Immigration and Customs Enforcement vows to at least quadruple the time spent searching for undocumented immigrants at their places of work next year and former officials say that means accessing an FBI database rich with 56 million fingerprints from caregivers and other prospective hires subject to background checks.
Acting ICE Director Tom Homan, the nation’s top immigration cop, said last month he has reviewed the number of hours ICE officers spend investigating employment sites and auditing worker immigration forms. “I will increase that by four or five times,” he said at the conservative Heritage Foundation. “We will prosecute, detain, and remove workers,” he added.
The Department of Homeland Security, in 2013, rolled out a computer program for receiving certain fingerprints that private employers and police submit to the FBI for criminal history checks. Today, the tool called the Alien Criminal Response Information Management System (ACRIMe), syncs with the bureau’s massive biometric database to cross-check the biometrics of booked offenders, individuals subject to background checks, and others stopped by authorities against wanted immigration fugitives and deported felons.
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Former officials warn that ICE can modify its ACRIMe (pronounced “A Crime”) agreement, with the FBI’s consent, to search non-criminal background checks for all individuals with expired visas.
“If ICE made a policy decision to go for 100 percent removal of anyone who is here in an undocumented and unauthorized status—which could include people who have been here for long periods of time, who are working with tax ID numbers, who are paying taxes—they very well could use this information to locate people who are currently caregivers,” said John Cohen, a former DHS senior counterterrorism official.
Timothy Edgar, former privacy officer at the Office of the Director of National Intelligence, said the FBI should be “very worried” this will happen and should refuse to share employee records for civil immigration enforcement.
Localities traditionally provide the FBI with fingerprints from child-care workers, home health care workers, teachers, and other employees to check against more than 70 million criminal records in the database, known as the Next Generation Identification system, so employers can protect vulnerable populations from sexual predators and other abusers.
“No one who is submitting fingerprints to the FBI for these kinds of background checks is expecting that they are going to be used by a different agency for immigration enforcement. And if they did expect that they would probably not use it as much,” said Edgar, now a senior fellow at Brown University’s Watson Institute for International Studies and Public Affairs.
The FBI cannot simply shrug off an ICE proposal, because the two agencies partner on cases, sometimes using immigration charges to gain leverage against an individual in a criminal investigation. ICE does not have the time or money to find and deport all visa overstays, and so the agency may want to “go for very low hanging fruit” in the employee files, Edgar said.
Under the Obama administration, efforts to fight terrorism ran into some similar concerns regarding the over-sharing of so-called suspicious reports about foreigners.
“I think the best way to just basically blow up an information sharing program is to start using it for regular civil immigration enforcement,” Edgar said.
FBI officials said the bureau does not comment on proposed policy or legislative changes. ICE spokeswoman Sarah Rodriguez said, “ICE will not speculate about the likelihood of policy changes in the future.
Other critics point out that reliance on immigration databases, which contain misspellings, missing court information, and other errors, has led to erroneous stays in detention centers. ICE wrongly imprisoned American citizen Davino Watson for 1,273 days following a series of debacles, like when agents searched an immigration database for his father’s name and returned a noncitizen with no relationship to Davino. Since Hopeton Livingston Watson was not a citizen, ICE agents believed that Watson similarly lacked citizenship and was subject to deportation, according to court documents (PDF).
A separate typo landed India native James Aziz Makowski in maximum-security detention despite gaining citizenship at age 1 after an adoption. ICE had not updated its records to reflect his legal status at the time authorities arrested him on drug charges 20 years later in July 2010. When the government realized its mistake two months later, Makowski was released to complete a drug rehabilitation program.
“You are talking about something that has very real implications for somebody’s life. Maybe they are not hired. Maybe they are targeted by ICE based on information that in and of itself may be inaccurate,” said Neema Singh Guliani, legislative counsel with the American Civil Liberties Union who previously worked in the Chief of Staff’s Office at DHS.
Opponents of illegal immigration voiced skepticism that ICE would use caregiver background information unless the agency was looking for a specific person who is a threat, or for an employer in gross violation of hiring laws. Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which supports Trump’s immigration enforcement, says ICE should have access to driver’s licenses, repositories of information used for non-criminal purposes, and any other data sources that law enforcement agencies tap, as long as the agencies grant permission.
“Anyone who is in the country illegally and winds up in a database of information that ICE has access to... should not expect to be exempt from enforcement just because they are someone’s caregiver,” Vaughan said. “There is no shortage of American and legal immigrant workers who could do these jobs, if they are paid well and treated well.”
Immigrant-rights activists, however, take issue with current use of FBI employee background information to crackdown on alien fugitives, some of whom are unaware of any removal order or were entered into the system erroneously.
Arrests of immigrants without criminal records have almost tripled during the Trump administration. Between January and September, ICE apprehended about 28,000 “non-criminal immigration violators,” the agency says. ICE did not disclose the number of wanted immigration fugitives listed in the FBI’s database today.
“These are often individuals that didn’t even know they had a court date or where the court was going to be,” said Mark Fleming, a lawyer for the National Immigrant Justice Center in Chicago. “Then they end up getting in-absentia removal orders.” He acknowledged that obviously some immigration fugitives knowingly fled and had no intention of participating in proceedings.
“Congress has only permitted certain civil records in the criminal database. By statute, they’ve allowed it for deported felons. They’ve never allowed it for immigration fugitives,” said Fleming, whose clients include Makowski and Watson.
ICE said in a statement that federal statute requires U.S. government agencies “to provide current and immediate access to information in databases of federal law enforcement agencies and the intelligence community that is relevant to determine whether to issue a visa or to determine the admissibility or deportability of an alien.”
“If we get information that someone has re-entered the country and they have a removal order, that is a crime—there is no category of alien exempt from enforcement,” ICE spokesperson Rodriguez said.
FBI officials said the portfolio containing immigration fugitives and deported felons is a relatively small file compared to the 74 million criminal arrest records in the database as of Sept. 30. The bureau said it does not keep statistics on how many immigration fugitives or deported felons turn up during non-criminal background checks.
“They all have to have a criminal nexus,” FBI spokesman Stephen Fischer said. “If somebody has committed a criminal act we want to make sure the person is not around a vulnerable population or in a position of trust,” he added. “If they have violated immigration law punishable as a crime, we recognize that as a federal crime.”
