Analyst Files Suit Against DHS for Unwarranted Detention (INDIAWEST)

Analyst Files Suit Against DHS for Unwarranted Detention

Sunita Sohrabji


An Indian American computer analyst, who has been a U.S. citizen since his parents adopted him as a newborn from a Kolkata, India orphanage, filed suit against several federal agencies July 3 for branding him deportable.

James Aziz Makowski, 25, is the first U.S. citizen to challenge the Secure Communities program, which allows federal agencies to exchange information with the aim of finding serious undocumented criminals and deporting them. Civil rights activists have long opposed S-Comm, as the program is colloquially known, saying it violates the privacy rights of individuals. Makowski’s suit names U.S. Attorney General Eric Holder, FBI director Robert Mueller, Department of Homeland Security Secretary Janet Napolitano, and Immigration and Customs Enforcement director John Morton, among others.

“I just want the U.S. government to put in safeguards to ensure that citizens and permanent residents are not subject to being detained for immigration issues,” Makowski told India-West in a telephone interview.

On July 7, 2010, Makowski was arrested for making and distributing heroin. When he was arrested, the Dupage, Ill., county sheriff’s department sent his fingerprints to the FBI for a background criminal check. Under the provisions of S-Comm, the FBI turned Makowski’s fingerprints over to ICE.

Mark Fleming, an attorney with the National Immigration Justice Center who is representing Makowski with Geoffrey Vance of McDermott Will and Emery, told India-West that Makowski had been naturalized through his parents shortly after arriving in the U.S., and held a U.S. passport and a certificate of naturalization.

But the DHS had not updated their records in 20 years, so that he appeared to be undocumented and deportable. ICE then put an immigration detainer on Makowski, the first step in deportation proceedings.

Makowski was never asked about his immigration status, said Fleming. “DHS is now starting to rely exclusively on electronic records, rather than interviewing individuals. They are not taking that extra step to ensure their information is correct,” he stated.

In December of that year, Makowski pleaded guilty to distributing heroin, a felony crime. He was sentenced to seven years, but given the option of an alternate sentence that would have allowed him to serve 120 days at a “boot camp.”

While being processed, however, Makowski – through his attorney – learned that he was ineligible for boot camp because of the immigration detainer. He spent the next two months in prison while his father tried to get him out.

“It was definitely the most unpleasant experience of my life. I was very depressed. Nobody seemed to care that I was a U.S. citizen,” said Makowski.

Since his release, Makowski – who sold heroin to support his cocaine habit – has gone through drug rehabilitation and is clean and sober and employed. The Robert Morris University graduate said he started experimenting with drugs while in college, but soon found himself addicted.

While in jail, before he pleaded guilty, Makowski alleged he was questioned several times by FBI counterterrorism agents, who would ask him about his affiliation to India, and whether he had visited the country and if he sent money there. FBI agents also asked him if he attended mosques and what languages he knew besides English. The Indian American believes he was questioned because of his middle name – Aziz – which he has retained. He has never visited India nor been to a mosque.

Under S-Comm, any time an individual is arrested, his fingerprints are sent to the FBI, and then automatically to DHS to see whether there are grounds for immigration enforcement, Fleming explained, adding that S-Comm is the first step in a larger program known as the Next Generation Identification System, which he characterized as a “one-stop shop” for various law enforcement agencies, which could potentially bring in the IRS, the Social Security Administration and even child support agencies.

According to the lawsuit, the FBI in the past decade has sent 16 million fingerprints to ICE, of which 15 million belonged to U.S. citizens or legal residents.

Anoop Prasad, a staff attorney at the Asian Law Caucus in San Francisco, told India-West that S-Comm was initiated as a program to root out people who pose a threat to society. But S-Comm has cast a wide net and is detaining people who should not be deported.

“S-Comm does not have safeguards to protect U.S. citizens or people who have committed low-level offenses or no offenses at all,” he stated.

The program is particularly problematic to victims of a violent crime or domestic violence, said Prasad, noting that those who call the police are also checked against federal databases.

“S-Comm has turned the entire country into Arizona,” stated Prasad, referring to controversial measure SB 1070, which requires local law enforcement to demand documentation from those they believe to be undocumented. “Anyone who’s arrested is potentially deportable,” he stated.

The California state Legislature is considering the TRUST Act, which would override S-Comm. The bill passed the Senate earlier this month, and is now in the State Assembly, which passed a weaker version of the bill last year. California Governor Jerry Brown has remained mum on the bill, said Prasad.

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