July 6, 2012
WASHINGTON — A computer specialist is suing the FBI and the Department of Homeland Security after a controversial fingerprint-sharing program incorrectly identified him as an illegal immigrant and authorities ordered him detained in a maximum-security prison.
The lawsuit is the first legal challenge by a U.S. citizen to the Secure Communities program, which the Obama administration has expanded nationwide over the objections of immigration advocacy groups and Democratic governors in Illinois, New York and Massachusetts.
Under the program, fingerprints obtained when local authorities arrest a suspect are automatically checked against immigration databases as well as FBI criminal databases. U.S. immigration agents are notified if the results indicate an immigration violation.
When James Makowski, a Chicago-area resident who repairs computer networks for companies, pleaded guilty in December 2010 to a felony charge of selling heroin, he was sentenced to four months at a “boot camp” drug treatment program, according to DuPage County, Ill., court records.
But when the fingerprint search flagged Makowski as an illegal immigrant, he was held for two months in the maximum-security prison in Pontiac, Ill., before immigration officials acknowledged the error and canceled the detention order. He later completed the four-month drug rehabilitation program and was released.
“Everybody makes mistakes. I’ve made mine,” Makowski, 24, said in a telephone interview Thursday. “But if the government can detain a U.S. citizen without justification, that’s pretty outrageous. There have to be safeguards in place.”
Makowski was born in India and adopted by an American family in New Jersey when he was 4 months old. The family later moved to Illinois. Makowski became a naturalized U.S. citizen at age 1, but the government did not update his immigration records, according to his lawyer, Mark Fleming.
Makowski’s suit, which was filed Tuesday in U.S. District Court of Northern Illinois, argues that the FBI and Department of Homeland Security violated the Privacy Act of 1974, which restricts what information may be passed between government agencies, every time they share fingerprints from people who are not suspected of an immigration violation.
“The FBI and DHS are consistently and systematically violating the Privacy Act,” said Fleming, a lawyer for the National Immigrant Justice Center, a nonprofit advocacy group in Chicago. “The FBI should not be sharing this data if they have indications that this individual is a U.S. citizen.”
The lawsuit seeks to hold the government liable for unspecified damages for “loss of liberty” for two months, lost wages, emotional distress and attorney’s fees.
Government lawyers are evaluating the lawsuit, said Brian P. Hale, a spokesman forU.S. Immigration and Customs Enforcement, known as ICE. “However, we do not comment on pending litigation,” he added.
In December, ICE created a 24-hour hotline that detainees can call if they are victims of a crime, or if they are U.S. citizens and have been wrongfully detained. ICE officials said that the agency did not track how many U.S. citizens had been inadvertently held in immigration detention.
Secure Communities was started by PresidentGeorge W. Bushin 2008, and the FBI has sent more than 16 million fingerprints to the immigration database since then. More than 900,000 were flagged as potential immigration violators, records show.
The other 15 million sets of fingerprints likely belonged to U.S. citizens, the lawsuit alleges, and their transmission violates the Privacy Act.
The fingerprint-sharing program is active in 97% of state and local law enforcement jurisdictions around the country, and the rest will be covered by the end of this year.
In Illinois, where some local police departments have voiced concerns that giving fingerprints to immigration officials may make witnesses less likely to cooperate with police, only 26 of the state’s 102 jurisdictions are involved.
The Obama administration argues that Secure Communities has allowed ICE to focus on finding and deporting illegal immigrants who have criminal records and who pose a threat to public safety.
They say the program was partly responsible for nearly doubling the number of deportations of convicted criminals and repeat immigration violators, from 114,415 people in 2008 to 216,698 in 2011.
“I’ve been here my whole life,” Makowski said. “I was raised like an upper-middle-class American. But I didn’t feel American when I had that detainer put on me.”