When U.S. Immigration and Customs Enforcement agents want to detain and possibly deport someone being released from a local jail, they identify that person based on a database that is “outdated,” “antiquated,” “not updated appropriately” and erroneous 30 percent of the time, according to a federal motion filed last week by the ACLU of Southern California.
“The databases are so unreliable that a senior ICE official in Los Angeles twice wrote to ICE headquarters to complain that errors were 'frequently' causing ICE to find via agency database checks, [individuals] to be removable, only to later discover that the person is a United States citizen,” the motion states.
ICE has issued nearly 2 million such hold requests, known as detainers, in the past decade. The fingerprint technology that powers the allegedly faulty database became a mainstay of immigration enforcement when it was incorporated into a federal policy known as Secure Communities in 2008. Every local law enforcement agency in the nation was connected to the database by 2011, and the number of detainers issued nationwide peaked that year at 309,697.
Many local and state law enforcement agencies recently have refused to continue sharing certain data with federal authorities. But there has been little outcry over the federal mandate that local law enforcement share the fingerprints of people booked and arrested, which ICE uses to identify people for removal in jails and prisons nationwide. The technology, known as “biometric interoperability,” allows ICE to receive — “automatically and in real time,” as the motion states — the fingerprints of every person booked into local jail.
The ACLU filed a lawsuit to halt the program in 2012, and legal experts say that if the suit is successful it could reduce the ability of federal immigration agents to take custody of detainees in local jails.
With the latest motion, the court will weigh whether additional investigatory steps beyond the fingerprint-fueled database check should be required to satisfy probable cause before ICE can issue a detainer.
Through a spokesperson, ICE declined to comment, citing a policy of not commenting on matters that are the subject of pending litigation.
The ACLU argues in the motion that ICE's reliance on database technology violates the Fourth Amendment safeguard of personal liberty against unreasonable government interference. It calls for tighter controls on the information ICE uses to decide when to arrest someone.
The names and fingerprints of all people booked into L.A. County jails are automatically sent to the Department of Homeland Security. If the prints match a record in the DHS repository, or if the person was born outside the country or the place of birth is unknown, the computer system will generate an automatic query to the ICE Law Enforcement Support Center in Vermont, which relays the basic biographical and criminal history to private contractors at the Pacific Enforcement Response Center in Laguna Niguel, California.
“Under this program, ICE, for the first time, began issuing detainers en masse based solely on electronic database checks and nothing more,” the motion states.
More than 70 percent of all detainers issued by ICE agents in the Central District of California are issued solely on the basis of electronic databases, without agents ever interviewing the subject or conducting any other investigation, says Jennie Pasquarella, a senior staff attorney for the ACLU of Southern California who is a plaintiff's attorney in the suit.
Clerical errors are common, the motion states, resulting in misspellings, erroneous birth dates and missing court or immigration information. The databases also are not updated in a timely way, according to the lawsuit, with critical immigration events frequently going unrecorded by the system, such as a person’s naturalization as a U.S. citizen. The plaintiffs in the case, Gonzalez v. ICE, are U.S. citizens issued detainers based on false positives returned from the database.
“We’ve seen all kinds of cases of people who are naturalized citizens but the system didn’t update to account for their swearing in,” Pasquarella says.
After the ACLU filed suit, the L.A. County Sheriff's Department stopped honoring requests from ICE to hold inmates up to 48 hours past the release date. “No sheriff in the state is doing that,” Sgt. Brandon Epp of the sheriff department's legislative unit said in a previous interview with L.A. Weekly.
The Sheriff's Department still forwards to ICE lists of inmates who are scheduled to be released soon, Epp said, and ICE can take custody of the detainee provided the pickup occurs prior to the release date.
In L.A. County the number of detainers issued has decreased every year since the ACLU filed its lawsuit, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University. Between May 2015 and February 2016, ICE booked only 21.5 percent of the subjects of detainers into its custody, according to data the ACLU published through discovery.
But because of President Trump's policies, Pasquarella says, “I expect we will see dramatic increases in the number of detainers issued this year.”
Judge Beverly Reid O’Connell of the U.S. Central District of California will consider the motion at a hearing scheduled for July 24.