Lawsuit Filed To Enjoin Entry Of Immigration Records Into FBI's Crime Database

IMMIGRATION LAW & POLICY

Arrest and Detention

Lawsuit filed to enjoin entry of immigration records into FBI's crime database
Immigrants' Rights Update, Vol. 18, No. 1, February 17, 2004

Civil rights and immigrant defense organizations have filed a federal lawsuit challenging a post-9/11 initiative by Attorney General John Ashcroft to enlist state and local police in the routine enforcement of federal civil immigration laws. The groups charge that the defendants are entering civil immigration information regarding hundreds of thousands of non-U.S. citizens into the National Crime Information Center (NCIC), the database in which the Federal Bureau of Investigation stores information about criminals, without lawful authority to do so.

The lawsuit, filed in the U.S. District Court for the Eastern District of New York on Dec. 17, 2003, names as defendants the Depts. of Justice and Homeland Security (DOJ and DHS), the FBI, and U.S. Immigration and Customs Enforcement (ICE), as well as the heads of each of these agencies.

The complaint filed with the court argues that, since the inception (in 1930) of the FBI clearinghouse of federal, state, local, and international criminal justice records that in 1967 was renamed the National Crime Information Center, Congress has carefully delineated the categories of information that may lawfully be collected and exchanged through it. In defiance of these guidelines, the complaint charges, in 2002 the defendants began entering into the NCIC records for persons with outstanding orders of deportation, exclusion, or removal whom the defendants believe have remained in the U.S.-persons the government refers to as "absconders." Then in 2003, they began entering records for persons whom the DHS believes have violated a requirement of the National Security Entry-Exit Registration System (NSEERS), the "special registration" program instituted by the attorney general in June 2002.

State and local police officers throughout the U.S. access the NCIC database "millions of times each day," according to the complaint, in the course of performing their regular patrol duties. When a local police officer pulls over a driver for committing a traffic violation, for example, he or she may run the driver's biographical information through the NCIC to check if any arrest warrants are outstanding against the driver. If such a warrant exists, the officer will arrest and hold the driver. By entering information into the database about suspected "absconders" and violators of NSEERS-related requirements, the defendants hope to enlist state and local police in their efforts to apprehend and arrest such people, despite Congress's having broadly preempted state or local police from making federal immigration-related arrests, except if they follow specific statutory procedures. (For more on this issue of who is authorized to enforce civil immigration laws, see "Alabama State Troopers Said to Receive 'Clear Authority' in Civil Immigration Enforcement," IMMIGRANTS' RIGHTS UPDATE, Nov. 24, 2003, p. 5.)

Furthermore, the lawsuit's plaintiffs charge that the immigration-related data being entered into the NCIC database is, by the DOJ inspector general's own admission, seriously flawed and not reliable (for more on the unreliability of immigration-related data and its implications, see "Justice Dept. Order Exempts Crime Database from Accuracy Requirement," IRU, June 3, 2003, p. 6). As a result, state and local officers who make immigration-related arrests based on that information are liable to be making them wrongfully, both because they are engaging in civil immigration law enforcement activities that Congress has barred the police from performing and because it is likely that the person they are arresting is guilty of nothing more than having done business with one of the government's most inept bureaucracies.

Finally, the plaintiffs charge, the government's misuse of the NCIC database undermines public safety by deterring crime victims and witnesses who are immigrants from cooperating with local or state police, for fear that they may be arrested. It also diverts scarce resources from priorities that local jurisdictions have identified as being most important, exposes officers untrained in the complexities of immigration law to liability for making wrongful arrests, and encourages racial and ethnic profiling on the part of police, the plaintiffs charge.

In their complaint, the plaintiffs ask the court to rule that the defendants' entering of civil immigration information into the NCIC and disseminating it to state and local police officers is not authorized by any statute, that it is unlawful because it encourages police to engage in civil immigration enforcement activities that they are preempted from conducting, and that, unless and until they obtain lawful authority to enter civil immigration information into the NCIC, the defendants must stop entering it and must remove all such information already entered.

The lawsuit's plaintiffs are the National Council of La Raza, the New York Immigration Coalition, the American-Arab Anti-Discrimination Committee, the Latin American Workers Project, and Unite. The complaint is available in PDF format online at www.aclu.org/Files/OpenFile.cfm?id=14599. (Please be aware that this is a large file and it might take some time to download on dial-up connections.)

National Council of La Raza, et al v. Ashcroft, et al, No. CV 03-6324 (E.D.N.Y., filed Dec. 17, 2003).