States trying to opt out of the immigration-status checking program Secure Communities may be in for a rude surprise: Immigration and Customs Enforcement says opting out is technically not possible.
The position is a reversal from what states—and members of Congress—originally understood when signing on to Secure Communities, a program that checks the immigration status of individuals fingerprinted at local law enforcement agencies. The Department of Homeland Security's Immigration and Customs Enforcement, or ICE, over the past few years asked states and local jurisdictions to sign a memorandum of agreement explaining the responsibilities of the jurisdiction and those of the agency, but those documents have turned out to be less agreements as such than informational missives. A spokesman for ICE, who declined to be quoted for this story, pointed to a website explanation that clearly says states cannot opt out. The site concedes the initial confusion: "Unfortunately, some of ICE's past public statements led to confusion about whether state and local jurisdictions can opt out of the program," it reads.
But because of this earlier "confusion" and the fact that ICE now says it isn't possible to opt out, a battle is brewing between some states and the agency.
"ICE is lying about this," says Chris Newman, legal director for the National Day Laborer Organizing Network. "If they persist, likely it will result in inevitable litigation" with the states. Newman's group has been compiling information on Secure Communities through a Freedom of Information Act lawsuit, including an internal DHS E-mail that sounds suspiciously as though the program would be voluntary only until states try to opt out: "The SC initiative will remain voluntary at both the State and Local level. ... Until such time as localities begin to push back on participation, we will continue with this current line of thinking."
Due to the frustration over an apparent bait and switch, the former chair of the House Immigration Subcommittee, California Democratic Rep. Zoe Lofgren, sent a letter to DHS calling for an investigation of the program and "any false and misleading statements that may have been made in connection with the deployment" of it. The agency's Office of Inspector General is set to start a review later this summer.
Meanwhile, California lawmakers are pressing for the state to become the fourth in two months to try to opt out, following Illinois, Massachusetts, and New York. Washington State, Pennsylvania, and Washington, D.C., all refused the program last year.
The states opting out and other critics say the program casts too wide a net, too often entangling people in deportation proceedings who were fingerprinted for traffic violations, like driving without a license, or other low-level crimes, therefore fracturing trust between local law enforcement officers and residents. Also, says Marshall Fitz, director of immigration policy at the left-leaning Center for American Progress, "it empowers local police to engage in profiling and pretextual arrests," or detaining a person suspected of being an illegal immigrant under the pretext of a minor crime, like trespassing or an illegal left turn, with the true purpose of running them through the system. "When that happens, it ends up not achieving the goal of the program, which is a neutrally applied enforcement initiative that helps identify the most serious criminals." [Check out a roundup of political cartoons on immigration.]
Secure Communities, which was rolled out in 2008 as a way to prioritize deportations, is an information-sharing program at the federal level: When state or local law enforcement agencies submit fingerprints to run through the FBI database, a standard procedure to check for outstanding warrants or a criminal record, the prints now also go through a Department of Homeland Security database to check immigration status. It is ICE agents, not local police, who then decide whether or not to take action. Since ICE does not have the funds or resources to engage in mass deportations of all of the estimated 11 million undocumented immigrants in the nation, the agency's goal is to prioritize removal of people who are a threat to public safety. According to ICE data, the program has resulted in 115,396 deportations, including those of 82,465 convicted criminals.