89 (Notice of Correction)

Case 1:20-cv-01127-JMF Document 89 Filed 07/23/20 Page 1 of 3
U.S. Department of Justice

[Type text]
United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007
July 23, 2020
By ECF
The Honorable Jesse M. Furman
United States District Judge
Thurgood Marshall United States Courthouse
40 Foley Square
Re: New York v. Chad F. Wolf, et al., No. 20 Civ. 1127 (JMF) (S.D.N.Y.)
Lewis-McCoy, et al. v. Chad Wolf, et al., No. 20 Civ. 1142 (JMF) (S.D.N.Y.)
Dear Judge Furman:
This Office represents the defendants in the above-referenced actions. We write

respectfully to correct several statements in defendants’ briefs and declarations, and to withdraw
defendants’ motion to dismiss, Dkt. Nos. 29-30,1 and motion for summary judgment, Dkt. Nos.
67-68, along with the materials submitted in support of those motions. We also write to inform
the Court and the plaintiffs that the Acting Secretary of Homeland Security has determined that it
is appropriate to restore New York residents’ eligibility to participate in Trusted Traveler Programs
(“TTPs”), effective immediately. See Dep’t of Homeland Security, New York Amends Dangerous
Green Light Law to Cooperate with Federal Law Enforcement on DMV Records, available at
https://www.dhs.gov/news/2020/07/23/new-york-amends-dangerous-green-light-law-cooperate-
federal-law-enforcement-dmv (July 23, 2020).
As the Court is aware, defendants have maintained that the TTP Decision at issue in this
litigation is constitutionally permissible, and not arbitrary and capricious, because the data
restrictions imposed by New York’s Green Light Law—in particular, its restriction of access to
certain criminal history information in New York DMV records—were unique and precluded CBP
from conducting adequate risk assessments of New York applicants for TTPs. For example, the
TTP Decision itself asserted that the Green Light Law “prevents DHS from accessing relevant
information that only New York DMV maintains, including some aspects of an individua l’s
criminal history. As such, the Act compromises CBP’s ability to confirm whether an individua l
applying for TTP membership meets program eligibility requirements.” AR 2. Similar statements
appeared in other, pre-decisional documents contained in the administrative record, see, e.g., AR
62 (“The NY Green Light law would prevent CBP from receiving information relating to criminal
convictions involving motor vehicles . . . . Membership in a CBP Trusted Traveler Program
requires application of strict standards for multiple convictions that can no longer be assessed for
1 Citations refer to the docket of New York v. Wolf, No. 20 Civ. 1127 (JMF) (S.D.N.Y.).
Page 2
applicants residing in the State of NY.”), and in the declarations submitted by Department of
Homeland Security (“DHS”) officials in support of defendants’ motion for summary judgment,
see, e.g., Decl. of Pete R. Acosta, dated June 19, 2020 (Dkt. No. 68-1) ¶ 24 (“Currently, New York
is the only state that has terminated CBP’s access to driver license and vehicle data via Nlets.”).
Based on these statements and representations, defendants made similar assertions in their briefs
in support of their motions. See, e.g., Motion to Dismiss (Dkt. No. 30) at 14 (“Here, no other state
has adopted a policy barring CBP’s access to records to vet TTP applicants.”); Motion for
Summary Judgment (Dkt No. 68) at 12 (“In other words, without DMV information, DHS
determined that TTP applicants from New York could not satisfy TTP eligibility requirements.”).
Last Friday afternoon, July 17, DHS advised this Office that those statements and
representations are inaccurate in some instances and give the wrong impression in others.
Specifically, in connection with preparing defendants’ opposition to plaintiffs’ cross-motion for
summary judgment, DHS learned and informed this Office that several states, the District of
Columbia, and a territory provide access to driver’s license information (referred to as Driver
Query) and vehicle registration information via Nlets, but do not currently provide access to
driving history information, including driving-related criminal histories. In addition, DHS
determined that two territories do not participate in Nlets DMV-related queries, such that DMV
records are not available to CBP (or other Nlets users). Nevertheless, CBP has continued to accept,
vet, and, where appropriate, approve TTP applications from these states and territories.
These revelations undermine a central argument in defendants’ briefs and declarations to

date: that CBP is not able to assure itself of an applicant’s low-risk status because New York fails
to share relevant DMV information with CBP for TTP purposes. Because this argument supplies
the rationale for the TTP Decision, see AR 2-3, and supports defendants’ defense of the TTP
Decision, defendants have determined that the proper course of action is to withdraw their motion
to dismiss and motion for summary judgment.
Furthermore, although the parties have agreed that New York’s April amendment to its
Green Light Law need not be considered in adjudicating this matter, see Dkt. No. 72 at 2-4; Dkt.
No. 79 at 2 n.2, DHS has also informed this Office of an issue concerning the amendment’s effect
on the TTP Decision. The declarations of DHS officials Scott L. Glabe and Robert Perez both
state that any cabining of New York DMV information to ensure compliance with the Green Light
Law amendment’s criminalization of information sharing for immigration enforcement purposes
would be antithetical to DHS’s congressionally-mandated mission and data access policies. See,
e.g., Decl. of Scott L. Glabe, dated June 19, 2020 (Dkt. No. 68-2) ¶¶ 4-8, 12-14; Decl. of Robert
Perez, dated June 19, 2020 (Dkt. No. 68-3) ¶¶ 15-16. Accordingly, in their brief in support of
summary judgment, defendants argued that by purporting to impose restrictions on DHS’s ability
to share DMV information obtained to vet TTP applicants, the amendment to the New York Green
Light Law failed to cure the problems that necessitated the TTP Decision. See Motion for
Summary Judgment (Dkt. No. 68) at 7-8, 24-25. Last Friday, however, DHS informed this Office
that in 2019, CBP, at the local level, entered into agreements with the California Department of
Justice that preclude the use of non-criminal history information accessed through Nlets for
immigration enforcement purposes. According to DHS, it does not appear that those agreements
were vetted by DHS’s headquarters, as is required under the One DHS Policy. See Glabe Decl.
¶ 8. Thus, according to DHS, it remains true that, as asserted in the Glabe and Perez declarations
Page 3
and defendants’ summary judgment brief, information restrictions of the type contemplated by
New York’s Green Light Law amendment are contrary to the recommendations of the 9-11
Commission as embodied by the One DHS Policy. See, e.g., Glabe Decl. ¶ 14; Perez Decl. ¶ 17.
However, considering DHS’s agreements with the California Department of Justice, defendants
no longer wish to press this argument to support the TTP Decision.
Defendants deeply regret the foregoing inaccurate or misleading statements and apologize
to the Court and plaintiffs for the need to make these corrections at this late stage in the litigation.
Defendants respectfully request that the Court accept this letter to correct the record, and permit
them to withdraw their motions to dismiss and for summary judgment, along with all briefs and
declarations submitted in support of those motions. As noted above, the Acting Secretary of
Homeland Security has decided to restore New York residents’ access to the Trusted Traveler
Programs, effective immediately.
We thank the Court for its consideration of this letter.
Respectfully submitted,
AUDREY STRAUSS
Acting United States Attorney for the
By: /s/ Zachary Bannon

ZACHARY BANNON
ELIZABETH KIM
CHRISTOPHER CONNOLLY
Assistant United States Attorneys
86 Chambers St. 3rd Floor
Tel.: 212-637-2728, 2745, 2761
Fax: 212-637-2717
E-mail: [email protected]
[email protected]
[email protected]

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Case 1:20-cv-01127-JMF Document 89 Filed 07/23/20 Page 1 of 3

U.S. Department of Justice

July 23, 2020

Dear Judge Furman:

This Office represents the defendants in the above-referenced actions. We write

These revelations undermine a central argument in defendants’ briefs and declarations to

We thank the Court for its consideration of this letter.

By: /s/ Zachary Bannon

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