Immigration and Customs Enforcement has come under fire for casting too wide of a net – some advocates have nicknamed it a “dragnet” - when it asks law enforcement authorities to hold people in local jails under its Secure Communities program.
The federal immigration agency placed an “immigration hold” or “detainer” on more than 900,000 people between 2008 and 2012. That group included 834 American citizens, according to a data set obtained from Immigration and Customs Enforcement by the Transactional Records Access Clearinghouse (TRAC) Immigration Project. In addition, detainers were issued on another 28,489 legal permanent residents.
It’s technically illegal for ICE to deport, much less detain, American citizens, according to the National Immigrant Justice Center, a Chicago-based non-profit that provides legal services to immigrants.
Detainers are required to be targeted towards the undocumented – but that isn’t always the case.
TRAC obtained the data through a Freedom of Information Act request. Both American citizens and legal permanent residents still ended up being targeted as possible deportees, the data show. The numbers also show why the detainer program may compromise the constitutional rights of detainees, despite ICE’s recent steps to provide safeguards, advocates say.
The fingerprints of anyone arrested in the United States are sent to the FBI. However, those fingerprints are also shared with the Department of Homeland Security under Secure Communities, a data-sharing program designed to find undocumented immigrants. ICE then checks the fingerprints against their files. If officials suspect a person is undocumented, ICE places a “detainer” on the individual until it is determined whether the person is eligible for deportation.
So how did the 834 American citizens and 28,489 legal residents end up being flagged by ICE with detainers for possible deportation?
James Makowski, a U.S. citizen, was one day away from his 23rd birthday when a detainer was placed on him in DuPage County on July 7, 2010. After he was arrested on drug possession charges, his fingerprints were sent to the FBI, and then on to the U.S. Department of Homeland Security. Although he became a naturalized citizen when he was one year old, federal authorities had not updated his immigration record, according to Makowski’s court file.
Makowski spent two months in a maximum security prison.
On July 3, 2012, he sued the FBI and the Department of Homeland Security arguing that Secure Communities violated the Privacy Act. The case is pending.
In its report, TRAC lays out the reasons why this policy is a constitutional concern:
Inadequate safeguards exist to prevent such mistakes from happening or to rectify them after they have happened. ICE has wide administrative powers to detain individuals it suspects may be present in this country illegally. Because these are considered "civil" and not "criminal" detentions, the protections afforded someone who is a criminal defendant or arrested by local, state or federal criminal law enforcement authorities do not come into play.
“ICE is using a foreign place of birth as a huge factor in the decision to place detainers on people,” said Esha Bhandari, an Equal Justice Works Fellow at the national American Civil Liberties Union Immigrants’ Rights Project based in New York
Bandari said the way ICE uses the detainers creates confusion about citizenship status.The reason for a detainer is to allow ICE to carry out an investigation into whether a person is undocumented, Bandari explained. So any doubt as to an individual’s immigration status warrants ICE placing a detainer on him or her.
And while most citizens and green card holders carry IDs, “having an ID doesn’t seem to be enough to prevent a detainer.”
“Most citizens are not walking around with ID saying they are a citizen, and they are not required to do that,” she said. In addition, “they won’t appear in an ICE database because they never applied for visas. If ICE runs a search and gets nothing on them, they often assume they are not here lawfully.”
In response to advocates’ concerns, Gail Montenegro, a spokeswoman for the ICE Chicago office, pointed to several policy changes the agency has introduced in the last two years to mitigate these problems.
They include a new detainer form for local law enforcement, launched in 2011, that gives them a checklist to determine whether they think the detainee may be “an alien subject to removal.” ICE also now requires that detainees receive a copy of the form.
And detainees can call a toll-free hotline for detainees if they say they are U.S. citizens or victims of a crime.
However, some people still slip through the cracks.
Mark Fleming, national litigation coordinator at the Chicago-based National Immigrant Justice Center, said there is a “long-standing practice” of local law-enforcement not providing copies of the detainer to people in jails.
“ICE doesn’t follow up to determine whether a copy was given,” said Fleming, who is the attorney for Makowski, the American citizen who is suing the Department of Homeland Security.
Jacqueline Stevens, a professor of political science at Northwestern University and long-time researcher on immigration noted the numbers obtained by TRAC don’t count the U.S. citizens that did get deported. After ICE puts detainers on them, “those people will continue to be held as aliens” in detention centers until they are deported, she said. If that happens, Stevens adds, they will have little recourse to fight deportation.
“The standard is that if you are foreign born, the burden of proof is on you to provide clear and convincing evidence you are a citizen,” she said.
The TRAC report notes that it will be difficult to determine what happened to the 834 American citizens issued detainers between 2008 and 2012.
“The records ICE released to TRAC do not include any information on whether the detainer was ever lifted, whether the individual was ultimately deported, and if not deported, when they were released from ICE custody,” the report said.