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Undocumented Immigrants and Biometrics: Secure Communities - Promoting Security or Insecurity?
Erica Pless, J.D., NCSTL Law & Science Fellow

Introduction

As of January 2009, the Department of Homeland Security (DHS) estimated that approximately 10.8 million unauthorized immigrants were residing in the United States.1 During 2009, 393,000 foreign nationals were removed from the United States.2 Of those removed, 128,000 were known criminal aliens.3 DHS has implemented a program called Secure Communities that utilizes biometric technology to help identify and remove unauthorized immigrants, focusing on those with criminal backgrounds.

Secure Communities provides state and local law enforcement agencies access to integrated biometric databases maintained by DHS, the Federal Bureau of Investigation (FBI) and other law enforcement agencies. The databases store biometric information such as photographs and fingerprints, as well as immigration records and criminal history information. The biometric technology can easily and accurately identify an individual based on his or her unique physiological characteristics rather than relying on biographic information, which an individual can easily falsify or forge. While the technology provides law enforcement with a potential smoking gun, civil liberty watchdogs are on the prowl.

The Advent of Government Biometric Databases

In the early 1990's, the Immigration and Naturalization Service (INS), later subsumed by Immigration and Customs Enforcement (ICE), first began studying how biometric technology could assist law enforcement officers identify unauthorized aliens and stop the "revolving door phenomenon."4 This phenomenon refers to the recurrent apprehension, detention and removal of the same individuals who continuously and repetitively enter the United States illegally.5 To stop the door's momentum, Congress allocated approximately $30 million for INS to implement a fingerprint identification system, called IDENT.6 IDENT was first utilized in October of 1994 in the San Diego Border Patrol Sector. INS's goal was to take and store fingerprints, photographs, and biographical information of each apprehended alien using the IDENT system. An INS officer would scan a flat press image of the alien's right and left index fingers, which could then be electronically compared to fingerprints stored in other INS databases containing information on aliens with previous criminal convictions, final orders of removal, and aliens who had previously been apprehended and allowed to voluntarily leave the United States.

The FBI also launched a fingerprint identification system in the 1990's known as the Integrated Automated Fingerprint Identification System, or IAFIS, the fingerprint biometric component of the National Crime Information Center (NCIC). IAFIS was built using a ten print rolled fingerprint system, rather than a flat pressed system because rolled fingerprints produce more points of comparison than flat fingerprints.7 Through NCIC, IAFIS was connected to databases maintained by participating state and federal agencies that contained mug shots and information on wanted persons, stolen vehicles, deported felons, gangs, terrorists, and missing persons.8 The FBI deployed NCIC and IAFIS in 1999 but IDENT was not integrated with either system at that time. Therefore, INS and the FBI were not able to easily access or share information with each other. Rafael Resendez-Ramirez

The case of Rafael Resendez-Ramirez, also known as Angel Maturino Resendiz, demonstrates both the potential benefits of biometric interoperability between law enforcement agencies and conversely the devastating effects of limiting access between agencies. Resendez was a Mexican citizen who repetitively entered the United States illegally and committed numerous crimes ranging from burglary to murder during the 1970's, 1980's, and 1990's. In 1998, Border Patrol agents apprehended Resendez seven times but returned him to Mexico after each encounter, unaware of his extensive criminal background because none of that information was stored in IDENT. Resendez became known as the "Railway Killer" because he traveled undetected around the United States by freight train, committing numerous murders near railroad lines.9 DNA and other evidence linked Resendez to several unsolved murders, which prompted the FBI to place him on the Ten Most Wanted Fugitives List and issue a warrant for his arrest in May 1999, just months prior to the launching of IAFIS.10 On June 1, 1999, Border Patrol agents in New Mexico apprehended Resendez as he was entering the United States illegally.11 The agents processed him through IDENT and once again returned him to Mexico that same day, not knowing that a federal warrant had been issued for his arrest.12 Resendez managed to gain unlawful entry into the United States again and killed four more people before surrendering to authorities in July 1999.13 Resendez was executed in Texas in 2006.14

The Office of the Inspector General (OIG) issued a report regarding the Resendez case in March 2000.15 In its report, the OIG made several recommendations to INS on ways to improve the operation and use of IDENT. While OIG noted that IAFIS was not operational at the time Resendez was apprehended in New Mexico, OIG stated that the "Resendez case vividly illustrates the need for integration of IDENT and IAFIS."16 Continuing, OIG declared that "integrating IDENT with the FBI's IAFIS is a critical step that should be accomplished as expeditiously as possible."17

Secure Communities

Unfortunately, the databases were not integrated quickly. Eight years after the OIG issued its report, local, tribal, state, and federal agencies began participating in ICE's program, called Secure Communities.18 The program aims to improve community safety by providing state and local law enforcement agencies access to both the IDENT and IAFIS databases. The integrated system enables law enforcement to identify, detain, and remove aliens convicted of serious criminal offenses.19 The program's success hinges on increasing interoperability among all law enforcement agencies. Therefore, the FBI's Criminal Justice Information Services (CJIS) Division, which manages IAFIS, and DHS's United States Visitor and Immigrant Status Indicator Technology (US-VISIT), which maintains IDENT are essential participants.20 Since the program's inception in October 2008, the IAFIS and IDENT databases have been linked in 893 jurisdictions in 35 states, permitting officers to quickly check fingerprints and other biometric information against both databases and avoid another Resendez tragedy.21

When a person is arrested and booked into custody in a jurisdiction with IDENT/IAFIS interoperability, his or her fingerprints are checked against IAFIS and unlike other jurisdictions, IDENT as well.22 If the fingerprints match DHS immigration records, ICE is notified immediately and determines the proper enforcement action while the person is still in local custody. The type of enforcement action that ICE pursues depends upon the risk posed by the person in custody. ICE determines the threat to community safety based on a hierarchy of convicted offenses: Level 1 consists of serious crimes such as homicide, robbery, and major drug offenses; Level 2 consists of all other felonies; and Level 3 offenses include misdemeanors and other crimes.23 ICE prioritizes the removal of aliens convicted of Level 1 offenses. As of January 4, 2011, biometric technology has assisted ICE remove 54,500 criminal aliens from the United States.24 ICE expects to institute IDENT/IAFIS interoperability nationwide by 2013.25

IDENT's role within the law enforcement community has expanded beyond its initial capacity within INS. IDENT is now the primary biometric system used by DHS to identify and verify individuals that DHS encounters. Numerous federal agencies utilize IDENT including ICE, Customs and Border Protection (CBP), United States Citizenship and Immigration Services (USCIS), Transportation Security Administration (TSA), United States Coast Guard (USCG), Department of State (DOS), Department of Justice (DOJ), and the Department of Defense (DOD).26 IDENT now contains more than 100 million biometric records including fingerprints, photographs, information from visa applications, entries into the United States, immigration benefit applications, lawful immigration-related interactions, and the US-VISIT watch list, which includes data from the international police organization, INTERPOL.27

Threat to Civil Liberties?

Immigration and civil rights activists claim that the use and expansion of biometric technology in the Secure Communities program jeopardizes individual civil liberties. The American Civil Liberties Union (ACLU) issued a statement identifying three areas of concern with the Secure Communities program, stating that it: "1) deters immigrants from reporting crimes and otherwise receiving equal protection of the laws; 2) creates the risk of unlawful detention without criminal charges or a hearing; and 3) invites racial profiling by state and local law enforcement."28

To support ACLU's first claim, one could look at the case of Maria Bolanos, an undocumented immigrant living in Prince George's County, Maryland, a jurisdiction operating under Secure Communities.29 In 2004, Bolanos attempted to gain entry into the United States but was apprehended, fingerprinted, and photographed. She eventually gained entry into the United States where she met Fernando Arellano, who is also an undocumented immigrant. The couple had a child together in 2008. In 2009, Bolanos called the Prince George's County Police Department to report a domestic dispute with Arellano. The officer who responded to the call saw phone cards on a table in the residence and thought Bolanos was selling them illegally.30 She was later arrested for selling phone cards without a license. Although the charge was eventually dropped, Bolanos's fingerprints had been submitted to ICE through the Secure Communities program. Her fingerprints registered a match from her previous apprehension and ICE issued a detainer. ICE also issued a detainer for Arellano after he was pulled over for making an illegal traffic turn and driving without a license. They are both facing deportation and their 2-year-old daughter may be left without either parent. ACLU's fear that Secure Communities will deter immigrants from reporting crimes is confirmed in Bolanos's statement, "'You would have to be crazy to call the police. I would never call the police again.'" 31

In response to the Bolanos case, the organizing director of CASA de Maryland, Gustavo Andrade, stated that "'ICE is misrepresenting the program in order to implement a nationwide deportation instrument.'"32 ICE spokesman Brian Hale countered this statement, "'In both of these cases, Secure Communities functioned exactly as it was designed to, allowing ICE to identify individuals booked into jail for a state crime and who were also present in the country unlawfully.'"33

The ACLU also criticizes ICE's broad discretion to issue immigration detainers, claiming the process violates an individual's due process rights. According to the ACLU, when ICE issues a detainer per Secure Communities, a person may be detained even though he or she is not facing criminal charges and would otherwise have been released from custody.34 The ACLU asserts that "ICE has failed to provide any mechanism by which individuals can find out whether they are subject to a detainer, challenge the basis for a detainer, have an erroneous detainer removed, or complain about how they came to the attention of local authorities."35

In response to demands for a formal detainer policy, ICE released a draft of its proposed detainer policy and requested public comments. Section 3.3 states:
    [I]mmigration officers should not issue detainers against an alien charged only with a traffic-related misdemeanor unless or until the alien is convicted, unless – the alien has a prior criminal conviction; the alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality; the alien is subject of an outstanding immigration warrant or is the subject of a final order; the alien is part of an existing criminal organization; an articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or the traffic-related misdemeanor involves driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.36
Section 4.1 states:
    Immigration officers shall not issue a detainer unless a [Law Enforcement Agency] has exercised its independent authority to arrest the alien. Immigration officers shall not issue detainers for aliens who have been temporarily detained by the [Law Enforcement Agency] (i.e., roadside or Terry stops) but not arrested. This policy, however, does not preclude temporary detention of an alien by the [Law Enforcement Agency] while ICE responds to the scene.37
Many organizations, including the ACLU and the American Immigration Council (AIC) praised ICE's efforts to formalize a detainer policy but were not satisfied with the proposal. The AIC stated: "[t]he proposed guidelines contain no provisions to educate [law enforcement agencies] about detainers and do not require ICE to educate detained people about their rights or their ability to challenge a detainer."38 ICE has not published a final policy on detainers but several lawsuits have been filed challenging the constitutionality of the current detainer process.39

ACLU's third concern with Secure Communities alleges the program induces racial profiling and discrimination. Activists express outrage over the disparity of noncriminal deportations among jurisdictions. During the period October 1, 2009 through July 31, 2010, of the 86 immigrants removed from Prince George's County, Maryland 58 were noncriminals.40 (Entering the country without proper documentation is usually a civil violation, not a crime.) The corresponding noncriminal deportation percentage of 67% warranted Prince George's County the second highest number of noncriminal deportations in the country.41 Meanwhile, a close neighbor, Prince William County, maintained a noncriminal deportation percentage of 15%.42 The root of the disparity in the number of noncriminal deportations among close jurisdictions cannot be answered without engaging in speculation or supposition. However, Bridget Kessler, a clinical teaching fellow at the Cardozo Law School Immigration Justice Clinic in New York is demanding answers. The Clinic is suing ICE to gain information about Secure Communities on behalf of the National Day Laborer Organizing Network, an immigrants rights group.43

Immigration rights activists also claim the program is not targeting violent criminals but instead has resulted in the removal of immigrants who have not committed crimes.44 According to Secure Communities statistics for the period October 1, 2009 through July 31, 2010, approximately 26% of the immigrants removed or deported under the program were noncriminals.45 ICE spokesman Hale reflected, "'[w]hile ICE's enforcement efforts prioritize convicted criminal aliens, ICE maintains discretion to take action on any alien it encounters.'"46 Beth Gibson, the assistant deputy director of ICE declared that, "'[o]ur prioritization of criminals and fugitives does not amount to a de facto amnesty for people who are not criminals and fugitives.'"47 Rather than focusing on the number of noncriminal deportations, Homeland Security Secretary Janet Napolitano highlighted that the program has produced a 70% increase in deportations of criminals, including gang members, murderers and drug traffickers.48

Supporters of Secure Communities claim that the program actually reduces the opportunity for law enforcement to engage in racial and ethnic profiling because the fingerprints of each individual arrested and booked into custody are checked against IDENT records.49 Addressing the allegation that Secure Communities promotes racial profiling, the following statement can be found on ICE's website: "ICE is committed to protecting civil rights and civil liberties, and is serious about responding to complaints or allegations of racial profiling as a result of Secure Communities. Individuals and organizations should report allegations of racial profiling, due process violations or other violations of civil rights or civil liberties related to the use of this capability. All complaints should be filed with the DHS Office of Civil Rights and Civil Liberties."50 The Standard Operating Procedures for Secure Communities also includes the following statement: "Use of IDENT/IAFIS for the purposes of racial and/or ethnic profiling or other activity in violation of the Fourth Amendment of the United States Constitution is not permitted and may result in the suspension of the local jurisdiction engaged in the improper activity. ICE reserves the right to take appropriate remedial action if necessary."51

Conclusion

Whenever the government implements a new program or a new form of technology, the advantages and disadvantages must be weighed. Secure Communities provides many benefits to law enforcement. The technology is easy to operate and for agencies already using digital scanners, there is no additional cost.52 Relying on biometric information instead of biographical information to identify a person ensures an accurate identification. The integrated system enables ICE to instantly ascertain the immigration status of an individual and provides ICE with access to criminal history information stored in IAFIS. Therefore, the integrated system permits ICE to detain and remove criminal aliens from the United States, making our communities safer and more secure. On the other hand, civil liberty and immigration rights activists claim the program instills insecurity in the immigrant population by discouraging immigrants from reporting crimes, infringing on civil rights, and encouraging racial and ethnic profiling. The advancements in scientific technology will continue to challenge the scales of justice; finding the perfect balance between security and insecurity will not be an easy task.

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1  Michael Hoefer, Nancy Rytina, and Bryan C. Baker, "Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009," Jan. 2010, (Last accessed on January 15, 2011 at: http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf).
2  "Immigration Enforcement Actions: 2009," Annual Report, August 2010, (Last accessed on January 15, 2011 at: http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf).
3  Id.
4  Status of IDENT/IAFIS Integration, Report No. I-2002-003, Dec. 7, 2001, (Last accessed on January 15, 2011 at: http://www.justice.gov/oig/reports/plus/e0203/back.htm).
5  Id.
6  Id.
7  Id.
8  Id.
9  "USDOJ/OIG Special Report: The Rafael Resendez-Ramirez Case: A Review of the INS's Actions and the Operation of Its IDENT Automated Fingerprint Identification System," Executive Summary, March 2000, [hereinafter "Special Report"], (Last accessed on January 15, 2011 at: http://www.justice.gov/oig/special/0003/exec.htm).
10  Id.
11  Id.
12  Id.
13  Id.
14  Cassondra Kirby, 'Railroad Killer' is Executed in Texas, LEXINGTON HERALD-LEADER, June 28, 2006.
15  "Special Report," supra note 9.
16  Id.
17  Id.
18  David J. Venturella, "Secure Communities: Identifying and Removing Criminal Aliens," 77 THE POLICE CHIEF 40, 40, September 2010.
19  Id. at 41.
20  Id.
21  Michael Hoefer, Nancy Rytina, and Bryan C. Baker, "Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009," Jan. 2010, (Last accessed on January 15, 2011: at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf).
22  "Immigration Enforcement Actions: 2009," Annual Report, August 2010, (Last accessed on January 15, 2011: at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf).
23  Id.
24  Status of IDENT/IAFIS Integration, Report No. I-2002-003, Dec. 7, 2001, (Last accessed on January 15, 2011 at: http://www.justice.gov/oig/reports/plus/e0203/back.htm).
25  Id.
26  Id.
27  Id.
28  Id.
29  Shankar Vedantam, Call for Help Leads to Possible Deportation for Hyattsville Mother, WASH. POST, Nov. 2, 2010 at B01.
30  Shankar Vedantam, Reversals by Immigration Officials are Sowing Mistrust, WASH. POST, Nov. 22, 2010 at A04.
31  Vedantam, supra note 29.
32  Id.
33  Id.
34  ACLU Statement on Secure Communities, supra note 28.
35  Id.
36  "U.S. Immigration and Customs Enforcement Detainer Policy: Draft Only for Discussion and Comment," (Last accessed on January 15, 2011 at: http://www.legalactioncenter.org/sites/default/files/docs/lac/DraftICE-DetainerPolicyComment-8-1-10.pdf).
37  Id.
38 "The American Immigration Council Addresses Problems with Draft Immigration Detainer Policy," October 5, 2010, (Last accessed on January 15, 2011 at: http://www.americanimmigrationcouncil.org/newsroom/release/american-immigration-council-addresses-problems-draft-immigration-detainer-policy).
39  E.g., Committee for Immigrant Rights of Sonoma County v. County of Sonoma, No. CV08 4220 RS, 2010 U.S. Dist. LEXIS 58110 (N.D. Cal. June 11, 2010); Quezada v. Mink, No. 10-879, 2010 U.S. Dist. LEXIS 121777 (D. Col. Nov. 3 2010); Melendez Rivas v. Martin, No. 10-197 (N.D. Ind. June 2010); Harvey v. City of New York, No. 07-0343 (E.D.N.Y. June 12, 2009); Ramos-Macario v. Jones, No. 10-0081 (M.D. Tenn. Aug. 2010); Arroyo v. Spokane County Sheriff’s Office, Claim No. 10-0046 (June 2010) (awarding claimant $35,000 for being unlawfully imprisoned for twenty days after ICE issued a detainer).
40  Shankar Vedantam, U.S. Program to Deport Criminal Illegal Immigrants Has Deported High Percentages of Noncriminals in Some Areas, WASH. POST, Dec. 20, 2010 at B01.
41  Id.
42  Id.
43  Id.
44  Vedantam, supra note 40.
45 Secure Communities IDENT/IAFIS Interoperability Monthly Statistics through July 31, 2010, Aug. 10, 2010, available at http://www.ice.gov/doclib/foia/secure_communities/nationwideinteroperabilitystatsjul10.pdf last visited Jan. 10, 2011.
46  Vedantam, supra note 40..
47  Id.
48  Id.
49  Venturella, supra note 18.
50  Civil Rights and Civil Liberties, available at http://www.ice.gov/about/offices/enforcement-removal-operations/secure-communities/, last visited on Jan. 10, 2011.
51 Immigration and Customs Enforcement Secure Communities Standard Operating Procedures, available at http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesops93009.pdf, last visited Jan. 10, 2011.
52  Venturella, supra note 18.