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Battle over trusted traveler programs devolves into federal-state stalemate

WASHINGTON – The governor of New York says the Trump administration is engaging in "extortion" by blocking state residents from enrolling in federal trusted traveler programs.

The federal government says New York state is endangering public safety by blocking Department of Homeland Security officials from seeing state driving records.

And according to customs agents, immigration experts and government officials, both sides could be right — and hundreds of thousands of New Yorkers who rely on those programs are set to lose access to them as a result.

That looked like the bottom line Friday, two days after the Department of Homeland Security announced that New Yorkers would no longer be allowed to join or renew their memberships in programs such as NEXUS, which eases travel between the United States or Canada, or Global Entry, which speeds up the customs process for international air travelers.

Gov. Andrew M. Cuomo said Friday that the state would try to sue to reverse the federal policy. And that was just one sign of what looked like a stalemate, with neither the state nor the federal government willing to move from their entrenched positions.

Amid complaints from Western New Yorkers who are already being turned away when applying for NEXUS or Global Entry, only one prominent politician — Rep. Brian Higgins, a Buffalo Democrat – called for compromise.

"We have an immediate problem, Higgins said. "And we're going to do everything we can to encourage the state of New York and Homeland Security to engage in discussions toward an amicable solution to this."

The state's action

Cuomo didn't look very amicable Friday as he sat down at a media event in New York City where he announced the state's pending lawsuit.

"We believe this was arbitrary and capricious," Cuomo said. "We believe it's illegal. We believe it was politically motivated."

New York Attorney General Letitia James will file the lawsuit, which will argue that the federal agency violated New York's sovereign immunity while denying state residents equal protection under the law.

"It's nothing more than a political, vindictive and politically motivated action by this administration," James said. "And that's why we've got to stand up and protect the interests of New York State, because it's going to have an impact on commerce, on health, on education. And traffic will be backed up in Western New York. So I've got a duty and a responsibility to stand up, and I look forward to doing that, and I look forward to seeing this administration in court."

[RELATED: What the trusted traveler changes mean to you]

Cuomo said the Trump administration was trying to extort New York into changing its new "Green Light law," which both allows undocumented immigrants to get driver's licenses and bars DHS agents from accessing state driving records. The governor likened the new Trump administration policy to Trump's attempt to extort Ukraine into investigating former Vice President Joe Biden, an act that prompted the Democratic House to impeach the president.

Referring to Trump, Cuomo said: "You can't use the government to come up with an arbitrary policy that hurts hundreds of thousands of New Yorkers to make your political point. You can't do that. It's an abuse of power. It is extortion. And it's exactly what you did at Ukraine."

Other critics of the new federal policy noted that if the administration were truly concerned about New York blocking DHS from seeing driving records, barring New Yorkers from trusted traveler programs seems like an unusual way to address the issue.

Rep. Tom Reed. (Mark Mulville/News file photo)

"It is unclear how the conclusion can be reached that New York's Green Light Law would undermine Global Entry security, since Global Entry applicants must submit their passports and undergo rigorous background checks and in-person interviews for approval," Buffalo Mayor Byron W. Brown said in a letter to the DHS secretary.

And Anu Joshi, interim vice president of policy at the New York Immigration Coalition, noted that driver's licenses aren't even required to apply for Global Entry.

"This is purely political retaliation," she said. "I mean, there's lot of New Yorkers that have Global Entry that have never had a driver's license."

The security risk

New York is one of 14 states that issue driver's licenses to undocumented immigrants, a move that advocates say contributes to highway safety.

But the Empire State is the only one that combined that move with language blocking federal customs and immigration agencies from access to state driving records – which, federal officials said, explains why New York was targeted.

“Here we have one of the ... targets of 9/11, New York, walking backward, quite intentionally, in the other direction to bar the sharing of law enforcement-relevant information,” Kenneth T. Cuccinelli, the acting deputy secretary of Homeland Security, told reporters Thursday.

That provision of the Green Light law poses serious risks to federal border enforcement personnel, said Paul Kwiatkowski, president of National Treasury Employees Union Local 154, which represents customs officers in the Buffalo area.

"We can't receive information on registrations or driver's licenses, which is a major problem," he said. "Let's say you're border patrol and you're out there patrolling the Niagara River. And there's a New York State plated truck over there with its lights off by the river. You can't get a return on that plate, you can't get any information, who owns it – nothing. I mean it's a serious officer-safety issue."

[RELATED: As border backup disaster looms, politicians bicker over Green Light Law]

It's important for customs officers reviewing trusted traveler applications to have quick access to Department of Motor Vehicles data, too, said Theresa Cardinal Brown, director of immigration and cross-border policy at the Bipartisan Policy Center. She said the review of the vast majority of trusted traveler applications involves a driver's license check, to see if it matches what the applicant put on the form.

"That's the fundamental beginning of any trusted travel application," she said. "Then they go into background checks and criminal records, that kind of stuff. So, if you're limiting that kind of a check of the New York State DMV databases, you're limiting their ability to validate a person's identity that way."

That being the case, no one should be surprised that the Trump administration took the action it did against New York State, said State Sen. Rob Ortt, a North Tonawanda Republican.

"When you undermine federal immigration enforcement, this is what happens," Ortt said. "New York does not get to decide immigration law, and this is aimed at undermining immigration law."

The next steps

Despite Higgins' call for compromise, a solution to the stalemate seems a long way off.

Higgins said he is also examining the possibility of a federal legislative fix, but he acknowledged that would take time. So will the legal action that Cuomo promised Friday.

Meanwhile, both the state and federal governments seemed unwilling to budge.

Asked on Friday about the federal government's concerns about the Green Light law, Cuomo indicated he doesn't want that law to be changed – because he doesn't want the federal Immigration and Customs Enforcement agency to have access to state DMV records.

"I understand that they want the DMV database," he said. "Why? Because it now has the undocumented New Yorkers who have a license. They want those records. I don't want ICE to have those records. Why? Because ICE uses those records to as a means to do deportations. And the way ICE does deportations has wreaked havoc all over the state."

Cuccinelli, the DHS official, didn't sound interested in compromise, either. He portrayed the ending of trusted traveler programs in New York not as political retribution, but as practical policy.

"President Trump has certainly made it clear that if a sanctuary state won't keep their people safe, we will do the best we can to keep them safe," he said.

News Albany bureau chief Tom Precious and staff reporter Thomas J. Prohaska contributed to this report.

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