Cuomo to feds: Want DMV access for trusted traveler? 'You can have it'

By Tom Precious
Published 9:05 a.m. February 12, 2020|Updated 1 hour ago

ALBANY – President Trump and Gov. Andrew M. Cuomo will meet Thursday at the White House to discuss an ongoing dispute over federal access to state motor vehicle records.

The outcome will affect thousands of people who cross to and from Canada and the United States every year.

The meeting comes a day after Cuomo said he is prepared to acquiesce to federal demands to turn over certain DMV records to customs and border protection agents about New Yorkers who apply for U.S. trusted traveler programs designed to expedite border and airport waiting times.

Federal officials appeared unmoved by the Cuomo plan, saying he had not presented anything official to them and that border and immigration agencies want the state to fully restore access they formerly had to motor vehicle records.

The Democratic governor, though, said he would “never” turn over the documents now protected from federal eyes – including DMV information about people crossing the border between New York and Canada – under a new law giving migrants in the country illegally the ability to obtain New York driver’s licenses.

In an interview with a Long Island radio station, Cuomo said he talked to top officials at the U.S. Department of Homeland Security over the federal government’s decision last week to suspend New Yorkers from applying – or reapplying – to Global Entry programs such as NEXUS intended to speed access across the borders via motor vehicles or air travel.

“You want access to our DMV database for trusted traveler? You can have it," Cuomo said he told the Trump administration.
“It’s pure politics and that’s what I’m going to say to the president tomorrow," Cuomo said Wednesday.

DHS wants 'full access'

At issue has been a provision in the state's new Green Light Law that bans the sharing of any DMV records with federal immigration and border officials. The law permits migrants who live in the country illegally to obtain state driver's licenses. Proponents, including Cuomo, say sharing of such records would put a chilling effect on the law's intent: getting such migrants fully licensed and insured for the state's roadways. They say it would dissuade many from applying for licenses if they thought it could lead to their deportation.

The Cuomo administration believes no such migrants will be applying for trusted traveler programs because admission into the pre-clearance systems requires a background check and an in-person interview with a federal official. As such, providing DMV records to the federal government for background checks in the trusted traveler programs will keep intact the intent of the new Green Light Law, state officials believe.

The U.S. Department of Homeland Security said Wednesday afternoon that New York had not submitted any plan regarding Cuomo's new information sharing idea for federal access to state motor vehicle records.

"The Acting Secretary has made clear that CPB (U.S. Customs and Border Protection) requires full access to DMV data to fulfill their law enforcement, customs, and trade and travel statutory responsibilities. It remains our goal to get back to a place where NY is once again sharing critical law enforcement data with CBP,'' said Heather Swift, a DHS spokeswoman.

The Cuomo administration said the governor's offer on disclosure of limited DMV records – to be made on a case-by-case basis – would require a change in the state's new Green Light law.

The governor Wednesday morning turned to two radio station shows to outline his compromise plan. He acknowledged in an interview with WAMC public radio that it’s unlikely Trump tomorrow will go along with his DMV plan related to the trusted traveler program because the president is “using government to abuse people for political purposes."

Cuomo said, however, that DMV records will remain out of reach by federal immigration agents looking to find or make cases against migrants in the country illegally. “I will never give them access to the DMV database," Cuomo said.

The federal government has blasted the new Green Light Law for including provisions that give a blanket prohibition against the sharing of motor vehicle records with federal immigration.

State law bans most disclosures

The Green Light Law in New York states that migrants in the country illegally can obtain a Class D driver’s license by supplying information other than a Social Security number, such as a foreign-issued passport or foreign-issued driver’s license. Proponents say many such migrants already are driving on the roads without licenses and that this will encourage them to go through proper testing, licensing and insurance procedures if they own a vehicle.

Critics say the state is rewarding such migrants with a key benefit – the right to legally drive on roads in New York – when they have not followed the laws to become a legal temporary or permanent resident.

The New York law specifically bans the DMV from disclosing or making accessible motor vehicle records except in select circumstances, including a court order or subpoena for the purposes of investigating a crime.

If such a request is made by a federal immigration or border office to New York, the state will notify the person whose records are being sought no later than three days after the federal agents ask New York for the documents; the state will tell the person about the specifics of the request and what federal agency is asking for the documents. Federal law enforcement officials say such a provision provides an inappropriate and dangerous alert to someone that they are under investigation for something.

Further, law enforcement agencies in New York – in order to continue having access to DMV records – have had to certify to the state that such records they obtain from New York will not be used to enforce immigration laws or be shared with federal immigration agencies.

What other states do

A dozen other states and the District of Columbia have versions of a Green Light Law. Some are silent on the sharing of DMV records with Washington.

The New Jersey version, enacted last month, states that driver records are not to be disclosed by the state “for the purpose of investigation, arrest, citation, prosecution or detention related to an applicant’s citizenship or immigration status” without consent from the individual or a court order or subpoena.

But the New Jersey law also states that the motor vehicle commissioner shall not be banned from sending or receiving from federal immigration authorities “information regarding the citizenship or immigration status, lawful or unlawful, of any individual."

In Nevada, migrants are given access to a “Driver Authorization Card," and there are rules against the release of motorist information relating to “the immigration status, nationality or citizenship of an individual” in cases “relating to the legal presence or any other information relating to” immigration status, nationality or citizenship of an individual.

Cuomo plans to lay out his objections to what the Trump administration wants in a lawsuit the state filed this week against the federal government seeking to halt the suspension of the trusted traveler programs for New Yorkers.

'Calling their bluff'

U.S. Department of Homeland Security officials say no state has gone as far as New York. They say federal agents are no longer able to obtain motor vehicle record information about an individual, say, crossing from Buffalo into Canada.

“New York State is the only state that has outright banned the DMV from sharing database information like driving histories, arrests-pending-convictions, photographs, registered vehicles and other information," said Swift, the DHS spokeswoman.

In written answers supplied Tuesday night to The Buffalo News, Swift said such information has also been used in background checks to ensure someone applying for a trusted traveler program is considered a low-risk and, therefore, able to secure certain border crossing privileges, such as speedier transit times.

The federal government had no choice to cut off new applicants – and people re-enrolling – to the trusted traveler programs because of New York’s limits on motor vehicle records.

The governor has said DHS simply could use FBI records to obtain the same information. But DHS officials disputed that, and said the FBI does not maintain certain information, such as arrests-pending-convictions or on vehicles a person might have registered in his or her name.

“Comparing the New York law to other states is not an honest comparison and is used by folks who either do not understand the nuances of each state law or are intentionally trying to mislead," Swift said. While some other states have “sanctuary” kinds of laws that restrict certain kinds of information sharing with immigration authorities, “none of them go so far as to ban any and all information sharing” with U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

In one of his radio interviews, Cuomo said his new proposal amounts to "calling their bluff" on federal demands for DMV records to process trusted traveler applications.

"I don't believe that's what they want. They don't need it. There's no connection. I believe they just want political noise because they really want to make their argument about immigration,'' Cuomo said.