Criminal Alien Program (CAP)
CAP is a massive, nationwide enforcement program administered by U.S. Immigration and Customs Enforcement (ICE) that identifies noncitizens that ICE determines to be removable and places them into removal proceedings. CAP is currently active in all state and federal prisons, as well as more than 300 local jails throughout the country and is implicated in approximately half of all removal proceedings. Although CAP supposedly focuses on the worst criminal offenders, the program appears to target individuals with little or no criminal history and to incentivize pretextual stops and racial profiling. Despite CAP's role in facilitating the removal of hundreds of thousands of individuals each year, and despite serving as ICE's “bedrock” enforcement initiative, very little information about CAP previously was available to the public.
Seeking greater transparency, the American Immigration Council (AIC), in collaboration with the Worker and Immigrant Rights Advocacy Clinic of Yale Law School and the Connecticut chapter of the American Immigration Lawyers Association (AILA), brought a lawsuit under the Freedom of Information Act (FOIA) to compel the release of records that would shed light on the program. Pursuant to a court-approved settlement, ICE began producing documents and large quantities of data about the population of individuals caught up in the CAP enforcement web.
The American Immigration Council published a report based on this data and other documents obtained through the FOIA lawsuit that examines CAP’s evolution, operations, and outcomes between fiscal years 2010 and 2013. The data shows that through CAP, ICE has encountered millions and removed hundreds of thousands of people. Yet, CAP is not narrowly tailored to focus enforcement efforts on the most serious security or safety threats—in part because CAP uses criminal arrest as a proxy for dangerousness and because the agency’s own priorities have been drawn more broadly than those threats.
As a result, the program removed mainly people with no criminal convictions, and people who have not been convicted of violent crimes or crimes the Federal Bureau of Investigation (FBI) classifies as serious. CAP also has resulted in several anomalies, including that it appears biased against Mexican and Central American nationals. Moreover, the number of CAP removals differs significantly from state to state.
The LAC and the Worker and Immigrant Rights Advocacy Clinic of Yale Law School Sue to Compel Release of CAP Records
American Immigration Council, et al., v. DHS, No. 12-00355 (D. Conn. filed Mar. 8, 2012).
Co-Plaintiffs American Immigration Council and AILA’s Connecticut chapter initially sought records related to CAP through a FOIA request to ICE in December 2011. When ICE refused to release records responsive to the request, Plaintiffs filed suit under FOIA for declaratory and injunctive relief to compel the disclosure and release of agency records improperly withheld by DHS and its component ICE. Plaintiffs also challenged Defendant’s failure to grant Plaintiffs’ public interest fee waiver request and asked the court to award costs, reasonable attorneys’ fees and any other appropriate relief.
On July 13, 2012, Defendant filed a motion for summary judgment with an accompanying declaration by Jamison Matuszewski, the Unit Chief for CAP within Enforcement and Removal Operations (ERO) at ICE. In response, Plaintiffs filed an opposition to Defendant’s motion and a cross-motion to defer consideration of Defendant’s summary judgment motion and for limited discovery. Plaintiffs argued discovery was necessary in light of Defendant’s conclusory and largely unsupported claim that DHS lacks the functional capacity “to identify the individuals encountered by CAP and retrieve their records” and to provide a small, randomized sample of individual records without undue burden. Plaintiffs requested discovery in the form of a deposition of Jamison Matuszewski, the Unit Chief for the Criminal Alien Program (CAP). Defendant opposed the discovery request and submitted a reply to Plaintiffs’ opposition to summary judgment with a supplemental declaration by Jamison Matuszewski. In early December, 2012, the court granted Plaintiffs’ motion. The deposition took place on February 1, 2013. On February 5, 2013, the court found Defendant’s motion for summary judgment moot and ordered Defendant to re-file its motion for summary judgment upon completion of the extended discovery.
In conjunction with the preparation of Jamison Matuszewski’s supplemental declaration, Defendant conducted a two-hour search of ICE’s Office of Enforcement and Removal Operations (ERO). The search resulted in 473 responsive pages, which were released to Plaintiffs on October 19, 2012. 303 pages were released in full. The responsive portions of the remaining pages were withheld pursuant to FOIA exemptions 5, 6, 7(C) and (E).
After settlement discussions, on July 21, 2013, the court entered a Stipulation and Order of Dismissal. The parties agreed that ICE would produce non-exempted records described in Attachment A of Exhibit 1 of the Settlement Agreement. ICE also agreed to produce an electronic report containing all CAP encounters in ICE’s Integrated Decision Support System (“IIDS”) for FY 2010 to the date of the Stipulation, to include the fields identified in Attachment B of Exhibit 1. ICE has indicated since the settlement that it possesses hundreds of thousands of pages of responsive documents and has been producing several hundred pages to the Council each month.
Enforcement Overdrive: A Comprehensive Assessment of ICE’s Criminal Alien Program (Nov. 2, 2015)– This report examines government data and documents obtained through a Freedom of Information Act lawsuit to explain CAP’s evolution, operations, and outcomes between fiscal years 2010 and 2013. The data shows that through CAP’s enormous web, ICE has encountered millions and removed hundreds of thousands of people and is not narrowly tailored to focus enforcement efforts on the most serious security or safety threats.
Fact Sheet: The Criminal Alien Program: Immigration Enforcement in Prisons and Jails. This fact sheet, issued August 1, 2013, provides an overview of what currently is known about the CAP program, including valuable insights gained from a deposition of Jamison Matuszewski, the Unit Chief for CAP.
IPC Report: The Criminal Alien Program: Immigration Enforcement in Travis County, Texas. This 2010 report concludes that not only did local law enforcement in Travis County, Texas not understand the purpose or scope of CAP, but that CAP led to racial profiling because the "jail status check" and other aspects of the program encourage some officers to arrest people who look or sound foreign, in order to process them through the CAP and facilitate deportation. The report raises concerns that CAP is not realizing its intended goal – to target dangerous criminals, but is creating a system where local police enforce immigration law by detaining immigrants who have committed only misdemeanors or immigration status-related offences.
ICE Homepage: Criminal Alien Program. This page provides ICE’s explanation of the different components of CAP.
The Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity at University of California, Berkeley Law School, The C.A.P. Effect: Racial Profiling in the ICE Criminal Alien Program. This policy brief analyzed arrest data pursuant to an ICE-local partnership in Irving, Texas and found that ICE is not following Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories. The analysis also revealed strong evidence to support claims that Irving police engaged in racial profiling in order to filter individuals through the CAP screening system.
CAP Advocacy Guide. This guide, issued by the National Immigration Project of the National Lawyers Guild, the Washington Defenders Association, and the Immigrant Legal Resource Center, explains how information about the CAP program revealed through the lawsuit can be used to address the impact of the program at the local level.
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