ICE Detention Program Held to be Unconstitutional

A federal court has found that a program where Immigration Customs Enforcement (ICE) worked with law enforcement agencies to detain immigrants, and potentially deport them based only on biometric information from a computer report, is unconstitutional.

Secure Communities

The program, called Secure Communities, works like this: When someone is in the custody of law enforcement (for example, they have been arrested, detained, or are completing a prison sentence), ICE can request that the law enforcement agency keep the person in custody for an additional 48 hours, so that ICE can check on that person’s immigration status, and take any deportation actions that may be needed.

The detainers are issued by ICE; there is no need for a court order or court intervention for the detainer. To determine whether to issue these detainers, ICE officials in California relied on a computer database. There is no other independent investigation, or separate background check conducted by ICE officials before requesting the 48 hour detainer.

Probable Cause

Under our constitution, in order to detain someone, law enforcement must have probable cause. The forms used by ICE have language that ICE contends constitute probable cause. However, the federal court found that the forms were flawed, and did not meet constitutional probable cause standards because of errors in the database that provided the probable cause information.

For example, the form asks whether someone is a lawful permanent resident. However, under immigration rules, a person may go back and forth from being lawful or unlawful, and as the Court noted, “is a complex inquiry,” that involved a lot of “fluidity.”

Determining someone’s immigration status also involves a thorough and complex investigation of an immigrant’s history. A permanent resident can be here permanently, but someone can also be a non-immigrant here just for a temporary period of time (the non-immigrant can become illegal if he or she exceeds the duration of their visa). There are 23 categories of visas.

This is all in addition to the status of those here under asylum or as refugees.

Database Problems

The Court found that the databases were not sufficient to correctly apprise ICE officials with an accurate picture of any one individual’s immigration status. Many were outdated, or did not contain data fields for all possible immigration statuses.

The Court noted that in 1995, the Government Accountability Office said that one database relied upon by ICE to issue detainers was “incomplete and inaccurate,” containing errors in nationality or the spellings of names.

Sometimes, updates in status—such as extensions of time that people can be in the country—did not automatically populate in the databases relied upon by ICE in issuing the detention requests.

Although there is nothing unconstitutional about relying on computer databases, the Court found relying upon these flawed, error-filled databases, was not sufficient to constitute probable cause. As such the issuance of detainers based on these databases was held to be unconstitutional by the Court.

We can help you if you have an immigration case or if you are concerned about ICE. Contact the Palm Beach County immigration attorneys at Devore Law Group to help you with your immigration questions.

Resource:

ice.gov/secure-communities

https://www.devorelawgroup.com/supreme-court-agrees-to-hear-arguments-in-important-cases/