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.
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.
- Check out a roundup of political cartoons on immigration.
- Read four ways Obama can move forward on immigration.
- Read about Obama's four roadblocks to immigration reform.