Immigration enforcement program faces novel suit

Immigration enforcement program faces novel suit

A DuPage County man claims ICE’s Secure Communities violates the U.S. Privacy Act.

July 4, 2012
By: Chip Mitchell

We’ve been hearing a lot about how immigration enforcement intersects with local law enforcement. Last week, the U.S. Supreme Court upheld an Arizona requirement that police officers check the immigration status of people they stop for other reasons. Now we’ll hear from our West Side bureau about a suburban Chicago man who got tangled up with immigration enforcement after a drug arrest. He has filed a suit that offers a novel challenge to one of President Obama’s key immigration-enforcement programs.

MITCHELL: There’s no doubt James Makowski of Clarendan Hills did something illegal. In 2010 police caught him with heroin and he pleaded guilty to that. A judge approved him for a state-run boot camp. But that’s not where Makowski ended up.

MAKOWSKI: I thought I would be home in 120 days but -- then after I get a note back from a counselor, after I’d asked about when I’d be shipping to boot camp -- she said that I was ineligible for boot camp due to an immigration detainer.

MITCHELL: That’s basically a flag in his file from Immigration and Customs Enforcement, the federal agency known as ICE. So . . .

MAKOWSKI: I got sent to the maximum-security penitentiary in Pontiac.

MITCHELL: And he stayed for about two months. How did this happen? It comes down to an ICE program called Secure Communities. In that program, FBI fingerprint data about people booked at local jails get run against immigration data. If a check yields a match, ICE can issue one of its detainers. The point is to catch people in the criminal justice system who are not authorized to be in the U.S. and eventually deport them. The thing is, Makowski had every right to be in the country.

MAKOWSKI: I feel like I got punished twice for what I did in my past.

MITCHELL: Makowski’s detention was based on faulty information. He was born in India and adopted by a U.S. family. When he was 1, the government granted him citizenship. But — at age 22, when he got picked up on the heroin charge — the feds didn’t have their records right. So, Makowski stayed in that maximum-security pen before authorities straightened things out and let him into the boot camp. On Tuesday, Makowski filed a federal suit over all this. Defendants include top officials at the FBI, ICE and their parent departments. Makowski claims that when the FBI shared data with ICE — and when ICE didn’t keep track of his citizenship status — they violated his rights under the U.S. Privacy Act. Legal experts say the suit appears to be the first challenge to Secure Communities under that law. Makowski’s attorneys include Mark Fleming of the Chicago-based National Immigrant Justice Center.

FLEMING: There [are] simple ways in which both the FBI and ICE could be in compliance with the Privacy Act.

MITCHELL: Fleming says ICE could, for example, interview suspected immigration violators before slapping detainers on them.

FLEMING: Unfortunately, the system does not provide those basic checks right now and, so, there are many more U.S. citizens that are getting wrapped up into this.

MITCHELL: Officials at ICE and the departments of Justice and Homeland Security did not answer our questions about the suit Tuesday. An FBI spokesman said his agency does not comment about pending litigation outside the courtroom. But a supporter of tougher immigration controls doubts that the Privacy Act protects U.S. citizens from what Makowski endured. Jessica Vaughan directs policy studies for a Washington group called the Center for Immigration Studies. Vaughan says the FBI and ICE share the fingerprint information for legitimate law-enforcement purposes.

VAUGHAN: Mistakes can be made. But that is not necessarily a reason to throw out the whole system.

MITCHELL: Vaughan says it’s important to keep something else in mind.

VAUGHAN: The individual who’s filing this suit would not have had anything to worry about had he not been convicted of a serious crime to begin with. He was convicted of a drug crime.

MITCHELL: Convicted he was. But Makowski says no one should have to serve extra time behind bars because of errors in immigration records.

U.S. Immigration and Customs Enforcement program faces novel challenge | WBEZ 91.5 Chicago