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ICE Agrees to Lift Veil of Secrecy from the Criminal Alien Program

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Criminal Alien Program

By James Sellars

Earlier this month, a U.S. District Court in Connecticut approved a settlement in a Freedom of Information Act (FOIA) lawsuit which challenged Immigration and Customs Enforcement’s (ICE) refusal to release thousands of documents regarding the operation of its Criminal Alien Program (CAP). In an effort to better understand the daily workings of CAP, the American Immigration Council, in collaboration with Yale Law School and the American Immigration Lawyers Association, filed a FOIA lawsuit to compel ICE to disclose all pertinent information and documents. The settlement is seen as a monumental victory for proponents of transparency in immigration proceedings, and the release of these new documents will hopefully shed new light on an otherwise obscure governmental program. This article briefly describes ICE’s Criminal Alien Program and then highlights the provisions of the aforementioned settlement agreement.

Criminal Alien Program
Despite being one of the ICE’s largest enforcement programs, very little information about the Criminal Alien Program (CAP) has been made available to the public thus far. Every year CAP facilitates the removal of thousands of individuals and is implicated in approximately half of all deportation proceedings in the U.S.  ICE estimates that in 2011 there were 701,473 “CAP encounters” resulting in 221,122 arrests.  According to the American Immigration Lawyers Association, CAP is currently active in all state and federal prisons in addition to more than 300 local jails throughout the country. CAP is characterized as one of several so-called “jail status check” programs intended to screen individuals in federal, state, and local prisons for removability. While other such jail status check programs, like Secure Communities, have garnered much more attention, CAP is by far the oldest and largest such interface between the criminal justice system and federal immigration authorities. Other activities encompassed under CAP include the investigation and arrest of non-detained non-citizens.

While CAP purportedly targets only the worst criminal offenders, critics have often accused ICE of using the secretive nature of the program to abuse its discretion. Some groups argue that the lack of uniform policies encourage abuse by personnel at prisons and jails, as well as ICE agents undertaking CAP activities. For example, there appears to be very few guidelines governing the circumstances under which CAP interviews and screenings are conducted.  Accordingly, some ICE agents could potentially elicit admissions of foreign birth through non-voluntary, misleading, or coercive interrogation. Additionally, the American Immigration Lawyers Association claims that the program has a history of targeting individuals with little or no criminal history. Another concern is that CAP incentivizes pre-textual stops and racial profiling. For example, a police officer may arrest a person of Latino descent, rather than issue a citation, to allow a CAP officer to subsequently investigate his or her immigration status. A study of arrest data in Irving, Texas, found that local police regularly arrested Latinos to check their immigration status through CAP.  These potential abuses, coupled with ICE’s reluctance to disclose information about the program, prompted the American Immigration Council to file suit in federal court.

Settlement Agreement
Under the recent settlement, ICE has agreed to produce numerous records including a report of all encounters by ICE officials with individuals in the CAP program since 2010.  Additionally, policies and other guidelines pertaining to the implementation and operation of CAP will be made available to the public, including interviewing procedures and arrest quotas.  ICE’s acknowledgement of arrest quotas is likely to spark significant backlash from human rights groups and the implementation of CAP’s quota system is likely to be a main source of contention moving forward.  Furthermore, ICE has agreed to release records regarding the relationship between CAP and other agency programs such as Secure Communities. Lastly, ICE has agreed to disclose all policies regarding racial profiling in CAP activities, although critics have already conceded that they have extremely low expectations on this front, setting the stage for potential civil rights litigation.

Since the conclusion of the trial, the American Immigration Council has updated a CAP fact sheet giving a comprehensive overview of the program.  According to the updated fact sheet, many elements of the CAP program have only recently come to light as a direct result of the steps taken during the FOIA lawsuit.  In regards to CAP’s current organization and staffing, the information obtained via the lawsuit suggests that CAP is not a single program, but a loose conglomerate of several different programs operating within the ICE framework.  This assertion is supported by the fact that there is no dedicated CAP staff other than a small contingent of staffers at ICE headquarters who are responsible for the administration of the program.  Instead of establishing a separate CAP office, ICE pulls personnel and resources from across the agency to perform CAP-related functions.

Previous ICE declarations, coupled with agency depositions given during the course of the lawsuit, have helped explain how CAP functions within Federal, State, and local prisons. There appears to be little consistency in, and little or no policy governing, how CAP cooperates with individual state and local law enforcement agencies in different regions. Additionally, there seems to be little or no consistency in how CAP interacts with detainees in various facilities. Instead, CAP appears to function as an ad hoc set of activities that operate differently across the country and across penal institutions, raising questions about the adequacy of oversight, training, and accountability of the personnel implementing the CAP program.

It is still unclear how much of the information gathered about CAP is going to be used and revealed at a local level. Given the sheer size of the program, the centrality of its role in immigration enforcement, and its large impact on the immigrant community, it is paramount for ICE to adequately disclose the materials needed to understand how the program operates.

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