DHS official says Washington state could lose NEXUS privileges

The U.S. Department of Homeland Security (DHS) is suspending its Trusted Traveler Programs (TTP) for New York residents in response to a new state law preventing DHS from accessing New York Department of Motor Vehicles (DMV) records. Effective immediately, New York residents will no longer be able to enroll or re-enroll in TTP programs like NEXUS, and a DHS official warned that Washington state could face similar consequences if it passes a law similar to New York’s.

In a letter sent to the New York DMV’s acting commissioner Mark Schroeder and executive deputy commissioner Theresa Egan on February 5, acting DHS secretary Chad Wolf said that DHS component agencies like U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) rely on state DMV records to combat gangs, narcotics smuggling, human trafficking, child exploitation, arms trafficking, fraud, identity theft and the illegal export of sensitive technology.

The letter did not mention illegal immigration specifically, but it was widely reported that the disputed New York law also allows undocumented immigrants to obtain driver’s licenses, and that the law’s provisions aim to shield such immigrants from DHS enforcement and deportation efforts. Some interpreted the move by DHS as a response to New York state’s approach to illegal immigrants, a claim that Wolf denied in a Fox News interview on Sunday.

Like New York, Washington state also allows undocumented immigrants to obtain driver’s licenses, and pursuant to an executive order by governor Jay Inslee, the Department of Licensing does not provide personal information for immigration-related investigations to federal immigration authorities without a court order or other legal requirement.

Last week, acting DHS deputy secretary Ken Cuccinelli said that Washington state risks a similar response from DHS. “I know that the state of Washington is looking at a law like New York’s green-light law,” he said, according to The New York Times. “They should know that their citizens are going to lose the convenience of entering these Trusted Traveler Programs, just as New York’s did.”

In his February 5 letter, Wolf said that New York state’s Driver’s License Access and Privacy Act, enacted on June 17 last year, precludes CBP and ICE “from accessing and validating pertinent information contained in New York DMV records that is operationally critical in DHS’s efforts to keep our nation secure.” Specifically, the new law “prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history,” said the letter. “As such, the Act compromises CBP’s ability to confirm whether an individual applying for TTP membership meets program eligibility requirements.”

Citing a “negative impact” on DHS operations, the letter said that TTP programs would immediately be suspended for all New York residents. In addition to NEXUS, these programs include Global Entry (for expedited entry into the U.S. from international destinations by air, land and sea), SENTRI (for expedited entry into the U.S. from Canada and Mexico by air and land) and FAST (for commercial truck drivers entering and exiting the U.S. from Canada and Mexico).

The letter did not mention the Transportation Security Administration (TSA) PreCheck program, which allows pre-screened travelers to use separate, often shorter lines through airport security. A TSA spokesperson told The New York Times that New Yorkers currently enrolled in the program will continue to receive TSA PreCheck status.

“These actions are the result of an initial assessment conducted by DHS,” said Wolf’s letter. “We will continue to review department-wide operations related to New York to assess and mitigate the Act’s adverse impact on national security and law enforcement.”

In addition to affecting CBP’s ability to pre-screen TTP applicants, the new law in New York would also hamper ICE, said Wolf. His letter said that ICE uses DMV records to verify or corroborate an investigatory target’s personally identifiable information; identify targets, witnesses, victims and assets; obtain search warrants; identify criminal networks; create new leads for investigation; compile photographic line-ups; and more.

In response to the action by DHS, New York attorney general Letitia James is suing DHS and Wolf in Manhattan federal court, accusing them of engaging in political retribution and jeopardizing public safety. The lawsuit also alleges that it is unconstitutional to single out an individual state “for coercion and retribution as a means to compel conformity with preferred federal policies.”

Should DHS decide to suspend Washington state’s TTP programs, many current members could lose their privileges due to the length of time it is currently taking for membership renewals. CBP recently announced that NEXUS passes can be used for up to one year after their expiry date, as long as members had submitted a renewal application prior to that date. Unlike Canada, which processes 95 percent of new NEXUS applications within 30 days, current U.S. members have reported waits of over eight months without being notified of the status of their re-applications.