Scholar’s Sidebar: The perils of automated immigration policing

The restrictive immigration legislation proposed and sometimes enacted in states and localities throughout the United States in recent years has pushed immigration status into new territory. For years a person’s compliance or non-compliance with immigration laws was difficult if not impossible to discern in the course of ordinary life. People went to church, school, work, the grocery store, government offices, and even prison without others knowing or even asking whether they had received the federal government’s authorization to be present in the United States.

Arizona’s Senate Bill 1070, Alabama’s House Bill 56, and ordinances enacted by a handful of cities sought to shine a bright light on the immigration status of everyone who was pulled over by a police officer, enrolled in a public school, tried to rent an apartment, or performed some other unremarkable activity. These attempts to identify and sanction potentially unauthorized migrants met strong political resistance. Most were ultimately hampered by litigation.

All the while, writes Anil Kalhan, an associate professor at Drexel University School of Law, the federal government has been systematically unrolling computerized search processes that go far beyond what these local efforts managed. In Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio State Law Journal 1105 (2013), Kalhan identifies what he calls “automated immigration policing”—that is, the use of “interoperable database systems and other technologies [that] automate and routinize the identification and apprehension of potentially deportable noncitizens in the course of ordinary law enforcement encounters and other moments of day-to-day life.” Id. at 1108.

Kalhan focuses much of his attention, rightly so, on the Department of Homeland Security’s Secure Communities program, a favorite of the Obama Administration and the linchpin of its interior enforcement strategy. Here he displays an impressive familiarity with the obscure operations of this massive initiative, as well as the many electronic databases that are at the heart of the automated immigration policing trend. The National Crime Information Center (NCIC) database, for example, involving over 90,000 government agencies and including more than 11 million records, is the FBI’s principal criminal records database and sits at the center of the immigration policing regime that Kalhan examines. Id. at 1124. Meanwhile, the FBI’s Integrated Automated Fingerprint Identification System (IAFIS) contains records of over 100 million subjects, id. at 1123, and shares a starring role in contemporary immigration policing with the DHS-run Automated Biometric Identification System (IDENT) database that itself counts records on over 148 million people, id. at 1127.

More than simply recount the details of the intergovernmental data exchange that characterizes Secure Communities, Kalhan provides a coherent and compelling theoretical understanding of how Secure Communities is reshaping federal-state-local interactions. This initiative doesn’t just expand the reach of federal immigration law enforcement officers—though it certainly does that rather significantly. More importantly, Kalhan explains, it is reshaping a long-standing relationship between federal law enforcement officials and their state and local counterparts “by precluding states and localities from making affirmative, calibrated, and negotiated choices about the level of immigration policing assistance they wish to furnish.” Id. at 1132.

Understanding the change that Secure Communities represents requires first understanding the state of intergovernmental relations regarding criminal law enforcement. For the last several decades local cops have sent the fingerprints of people who are arrested to state agencies that have then forwarded that information to FBI agents who sift through the vast NCIC and IAFIS databases that they operate. Id. at 1126-27. These transactions have always been voluntary and intended to promote traditional public safety concerns. States aren’t required to ask the federal agents to search the databases that they operate. But because of legitimate crime-fighting goals—finding out whether an arrestee has a criminal history, for example—every state does so. Id. at 1127. Equipped with whatever information federal officials provide, local law enforcement agents then decide if and how to proceed with a criminal prosecution.

It’s at this point that Secure Communities alters the information-sharing routine. Under Secure Communities, the FBI takes the fingerprint data it received from the local cops and shares it with DHS. Immigration officials there then search the IDENT database to see whether the person in police custody might be in violation of immigration laws. Local immigration officers are then notified so that they can decide whether to interview the individual or issue an “immigration detainer”—a request that the law enforcement agency hold onto the person for up to 48 hours after the criminal proceeding, including any sentence, ends. Id. at 1128.

The federal government doesn’t ask whether state or local officials want arrestee data pushed through immigration databases. The Obama Administration has simply decided that it has the power to do this—one unit of the federal government, the FBI, can simply share information in its possession with another unit, DHS, the argument essentially goes. See ICE, Secure Communities: Get the Facts.

Taking identification data sent to it for a crime-fighting purpose and using it for an immigration policing purpose, Kalhan contends, dramatically changes the nature of intergovernmental information sharing. While riding on the backs of “‘voluntary’ forms of federal-state cooperation,” he writes, Secure Communities has actually forced local police into the immigration law enforcement business—whether they like it or not. Id. at 1132. “This approach,” he argues, “erodes the conception of immigration federalism that has emerged in recent years by narrowing the space for states and localities to make affirmative choices concerning their cooperation on immigration policing that are independent from other decisions…to exchange identification and criminal history records for wholly separate criminal justice purposes.” Id.

Importantly, in operating Secure Communities the federal government doesn’t concern itself with the possible backlash that numerous police officials and scholars have noted—for example, the possibility that immigrant communities will come to view local police as immigration police and, as a result, refuse to cooperate with them. See DHS, Homeland Security Advisory Council, Task Force on Secure Communities Findings and Recommendations 24 (September 2011).

In this way, the federal government has used the information that local law enforcement agencies voluntarily provide it in pursuit of their goal of keeping communities safe to establish for itself an immigration policing foothold in every jail and prison in the United States, thus placing onto immigration status a new salience. Through advanced technologies and vast collections of information, ICE has created an “immigration panopticon” that, Kalhan concludes, essentially disciplines noncitizens “into internalizing the perception that their immigration status is constantly being monitored.” Kalhan at 1145. Noncitizens everywhere are at all times subject to the piercing eyes of automated immigration policing and the immigration officers that can appear at a moment’s notice to haul someone into an immigration detention center or, for 368,644 people in fiscal year 2013, onto a bus or airplane that will send them to another country.

This is an impressive claim that is as novel as it is convincing. For all that has been written about Secure Communities, no one has theorized its effect on federal-state-local relations. Kalhan’s ability to do this is without doubt attributable to his detailed understanding of the information sharing programs that dominate modern immigration policing. Likewise, no one with which I’m familiar has distilled the way that automated immigration policing affects the ordinary lives of noncitizens by operating as an omnipresent surveillance field.

Given his past scholarship on crImmigration law—his essay on immigration detention is one of the most insightful analyses available—the quality of Kalhan’s work here isn’t surprising. It is, however, much appreciated.