U.S. Immigration and Customs Enforcement (ICE) officers watch over detainees at a facility in Manhattan.
U.S. Immigration and Customs Enforcement (ICE) officers watch over detainees at a facility in Manhattan.
Photo: John Moore (Getty Images)

Immigrations and Customs Enforcement (ICE) officials rigged a system called Risk Classification Assessment (RCA) that uses algorithms to determine whether immigrants in custody should be released to always say no, according to a federal class-action lawsuit filed against the agency by the New York Civil Liberties Union and Bronx Defenders in Manhattan court this week.

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ICE has stepped up its efforts to find and arrest large numbers of people under a sweeping crackdown launched by Donald Trump’s administration. It’s bought $30 million in phone-hacking tech, set up Facebook-enabled dragnets, sought access to Office of Refugee Resettlement (ORR) data on unaccompanied minors, gained access to automated licence plate reading systems across the nation, and is moving to collect DNA from detained migrants and asylum seekers at over 200 facilities. And according to the suit, New York ICE agents made sure those they caught were trapped in custody, regardless of whether it was necessary.

Reuters reported in 2018 that ICE had already modified the RCA system, which is in use at its New York field office and chooses whether to “detain” or “release” a given person based on factors like criminal history and flight risk, to remove the “release” option—unless the “detain” option was overridden by an agency supervisor. There is no way for detainees to appeal the RCA system’s faux decision.

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Per the Verge, the NYCLU and Bronx Defenders are suing based after hearing back on a public records request that they believed would confirm ICE was using RCA to justify the detention of large numbers of people. The lawsuit states that from 2013 to June 2017, ICE’s New York division released approximately 47 percent of detainees deemed low risk to be released, but changes to the system saw that rate drop to just three percent from June 2017 to September 2019.

“The No-Release Policy is particularly egregious in light of the fact that the government’s own data reveal that many of the jailed individuals present little or no threat to public safety or risk of flight,” the organizations wrote in the lawsuit. “... This dramatic drop in the release rate comes at a time when exponentially more people are being arrested in the New York City area and immigration officials have expanded arrests of those not convicted of criminal offenses.”

“The federal government’s sweeping detention dragnet means that people who pose no flight or safety risk are being jailed as a matter of course—in an unlawful trend that is getting worse,” they added. The waves of arrests in some regions were also the result of a “shift in focus to arresting people with no criminal history and who have resided in the United States for years,” meaning these individuals should have actually been more likely to be released, per the suit.

Migrant detention centers where people detained by ICE and other immigration authorities are sent have notoriously poor conditions; a U.S. district judge recently ruled one Border Patrol facility in the Tucson, Arizona, sector to fall short of “basic human needs,” ordering that individuals could not be kept there for more than 48 hours. Individuals in detention facilities across the country have described the centers as filthy, overcrowded, and failing to meet basic standards of care. ICE detention officers have also been filmed using high levels of force to handle detainees. Conditions in New York-region facilities are reportedly no better.

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When in these facilities immigrants often lose contact with relatives and other loved ones, as well as their means of employment, before they are ever convicted of a crime—sometimes waiting for months to see a judge. Average wait times in detention centers where detainees from New York end up, such as three facilities in New Jersey and another in New York, can range from several weeks to three months, according to Politico.

“Being detained is almost unbearable for” Jose Velesaca, the lead plaintiff in the case and who had lived in the U.S. for a decade prior to his January 2020 arrest, the suit says. “He feels sad, hopeless, and trapped. He is so desperate to get out that at times he has seriously considered giving up his immigration case and being deported just to get out of detention.”

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According to the suit, this all violates their Fifth Amendment rights. In a statement, NYCLU staff attorney Amy Belsher wrote, “ICE has secretly decided to detain thousands of New Yorkers unlawfully, inflicting enormous and entirely unnecessary harms. ICE is legally required to make individual assessments and cannot outsource its statutory and constitutional duties to a rigged algorithm.”

“Given what we now know about the manipulations to the tool,” Belsher told the Intercept, “it appears the main function of the RCA is to provide a veneer of objectivity and fairness to a process that lacks it entirely.”

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