FEDERAL COURT BARS ICE FROM ISSUING CERTAIN DETAINERS BASED ON DEFICIENT ELECTRONIC DATABASES

Written by: Taher Kameli, Esq.

In making arguments about immigration, it is often said (by both pro-immigration and anti-immigration advocates) that the immigration system is broken.  Apparently, this statement may be literally true. A recent case highlights this issue, as a Federal court has barred U.S. Immigration and Customs Enforcement (ICE) from issuing certain detainers (arrest requests) based on deficient electronic databases.

ICE’s “Secure Communities” program is believed to be responsible for 70% of all ICE arrests.  A significant portion of those arrests arises from detainers issued solely on the basis of electronic databases.  In essence, ICE officers, looking at computer screens, review the results of certain automated database searches, and issue detainers without speaking to the individual in question or reviewing the individual’s immigration file.

In Gonzalez v. Immigration and Customs Enforcement, 2019 U.S. Dist. LEXIS 167359 (C.D. Cal. 2019), on September 27, United States District Court Judge Andre´ Birotte Jr., of the United States District Court for the Central District of California, issued a permanent injunction “enjoining ICE from issuing detainers to Probable Cause Subclass members based solely on database searches that rely upon information from sources that lack sufficient indicia of reliability for a probable cause determination for removal”.  Judge Birotte Jr. ruled, “This claim is brought on behalf of the Probable Cause Subclass, which is comprised of all current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge, or the individual is not subject to ongoing removal proceedings and the detainer was issued solely on the basis of electronic database checks. . . . As described above, database sources must be reliable to satisfy the Fourth Amendment. . . . The evidence presented at trial establishes that ICE violates the Fourth Amendment by relying on an unreliable set of databases to make probable cause determinations for its detainers.  The flaws that exist in the databases are precisely those flaws courts have deemed fatal: (1) the databases provide static, often outdated, information about dynamic facts; (2) the databases are incomplete, often missing crucial pieces of information otherwise necessary for making probable cause determinations; and (3) the databases were never intended to be used to make probable cause determinations in the immigration context. . . . While ICE relies on several different databases in an attempt to compile enough information on a subject and make an adequate probable cause determination, the databases used by ICE, which have their limitations detailed herein – standing alone without any additional checks – do not sufficiently establish probable cause of removal. A number of factors guide the Court’s reasoning. . . . First, information stored in the multiple databases ICE searches is often static and outdated. . . . Further, CIS [“the central database ICE relies upon in its determination of immigration status”] ‘frequently’ shows naturalized citizens as green card holders or fails to reflect an extension of a non-immigrant’s period of stay. . . . Further, the databases suffer from serious incompleteness, which impacts ICE’s ability to rely on the databases in making probable cause determinations. . . . Finally, and perhaps most tellingly, the databases ICE uses are unreliable because no single database used was intended to provide any indication of probable cause of removability”.

In a separate section of the court’s opinion in Gonzalez v. Immigration and Customs Enforcement, Judge Birotte Jr. also issued a permanent injunction “enjoining ICE from issuing detainers to state and local law enforcement agencies in states where there is no explicit state statute authorizing civil immigration arrests on detainers”.

In response to the decision in Gonzalez v. Immigration and Customs Enforcement, Jennie Pasquarella, senior staff attorney and director of immigrants’ rights for the American Civil Liberties Union of Southern California, stated, “This decision is a major indictment of ICE’s dragnet deportation program, which for more than a decade has subjected citizens and non-citizens to needless unconstitutional arrests at the mere click of a button. . . . Reams of evidence presented at trial demonstrated ICE’s complete disregard for the people impacted by its actions and its concern only with using an automated system to arrest record numbers of people”.

The Gonzalez v. Immigration and Customs Enforcement decision is another example of how immigrants can retain attorneys to file litigation in defense of the rights of immigrants.  Immigrants need the services of skilled immigration litigation attorneys, such as the Law Offices of Kameli and Associates, which has had years of experience and success in immigration litigation cases.  If you need help with any immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance.