Since Secure Communities is, in effect, two federal agencies sharing data, ICE says the only way for states to prevent it is to not send fingerprints through the FBI, something they routinely do to accurately identify who they have in custody. [Read about Obama's four roadblocks to immigration reform.]
San Francisco's Sheriff Michael Hennessy may have found a loophole to give his department some say in the issue: When ICE requests that a law enforcement agency put a detainer on a person, or keep that person in jail for ICE to process, that is simply a request, not a mandate. Under a new policy Hennessy implemented starting June 1, says his chief of staff Eileen Hirst, the San Francisco sheriff's department is not honoring ICE detainer requests for certain people, including those who aren't being charged with a crime and those who were brought in after reporting a domestic violence incident, as long as they don't have a criminal history. Under the new policy, Hirst says, the department let four people under detainer requests go, and released 54 people to ICE under Secure Communities from June 1 to June 23. ICE spokeswoman Gillian Christensen confirms compliance with detainers are not required legally but warns, "Jurisdictions who ignore detainers bear the risk of possible dangers to public safety."
In light of the mounting negative public sentiment, ICE Director John Morton announced changes to the program earlier this month, including more guidance for how ICE agents, officers, and attorneys should use discretion on who to send through deportation proceedings and who to let go. The changes also included additional training for states, and the formation of an advisory board to help the agency figure out how to best use Secure Communities to focus on serious criminals rather than those who commit minor traffic violations.
This didn't ease concerns. "It amounted to just lipstick on Frankenstein," Newman says. He suggested that the reforms simply restate the existing law rather than addressing the real issues. Newman worked closely with California lawmakers on their bill, which would opt the state out of the program and allow local governments to opt back in, if they so choose. The act passed the state Assembly and is currently working its way through the state Senate and appears likely to pass, though it is unclear whether or not Gov. Jerry Brown will sign it. [Read four ways Obama can move forward on immigration.]
Not everyone is as troubled over the way the program is going. The Texas legislature under Gov. Rick Perry is currently in a special session in part to discuss expanding Secure Communities to close what they call "loopholes" in its implementation. And some, like the right-leaning Heritage Foundation's senior policy analyst Jena Baker McNeill, are concerned about the implications of choosing not to deport someone found to be in the country illegally, even if they haven't committed a serious crime. McNeill says critics of the program "want ICE to use it as a way to decide who not to deport, and I don't think that's the right mentality," she says, suggesting that the heart of the Secure Communities debate is the question of amnesty, or a path to citizenship: Are the immigrants in this country illegally "Americans in waiting," as Newman suggests, or intruders who must leave? And that is something Congress and the president must decide.