Technology and Surveillance on Migrants, with Austin Kocher and Jake Wiener, Pt 2

through the significant hurdles posed by CBP one. What happened to them? Then? Yeah?

Then they come into the United States. They have not made an asylum application yet, so they still have to do that. In the US. The United States has two options at this point. There's two agencies that can make decisions. Can receive assylum applications and make decisions USCIS, which is historically the primary one. US Citizenship and Immigration Services. They have what are called asylum officers whose job it is

to adjudicate assylum applications, interview people, and so forth. Or the United States can file removal proceedings deportation cases effectively against these individuals and put them into immigration court, where an immigration judge can accept an assiled application and adjudicate

the assigled application. The major difference here is that in the court room in the immigration court system, that individual is going in front of a judge and has an ICE officer, an enforcement related kind of attorney effectively arguing against them in court. Technically, they're not supposed to be arguing against them per se, they're supposed to be finding the right outcome, but effectively they're arguing against them like they're, you know, trying to apply for asylum in immigration court

or in like a criminal court setting. Almost not really, but almost right. So here's the two main differences when those individuals. You know, Historically, when people have been put into the immigration court system, ICE does have the option of detaining them or at least detaining them for an early part of that process until they meet some certain tolds. The Biden administration has decided largely at this point not to go that route. That has not been true in

the past. The Trump administration's detention numbers were up well over sixty thousand people detained the day at one point. Right now, it's about half that it's up from the beginning of the year, but it's about almost thirty thousand people are in detention now, and people seem to be moving through even when they are detained relatively quickly. This is where alternatives to detention come in. We should not

think of alternatives to detention as alternatives detention. In fact, ICE itself has said on their website and in testimony before Congress, alternatives to detention is not an alternative to detention. It is an alternative to unsupervised release. So it's what it really is is an electronic monitoring program that allows the agency to effectively keep track of everyone that they want to keep track of. Now, the number of people in this alternatives to detention program is an extremely small

fraction of the number of asylum systems in court. It is nowhere near, you know, saturating the total number of people that they could be. One wonders whether they consider five percent monitoring some kind of massive success when you know, when most people are actually not monitored. But one major change has happened, which is in addition to the smartphone app that migrants use to even try to seek asylum, now migrants also have to download an app called smart Link.

Yeah that is now. This one is not built in house. This is contracted out from an organization called BI that effectively mostly contracts with the criminal justice system, but they also contract with ICE. So they have to download an app on their phone and they have to check in regularly using a similar but different kind of facial technology.

They can communicate with deportation officers, they can get alerts about their immigration court here, all this stuff, But the crucial part of that is under threat of detention or redetention,

redetaining migrants have to check in on their smartphone. So it means that that same phone that one you know, struggled with on the periphery of Renosa trying to just even get into the United States to pursue what is their legal right to pursue asylum, now they're glued to their smartphone, worried that if they don't respond to you know, a text message or an alert or a being on their phone, they could be redetained and you know, potentially to put in some way. So that's currently how this is.

So it's not for everyone. It's not as if everyone follows this exact same path, but it is true, and I think this is the big takeaway. It is true that asylum seekers today will start interacting with the US government, may start interacting with the US government on their smartphone as far south as Mexico City, and then continue to have their primary contact and interaction with the US government on their smartphone all the way through the border and

to Columbus, Ohio, New York City, Seattle, Washington. So the smartphone has become effectively this kind of what I am trying to think of and conceptualize as a kind of mobile border. They never where, migrants never really arrive, and they never really leave.

surrounded the end of title forty two. Some of those people, to my understanding, entered the United States I'm doing heavy air quotes between ports of entry under Title forty two, but then were detained. That it is fairly obvious they thought they were being detained. It looked very much like they were being detained. They weren't allowed to leave. CBP apparently would argue that they were not detained because the conditions were wofully inadequate by their own detention policies, which

don't exactly provide for luxurious conditions to begin with. And so what would the situation be for those people because they haven't They were trying, at least some people I spoke to, to make CBP one appointments from a place of detention, which I don't think one can do. Maybe one can if one's not on a list or something, but you still have to get there right and you can't leave south or north to access.

had all just think, oh, you're pinging Mexican celtos. Yeah, well I was on a bike ride like in East County, San Diego. I wasn't in Mexico, but my phone thought I was, so Yeah, the same thing can happen in reverse, right, your phone camping American cell towers when you're in Mexico. So those people might appear to be in the US when they're not. But in that situation, they couldn't make a CBP un appointment, So I guess they're assumed to have.

It's the same as if they crossed the fence somewhere else and been detained ten miles inside the United States, right, what would their process be?

two in place. The same states, mind you, who were very critical of COVID protections, were extremely worried about lifting the ban on people in the southern border coming in because of COVID concerns. Part of what that rulemaking did was it worked a fundamental change in the way that asylum seekers work, and so, like just context, claiming asylum is a human right, is a right guaranteed by international law,

is the right guaranteed by US law. That you can show up and say, hey, I am not safe in the country that I'm coming from and I need asylum in the States, and you have a right to do that, and for the US or whatever country you arrive in to process your claim and decide if it's valid or not.

So one of the changes in this rule making was that they are applying what's called the government is applying a presumption of ineligibility to people seeking asylum, which means that if you did not show up in a proper manner the United States. That means if you did not use the CBP one app to claim asylum before you got to the border, and if you did not apply for asylum in every country that you traveled through along

the way. If you traveled from Guatemala and you did not pay for apply for asylum in Mexico before you got to the border, you are automatically deemed ineligible and your asylum claim will be denied with no hearing, with no opportunity to say, hi, I'm here because like my husband is a police officer somewhere in Guatemala and he's trying to kill me, and I can't stay in the country, right, And so that is a fundamental change in the way

the law works. And that's the starting point of someone who has frost illegally not used CBP one and then is picked up's and that's new in the law in twenty twenty three.

there is virtually no guidance on how to implement those exemptions. Right, Like, one thing you can claim is that you cross without a CVP one appointment, because you couldn't use the app The idea of trying to prove to someone at the Customs of Border Protection that you were technologically enabled to use an app seems basically impossible, given that the only proof that you have is that you didn't get the

appointment right, that you weren't able to submit it. That's not a strong record that a lawyer would like to argue on, I will tell you as a lawyer. And so the result is basically that people who have certainly legitimate asylum claims are likely to be turned away because they didn't comply with the proper process us.

people were being detained unless they paid a bribe. And then then if those people had crossed like legally in between ports of entry, that would be very harder than to prove that they could that that had happened at all, Right, Like what had caused them to do that. So those people are in an even more difficult scenario if people then, through any of these processes find themselves in a ATD alternative to detention. There are numerous ways it could be surveilled.

Alston mentioned that the phone app, which I think is the perhaps the most recent and most common one. Another one is to ankle monitors, Right, you can get like a a parole kind of ank style of ankle monitor And I know that, Jake, you've written a little bit about some of the consequences as those Do you want

to talk about that. Yeah, So, first of all, an overview of the ATV program is that there are different levels of monitoring and all of them are I think should functionally be viewed as incarceration, which is to say that you are not you've not been released from custody, just the location of your custodity has been moved from a prison to somewhere out in the world where you're

being surveilled and your movements are potentially tracked. But you are still in many ways as vulnerable as you would be if you're actually in a jail or a prison. And so ICE has the option to decide at their

discretion which level of monitoring you get. The levels of monitoring, the highest level is an ankle bracelet, a will shackle that is a GPS device that is battery power, has potentially only a few hours of charge on it, you might get a day of charge off of it, and is constantly monitoring your location and sending that location back to both ICE and to the contracting staff of BI Industries.

This prison technology company, who ICE, has hired as case managers, basically people who are providing support for ICE on keeping track of the usually eight to ten thousand people who are on the ankle monitor system. If you don't get quite that high level, or if you get de escalated over time, you applied ICE and you say, hey, I've been on my ankle bracelet for like three months, I've

not straight outside the area I'm supposed to go. I've always responded to check in, then they might bump you down to the smart link app, also provided by the industry, is on an extremely lucrative contract. Their last contract is like two point two billion dollars, and that smart link app is either going to be loaded on your smartphone if you have a smartphone that can handle it, or you'll be given a smartphone buy ICE and told to use that smartphone to check in. You will be required

to check in on a sort of regular schedule. I don't have a strong sense for how often that is. Could be daily, could be less. To check in, you're going to open the app up. It's going to ping your GPS location, send a DICE, and then you're going to take official recognition photograph. That photograph will be compared

to make sure that you're actually you. That photograph is also potentially capturing your surroundings, the people you live with, whoever's like in the frame, and then you can communicate with your case manager on the app. You can potentially find information on when your immigration court hearings are. That type of thing.

going to call into ICE on your phone. You're gonna say Hi, I'm Jake Wiener, I'm checking in, and ICE will run a voice print analysis and make sure that you are the person who say you are and confirm your location at any point if that system screws up, you are potentially you were then in violation of the terms of your release, and at any point ICE, if you've there's been an error, an ICE officer can show up and take you right back to jail.

is it only when they have the app open? Is everything on their phone now subject to a review by ICE and potentially also by this third party contractor? Right, So, how are those contractors vetting their personnel? How are they're making sure that these this very sensitive information is secure and private like it should be.

They're not exactly forthcoming. One aspect of the surveillance that I think is worth noting is that both ICE and BI don't just have your whether you're on the smartphone or if you're on the ankle monitor, they don't just have your last GPS ping, they have your historical movements, which means if you're on an ankle monitor, they have a record of every single place you went for the entirety of the time since you've been on that ankle monitor, and they also know where you are right now a

little more limited on a smartphone, but that's information that's highly sensitive. Your location and especially your historical location information and tell you all kinds of things like what church this person goes to, have they been to Planned Parenthood or recently, who do they associate with? Like what houses are they visited? And for ICE, that information is very valuable because most migrants don't live alone. They live in

community with other people. Some of those people may be undocumented, and so as a migrant, you are now worrying every time you check in. Am I exposing someone who's undocumented

to ICE surveillance? Am I exposing myself, you know, to just like tagging somewhere that ICE doesn't want me to be and maybe an officer is going to show up for a check Because of that, it is created creating a ton of insecurity in a system that is already very insecure, and the like psychological harms of that are manifest.

You know, there's good studies like internationally that your risk of suicide and depression goes way up when you're on electronic monitoring, that your access to jobs goes way out you. You know, there's stigma with wearing an ankle brace. Also concerns that if you take a job you won't be able to check in at your home at the appropriate time, it looks like you're absconding. Right, So this level of monitoring is messing with people's lives and really fundamental and deeply cruel ways.

but where you've been. And I if I'm right, like they they keep that data, right that data isn't anonymized or sort of like destroyed.

tech transfer programs, that's certain word. But some of these grants and programs that ICE and DHS more broadly has, Does that mean that local police agencies could also have access to some of this data?

they have their own databases. Those databases are very often linked or accessible, which means that monitoring. You know, your local police department has a log of everyone and they arrest very often that log is sent to ICE and

vice versa. Right So it's one of the main ways that this has done is through fusion centers, which is basically a federally funded state run technology center embedded in state or local police departments, where you have the Department of Homeland Security agents who have access to their set of databases, and state and local police department officers who have access to their set of databases, sitting right next to each other, and those people can then talk and

be like, yo, I need you to run this search into your system, which is theoretically only for federal use, but suddenly it's getting used for state law enforcement and vice versa. One of the biggest problems with this is that cities that want to be sanctuary cities that don't want their police departments reporting and handing people over to ICE when they arrest undocumented folks, city government is unable to control their local police departments and the information that

is sent to ICE. So even a sensible sanctuary cities, a city says we're not going to report this information.

The way that these databases are tied together, especially license plate reader databases as but as well as arrest databases, all sorts of stuff means that the city government functionally cannot create a sanctuary city, right, which, justin if we talk about my situation, I'm in San Diego, are mayor is terrible and want to turn all our street lights into spies, right, like put little cameras on them so that they can watch what we're doing, and like this

information feeds into we know exactly where the future center is actually, Like I wrote about this in twenty twenty when the cops took someone's phone and used.

that they can at every aspect of people's lives. Credit reporting agencies, the people who like give you your credit score, are also data brokers. They're pulling in all this information so that they can assign you your credit which is like where your credit cards are, how much money you have. All this information is super valuable, right, and it's valuable to advertisers. It's valuevaluable, yeah, like for marketing, but it's also really valuable for law enforcement because you have everything

from like addresses where people are spending money. Often you can pull from advertised like phone advertising data, people's GPS location and a number of these services have sold access to ICE, both like Thompson, Ridge is Clear, Lexus, Nexus has several products that they sell to ICE as well as Locate x which is now Babble Street, which is specifically a GPS location company, and ICE has basically managed to obtain through contracts information that they could not legally

obtain through a warrant, right, which is to say that if you a police officer and ICE officer want to get information on a single person, you know, you want their GPS location off their o't you need to go to a court and say, hey, I'm looking for James Stout and I think that he committed a crime or an immigration he brook immigration law. Here's my evidence. I need a warrant. You cannot get a warrant for mass monitoring.

That's like a fundamental part of how the Fourth Amendment in the US Constitution works is that it has to be individualized or very close to individualized. But there is currently no law that says that ICE can't just go buy the information on the open market and completely evade the warrant requirement. So that's what's going on with Lexis and Nexus, with locate acts as well as complex social media surveillance companies. Right.

Can Austin, can you give us a very broad overview of like the likelihood of success and maybe a couple of I know you're very good at monitoring the factors that determine the likelihood of success and an asylum application through TRACK. This is a great place to plug TRACK if you want to. Can you talk about like how likely folks are to be successful in that asylum application process?

as two tracks of seeking asylum. We don't currently get data on that first track, where people go through asylum officers at USCIS. We're interested in it, but they actually publish not comprehensive, but they published decent amount of data.

We would certainly like to get more. But it's the immigration course that we have focused very heavily on for the last decade, I would say, And so we get very detailed, granular data from the immigration courts on a monthly basis that allows us to see exactly what's happening.

I would say, currently, the success rate denial rate, however you want to put it in immigration court for asylum seekers is about fifty two or fifty three percent get denied, about forty seven to forty eight percent are granted asylum. But that varies widely by immigration court and by nationality.

So migrants from Central America, Al Salvador, Hondurasquatemala tend to have much higher denial rates seventy eighty percent ninety percent, whereas nationals from let's say, Ukraine, China, some other countries, Cuba have very high success rates. Haiti actually is a good example of a country that has very low grant rates, very high denial rates, even though much like northern Mexico, where we actually send people that we deport very often,

there are all kinds of travel warnings. In the United States, government is not when people going to Haiti because it's too dangerous, But we don't even have a problem deporting people back there who are seeking asylum, right and so that's what that's what we've seen in recent years. The denial rate was as high as seventy percent during the Trump administration, and so it's certainly much better under the

Biden administration. I do want to say though, that in addition to sort of a policy related issues that may drive this factor geographic concerns, people are much more successful in New York City than say Houston or Atlanta, Georgia.

But one of the really important factors here is, in addition to all of that, there's a threshold question, which is a lot of people, including a lot of people who are recently arriving to the United States, if they can't get an attorney, it's very unlikely that they will even be able to file in asylum application in the first place. So that fifty you know, that forty eight percent grant rate is for people who file in the

sylum application. We're not seeing, you know, the people who don't even who aren't even able to file the silum application in the first place. And one of the most concerning things recent developments is that the Biden administration, I think not for no reason at all. I mean, there's two point two million pending cases in the immigration courts right now. The Biden administration is trying to push cases

too faster. This is something the Obama insty administration tried, Trump administration tried it, Biden administration tried it, and every single time the cases get accelerated, including a large number of family cases. Unfortunately, they simply don't have time to get an attorney and file a good sylum application. So what we're seeing as in addition to like geography, nationality, does someone get an attorney, it's also speed, just how

fast the cases go through. And the reality is if you try to force an asylum case through the immigration courts or frankly even through USAIS in a matter of weeks, people are just not going to win. You can't speed things up and maintain a fair system. You just can't. It's also not great for people to wait, you know, five, six, seven, eight years for a hearing or for a conclusion, So

that's not ideal either. But you know, trying the force cases through and you know two or three months is just doesn't work.

And then the people who are doing it sort of, I guess sort of in for nonprofits, are just overwhelmed by the amount of demand. So, yeah, those people in a really tough situation.

attorney is the strongest indicator of a good result. So that's like how likely people are to know about their appointments. It's actually extremely hard if you are someone who does not speak English and has limited money and limited access to the system, and frankly does not understand how the American immigration law system works, which is reasonable because virtually

no one understands how it works. It's really difficult to know, like when you have a much less to show up and to understand what kind of information that you need to collect and present to a judge that will be convincing to this person, who again is not an Article three judge that's been appointed by Congress, not the type of judges that you or I would have our cases heard by if we were arrested or if we just like file a lawsuit, and so access to a judge

is like the number one best indicator for whether your asylum claim is going to be successful or not, or any kind of claim in the immigration system, frankly, and we do not provide that to people who don't have the money to hire a lawyer.

aren't aware of much of that. So it's good to explain how fundamentally andjus it is so if people want to learn more about this, if people want to follow along, I know you both do some writing online. Where can they find you? And where can they find more of your writing about this?

my Twitter page. I'm on Twitter at ac coker so A c k O c h E R. And I also write pretty regularly on substack, and that's like a weird thing to say. I'm slightly embarrassed to mention that, except that I'm not because this academic article emerged actually out of stuff that I was initially exploring on substacks. So I really loved that format for writing because it's given me a chance to work out concepts and ideas

before they even go into like pure ifew print. So if people want to get ahead of the curve on what I'm thinking, go check that out too. Nice and don't forget to visit track t r A C dot s y r dot edu to get all kinds of data on immigration courts, alternatives to detention, detension statistics and so forth.