El Paso, TX USA January 4, 2023 – Migrants in El Paso, TX waiting in line with a cup in their hand to get soup. (Shutterstock)
By Melissa Del Bosque, Documented NY
Foreign data sharing agreements expanded during the Trump era are still being used by the Biden Administration to separate families and deny asylum claims with little oversight or remedy for those who are falsely accused. That’s according to a new report by the legal advocacy nonprofit National Immigrant Justice Center.
The report, called “Caught in the Web: The Role of Transnational Data Sharing in the U.S. Immigration System” includes testimony from 34 immigration lawyers across the country who said false information can have life or death consequences for their clients. Many said the problem was compounded by the fact that immigration officials often don’t reveal why asylum seekers are being flagged or how to contest the allegations.
“We’re not seeing the number of family separations that we did under Trump’s zero tolerance,” said Lisa Koop, national director of NIJC’s legal services, “but we’re still seeing separations under Biden. And there’s no reliable system to confront and resolve these separations when they’re happening.”
The Department of Health and Human Services’ latest figures reported 387 children separated from January 2021 through September 2022, compared to more than 1,100 families separated between June 2018 when former President Trump announced the end of zero tolerance and December 2019, near the end of his presidency.
According to DHS, 107 separations under Biden are due to “criminal history” and 26 are due to “cartel/gang affiliation.” Many of them involve families from Honduras, El Salvador, and Guatemala, which have law enforcement data-sharing agreements with the United States, and where police and the military have a history of corruption and human rights abuses.
In the 2022 fiscal year, Customs and Border Protection reported 751 gang arrests — nearly as high as during the Trump era when 976 gang arrests were made in fiscal year 2019 at the border.
It’s unclear how many of those arrests were made due to foreign intelligence sharing, because DHS, which includes Immigration and Customs Enforcement and CBP, doesn’t report this information. DHS also doesn’t report which family separations are due to foreign allegations, despite being required by Congress to do so.
But attorneys surveyed in the report said they’d encountered more false allegations of criminal activity and gang involvement in recent years in their clients’ cases, provided through a growing number of law enforcement and immigration databases.
In one incident, the reports states, a 19-year-old woman named Maria, fleeing gang violence in El Salvador, was held in detention and separated from her 3-year-old child for more than three months in 2019, due to a “gang affiliation” allegation from her home country, which was never fully explained. “We never knew exactly what the mark on her record was,” Koop said. “We repeatedly asked DHS and ICE to send us whatever they had on her, but they never did.” Koop and the woman’s family in El Salvador had to prove that Maria had a clean criminal record, which they finally did.
The Salvadoran consulate issued a document showing that El Salvador’s Ministry of Justice and Public Security had no criminal record on the woman, and she was released. “Without that intervention, Koop noted, “she probably would have been deported.”
Koop worries that the nebulous criminal allegation could pop up again during her hearing. “What’s concerning is there’s no process to challenge these allegations.”
ICE refused to comment on the case without the woman’s identification number and date of birth, information her attorney declined to share with ICE, given that her asylum case is still pending. ICE also did not respond to questions about its information vetting practices, or how those falsely accused could clear their records.
In a more recent case, which occurred in May, an attorney named Victoria, fleeing violence in Colombia along with her husband and 10-year-old son, were separated at the border in Texas after Victoria was accused of being part of an armed group in Colombia. NIJC was able to obtain documents from Colombia proving that both Victoria and her husband had never faced criminal charges. Despite this, both are still in detention — after more than seven months — and their son is in a shelter more than 1,000 miles away. “There need to be safeguards before the government uses what appears to be really unreliable evidence to do really drastic things like take parents away from their child,” Koop said.
Since 2017, the report explains, the number of foreign data sharing agreements have expanded under such programs as the FBI’s Transnational Anti-Gang units, known as TAG units, which work with ICE’s Homeland Security Investigations units on arrests of suspected gang members in Central America and the United States. Meanwhile, ICE’s Security Alliance for Fugitive Enforcement Program (SAFE), a network of ICE-led task forces, expanded in 2019 from El Salvador into other Central American countries, including Honduras and Guatemala. ICE also relies on Red Notices from Interpol, which function as international arrest warrants, and which attorneys say can contain false or retaliatory information.
The Department of Homeland Security is vacuuming up large amounts of information from other countries with little to no scrutiny of the accuracy of the information, said Jesse Franzblau, NIJC’s senior policy analyst and author of the new report. Meanwhile, he added, “the U.S. State Department is regularly reporting on abuses carried out by the same security forces that are providing this information.” DHS did not respond to requests for comment.
In El Salvador, the State Department’s 2021 report on human rights found that police and military have engaged in extrajudicial killings and torture. They’ve also carried out sweeping warrantless arrests and jailed people for gang affiliation solely based on where they live and their economic status, according to the NIJC report. In one case, a Salvadoran man, called Alex in the report, was detained and denied asylum because of a gang affiliation allegation against him. Alex testified that like many young men in poor neighborhoods in El Salvador, he was targeted by police and wrongfully accused of being in a gang.
Alex was eventually allowed to stay in the United States after an immigration judge gave him a deferral from removal under the Convention Against Torture, according to the report, but he spent four years in detention fighting deportation.
Asylum seekers from El Salvador are particularly vulnerable to being flagged by U.S. immigration agents on false allegations because the U.S. for decades has funded repressive security forces in the country, and the two countries have security agreements going back decades, said Yesenia Portillo, program director for the Washington, D.C.-based nonprofit Committee in Solidarity with the People of El Salvador. The country’s president, Nayib Bukele, has grown increasingly authoritarian and in March instituted a “state of emergency” suspending many constitutional rights in the country, which has meant mass arrests and rampant human rights abuses. According to Human Rights Watch, more than 58,000 arrests have been made in El Salvador since March, many of which involve people wrongly accused of gang affiliation.
“The police and security forces who are providing information to these foreign data sharing programs — they were already engaging in arbitrary and unconstitutional arrests,” Portillo said. “But now it’s increased to a massive degree.”
As immigration and criminal databases continue to be merged, immigrants do not get the same legal due process as a U.S. citizen would when they are falsely accused of a crime, said Jodi Ziesemer, director of the immigrant protection unit with the New York Legal Assistance Group. Ziesemer said her legal advocacy organization has handled several cases involving Interpol Red Notices where people were deported without a proper investigation into the validity of the information from their home countries. “Interpol Red Notices have been issued with thin or no evidence and based only on allegations,” she said. “In places like Russia, they will use them to target political dissidents and try to get them arrested and deported.”
For criminal cases, the Department of Justice has a legal protocol, she said, where the validity of the evidence is examined before a person is extradited under an Interpol Red Notice. “The issue that we’re encountering is that immigration is an end run around all of that,” she said. “It’s not considered an extradition; they’re just being deported. So, there’s no investigation into the validity of the claim.”
In one case handled by her office, an Ecuadorian man, who had lived in New York for several years was in a car accident and suffered brain damage. After the accident, he was detained by ICE. The agency discovered he had an Interpol Red Notice. The man’s family said he was wrongly accused, but there was no way to contest the allegation. He was deported not long after being detained by ICE. “He had been apprehended by authorities at the airport when he was returned to Ecuador.”
Both the White House and Congress have requested information from DHS on its foreign data sharing agreements. In January 2021, President Biden issued a proclamation lifting a U.S. travel ban on Muslim-majority and African countries and ordering a review of vetting programs so the U.S. “ensures the accuracy and reliability of the information provided by foreign governments.” And in June, the House Appropriations Committee asked DHS to disclose information sharing agreements facilitating the collection of personal information for its new biometric database being built by private contractors, including Amazon and the defense contractor Northrop Grumman’s IT services, recently acquired by Peraton. The database program was estimated to cost more than $4.3 billion, according to a report from the Government Accountability Office. The massive database, the Homeland Advanced Recognition Technology (HART) system, will collect such personal information as DNA, facial recognition, and iris scans from the U.S. and foreign governments.
But to date, DHS has been less than forthcoming with information to the public or Congress. The agency is also under siege by Republicans: The commissioner of U.S. Customs and Border Protection, Chris Magnus, resigned in November amid disagreements on reforms at the agency and House Republicans are threatening to hold impeachment hearings for DHS Secretary Alejandro Mayorkas over his management of the border. “That’s a really big issue,” Franzblau said, noting that the Biden administration hasn’t addressed problems like data sharing as he and other advocates might have hoped. “I think a lot of agencies under DHS are on autopilot,” Franzblau said. “I don’t think agents got a memo that things were changing,” he added. “Immigration is still being criminalized.”