The Major Blindspot Undermining Sanctuary Cities and Helping ICE
Massive data networks help ICE target immigrants, even in so-called sanctuary cities. Will the Biden administration and local officials shut them down?
Will Lennon, | November 19, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
Massive data networks help ICE target immigrants, even in so-called sanctuary cities. Will the Biden administration and local officials shut them down?
Over the last four years, the Trump administration relentlessly attacked cities that purported to offer undocumented immigrants safe harbor. As Trump threatened to withhold federal funding and derided the cities as unsafe, mayors across the country pushed back.
Washington Mayor Muriel Bowser told protesters, a week after the 2016 elections, that “we are a sanctuary city and our policies are clear.”
Last year, Los Angeles Mayor Eric Garcetti stood side by side with a police official and told LA residents to “rest assured. Here in Los Angeles, we are not coordinating with ICE.”
But immigrants rights advocates warned throughout Trump’s presidency that even in cities known as sanctuaries, law enforcement practices are helping ICE identify and detain immigrants by feeding information about them into sprawling data networks that lead back to the federal agency.
There is no indication yet that President-elect Biden’s administration will close these data pipelines, even as he has outlined other changes to federal immigration policy. Going forward, advocates say, local and federal officials need to confront these practices more deliberately in order to shield people from ICE’s reach.
Over the course of Trump’s term, ICE has conducted a series of raids, many of which targeted undocumented people in “sanctuary cities.” Just this summer, around 2,000 people were detained in operations that began July 13. In that time period, over 3,000 cases of COVID-19 had been confirmed in ICE detention centers across the country.
A spokesperson for ICE declined to describe how the agency had located the undocumented people in cities where it ostensibly does not receive assistance from local government, saying “we typically don’t comment on law enforcement tools and techniques.” The spokesperson added that these are not “random” operations. “All our operations are targeted,” she said.
Lena Graber, a lawyer with the Immigrant Legal Resource Center in San Francisco and an expert on how local police become involved in immigration enforcement, says that there is no singular definition of a sanctuary. This gives mayors a lot of latitude to decide what the term means.
“Sanctuary is just a branding label that you can like or dislike,” Graber told The Appeal: Political Report. “What [local] agencies are actually doing is where the rubber hits the road.”
Some claim sanctuary bona fides because they don’t have any formal contracts with ICE, or because they reject “detainers,” forms sent by ICE requesting that local jurisdictions help to coordinate times when the agency can pick up detainee targets after they are released from jails and police stations.
In most cases, city leaders tout policies against police explicitly asking people for information on their immigration status or proxies such as their birthplace. “The day our police ask for immigration status is the day people stop reporting crimes & sharing information,” New York City Mayor Bill de Blasio tweeted this year in January. “We won’t let that happen.”
But therein lies a major blind spot, advocates warn. ICE’s data-gathering apparatus has penetrated the criminal legal system to such an extent that, whether the police explicitly ask a detainee about immigration status and formally transmit that information is beside the point.
“San Francisco may share information with data centers that ICE also has access to,” said Graber. “It may be happening in passive ways that San Francisco [officials] may or may not be aware of. … And that’s very common.”
This means that the same mayors publicly offering undocumented people protection are, to varying degrees, running governments that dump data into streams that trail back to ICE.
This doesn’t always happen voluntarily. Local governments by themselves can only go so far in stopping information from being shared with ICE. To meaningfully rein in these networks, the incoming Biden administration would need to take action from the top, by limiting data-sharing between local governments and federal agencies.
Still, some self-proclaimed sanctuaries are more complicit than others in compiling databases born of invasive and unequal law enforcement, and in providing ICE access to them. Local activists are pressing for changes that could shut down at least some of these pipelines, including those that involve notoriously flawed gang databases.
When a person is arrested, their biometrics are typically sent to the FBI for a background check. The FBI shares that data with ICE’s Law Enforcement Support Center in Burlington, Vermont. If ICE believes that the data might be from an undocumented person, it is forwarded to the agency’s Pacific Enforcement Response Center in California, where the investigation continues.
This process is made possible by the federal Secure Communities (S-COMM) program. All local governments are members in the program, and as a result, this data sharing occurs everywhere in the United States. It makes no difference whether the initial police contact happened in a sanctuary city.
The program was voluntary at first, which led to a mosaic of agreements between the Department of Homeland Security and local jurisdictions. But Homeland Security Secretary Janet Napolitano said in 2010 that declining full participation was not an option. By January 2013, S-COMM was fully implemented in every jurisdiction in the country. Data pertaining to every person booked into an American jail after that date is known to DHS and its component agencies, including ICE.
This system has grave implications for immigration enforcement.
If information entered by local police matches one of many federal databases, ICE will have sudden information about the locations of immigrants it may wish to detain. For instance, the National Crime Information Center (NCIC) is a sprawling FBI database that as of 2015 contained upwards of 12 million records, including civil immigration data and orders of removal.
ICE also obtains additional information from local law enforcement outside DHS through its Law Enforcement Information Sharing Service, which the agency describes as its “back-end super highway data sharing system.” That includes an FBI system that pools records—including incident, arrest, and booking reports—from police departments across the country (even those in sanctuary cities), and a military database that compiles information as granular as parking citations and pawn shop records.
ICE also uses IT systems developed by Palantir, a company founded by billionaire Republican donor and Trump adviser Peter Thiel. Palantir’s FALCON system collects a variety of biographical data, including citizenship and immigration status, that ICE agents have used to conduct raids. Another system developed by Palantir called Investigative Case Management helps ICE locate people based on driver’s license numbers and location data from license plate reader cameras. ICE creates “hot lists” of license plates that they believe their targets are using, and when a hot-listed plate number is captured on a camera, an automatic email is generated and sent to the agency.
David Maass, the founder of the Atlas of Surveillance project and a researcher for the privacy-focused Electronic Frontier Foundation, suspects ICE might use license plate readers to find undocumented people in sanctuary cities.
“[It’s] what I often fear about immigrants being picked up in unusual locations and where the cops just seem to be at the right place at the right time,” he said. “We may never know if it was license plate readers. But it definitely sounds consistent with license plate readers.”
Mark Fleming, who specializes in federal litigation at the National Immigrant Justice Center, expressed alarm at the lack of transparency in the process. “What’s really, really tricky here is we really just don’t know what law enforcement sees when they enter these various systems.”
It’s not just that local records are inadvertently shared. Many police departments actively participate in insidious data-gathering that ends up opening side doors for ICE.
Here, perhaps, is where local policies are most recognizably discretionary and changeable.
Some cities, including proclaimed sanctuaries, maintain fraught “gang databases” that can attract the attention of ICE, which often uses the classification to accelerate the deportation process.
A ProPublica investigation found that 95 percent of the people in Chicago’s gang database were Black or Latinx. That database contained apparent mistakes, like entries on people over the age of 100. ProPublica also found thousands of profiles of alleged gang members with no listed gang affiliation and entries for people who were never arrested but ended up on the database after encountering police in street stops.
Carlos Ramirez-Rosa, alderperson for the 35th Ward in Chicago, says he once heard a police officer describe using whether a person was wearing high-top shoes as criteria to determine if they were in a gang.
“Then other law enforcement agencies get access to that,” says Ramirez-Rosa. “And if you’re an undocumented immigrant they use that to further criminalize you and justify your deportation.”
In 2019, an inspector general’s office report found that the Chicago Police Department’s gang database had been queried by federal immigration authorities 32,000 times between 2009 and 2018. Chicago has a carve-out in its “welcoming city” legislation that exempts alleged gang members from sanctuary protections.
The National Crime Information Center also contains a gang file that casts an incredibly wide net. A person can land in this federal database if they admit to being in a gang, but also for a combination of being accused by a “reliable” informant, frequenting a gang’s known area or associating with known gang members.
The FBI rejected the Political Report’s Freedom of Information Act request for documents that list agencies, departments, jurisdictions, and databases that contribute to or share information with the NCIC gang file in part because their disclosure might compromise investigations or prosecutions. It is unknown whether information from city-level gang databases is directly ingested into the federal gang file.
Still, labeling someone a gang member can lead to grievous immigration consequences. In a 2017 “CBS This Morning” segment, an ICE agent admitted that a young man he called a “gang associate” was given that label because “once he goes in front of an immigration judge, we don’t want him to get bail.”
The burden of this risk is borne disproportionately by Black and Latinx people. Chicago’s gang database is not the only city level gang file to be accused of racial bias. In New York, activists in the “Erase the Database” movement say the NYPD’s Criminal Group Database unfairly criminalizes Black and Latinx New Yorkers, some of whom may be undocumented. Fewer than 2 percent of the people listed in this database are white.
Though police are often loath to give them up, there is precedent for curbing the use of gang databases. In Los Angeles, the California Department of Justice recently restricted access to data entered by the police department into the state level gang database after LA cops were charged with faking evidence to falsely classify people as gang members.
State and local governments have taken other steps to control ICE’s access to their data, with varied success.
In 2017, California adopted the California Values Act, which bars the use of the state’s law enforcement databases for immigration enforcement. One example of such a database is the California Law Enforcement Telecommunications System (CLETS), which contains information on criminal history, driver’s and vehicle licenses, and parking violations.
Implementation was shaky. Agencies with access to the database are responsible for self-reporting cases of misuse to the state attorney general’s office. And reporting from Voice of San Diego indicated that ICE may have indeed misused CLETS.
Under pressure to enforce the law, the California DOJ updated regulations so that the division of ICE that detains and deports undocumented immigrants, Enforcement and Removal Operations (ERO), had to either pledge not to use CLETS for immigration enforcement or be cut off from the database altogether. ERO refused, and it subsequently lost access in October 2019.
“To cut off ERO, from … one of the largest law enforcement data networks in the country is a massive victory,” said Maass, the Atlas of Surveillance creator. “But what made it actually even bigger, is the way that that decision trickled down across the entire state,” preventing ERO from using other state and local databases as well.
Many activists, though, say that it’s not enough to target ICE’s access to data from police surveillance. The surveillance itself, they warn, is enough to put immigrants—and the community at large—at risk.
Hamid Khan, a privacy advocate and former undocumented person, says immigrants should be wary about trusting local jurisdictions who claim to protect their data, even supposed sanctuaries like California.
“The backdoor access to information is huge,” Khan said.
Ultimately, organizers emphasize, ending immigration consequences to local law enforcement involves preventing those contacts in the first place.
For instance, in Austin, Texas, criminal justice reform and immigrants’ rights advocates worked together to reduce arrests and decrease the potential for law enforcement interactions that lead to data transmission. “We will continue to demand the elimination of unnecessary arrests that forever disrupt the lives of people of color and immigrants, and demand a stop to the feeding of our people to the prison to deportation pipeline,” Julieta Garibay, director of United We Dream Texas, said last year.
These battles over the law enforcement database in California and policing in Austin may serve as local models for curtailing ICE, but they are also cautionary tales of the limits of local action. To really curb the agency’s ability to use local law enforcement data to detain and deport people, President-Elect Joe Biden would have to lead the charge.
In 2014, the Obama administration narrowed and rebranded Secure Communities as the Priority Enforcement Program, which purported to focus on individuals who had committed serious criminal offenses, appeared on gang databases, or were national security threats. But Trump reactivated Secure Communities by executive order when he took office in 2017.
Now Homeland Security is in the process of giving a technical apparatus that supports S-COMM a major upgrade. Aside from storing biometrics (including fingerprints and iris scans) the program’s new system will be able to check an image of a person against a known identity or against “galleries” of photos.
If Biden decides to embark on the complex task of rewiring ICE’s data network to protect sanctuary cities, Secure Communities would be the place to start, experts say.
“A Biden administration could end that information-sharing on day one,” Fleming of the National Immigrant Justice Center said. “The Biden administration could limit the data-sharing based on jurisdictions that want to participate. The Biden administration could say we’re only going to allow the sharing for individuals convicted of [a specific class] of violent felony.”
The immigration page of Biden’s campaign website does not indicate a clear stance on S-COMM, although it does include a mea culpa for the immigration policies of the Obama era.
“Joe Biden understands the pain felt by every family across the U.S. that has had a loved one removed from the country, including under the Obama-Biden Administration,” the site says. “He believes we must do better to uphold our laws humanely.”
But other language on the same page (“Biden will direct enforcement efforts toward threats to public safety and national security”) reads like the stage is being set for a return to the Priority Enforcement Program era, which would keep the foundations of Secure Communities in place.
According to Chris Newman, legal director of National Day Laborer Organizing Network, a Biden administration would have to go further than Obama’s did in 2014 to really change the status quo.
“I think they really will need to hit the off switch on the database-sharing at the point of booking,” Newman said.
Immigrants’ rights advocates acknowledge that even reimagining Secure Communities would not be enough to create true sanctuaries. That would require concerted and ambitious efforts at all levels of government to constrain ICE’s reach and shut down data pipelines. Conversely, the federal deportation dragnet has mostly grown in scope and complexity over the past decade.
“One of the more insidious aspects of this kind of DHS encroachment is that the only way they will ever succeed, even on their own terms, in reducing the undocumented population to zero would be to document everyone at all times,” said Newman.
“And to think about what level of surveillance would be required to achieve that result is chilling.”
Explore other Political Report coverage of local cooperation with ICE.