Immigration and Customs Enforcement agents send detainers to jails and prisons to hold people in custody beyond the date they are supposed to be released to provide the government with additional time to determine their immigration statuses based on information that is obtained from unreliable databases, according to a recent ruling. ICE uses several databases that contain unvetted information and that are not appropriately updated as people’s statuses change. As a result, immigrants have been held in custody despite ICE having no probable cause to detain them.
How ICE Determines Probable Cause
To issue detainers, ICE must have probable cause to believe immigrants are removable. ICE’s detainer forms contain four separate categories that allegedly support probable cause.
- A final order of removal for the immigrant
- Pending removal proceedings are ongoing for the immigrant
- Information from databases and biometric data that indicate removability
- The immigrant’s own statements to federal agents
Relying on the third category to support probable cause to hold the immigrant is where an issue exists. The databases that the government uses are notoriously unreliable, often contain erroneous information, are not updated, and may include unvetted information from private companies.
Problems With the Databases Used by ICE
ICE relies on multiple criminal and immigration databases to develop information and support probable cause to issue detainers to hold immigrants. Unfortunately, the information in these databases has been demonstrated to have high error rates. Part of the problem is due to a failure of immigration officials to update changes in the status of immigrants. For example, officials sometimes fail to enter information showing that lawful permanent residents have become naturalized U.S. citizens.
Other problems include relying on private companies with which the Department of Homeland Security has contracted to gather unvetted information, including information about taxes, license plate and vehicle registration, names and addresses, credit histories, property records, payday loans, banking, and more about immigrants. These private companies gather information without vetting it, and the unvetted information is then entered into the federal databases that ICE checks to issue detainers. ICE also fails to conduct in-person interviews before making a decision about whether to issue detainers. In many cases, U.S. citizens have been subjected to detainers despite having been born in the U.S. or becoming naturalized citizens. Because of these problems, the databases were ruled too unreliable to be used for probable cause, resulting in a nationwide injunction.