First Legal Challenge to Bush-Obama Anti-Immigrant Program (AllGov)

A growing number of United States citizens have been wrongfully detained under a government program intended to detect undocumented immigrants who are arrested by local police–and now one of them is fighting back.

Chicago-area resident James Makowski, who was adopted from India as an infant and became a naturalized U.S. citizen at the age of 1, was arrested on July 7, 2010, and incarcerated at the maximum-security federal prison in Pontiac, Illinois, for two months before immigration officials acknowledged his citizenship and ordered him released. With the help of the National Immigrant Justice Center in Chicago, Makowski, who served in the U.S. Marine Corps, has filed sued against the government, alleging that the program violated the Privacy Act of 1974. He is seeking damages for wrongful imprisonment, lost wages, attorney fees and costs, and emotional pain and suffering.
At issue is the Secure Communities program, initiated by the George W. Bush administration in 2008 and expanded by President Barack Obama, which checks the fingerprints of every person booked at local jails against FBI and Department of Homeland Security (DHS) databases for immigration problems. If a match results, federal agents can issue a detainer asking local authorities to hold a suspect up to 48 hours. Since 2008, the FBI has disclosed more than 16.2 million fingerprint records to DHS, which has identified more than 918,000 possible problem cases.
Makowski, who was incarcerated under a drug conviction when the fingerprint check erroneously identified him as undocumented, notes that the data also means that the FBI has shared more than 15 million fingerprint records of American citizens or legal permanent residents. Attorney Mark Fleming, who is representing Makowski, argues that “The FBI and DHS are consistently and systematically violating the Privacy Act,” which restricts how and when government agencies may share information about citizens.
Although supporters of Secure Communities have touted it as a neutral means of identifying and removing potentially dangerous undocumented immigrants that avoids the potential for racial profiling inherent in visually-based determinations, citizens wrongfully detained have tended to be brown. Makowski was born in Calcutta, India.
In a case reported by AllGov last year, Los Angeles resident Antonio Montejano, a U.S.-born citizen, was wrongly held for days because of bad information obtained via Secure Communities. Immigration officials refused to believe that he was a citizen, because, Montejano said, “I look Mexican 100 percent.”