Pay attention to this lawsuit if you care about immigration policy under Donald Trump

The front line of immigration is behind this agent.
The front line of immigration is behind this agent.
Image: AP/Gregory Bull
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Donald Trump has pledged to make immigration policy a focus of his presidency from day one. That makes it all the more urgent that Americans have access to their government’s data about the flow of people in and out of the country.

The US keeps detailed statistics about people traveling through border checkpoints: their age, visa status, port of entry, and where they came from. But that information is only available to paying customers with large pockets. The US International Trade Administration (ITA) wants $173,775 for the most comprehensive view of border crossings from 2010 to 2015.

Everyone should have access to such important government data, so I sued the government earlier this year under the Freedom of Information Act (FOIA). That law guarantees journalists and others access to government records that are in the public interest.

The case is now in the hands of a district judge to make a ruling or request more information. Meanwhile, the Trump administration begins in a month.

The contours of US immigration

My lawsuit concerns two databases maintained by the ITA: One contains anonymous immigrations records; the other, statistics about international air travelers. Together, they would tell us a lot about who is entering the country, and for what purpose, at a time when American border policy is under intense scrutiny.

For instance, we could gain a better understanding of how many people would be affected by Trump’s plans to severely restrict travel from predominantly Muslim countries. Which US cities would be most affected by a decline in such travelers? What kind of impact would those measures have on the global economy?

While the government can analyze the data and cherry-pick metrics to make available for public release, only the full databases can answer these questions for sure. The commerce department, which oversees the ITA, has argued that making the information freely available would undermine its business selling the data. But documents obtained through public records requests show that no private entities have bought the detailed ITA data for years.

Understanding illegal immigration

The ITA data only captures information on people who pass through border checkpoints. Anyone entering or leaving the US “without inspection”—by, say fording the Rio Grande in Texas or floating on an inner tube across the St. Clair River in Michigan— isn’t counted.

While most of America’s undocumented population did not come through border checkpoints, the majority of new unauthorized residents actually did face inspection when they entered the country. They just overstayed their welcome.

A study published in the Journal on Migration and Human Security in 2015 shows the number of people crossing the border without inspection has been lower (pdf) than the number overstaying their visa since 2007.

One of the report’s authors, Robert Warren, says that he has yet to analyze the most recent data, but his initial reading of it has led him to believe that it this trend has continued since 2012. That makes the ITA’s data all the more relevant, especially if Trump follows through on his pledge to crack down on illegal immigration.

Where my case stands

Yesterday, my lawyers at the Reporters Committee for Freedom of the Press made our final scheduled filing (pdf) to the US District Court for the District of Columbia. It responds to the government’s filing (pdf) from last month.

There are several disagreements in the case, but the crux of the government’s argument is that it’s allowed to charge for particular data because Congress permits it to collect money for activities related to trade promotion. Our view on that point is that any reasonable reading of FOIA and relevant case law would conclude that the government’s argument is absurd. You can get more detail in the respective filings.

It is now up to Judge Ketanji Brown Jackson to call for a hearing, request more information, or decide the case.