New Data on Discriminatory Post-9/11 Immigration Detention Policy Revealed

Monday, Aug 15, 2011

New York -Since 2003, U.S. Immigration and Customs Enforcement (ICE) has practiced a policy unjustly targeting and detaining thousands of Muslim immigrants, said the Asian American Legal Defense and Education Fund (AALDEF) and the Asian Law Caucus (ALC), as they released today their analysis of hundreds of pages of government documents on ICE's "Third Agency Check" policy.  These documents were released after months of administrative appeals under the Freedom of Information Act, on a request dating back to December 2009.

Under the "Third Agency Check" policy, all noncitizens in immigration custody from "Specially Designated Countries" are continuously imprisoned by ICE until they are cleared by other intelligence agencies.  Many people are being detained for weeks after an Immigration Judge has ordered them released from detention or deported.  Yet there is no evidence that any of these individuals has been charged with a terrorism-related crime.
   
"This is ethnic profiling and a clear abuse of America's immigration detention system," said AALDEF attorney Sameer Ahmed.  "The U.S. government is imprisoning and investigating innocent immigrants based solely on what country they come from."

Of the current list of 36 Specially Designated Countries, all but four (Philippines, Israel, Eritrea, and Thailand) have populations with Muslim majorities.  While ICE officials recently stated that Israel's inclusion on the list was a mistake,  data released to AALDEF and ALC reveal that at least 42 Israeli nationals have been subjected to Third Agency Checks.  Numerous other American allies remain on the list--such as Turkey, Bahrain, Morocco, and Indonesia--and their citizens continue to be subjected to this discriminatory policy, without explanation from government officials.

Government memoranda reveal that the Third Agency Check procedure was created in September 2003, ostensibly to investigate all foreign nationals in ICE custody from countries who "have shown a tendency to promote, produce or protect terrorist organizations and/or their members."  Managed by ICE's Office of Intelligence, Third Agency Checks are supposed to be completed within seven business days, but some require weeks or even months.

In May 2011, the Department of Homeland Security's Office of Inspector General published its review of the Third Agency Check policy, and recommended that the government expand the program to conduct Third Agency Checks on all detained and non-detained individuals in ICE's database from Specially Designated Countries, a potential population of over 100,000 immigrants.  In response, ICE officials rejected OIG's recommendation, arguing that to do so "cannot be justified in light of other workload demands."

"While we commend ICE for recognizing that greatly expanding the Third Agency Check procedure would be a waste of law enforcement's limited resources, the government must go further and scrap the program all together," said Veena Dubal, staff attorney at the Asian Law Caucus.  "There is no evidence that it makes America safer and instead discriminates against a large segment of the immigration population."

In efforts to uncover more about the Third Agency Check program and ensure ICE has abided by the Freedom of Information Act's requirements to release all non-exempt government documents, AALDEF and ALC have appealed ICE's decision to heavily redact 991 released pages and to withhold 127 pages in their entirety.  The administrative appeal is currently pending with the Department of Homeland Security.

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ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND (AALDEF) - The mission of the Asian American Legal Defense and Education Fund is to protect and promote the civil rights of Asian Americans.  By combining litigation, advocacy, education, and organizing, AALDEF works with Asian American communities across the country to secure human rights for all. AALDEF focuses on critical issues affecting Asian Americans, including immigrant rights, civic participation and voting rights, economic justice for workers, language access to services, Census policy, affirmative action, youth rights and educational equity, and the elimination of anti-Asian violence, police misconduct, and human trafficking. Visit: www.aaldef.org.

ASIAN LAW CAUCUS (ALC) - The mission of the Asian Law Caucus is to promote, advance, and represent the legal and civil rights of the Asian and Pacific Islander communities. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, the Asian Law Caucus is committed to the pursuit of equality and justice for all sectors of our society with a specific focus directed toward addressing the needs of low-income and Asian and Pacific Islanders. Visit: www.asianlawcaucus.org.

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FREQUENTLY ASKED QUESTIONS

What is the "Third Agency Check" policy?
The "Third Agency Check" policy was created in September 2003 to investigate all foreign nationals in ICE custody from countries who "have shown a tendency to promote, produce or protect terrorist organizations and/or their members."  Under this policy, all noncitizens from "Specially Designated Countries" are continuously detained by ICE until they are screened by other intelligence agencies.  Managed by ICE's Office of Intelligence, Third Agency Checks are supposed to be completed within seven business days, but some require weeks or even months.

Has the "Third Agency Check" policy led to any successful terrorism-related prosecutions?
Of the hundreds of pages released to AALDEF and ALC, there is no evidence that any individual subjected to a Third Agency Check has been charged with a terrorism-related crime or even has had any ties to terrorism whatsoever.  Although a report by the Department of Homeland Security's Office of Inspector General states that "[Third Agency Checks] have resulted in high-profile prosecutions of suspected terrorists," the report cites no evidence for this proposition.

What are the demographics of individuals subjected to Third Agency Checks?
The data analyzed by AALDEF and the ALC shows that 18% of Third Agency Checks have been conducted on nationals of the Philippines (the highest amount), followed by Qataris, Egyptians, and Jordanians at 7% each, and then Pakistanis and Iraqis at 6% each.  Moreover, 94% have been men, and only 6% women.

How does the Third Agency Check policy relate to other post 9/11 immigration policies?
The Third Agency Check policy is just one of many ways the federal government has abused the immigration legal system to target Muslim immigrants after 9/11.  AALDEF, along with the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law, recently released a report entitled Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated Terrorism Allegations (http://www.aaldef.org/UndertheRadar.pdf) which exposes the many ways in which law enforcement officials take advantage of the lax standards and lack of transparency in the immigration system to deport, detain, and deny benefits to Muslim immigrants on the basis of innuendo, religious and cultural affiliations, or political beliefs.

What is the complete list of 36 "Specially Designated Countries" whose nationals are subjected to the Third Agency Check policy?
The list of Specially Designated Countries includes: Afghanistan, Algeria, Bahrain, Bangladesh, Dijibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Mauritania, Morocco, Oman, Pakistan, the Philippines, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tajikistan, Thailand, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, Gaza & the West Bank.  Although the following countries are not on the government's list of Specially Designated Countries, their nationals have also been subjected to Third Agency Checks: Albania, Azerbaijan, Bosnia, Costa Rica, Ethiopia, India, and Liberia.

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