U.S. Citizen Sues FBI and DHS for Unlawful Imprisonment Due to Secure Communities

July 3, 2012

A U.S. citizen wrongly imprisoned for two months as a result of the Secure Communities immigration enforcement program filed a lawsuit today against the Federal Bureau of Investigations (FBI) and Department of Homeland Security (DHS) for violating his rights under the Privacy Act.

“The Privacy Act forbids the government from sharing data regarding U.S. citizens, unless it has some indication that a law is being violated. Since the launch of Secure Communities in 2008, the FBI has indiscriminately distributed the fingerprints of millions of U.S. citizens to DHS, which also stores the fingerprints in its database,” said Mark Fleming, NIJC’s national litigation coordinator and co-counsel in the case. “Worse, as DHS has aggressively deployed Secure Communities, it has taken woefully inadequate steps to ensure the accuracy of its records or to implement simple measures to prevent U.S. citizens from being caught up in the net of immigration enforcement.”

The plaintiff, James Makowski, became a U.S. citizen when he was one year old and has had a U.S. passport since an early age. Moreover, Mr. Makowski was accepted into the U.S. Marines in 2004 and underwent an FBI check as part of that process. Nevertheless, DHS never updated its records to reflect Mr. Makowski’s citizenship. When Mr. Makowski was arrested by local law enforcement, he suddenly found himself caught up in the immigration system.

As with every person arrested in jurisdictions where Secure Communities is activated, Mr. Makowski’s fingerprints were sent from the FBI to a DHS database. DHS’s Immigration and Customs Enforcement (ICE) issued an “immigration detainer” against Mr. Makowski without ever interviewing him or providing him the opportunity to produce his U.S. passport, social security card, or driver’s license. The immigration detainer asks a state or local law enforcement agency not to release the individual. Due to the immigration detainer, Mr. Makowski was wrongfully imprisoned for two months until he was able to hire an attorney to convince DHS to rescind its detainer.

In his lawsuit—the first litigation challenging Secure Communities—Mr. Makowski asks the U.S. District Court of Northern Illinois to find that the Department of Justice and DHS violated the law in their treatment of his records, and to hold them liable for damages.

Mr. Makowski is represented by Heartland Alliance’s National Immigrant Justice Center and pro bono partner McDermott Will & Emery LLP.

Click here to read Mr. Makowski’s complaint.