Extracting information from Immigration and Customs Enforcement (ICE) takes persistence and understanding one’s rights under FOIA
By Nick Rahaim
The Immigration and Customs Enforcement raids in the past months have not only incited fear in immigrant communities across the country, but have caused confusion in the media, public agencies, and community groups that have sought, mostly without success, details about individuals swept up in the raids.
The initial information void brings to mind Gestapo-style disappearances reminiscent of the troubled political pasts of countries many immigrants have fled. To be fair, no one is being “disappeared,” but only with significant digging, persistence, and use of the Freedom of Information Act, can reporters gain access to relevant records.
In dealing with ICE, one needs information to gain information. Following raids or arrests, ICE’s public relations office will respond to questions based on the information the questioner already has. If a journalist, knowing only that arrests have been made, asks ICE for details—she is unlikely to get very far. But if she asks about a specific, named individual, ICE will at least disclose whether that person is in custody; if the person asking for information is a family member, he will receive information on where his arrested relative is being held.
Organizations that work with immigrant communitees are often a great resource in compiling background information before going to ICE. Tom Wilson, executive director of Canal Alliance in San Rafael, a nonprofit that works closely with the city’s immigrant community, told CFAC, “We often act as a clearing house of information, by making alliances with the community, lawyers, local government and the press.”
ICE rarely volunteers specific numbers or names of persons detained in raids. In March , following several high-profile raids in San Rafael’s canal neighborhood, the Marin Independent Journal was able to nail down specific information only by soliciting the help of the local member of Congress, Rep. Lynn Woolsey (D-Marin).
One problem is that ICE, being a national agency, compiles arrest statistics using geographic regions that do not necessarily correspond to communities in which raids are conducted. The agency’s information offices will provide only cumulative regional numbers, such as that ICE made 1,811 arrests in the “San Francisco Region” (Northern California & Central Valley) between May 26, 2006 and April 20, 2007, and that 918 of the persons arrested (about 50% of the total) were “fugitive aliens.” If you need to know the specific number of ICE arrests for, say, the City of San Francisco during March 2007, you should expect to have to badger agency personnel or file a Freedom of Information Act request, or both.
Using FOIA requests can be a slow process—often much slower than similar requests to state agencies under California law—but persistence, backed by a credible threat to sue, if necessary, will often pay off. The ACLU of Northern California, the Lawyers’ Committee for Civil Right of the San Francisco Bay Area, and the San Francisco Bay Guardian submitted a joint FOIA request in early March requesting all records on ICE immigration enforcement in the San Francisco region since May 2006. ICE has yet to respond, but this may be due to the huge volume of records involved.
Under the FOIA, ICE has 20 business days to respond to a request, and it can take an additional 10-day extension, provided it acknowledges your request at that time of the extension. ICE has highly specific FOIA policies. For example, requests must be made to the FOIA office in Washington D.C., and all requests for specific “alien” files must be made to U.S. Citizenship and Immigration Services, also in Washington.
Information on how to file a FOIA request is available at www.ice.gov (click on the FOIA link at the bottom of the page). All requests must be made in writing, and ICE offers an optional form for requests; however, a letter is better because it allows you to give a legal explanation as to why the documents should be released.
ICE often cites the Privacy Act as the legal basis for withholding information on arrests (in particular, the names of persons arrested). But the Privacy Act does not apply to documents that would otherwise be available under FOIA. CFAC legal counsel Rachel Matteo-Boehm, of Holme Robert & Owen, said, “…the only practical limit the Privacy Act places on FOIA disclosures is to prohibit disclosure in circumstances where agencies already have the discretion to withhold records under a FOIA exemption.” The Privacy Act, in other words, has no relevance in situations where FOIA requires disclosure, leaving ICE with no discretion in the matter.
There are FOIA exemptions that might apply to ICE records, depending on the circumstances. A favorite of the agency is FOIA exemption 7, which permits withholding records that are part of an ongoing investigation. But this exemption should not be used as a catch-all excuse for denying any request seeking names, charges, and location of detainment. If you need help in persuading ICE to honor a FOIA request, a great legal resource is CFAC’s free “Legal Hotline” (found at www.cfac.org). CFAC’s hotline lawyers provide free legal assistance and information on First Amendment and access issues in both English and Spanish.
In investigating ICE’s activities, FOIA should be considered one part of a multifaceted approach to gaining information on arrests and operations within immigrant communities. As Tom Wilson of the Canal Alliance told CFAC, “Getting information on ICE is a piecemeal operation; you just can’t rely on one source. The journalists have a great advantage here; they have the flexibility to dig, and piece together information.”
Nick Rahaim, a journalist, is a CFAC analyst and First Amendment advocate.