UPDATE, January 15, 11:54 a.m.: Judge Jesse Furman of the Southern District of New York on Tuesday ruled that the Trump administration can’t add a citizenship questions to the 2020 census.
A draft of an executive order leaked in January included a question about immigration status on the American Community Survey (ACS). There was an immediate backlash, with advocates asserting that probing immigration status in the 2020 census “would undo decades of work.”
To researchers and academics, however, it’s not that simplistic.
“[There] is a desire and need to collect data on people’s immigration status through the U.S. Census for research purposes,” Daniel Martínez, an assistant professor of sociology at George Washington University’s Columbian College of Arts and Science and associate director of the Cisneros Hispanic Leadership Institute, told Rewire in an email.
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Martínez was a co-investigator on the groundbreaking Migrant Border Crossing Study, a research project that involved interviewing recently-deported unauthorized migrants about their experiences crossing the U.S.-Mexico border and residing in the United States.
The ACS, scheduled to be next conducted in 2018, is known as the long-form census and is different than the main Census taken every ten years. It is a detailed survey for a subset of people in the United States. The ACS is important because the results help the government decide how to allocate federal funding for services like schools and health care.
Martínez said including a question about immigration status could assist researchers in examining differences in life outcomes—like socioeconomic status, health, and acculturation—by immigration status and lead to intervention efforts aimed at improving people’s lives.
There’s one major problem: The questions are being asked by the Trump White House, an administration that not one of the researchers interviewed by Rewire trusts with the question.
“Asking about people’s immigration status on the U.S. Census is problematic, misguided, and extremely dangerous, especially given the anti-immigrant rhetoric coming from the current administration,” Martínez said. “Collecting this data would needlessly put people at risk not only in terms of state detection—by Immigration and Customs Enforcement (ICE) or local law enforcement agencies participating in 287(g)—but could also result in immigrant families being harassed, threatened, or physically harmed by anti-immigrant vigilante groups if for some reason these groups manage to access these data at the block or household level.” The 287(g) program allows ICE to deputize state or local law enforcement to enforce federal immigration law.
The safety of undocumented people’s data is an ongoing issue under the Trump administration. Their information is under attack. Located in Trump’s January 25 executive order to “enhance public safety” in the United States was a policy change effectively stripping foreigners and undocumented immigrants of privacy safeguards.
“Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act [of 1974] regarding personally identifiable information,” section 14 of the executive order reads.
This means that under Trump’s executive order, non-citizens who are not green card holders can be subjected to having their names and personal information released and shared without their knowledge or consent. This is troubling because information for the ACS is largely collected online and information for the 2020 Census will be collected online for the first time. The Department of Homeland Security has no obligation to protect the personal information of the estimated 11 million undocumented people who reside in the United States.
This is not the first time undocumented immigrants have had their private information come under attack or shared among agencies for immigration enforcement purposes.
A 2016 court order demanded the Department of Justice turn over the personal information of thousands of young immigrants who received Deferred Action for Childhood Arrivals. In January, Rewire outlined the local, state, and federal databases being handed to Trump that could be used for immigration enforcement, including information shared with departments of motor vehicles (DMV) in the 12 states and the District of Columbia that have policies allowing undocumented immigrants to receive driver’s licenses. Since that report, it has emerged that Vermont’s DMV “regularly coordinated with Immigration and Customs Enforcement to identify immigrants in the country illegally,” according to the Associated Press.
But the census is supposed to be different. On the ACS’s website, the Census Bureau assures participants their information is safe. “We never reveal your identity to anybody else,” the site says. “Individual records are not shared with anyone, including federal agencies and law enforcement entities. By law, the Census Bureau cannot share respondents’ answers with anyone— not the IRS, not the FBI, not the CIA, and not with any other government agency.”
Muzaffar Chishti is the director of the Migration Policy Institute’s (MPI) office at the New York University School of Law, where his work focuses on immigration policy at the federal, state, and local levels. When asked if the Trump administration could use census data to target undocumented people for immigration enforcement, Chishti said the easy answer is “not legally.”
If the Department of Homeland Security (DHS) used census data to target undocumented immigrants, the agency would be in violation of Title 13 of U.S. code, which ensures private information is never published and can’t be used against respondents by a government agency or court. But that hasn’t stopped the government.
The Census Bureau provided the Secret Service with names and addresses of Japanese-Americans during World War II, Scientific American reported in 2007. This was made possible through the Second War Powers Act of 1942, which “temporarily repealed that protection to assist in the roundup of Japanese-Americans for imprisonment in internment camps in California and six other states during the war.”
Scientific American reported that the Census Bureau provided neighborhood data on Arab-Americans to DHS in 2002 in response to the September 11, 2001 attacks. The information was already publicly available because of a Patriot Act provision that gave agencies “access to individualized survey data collected by colleges, including flight training programs,” the publication reported.
“There were very strong rumors that after 9/11, different agencies sought information from the Census Bureau regarding the concentration of certain communities in certain geographical areas for law enforcement purposes, but there is still a lot unknown about the specifics. We do know generalized information was shared and it could be argued that was still within the gambit of Title 13,” Chishti said.
Individual information should be protected above all else and legally, government agencies can’t share census information for administrative or judicial proceedings—including immigration proceedings, Chishti said, adding that government agencies have an understanding: The sanctity of the census should be protected.
“Beginning in the 1980s, what was then Immigration and Naturalization Services would publicly announce that it was suspending immigration enforcement as a way to encourage people to participate in the census,” Chishti said. “So not only has information sharing been prohibited, but the Census Bureau has generally bent over backwards to ensure that people participate. It’s largely understood that no element of uncertainty or fear should interfere with the sanctity of the census.”
In 1990 and 2000, immigration enforcement was temporarily suspended for the census by request of the Census Bureau. In 2010, the Census Bureau and more than 200 immigrant rights groups asked DHS and President Obama to once again halt enforcement operations for the census, to no avail.
“You can’t be unmindful of the current political moment,” Chishti said. “This current administration wants to share private information. They issued [Declined] Detainer [Outcome] Reports just to shame jurisdictions. This administration not only says information is shareable, but that it will share your information. If you’re going to hold a census with that backdrop, it is absolutely reasonable to believe any information provide for the census will not be confidential. In the present political narrative, it will be counterproductive for census to ask any information about immigration status.”
Michael Fix, president of the Migration Policy Institute, a nonpartisan think tank that studies “the movement of people worldwide,” told Rewire that asking about immigration status simply isn’t necessary. Would it provide a more accurate snapshot of the undocumented community and its needs? Sure, but the administration isn’t looking to address the needs of undocumented people. Rather, it’s a goal to make living conditions as uncomfortable as possible. Plus, researchers have developed methods to better understand the size and scope of the nation’s undocumented population.
Fix oversees data production and analysis for unauthorized immigrant populations, including MPI’s Unauthorized Immigrant Population Profiles. This interactive tool goes beyond population sizes nationwide, providing insight into country of origin, recency of arrival, English proficiency, educational enrollment and attainment, employment, income, poverty, health insurance coverage, DACA eligibility, and more. MPI relies heavily on census data to make tools like this possible.
Fix said the methodology MPI uses is similar to the one researchers use when trying to learn more about the undocumented community and does so basically through the process of elimination. The Census’ Survey of Income and Program Participation, he said, probes legal status. Meaning, it asks about respondents’ legal status, not what legal status they may lack. When compared with data from the ACS, a picture begins to emerge about the number of unauthorized immigrants in the United States and where they are located.
“This is called imputation work and the best example of this is the Los Angeles Family and Neighborhood Survey. This method has strong support from academics and it’s being performed in a valid, reasonable way,” Fix said. “Legal status is never probed per se. But we use the information we do know and use these imputation techniques to view sensitive data through the lens of other surveys.”
This technique was pioneered by the Urban Institute’s Jeffrey Passel, who is largely responsible for the numbers made available about the undocumented population in the late 1990s. Fix said that prior to Passel’s work, statistics on the number of unauthorized immigrants in the United States ranged from 7 million to 15 million. The Immigration Reform and Control Act (IRCA) of 1986 largely criminalized undocumented communities, but the 3 million people who were able to gain legal status as a result of the IRCA were surveyed, shedding light on the country’s undocumented population.
Passel “used that survey and census information and we’d later learn his predictions were almost exactly correct,” Fix said. “It was a way of using what we did know, of using context to extrapolate. For example, if you were a new arrival from Mexico and you worked in agriculture, you were likely undocumented.”
In an ideal world, Fix said, estimates could be fine-tuned to develop a better understanding of subpopulations of immigrants who have different rights and protections, which could have far-reaching policy implications.
“From a pure science perspective, more data is better to provide people with the social services they need. In that way, including a question on the census about immigration status does have merit,” Chihti said. “But the counter argument is obvious: It could have the opposite effect; it could deter people from coming forward—both the undocumented and the relatives of the undocumented. Given the removal of Privacy Act protections, it’s not an unfair reading to be afraid—that even with Title 13—that your information is unsafe. Title 13 should prevail. That is what I’ll say.”
Martínez told Rewire that if a question pertaining to immigration status is included on the census under Trump, it could result in a chilling effect.
“Immigrants will become less willing to participate in the U.S. Census during a draconian administration,” he said. “Not to mention, I would be willing to bet that immigrant rights groups would quickly organize and campaign hard to convince people around the country to completely opt out of the Census as a form of protest. This would obviously be counterproductive and we’d potentially be left with poorer quality data compared to what we currently have through the census.”
When Fix heard the Trump administration was considering an immigration status question on the census, he wanted to wait to see if the new president’s immigration policies would end up being “all smoke and no fire.” But as the anti-immigrant executive orders came down and nationwide sweeps began, he grew concerned, and like Martínez, is certain it would produce a chilling effect.
“Under this administration, even people who are legally here—like DACA recipients—are being targeted. Politically speaking, asking a question about immigration status under this administration could have a chilling effect on unauthorized immigrants, but also on mixed-status families,” Fix said. “If everyone is afraid, the census becomes a less accurate instrument and the less we know about communities, the worse off they will be because of how federal funds will be allocated and distributed.”
Chishti said large grants are historically provided to communities of color to help publicize the census and the quiet understanding was that any information collected regarding the demographics of these vulnerable communities would be private. Outreach to immigrant communities has been helpful and spilled over into other efforts to help the community. The opposite could be true under Trump.
“Asking about immigration status isn’t an inherently evil thing to do, but the real problem under this administration becomes not the merit of asking the question, but the way asking the question could pollute our larger understanding of this population,” Fix said. “They don’t have to do much enforcement around the census to scare everyone. It just takes a few cases to really send a powerful signal.”
Filling out a census form—including the ACS— is a legal obligation, but noncompliance is rarely prosecuted. To reiterate, the information gathered is important: It can help communities, and it dictates how social service expenditures are allocated. But as Chishti told Rewire: It’s up to the person to decide if they want to risk their information with Trump and his appointees in charge.
“The Census, in this political moment, is not politically neutral,” the director said. “These concerns are entering the public debate because of how this administration has operated thus far and because it has committed itself to using all of the information it can, every tool at its disposal, for immigration enforcement. My feeling is that now is not the time to ask about immigration status on the census.”