reasonable,” we recommend that attorneys consider adopting the following safeguards to protect confidential information or to reduce the risk of its disclosure.

i. Evaluating the Risk of Disclosure and Potential Harms that May Result

An attorney must evaluate the risks associated with crossing the U.S. border while in possession of clients’ confidential information, including the likelihood that border agents will demand and secure disclosure of clients’ confidential information, the sensitivity of the information carried, and the harm that would result if the information were disclosed. This requires familiarity with the relevant laws and practices regarding border searches of electronic devices whenever an attorney opts to carry a device that contains, or can access, clients’ confidential information. Cf. NYSBA Ethics Op. 782 (Dec. 8, 2004)(requiring lawyers to use “reasonable care” to stay abreast of technological advances and the potential risks associated with using, storing, maintaining, accessing, and transmitting confidential information).

Although, as noted above, U.S. border searches of electronic devices (at the time of this opinion’spublication) are relatively infrequent, any unauthorized disclosure of a client’s confidential information entails a violation of the client’s expectation of confidentiality and is presumptively harmful, regardless of whether the unauthorized recipient otherwise uses the information to the client’s detriment. See, e.g., NYCBA Formal Op. 2017-2, supra (attorney may not provide client’s confidential information to the disciplinary authority without the client’s consent, even if the client would not be “embarrassed or harmed if the information were disclosed to the disciplinary authority specifically”). Moreover, even if a border search seems highly unlikely, that consideration should be weighed against the amount and sensitivity of the information held and any additional harm that may result from its disclosure without the client’s consent.[10] For certain lawyers, practices, organizations, or clients, providing government agencies with access to sensitive confidential data can cause significant harm,which would strongly suggest in such circumstances that it would be unreasonable to carry confidential information that may be disclosed to border agents, even for legitimate professional reasons, if avoidable.



ii. Implementing Safeguards

Attorneys must also evaluate the efficacy, cost, and difficulty associated with implementing safeguards to prevent or limit confidential information. Rule1.6, cmt. [16].[11] As discussed above, whether safeguards are ultimately required as minimally “reasonable efforts” depends on the circumstances of each such situation.

The simplest option with the lowest risk is not to carry any confidential information across the border. One method of avoiding the electronic transportation of clients’ confidences involves using a blank “burner” phone or laptop, or otherwise removing confidential information from one’s carried device by deleting confidential files using software designed to securely delete information, turning off syncing of cloud services, signing out of web-based services, and/or uninstalling applications that provide local or remote access to confidential information prior crossing to the border.[12] This is not to say that attorneys traveling with electronic devices must remove all electronically stored information. Some electronic information, including many work-related emails, may contain no confidential information protected by Rule 1.6(a). Even when emails contain confidential information, the obligation to remove these emails from the portable device before crossing the border depends on what is reasonable. As previously discussed, this turns on the ease or inconvenience of avoiding possession of confidential information; the need to maintain access to the particular information and its sensitivity; the risk of a border inspection; and any other relevant considerations.

A lawyer with access to greater resources or who handles more sensitive information should consider technological solutions that permit secure remote access to confidential information without creating local copies on the device; storing confidential information and communications in secure online locations rather than locally on the device; or using encrypted software to attempt to restrict access to mobile devices.

While attorneys thus have various available alternative means of safeguarding clients’ confidential information from disclosure at the U.S. border, whatever measures an attorney adopts must, under all the facts and circumstances, be “reasonable” to protect this information.[13]



III. At the U.S. Border Attorneys May Disclose Clients’ Confidential Information Only to the Extent “Reasonably Necessary” to Respond to a Government Agent’s Claim of Lawful Authority

Assuming an attorney has made reasonable efforts to protect clients’ confidential information before crossing the U.S. border, in many cases the attorney will entirely avoid carrying clients’ confidential information in an electronic device. In other cases, when attorneys’ electronic devices do contain clients’ confidential information, the information will be limited to what is professionally necessary, and ideally limited insignificance, so that clients would not be significantly harmed by its disclosure. But regardless of how limited or insignificant the information may appear to be, attorneys subject to a border search may disclose clients’ confidential information only to the extent permitted by Rule 1.6.

Rule 1.6(a) prohibits attorneys from knowingly disclosing “confidential information” or using such information to the disadvantage of the client, for the lawyer’s own advantage, or for the advantage of a third person, unless the client gives informed consent or implied authorization or the disclosure is permitted by Rule 1.6(b). Rule 1.6(b), in turn, permits, but does not require, an attorney to use or disclose confidential information in specified exceptional circumstances, of which only 1.6(b)(6) is relevant to the above-described border-search scenario.

Rule 1.6(b)(6) permits an attorney to “reveal or use” confidential information to the extent the attorney “reasonably believes necessary . . . when permitted or required .. . to comply with other law or court order.” Comment [13] to Rule 1.6 recognizes that this exception permits the disclosure of a client’s confidential information insofar as reasonably necessary to respond to an order by a “governmental entity claiming authority pursuant to . . . law to compel disclosure.” The exception applies even when the validity of the relevant law or court order, or its application, is subject to legal challenge, although, in ordinary circumstances, compliance is not “reasonably necessary” until any available legal challenge has proven unsuccessful. See Rule 1.6, cmt. [13] (“Absent informed consent of the client to comply with the order, the lawyer should assert on behalf of the client nonfrivolous arguments that the order is not authorized by law, the information sought is protected against disclosure by an applicable privilege or other law, or the order is invalid or defective for some other reason.”).



In general, disclosure of clients’ confidential information is not “reasonably necessary” to comply with law or a court order if there are reasonable, lawful alternatives to disclosure. Even when disclosure is reasonably necessary, the attorney must take reasonably available measures to limit the extent of disclosure. See, e.g., ABA Formal Op. 10-456 (July 14, 2010). For example, compliance with asubpoena or court order to disclose confidential information is not “reasonably necessary” until the attorney or the attorney’s client (or former client) has asserted any available non-frivolous claim of attorney-client privilege. See, e.g., NYCBA Formal Op. 2005-3 (March 2005). Likewise, a lawyer must ordinarily test a government agency’s request for client confidential information made under color of law. See, e.g., NYCBA Formal Op. 1986-5 (July 1986) (“[I]f presented with a request by a governmental authority for production of information pertaining to escrow accounts when a client is a target of an investigation, a lawyer must, unless the client has consented to disclosure, decline to furnish such information on the ground either that it is protected by the attorney-client privilege or that it has been gained in the course of a confidential relationship. . . . If disclosure is [subsequently] compelled [by a court], it will not breach a lawyer's ethical obligation with respect to his client's confidences or secrets.”).

At the same time, attorneys need not assume unreasonable burdens or suffer significant harms in seeking to test a law or court order. See, e.g., NYSBA Ethics Op. 945 (Nov. 7, 2012) (indicating that “when the law governing potential disclosure is unclear, a lawyer need not risk violating a legal or ethical obligation, but may disclose client confidences to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law, even if the legal obligation is not free from doubt”). For example, although an attorney must consult with the client about an adverse ruling, see Rule 1.4, the attorney need not finance an appeal of the court’s ruling much less intentionally defy the trial courtand accept a contempt-of-court order. See,e.g., ABA Formal Op. 473 (Feb. 17, 2016) (“Requiring a lawyer to take an appeal when the client is unavailable places significant and undueburdens on the lawyer.”); NYCBA Formal Op. 2005-3, supra (“Should the court overrulethe objection or assertion of privilege or other protection, the attorney maythen testify about the privileged or protected material”).

Rule 1.6(b)(6) permits an attorney to comply with a border agent’s demand, under a claim of lawful authority, for an electronic device containing confidential information during a border search. While legal challenges in

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court might be made to the relevant law or its application, it would be an unreasonable burden to require that attorneys, having made reasonable efforts to protect clients’ confidential information, forgo reentry into the United States or allow themselves to be taken into custody while litigating the lawfulness of a border search. Unless court rulings forbid such border searches,an attorney may ultimately comply with a border agent’s demand. Likewise, in this unusual circumstance, it would ordinarily be impracticable and of no utility for attorneys stopped at the border to consult with the affected clients before complying. (The obligation to consult thereafter is addressed below in Part IV.)

That said, compliance is not “reasonably necessary” unless and until an attorney undertakes reasonable efforts to dissuade border agents from reviewing clients’ confidential information or to persuade them to limit the extent of their review. Accord Rule 1.6(c) (requiring “reasonable efforts” to protect clients’ confidential information). Such efforts would include informing the border agent that the subject devices or files contain privileged or confidential materials, requesting that such materials not besearched or copied, asking to speak to a superior officer and making any other reasonably available efforts to protect the confidential information from disclosure. To add credence to the claim of attorney-client privilege, an attorney should carry and be prepared to present some form of attorney identification, such as a court-issued identification or in the very least a business card, when crossing a U.S. border. An attorney should know the relevant law and practices and should consider bringing a printed copy of a given customs agency’s policies or guidelines regarding searches of privileged information.

The practical significance of clearly informing the border agent of the presence of confidential or privileged information arises from the regulations of the CBP and the U.S. Immigration and Customs Enforcement Bureau (“ICE”), which each recognize the sensitivity of legal materials. The regulations require a border agent confronted with a claim of legal privilege to seek an additional review or authorization prior to conducting a search of the information that the attorney claims is confidential or privileged. This obligation to obtain further review applies “only to the extent that the agent Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of” CBP or ICE, respectively. Although it is uncertain how border agents apply this “suspicion” standard in actual searches, attorneys should take

[14]

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advantage of this possible avenue for preventing the disclosure of clients’confidential information.

IV. If Confidential Information Is Disclosed During a Border Search, An Attorney Must Promptly Inform Affected Clients

If an attorney’s electronic device containing clients’ confidential information is reviewed or seized at the border, the attorney must notify affected clients of what occurred and of the extent to which their confidential information may have been reviewed orseized. This obligation arises out of the general duty under Rule 1.4 to communicate with the client about the status of a matter and about decisions that the client faces in the representation. See Rule 1.4(a)(1)(i) & (a)(3); see also Rule 1.6, cmt. [13]; compare NYCBA Formal Op. 2015-6 (June 2015) (“Given that lawyers have a duty to preserve client files (at least for some period of time), it follows that anattorney may have a duty to notify the client or former client when such files have been inadvertently destroyed.”); NYSBA Ethics Op. 1092 (May 11, 2016) (“a lawyer must report to a client a significant error or omission by the lawyer in his or her rendition of legal services”). Disclosure will provide the client an opportunity to determine whether to file a legal challenge, assuming one is available, or to undertake any other available responses. Whether attorneys have legal obligations in this situation independently of the Rules is a question outside the scope of this opinion.

CONCLUSION:

Before crossing the U.S. border, an attorney must make reasonable efforts to protect against the disclosure of clients’ confidential information in response to a demand by border agents. Because “reasonable efforts” depend on the circumstances, no particular safeguards are invariably required. However, attorneys should generally (i)evaluate the risks of traveling with confidential information and (ii) consider what safeguards to implement to avoid or reduce the risk that confidential information will be accessed or disclosed in the event of a search. At the border, if government agents seek to search the attorney’s electronic device pursuant to a claim of lawful authority, and the device contains clients’ confidential information, the attorney may not comply until first making reasonable efforts to assert the attorney-client privilege and to otherwise avert or limit the disclosure of confidential information, e.g., by asking to speak to a superior officer. To add credence to the claim of attorney-client privilege, an attorney should carry attorney identification and be familiar with the customs agency’s policies or

[16]



guidelines regarding searches of privileged information. Finally, if the attorney discloses clients’ confidential information to a third party during a border search, the attorney must inform affected clients about such disclosures.

[1] This opinion does not address the potentially more difficult questions regarding an attorney’s duty to protect confidential information while in, or crossing into, foreign countries. While the principles described in this opinion regarding safeguarding clients’ confidential information are broadly applicable, efforts reasonably necessary to protect clients’ confidences at foreign borders and in foreign countries will vary depending on the laws and practices of those countries. Lawyers must therefore familiarize themselves with those laws and practices and determine what safeguards to adopt before transporting clients’ confidential information abroad. [2] In this respect, border searches apparently differ from Transportation Security Administration (TSA) searches of electronic devices in connection with domestic air travel. This Opinion only addresses ethical issues in connection with international travel.[3] See June 20, 2017 Due Diligence Questions for Kevin McAleenan, Nominee for Commissioner of U.S.Customs and Border Protection (CBP), available at: http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/170712-cpb-wyden-letter.pdf. According to this policy statement, CBP agents do not condition U.S. citizens’ reentry on the provision of passwords; nor do they currently review information that, although not physically resident on the devices, is accessible on remote servers via electronic devices. According to CPB, inspections may reveal that electronic devices contain contraband (e.g.,child pornography), or that information on electronic devices reveals a threat to national security. CBP reserves the right to cooperate with other investigative agencies, which may seek other kinds of information on travelers’ electronic devices.[4] U.S. Customs and Border Protection, Snapshot:a Summary of CBP Facts and Figures (2017), available at https://www.cbp.gov/sites/default/files/assets/documents/2017-Mar/CBP-Snapshot-UPDATE-03022017-FY16-Data.pdf (citing daily statistic of 1,069,266 average daily arrivals in February 2017; only 326,723 were by air). Based on these figures, only approximately 0.017% of all individuals entering the United States on a given day are subject to an electronic device search, even with the increase in such searches in 2017.There are no available statistics



evidencing how many of the 5,000 searched devices belonged to members of the bar.[5] See, e.g., Riley v.California, 134 S. Ct. 2473 (2014) (describing range and extent of information stored on, and accessible via, individuals’ cell phones).[6] These circumstances have prompted the ABA to seek changes and clarifications to existing regulations and practices regarding the treatment of confidential and privileged materials during border searches. See AMERICANBAR ASSOCIATION, PRESERVATION OF ATTORNEY-CLIENT PRIVILEGE AND CLIENTCONFIDENTIALITY FOR U.S. LAWYERS AND THEIR CLIENTS DURING BORDER SEARCHESOF ELECTRONIC DEVICES (May 5, 2017), available at https://dlbjbjzgnk95t.cloudfront.net/0921000/921316/letter.pdf.[7] The legality of a border search of an electronic device is apparently unsettled. See Abidor v. Napolitano, 10-cv-04059(E.D.N.Y. Dec. 31, 2013) (dismissing claims challenging authority of CBP and ICE to detain electronic devices at borders, even absent reasonable suspicion); United States v. Cotterman, 709 F.3d 952, 965(9th Cir. 2013)(border agents need reasonable suspicion of illegal activity before they could conduct a forensic search, aided by sophisticated software, of the defendant’s laptop but a manual search of a digital device is “routine” and so a warrantless and suspicionless search is “reasonable”under the Fourth Amendment); United States v. Kim, 103 F. Supp. 3d 32,52 (D.D.C. 2015)(suppressing evidence found during a search of a laptop at the border after border agents made an exact copy of the laptop’s hard drive and searched it with forensic programs). See generally Patrick G. Lee, Can Customs and Border Official Search Your Phone? These Are Your Rights, PROPUBLICA (Mar. 13, 2017) https://www.propublica.org/article/can-customs-border-protection-search-phone-legal-rights; U.S.CUSTOMS AND BORDER PROTECTIONDIRECTIVE NO. 3340-049,BORDER SEARCH OF ELECTRONIC DEVICES.CONTAININGINFORMATION (2009) available athttps://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf.[8] Rule 1.6(a) defines “confidential information” as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.”[9] An attorney whose client outside the United States provides electronically-stored confidential information(e.g., on a thumb drive) must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Rule 1.4(a)(2). The attorney should consider whether this obligation triggers, under all the circumstances, the



need for a discussion concerning the manner in which the client’s confidential information will be transported and the attendant risks. [10] Traveling attorneys should also be aware that many customs and border protection agencies may demand that the attorney provide access to any information stored on a device (including information that may be otherwise protected or encrypted), and in addition may have access to software tools that allow them to copy the entirety of a device and/or permit the recovery of deleted information that has not been securely deleted using specialized tools. Test Results for Mobile Device Acquisition, DEPT. OF HOMELANDSECURITY, https://www.dhs.gov/publication/mobile-device-acquisition (last visited Apr. 11, 2017).[11] Comment [16] further recognizes that a client may “require the lawyer to implement special security measures not required by this Rule, or . . . giveinformed consent to forgo security measures that would otherwise be required by this Rule.” As this Comment reflects, an attorney may not forgo “reasonable efforts” to protect the client’s confidential information, as required by Rule 1.6(c), unless the client gives informed consent. Further, especially when it is necessary to travel with highly sensitive information, an attorney would be well advised to discuss with the client whether to adopt special security measures, beyond those required by Rule 1.6(c) in the situation.[12] Prior to any such deletion, however, an attorney should ensure that the information deleted is securely backed up so that the attorney may use the information at a later date.[13] See, e.g., NYSBA Ethics Op. 1020 (Sept. 12, 2014); NYSBA Ethics Op. 1019(Aug. 6, 2014); NYSBA Ethics Op. 939 (Oct. 16, 2012); NYSBA Ethics Op. 842 (Sept.10, 2010); N.Y. State 782 (Dec. 8, 2004).[14] U.S. Customs and Border Protection Directive No. 3340-049, Border Search of Electronic Devices Containing Information § 5.2.1 (2009) available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf;U.S. Customs and Border Protection Policy Regarding Border Search of Information (July 16, 2008), available athttps://www.cbp.gov/sites/default/files/documents/search_authority_2.pdf.[15] Section 5.2.1 of CBP Directive No.3340-49, provides: “Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination



within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.” U.S. CUSTOMS AND BORDER PROTECTION DIRECTIVE NO. 3340-049, BORDER SEARCH OF ELECTRONIC DEVICES CONTAINING INFORMATION (2009) available at https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdfSection 8.6(2)(b) of the parallel ICE Directive similarly provides: “Special Agents may encounter information that appears to be legal in nature, or an individual may assert that certain information is protected by the attorney-client or attorney work product privilege. If Special Agents suspect that the content of such a document may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of ICE, the ICE Office of the Chief Counsel or the appropriate U.S. Attorney’s Office must be contacted before beginning or continuing a search of the document and this consultation shall be noted in appropriate ICE systems.”

[16] In the context of responding to disclosures as a result of hacking, legal data security experts recommend, where possible, applying forensic analysis to systems after a breach occurs since the appropriate response must be guided by the scope of the breach. A similar approach may be warranted when an electronic device has been confiscated, i.e. a lawyer should take available steps to learn what was disclosed. See Allison Grande, 5 Steps to Take When Your Law Firm Is Hacked, LAW360 (Jul 22, 20143:16 PM EDT), https://www.law360.com/articles/556398/5-steps-to-take-when-your-firm-is-hacked

Author(s): Professional Ethics Committee

Issue(s): Profession, Legal Education & Organization of the Bar

Subject Area(s): Ethics | Attorney/Client Confidentiality



https://nyti.ms/2FqjVlM

U.S.

Immigration Agents Target 7-Eleven Stores in Push to Punish EmployersBy PATRICIA MAZZEI JAN. 10, 2018

Federal immigration agents descended on dozens of 7-Eleven convenience stores

across the country before daybreak on Wednesday, arresting undocumented workers

and demanding paperwork from managers, in what the Trump administration

described as its largest enforcement operation against employers so far.

The sweeps of 98 stores in 17 states, from California to Florida, resulted in 21

arrests, according to United States Immigration and Customs Enforcement, which

signaled intensified efforts against businesses that hire unauthorized workers.

“Today’s actions send a strong message to U.S. businesses that hire and employ

an illegal work force: ICE will enforce the law, and if you are found to be breaking

the law, you will be held accountable,” Thomas D. Homan, the acting director of the

agency, said in a statement.

Mr. Homan, the nation’s top immigration-enforcement official, has promised

more scrutiny of businesses that knowingly violate federal laws requiring employers

to verify the identity and employment eligibility of their workers.

Under President Trump, ICE has significantly expanded immigration

enforcement, arresting undocumented immigrants in their homes or when they

check in with federal agents as part of immigration court cases.

In a statement, 7-Eleven Inc., based in Irving, Tex., distanced itself from the

situation, saying that the individual stores are franchises that belong to independent

Page 1 of 4Immigration Agents Target 7-Eleven Stores in Push to Punish Employers - The New York Times

3/18/2018https://www.nytimes.com/2018/01/10/us/7-eleven-raids-ice.html

business owners, who “are solely responsible for their employees, including deciding

who to hire and verifying their eligibility to work in the United States.”

“7-Eleven takes compliance with immigration laws seriously and has terminated

the franchise agreements of franchisees convicted of violating these laws,” the

company said.

If ICE hoped to make a bold statement, it could hardly pick a more iconic target

than 7-Eleven, a chain known for ubiquitous stores that are open all the time and sell

the much-loved Slurpees and Big Gulps. Many a 7-Eleven franchise has been a

steppingstone for new legal immigrants who want to own and run their own small

businesses.

Not all franchisees have been scrupulous about whom they hire. ICE called its

Wednesday sweep a “follow-up” of a 2013 investigation that resulted in the arrests of

nine 7-Eleven franchise owners and managers on Long Island and in Virginia on

charges of employing undocumented workers. Several have pleaded guilty and

forfeited their franchises, and have been ordered to pay millions of dollars in back

wages owed to the workers.

“This definitely sends a message to employers,” said Ira Mehlman, the

spokesman for the Federation for American Immigration Reform, which favors more

limits on immigration and stricter enforcement.

According to ICE, federal agents served inspection notices to 7-Eleven

franchises in California, Colorado, Delaware, Florida, Illinois, Indiana, Maryland,

Michigan, Missouri, Nevada, New Jersey, New York, North Carolina, Oregon,

Pennsylvania, Texas, Washington State and Washington, D.C.

Employees at two 7-Eleven stores on Staten Island said that immigration agents

visited the stores on Wednesday. But the agents were shown valid employment

records with Social Security numbers, two workers at each of the stores said, and no

one was arrested.



In all, 16 of the 98 stores visited on Wednesday were in the New York City area,

according to an ICE spokeswoman, Rachael Yong Yow, who would not specify their

locations.

In Miami Beach, an employee at one 7-Eleven said that while no agents showed

up at her store, her boss asked workers to make sure their employment records were

up to date, in case ICE continued its visits. Agents dropped in on 7-Eleven stores in

seven cities in southeast Florida, including Miami Beach, according to Nestor

Yglesias, an ICE spokesman; he, too, declined to identify specific stores.

Under President George W. Bush, ICE grabbed headlines by rounding up

unauthorized workers at meatpacking plants, fruit suppliers, carwashes and

residences. In a shift, the agency under President Barack Obama focused on catching

border crossers, deporting convicted criminals and pursuing employers on paper, by

inspecting the I-9 forms that employers are required to fill out and keep to verify

their workers’ eligibility.

By targeting 7-Eleven franchisees and their workers on Wednesday, ICE under

Mr. Trump appeared to be melding the approaches of his two predecessors: Go after

employers while also detaining employees whom agents encountered without work

authorization.

One of the biggest workplace immigration raids, in May 2008, resulted in the

detention of nearly 400 undocumented immigrants, including several children, at an

Iowa meatpacking plant. Sholom Rubashkin, the chief executive of the

Agriprocessors plant, which was then the largest kosher meatpacking operation in

the country, was eventually convicted of bank fraud in federal court.

President Trump commuted Mr. Rubashkin’s 27-year prison sentence last

month, after years of lobbying by a number of prominent lawyers and politicians

who considered his term unduly harsh, and perhaps even anti-Semitic.

Correction: January 10, 2018

An earlier version of this article misstated when nearly 400 people were detained in an

immigration raid at an Iowa meatpacking plant. The raid was in May 2008, not July.

Follow Patricia Mazzei on Twitter: @PatriciaMazzei.



Liz Robbins contributed reporting.

A version of this article appears in print on January 11, 2018, on Page A16 of the New York edition with the headline: Immigration Agents Raid 98 7-Elevens in 17 States.

© 2018 The New York Times Company



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Executive Orders

Presidential Executive Order on Buy American and Hire AmericanEconomy & Jobs

Issued on: April 18, 2017

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By the authority vested in me as President by the Constitution and the laws of the United States of America, and to ensure the faithful execution of the laws, it is hereby ordered as follows:

Section 1. Definitions. As used in this order:

(a) “Buy American Laws” means all statutes, regulations, rules, and Executive Orders relating to Federal procurement or Federal grants including those that refer to “Buy America” or “Buy American” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods.

(b) “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

(c) “Petition beneficiaries” means aliens petitioned for by employers to become nonimmigrant visa holders with temporary work authorization under the H-1B visa program.

(d) “Waivers” means exemptions from or waivers of Buy American Laws, or the procedures and conditions used by an executive department or agency (agency) in granting exemptions from or waivers of Buy American Laws.

(e) “Workers in the United States” and “United States workers” shall both be defined as provided at section 212(n)(4)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(4)(E)).

Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire American.

(a) Buy American Laws. In order to promote economic and national security and to help stimulate economic growth, create good jobs at decent wages, strengthen our middle class, and support the American manufacturing and defense industrial bases, it shall be the policy of the executive branch to maximize, consistent with law, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States.

(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

Sec. 3. Immediate Enforcement and Assessment of Domestic Preferences According to Buy American Laws. (a) Every agency shall scrupulously monitor, enforce, and comply with Buy American Laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.

(b) Within 150 days of the date of this order, the heads of all agencies shall:

(i) assess the monitoring of, enforcement of, implementation of, and compliance with Buy American Laws within their agencies;

(ii) assess the use of waivers within their agencies by type and impact on domestic jobs and manufacturing; and

(iii) develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States, including manufactured products; components of manufactured products; and materials such as steel, iron, aluminum, and cement.

Page 1 of 3Presidential Executive Order on Buy American and Hire American

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(c) Within 60 days of the date of this order, the Secretary of Commerce and the Director of the Office of Management and Budget, in consultation with the Secretary of State, the Secretary of Labor, the United States Trade Representative, and the Federal Acquisition Regulatory Council, shall issue guidance to agencies about how to make the assessments and to develop the policies required by subsection (b) of this section.

(d) Within 150 days of the date of this order, the heads of all agencies shall submit findings made pursuant to the assessments required by subsection (b) of this section to the Secretary of Commerce and the Director of the Office of Management and Budget.

(e) Within 150 days of the date of this order, the Secretary of Commerce and the United States Trade Representative shall assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement on the operation of Buy American Laws, including their impacts on the implementation of domestic procurement preferences.

(f) The Secretary of Commerce, in consultation with the Secretary of State, the Director of the Office of Management and Budget, and the United States Trade Representative, shall submit to the President a report on Buy American that includes findings from subsections (b), (d), and (e) of this section. This report shall be submitted within 220 days of the date of this order and shall include specific recommendations to strengthen implementation of Buy American Laws, including domestic procurement preference policies and programs. Subsequent reports on implementation of Buy American Laws shall be submitted by each agency head annually to the Secretary of Commerce and the Director of the Office of Management and Budget, on November 15, 2018, 2019, and 2020, and in subsequent years as directed by the Secretary of Commerce and the Director of the Office of Management and Budget. The Secretary of Commerce shall submit to the President an annual report based on these submissions beginning January 15, 2019.

Sec. 4. Judicious Use of Waivers. (a) To the extent permitted by law, public interest waivers from Buy American Laws should be construed to ensure the maximum utilization of goods, products, and materials produced in the United States.

(b) To the extent permitted by law, determination of public interest waivers shall be made by the head of the agency with the authority over the Federal financial assistance award or Federal procurement under consideration.

(c) To the extent permitted by law, before granting a public interest waiver, the relevant agency shall take appropriate account of whether a significant portion of the cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods, and it shall integrate any findings into its waiver determination as appropriate.

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii) existing rights or obligations under international agreements.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,April 18, 2017.

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CRIMINAL JUSTICE

UPDATED: ICE raids Days Inn in ColchesterBy Anne GallowayJan 22 2018 190 Comments

This story was updated on Jan. 22 at 1:46 p.m.

mmigration and Customs and Enforcement raided a Days Inn hotel in Colchester last Thursday in the first sweep of migrant workers in Vermont.

ICE detained 14 construction workers, according to Will Lambek of Migrant Justice, a group that supports undocumented workers.

The raid was conducted at 5 a.m. on Jan. 18. Lambek said other construction workers who were not included in the sweep notified Migrant Justice.

The migrants were working for a contracting firm in the area. Lambek did not release information about the company for fear of jeopardizing other workers.

Lambek said the raid “was out of scale” for Vermont and the timing puts the discussion about protecting immigrants who have had protected status under Deferred Action for Childhood Arrivals in sharp relief.

VTDigger reached out to ICE for confirmation of the raid, but a message from a regional spokesperson said that the agency’s public affairs officers will not be working for the duration of the government shutdown.

Gov. Phil Scott said Monday morning he was not aware of the raid.

“Obviously I have great concern about the overreach of the federal government in some respects and the direction we’re moving,” he said. “And while we have to protect our citizens, our border and so forth, there’s got to be a path forward. We here in Vermont are desperate for workers. So I think that’s unfortunate, for those that are here safely and peacefully. I have concerns.”

Darcy Church, general manager of the Days Inn, said the workers staying at the motel but were not doing construction work there.

“We didn’t hire them, they were guests. They could have been guests anywhere,” she said.

Church was not there at the time of the raid.

“It wasn’t a big deal here from the motel’s perspective. They just came in and went up to the rooms where those people were staying and got them out,” she said.

Colchester Police Chief Jennifer Morrison said the department had “no knowledge” of the event until Monday. The department did not collaborate with ICE at all on the enforcement action, she said.

“We were not involved in it,” she said.

Immigration enforcement actions have expanded under the Trump administration. Earlier this month, ICE carried out sweeps in nearly 100 7-Eleven stores across the country.

The administration has also vowed to crack down on so-called “sanctuary” policies some cities and states have that restrict local police from working with the federal government to enforce immigration laws.

In November, Vermont was among 29 jurisdictions the U.S. Department of Justice threatened to cut funding to over policies limiting law enforcement contact with federal immigration authorities.

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Page 1 of 8UPDATED: ICE raids Days Inn in Colchester - VTDigger

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About AnneAnne Galloway is the founder and editor of VTDigger and the executive director of the Vermont Journalism Trust. Galloway founded VTDigger in 2009 after she was laid off from her position as Sunday editor of the Rutland Herald and Times Argus. VTDigger has grown from a $16,000 a year nonprofit with no employees to a $1.5 million nonprofit daily news operation with a staff of 20. In 2017, Galloway was a finalist for the Ancil Payne Award for Ethics, the Al Neuharth Innovation in Investigative Journalism Award and the Investigative Reporters and Editors FOIA Award for her investigation into allegations of foreign investor fraud at Jay Peak Resort.

Email: [email protected]

Follow Anne on Twitter @GallowayVTD

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Jay Diaz, a lawyer for the Vermont ACLU, said “We’re pretty shocked that there would be raids like this in Vermont like there have been in other parts of the country. We’re still trying to gather information about why this happened, but it’s clear the Trump administration is taking a very draconian approach to immigration enforcement and in doing so focusing on people who are just out there try to make a living.”

Diaz said he hopes Vermonters speak out against this type of activity and hold public officials accountable.

“We should seek to end any assistance that we may be providing to immigration agencies becasue it’s clear that they are not good actors [ICE],” Diaz said. They are looking to disrupt and intimidate our residents and apparently our government officials.”

Diaz called on public officials to condemn the raids and other ICE activities, including immigration checkpoints on I-91 near White River Junction and the practice of boarding greyhound buses asking riders to provide passports and drivers licenses.

“We’ve heard several times about border patrol agents boarding buses going through White River Junction and asking for papers,” Diaz said. “That’s not the kind of country we are are.”

Cory Dawson and Elizabeth Hewitt contributed to this report.

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• Feds threaten to subpoena Burlington over sanctuary city documents

• Feds file charge after Colchester ICE raid

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CRIMINAL JUSTICETags: Immigration and Custom Enforcement, Migrant Justice, Phil Scott, Vermont-ACLU

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