“Looking for immigration problems” and other misunderstandings of crimmigration law

In this month’s The Atlantic, journalist Daniel Bergner chronicles competing views of stop-and-frisk policies. The New York Police Department’s intensive use of stop-and-frisk against black and Latino residents received intense scrutiny, eventually resulting in a federal district court’s finding that the department has been hiding under this constitutionally permissible practice to engage in constitutionally impermissible racial profiling.

Bergner discusses New York, but spends most of his reporting in Newark, New Jersey tagging along with local officers on patrol. There he encounters an incident that reveals an important misunderstanding of how criminal law and immigration law policing intersect. Two Newark police officers, Bergner explains, “spotted three Hispanic men standing outside a fence bordering the parking lot…drinking what were surely beers in paper bags while on the street….” The officers approached the men, asked them a few questions, “collected IDs and used their phones to run warrant checks.” Here’s where Bergner exposes his ignorance: “The officers weren’t looking for immigration problems—that’s not part of their mission,” he explained.

Bergner implies that people who interact with police officers might run into immigration problems only if police officers are actively engaged in immigration law enforcement work. It is certainly true that many local law enforcement agencies think of immigration as one of their responsibilities. Local officers are essentially deputized to investigate immigration law in 37 jurisdictions across the country under 287(g) agreements. In other communities, police officers make a point to ask about immigration status and contact the Department of Homeland Security if they have an inkling of suspicion that a person they encounter might not be a United States citizen.

Where Bergner goes wrong, though, is in suggesting that people who encounter police officers outside of these jurisdictions don’t have anything to worry about. Nothing could be further from the truth. Though ICE credits 287(g) programs with having identified 309,283 potentially removable individuals since January 2006, this represents only a fraction of the total number of people who find themselves in immigration problems because of a run-in with local cops.

The reason for this is that DHS operates an alphabet soup of programs that tack immigration investigations onto the criminal justice system. For most of these, it doesn’t matter whether the individual officer or department considers immigration “part of their mission.” DHS does and that’s all that matters because the programs run on autopilot. Once the federal government gets a hold of key information obtained by local cops on the street, the federal government pushes it through its enormous immigration databases whether the local cops want them to or not.

A key aspect of this “interoperability”—as the government likes to describe information sharing across governments and from one federal agency to another—is that local cops are in constant communication with the federal government sending identification information, primarily fingerprints, to the FBI. Most of the time immigration law does not motivate the local cops. What they want to know is whether they guy they stopped has a criminal record or outstanding warrant. There’s no better source of this information than the federal government. The FBI’s main criminal records database, the National Crime Information Center (NCIC), includes more than 11 million records gathered from over 90,000 government agencies. Its Integrated Automated Fingerprint Identification System (IAFIS) contains information about more than 100 million subjects. See Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 Ohio State Law Journal 1105, 1123-27 (2013). Local police departments would be hard pressed to replace this wealth of information if they stopped relying on the FBI.

Once in the FBI’s hands, the federal government takes the position that it can share the information it obtained from local cops with other federal law enforcement units. In recent years, the chosen unit has been DHS. Under the Secure Communities program started in 2008 and now active in every jurisdiction in the United States, the federal government takes the identification information that the local cops sent to the FBI and runs it through DHS immigration databases.

Just like the FBI’s criminal history repositories, DHS lays claim to massive information vats. Its Automated Biometric Identification System (IDENT) database in particular includes records on over 148 million people. Id. at 1127. This closes the process that Anil Kalhan calls “automated immigration policing”—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.

But for migrants caught in the criminal justice system, this is only the beginning. DHS frequently issues an immigration detainer on people flagged as potentially removable. Indeed, ICE issued 436,478 detainers between October 2011 and August 2013. Migrants (and the occasional United States citizen mistakenly thought not to be a U.S. citizen) are frequently then incarcerated for up to five days waiting to see if immigration officials show up to take them into custody. If immigration officials do show up, immigration problems—including the ever-present threat of removal—follow.

As Kalhan explains, this is an automated process. It doesn’t turn on the policies of particular police departments or the goals of individual officers. Instead, it happens because the federal government wants it to happen. Obama Administration officials are well aware that local police departments are fully dependent on the FBI’s criminal records databases and have decided to build their aggressive immigration law enforcement policies on top of that dependency. They have in effect created a single punitive spectrum of governmental control over migrants whether local officials want it or not.

This is not to say that local government’s are powerless. They can, for example, refrain from running background checks prior to an arrest or they could refuse to arrest and book suspects for minor offenses. If an arrest happens, they could refuse to abide by immigration detainers (which, as the Third Circuit recently held, are not mandatory upon local officials). Indeed, that’s what the Newark officers in Bergner’s story did. They issued summonses for public consummation of alcohol and moved on. Many migrants, however, aren’t so lucky, and it has nothing to do whether the cops who they encountered were “looking for immigration problems.”

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