The following post was originally published on Giving In LA.

Neda Behmanesh lived peacefully in Los Angeles for 21 years before applying for U.S. citizenship in 2010. She married a U.S. citizen, had a U.S. citizen child and for all intents and purposes was an American. Even though she satisfied all the criteria for naturalization, immigration officials denied her application under a covert program that has barred thousands of Arab, Middle Eastern, Muslim and South Asian (AMEMSA) U.S. residents from upgrading their immigration status or becoming U.S. citizens, ostensibly for “national security” reasons.

Each year, immigration officials with the U.S. Citizenship and Immigration Service (USCIS) secretly subject applicants like Neda to a policy known as the Controlled Application Review and Resolution Program (CARRP). The program violates immigration law, and is unconstitutional because it was adopted without any congressional approval and violates the Immigration and Nationality Act and the Fifth Amendment’s guarantee of due process.

While the program is designed to ensure that immigration benefits are denied to individuals who pose a threat to national security, it relies on deeply flawed criteria to identify national security concerns.

Individuals from AMEMSA countries are disproportionally affected because the flawed program directs immigration agents to rely on inherently discriminatory criteria to identify someone as a national security risk. Travel or prior residence in an area of “known terrorist activity” can flag someone as a security risk. This means that trips to the Middle East to visit relatives or merely being born in certain countries can prevent someone from becoming a citizen. Questioning by USCIS about lawful Islamic religious activities is not uncommon. And USCIS routinely denies citizenship to individuals for failure to disclose “associations” with mosques or donations to Muslim charities.

CARRP also applies to everyone on the notoriously error-ridden Terrorist Watch List. And it flags anyone whose name appears in an FBI file relating to certain types of national security investigations.
As a result, individuals like Neda who have called the United States home for years, lack any criminal history and pose no security threat whatsoever are subjected to CARRP. Worse, USCIS has worked to keep the program a secret, preventing applicants and their lawyers from learning the reason for the delay or denial of the application and addressing any alleged national security concerns.

To Neda, becoming a citizen symbolized the belonging and loyalty she feels towards the United States. It also meant peace of mind in knowing that she belonged to the same country as her U.S.-born son, who recently graduated from UCLA. And it gave her the opportunity to participate in American democracy and give back to a country that she feels has given her and her son so much.

Neda was able to overcome the discriminatory barrier imposed by CARRP only after the ACLU of Southern California intervened and filed suit on her behalf. Shortly after filing suit, USCIS changed course and granted her application. Four years after first applying for citizenship, Neda became a citizen in December 2014.

Thousands more like Neda deserve to be recognized as the American citizens they already feel they are. It is time to change USCIS’ discriminatory practices and end its unlawful CARRP program.

Katie Traverso is Stanford Law fellow at the ACLU of Southern California. Follow ACLU_SoCal.

Immigration and Customs Enforcement (ICE) rolled out a new immigration enforcement program this month that it bills as an improved approach to using city and county police and jails for immigration enforcement.

The new program, known as “Priority Enforcement Program,” or “PEP,” is intended to address many of the violations that caused ICE to abandon its “Secure Communities” program last November.
But PEP has left in place many of the same problems that caused federal courts to find that Secure Communities violated the constitution.

Under Secure Communities, federal officials issued “immigration detainers” – or detention requests – asking city and county jails to detain people after their scheduled release date so ICE could have extra time to pick them up and investigate whether the individual should be deported.

A series of federal court rulings last year made clear that immigration detainers were voluntary requests and suggested that any local police agency that complied with them may be violating the Fourth Amendment for making an unlawful arrest (one that is not supported by probable cause) and can be held liable for damages.

Under Secure Communities, thousands of people were illegally detained for days, weeks, and sometimes months after their scheduled release dates. In addition to court scrutiny, the program faced criticism for its dragnet effect, sweeping up anyone who was arrested, regardless of whether or not they were charged or convicted of any crime, and for tearing families apart and encouraging racial profiling.

In light of these court decisions, and citing harm to community policing efforts, hundreds of local law enforcement agencies across the country rejected immigration detainer requests and adopted policies prohibiting compliance with immigration detainers without a judicial warrant or judicial determination of probable cause.

In response, ICE rebranded Secure Communities, announcing in November that it was terminating the program and replacing it with PEP. It announced that it would replace detainers with “notification requests;” that is, instead of asking for extended detention from local jails, it would now only ask that the jails advise ICE when a person will become eligible for release so that they can pick them up, but said it would still use detainers in “special circumstances” and only when it had “probable cause” for the arrest.

That’s why we were dismayed when earlier this month ICE released its new forms for detainer and notification requests under PEP and these limitations on detainer use were not reflected. Significantly, ICE has not corrected the fundamental failings of the immigration detainer, which makes compliance with it unconstitutional. The new detainer forms do not require a judicial warrant, judicial determination of probable cause, or even an individual, particularized statement of probable cause.

Moreover, nothing in the new detainer form appears to limit immigration detainers to special circumstances.

The ACLU and immigrant rights groups sent a letter to DHS this month in response, urging the agency to discontinue use of detainers entirely, in light of these continued constitutional problems with their use.

PEP, like its predecessor, plainly fails to satisfy the Fourth Amendment’s basic protections. Under PEP, immigration agencies and local law enforcement will continue to face liability for these illegal detentions.

Not only is PEP illegal, it is completely out of step with the national conversation on the need for policing and criminal justice reform. The ACLU questions why DHS is continuing to entangle local police in immigration enforcement when the president’s own Task Force on 21st Century Policing recommended that DHS “decouple” federal immigration enforcement from routine local policing.
The Secure Communities program led to an erosion of police-community trust. PEP appears to be no different.

Jennie Pasquarella is staff attorney at the ACLU of Southern California.