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Weigh in to Improve the Proposed Rule to Reduce Family Separation

May 24, 2012 - Posted by Maurice Belanger

On April 2, U.S. Citizenship and Immigration Services (USCIS) published a Proposed Rule that would make an important change in processing waivers for certain immigrants seeking to legalize their status.

The proposed rule will alleviate problems caused by current processing. The rule could go further, however, to reduce family separation. You can weigh in to help improve the rule. Public comments are being accepted until June 1.


Under current law, undocumented immigrants who have been in the U.S. without status for six months or more are barred from re-entering the U.S. for three years once they leave. If they have been here without status for a year or more, the bar to re-entry goes up to ten years.

Typically, a person needing this waiver is eligible for an immigrant visa. However, if the person is not eligible to adjust his or her status within the U.S., the immigrant visa must be picked up at a U.S. consulate in the individual’s home country. Once the individual leaves the U.S. to pick up the visa, the three- or ten-year bar is triggered. It is a Catch-22 that immigrants must deal with all the time: they can gain Lawful Permanent Resident status with the immigrant visa they are eligible for, but to acquire that visa, they must leave the U.S. and thus are barred for years from coming back.

A waiver is available if an individual can show that a citizen or Lawful Permanent Resident spouse or parent would suffer “extreme hardship” if the individual was forced to remain outside of the U.S.

With the current process, however, the individual cannot apply for that waiver until he or she leaves the country to pick up his or her visa. The wait for a decision on the waiver can stretch to months, during which time the family is separated.

The April 2 USCIS proposal would change the order of the process. Under this change, the individual will apply for the waiver before leaving the U.S. With waiver approved, the individual will then leave the U.S. to pick up his or her visa at a U.S. consulate abroad. The purpose of the waiver, after all, is to prevent lengthy family separation; currently, families are separated for an extended period while a decision is made on whether or not the family should be separated for an extended period.


You can make the rule better. Here’s how you can make your voice heard.

  • Go to this page of the Federal Register page where you can find the proposed rule (titled, “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”):!documentDetail;D=USCIS-2012-0003-0001.

  • Click on the button that says “Comment Now!”

  • Fill out the information on the form, and type in your comment. When you are done, hit submit.

Here are some points you can make, which the Forum and other experts on these issues have identified as key weaknesses in the Proposed Rule:

  • The spouses and children of Lawful Permanent Residents qualify for hardship waivers if they can prove “extreme hardship” to a Lawful Permanent Resident spouse or parent. Yet, the proposed waiver process will be available only to immediate relatives of U.S. citizens. Individuals who can show extreme hardship to Lawful Permanent Resident spouses or parents, and relatives in family preference categories including unmarried adult children of U.S. Citizens, should also be eligible for the provisional waiver process.

  • Eligibility for the new provisional waiver process should be expanded to cover individuals in removal proceedings, those individuals in cases where a Notice to Appear has been issued but not yet filed with the court, those with a scheduled visa interview, and those whose cases have been administratively closed. Expanding eligibility to individuals in these cases will reinforce agency goals to focus removal resources on high-priority cases.

  • Eligibility for the new provisional waiver process should include individuals who, through an exercise of prosecutorial discretion, have had their cases administratively closed. By excluding these individuals, USCIS would require individuals granted administrative closure under the prosecutorial discretion initiative to return to court to have their case re-opened and to accept voluntary departure. Given the Administration’s commitment to the robust use of prosecutorial discretion, it would be illogical—and a waste of government resources—to force these individuals to re-open their cases in order to apply for the waiver.

  • The extreme hardship standard has been applied inconsistently over the years. USCIS should establish clear guidelines for making extreme hardship decisions that include the devastating effect of family separation as well as financial hardship.

  • In the proposed rule, there is no opportunity for an individual who has been denied a waiver to re-file or appeal. Individuals who have received an initial denial should have an opportunity to re-file at least once. The final rule should also contain an administrative appeal process.

If you would like to see more detail and/or rationale for these concerns, you can view the Forum’s full submitted comments here:

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Immigration Policy Update for May 21, 2012

May 21, 2012 - Posted by Maurice Belanger

House Votes to Weaken Violence Against Women Act

On May 16, the House passed its version of the Violence Against Women Act reauthorization bill. Although some last-minute changes were made in a manager's amendment, the bill would still weaken protections for immigrant victims of domestic violence.

The bill, H.R. 4970, is opposed by domestic violence groups, immigrant rights groups, and law enforcement. It was perhaps the opposition of faith-based groups that moved 23 Republicans to join 182 Democrats in voting against the bill. On May 14, a letter signed by leaders of 30 faith-based groups, including the U.S. Conference of Catholic Bishops, the American Jewish Committee, and the National Latino Evangelical Coalition, urged Congressional leaders to strike provisions from the bill that would "roll back protections in current law for battered non-citizens, making them more vulnerable and, in some cases, endangering their lives." On the eve of Wednesday's vote, an opinion piece on by Leith Anderson, President of the National Association of Evangelicals and Lynne Hybels, co-founder of Willow Creek Community Church in Illinois, pleaded with Speaker Boehner and House leadership to "to make sure that the Violence Against Women Act continues to protect vulnerable immigrant women who are victims of human trafficking or domestic violence."

The final vote was 222 to 205 in favor of the bill.

The next step is for the narrowly-passed House bill to be conferenced with the bi-partisan Senate bill. A technicality has surfaced in the Senate bill over a revenue-generating provision that will have to be resolved before the two bills can be conferenced. The White House has issued a Statement of Administration Policy opposing the House bill.

The Forum's statement reacting to passage of the House version of the Violence Against Women Act can be read here.

Appropriations Update

This week, there was action in both the House and the Senate on appropriations bills to fund the Department of Homeland Security for Fiscal Year 2013.

Action in the House
The DHS Appropriations bill has been approved by the full Appropriations Committee. It is ready for consideration on the House floor. Here are some of the immigration highlights, according to the Committee report that accompanied the bill.

  • Customs and Border Protection is allocated a total of $11.68 billion, $77 million more than the President requested. "This funding sustains the highest level of Border Patrol agents and CBP officers in history." The number of Border Patrol agents total 21,370, of which 18,415 are stationed on the Southern border.

  • A program by Customs and Border Protection to increase awareness of human trafficking will receive $20 million.

  • Immigration and Customs Enforcement (ICE) is allocated more than $5.78 billion, more than $141 million above the President's request, "and sustains 34,000 detention beds—the greatest detention capacity in ICE’s history."

  • ICE Detention and Removal operations will get $71 million more than the President requested, for a total of $2.75 billion. The House intends to fund the controversial 287(g) program at the same level as last year, $68.3 million, ignoring the President's request to cut $17 million from the program. As mentioned above, funding is provided for 34,000 detention beds each day, and the Committee directs the agency "to intensify its enforcement efforts and fully utilize these resources."

  • Alternatives to Detention is proposed to be funded at $91.5 million, nearly $20 million more than the Fiscal 2012 allocation, but $20 million less than requested in the President's budget.

  • Secure Communities gets $138.2 million, and the Committee says it expects full implementation by March of 2013. The report also contained language directing ICE to report to Congress on "the number of jurisdictions failing to honor ICE detainers, the number of individuals released as a result, and the number of those individuals remaining at large."

  • The Department of Homeland Security Office for Civil Rights and Civil Liberties is allocated $19.5 million, $2.2 million below the level asked for by the President and $3 million below the level of Fiscal 2012.

  • U.S. Citizenship and Immigration Services will get $111.9 million, all of it for the E-Verify program. All other costs of the agency are to be covered by user and application fees. The House will not fund the Administration's immigrant integration initiative, including grants to naturalization service providers, but allows USCIS to use application fees to provide these grants if it wants. There is report language "encouraging" USCIS "to be cognizant of the affordability of the naturalization application fee."

Action in the Senate
In the Senate, a markup scheduled for May 17 in the full Appropriations Committee was postponed. A summary of the bill released in the Homeland Security Subcommittee is now available. Immigration-related highlights:

  • Customs and Border Protection will get $11.97 billion, including funding for the same record deployment of 21,370 Border Patrol agents as included in the House bill.

  • Immigration and Customs Enforcement will get $5.64 billion, including $2.7 billion for detention and removal operations. There is funding to continue operating 33,400 detention beds per day (less than what the House wants to spend, but more than the President's request). The Senate would increase Alternatives to Detention by $25 million more than the Fiscal 2012 level.

  • U.S. Citizenship and Immigration Services will get $117 million, including $112 for E-Verify. The Senate has provided $5 million for immigrant integration grants. (It also allows for another $5 million of fee funds to be spent for integration grants.) This marks a turn in the Senate's outlook. In the recent past, the Senate insisted that funding for the Administration's immigrant integration initiative come out of application fees.

More detail on the Senate bill will be available after the full Appropriations Committee considers it on May 22.

Both the House and the Senate will probably vote on their respective appropriations bills shortly after returning from their upcoming Memorial Day recess. However, it is very possible that a conference between the House and Senate to work out differences between their two bills will not happen until after the November election.

House Holds Hearing on DHS Ethical Standards

On May 17, the House Homeland Security Subcommittee on Oversight, Investigations, and Management held a hearing examining ethical standards in the Department of Homeland Security (DHS).

In his opening statement, the senior Democrat on the Committee, William Keating, highlighted the magnitude of the problem. He noted that since October 2004, 137 U.S. Customs and Border Protection (CBP) employees have been indicted or convicted of corruption-related charges. That problem has been magnified with the rapid growth in the size of the Border Patrol. This year so far there have been 101 allegations of corruption involving Immigration and Customs Enforcement employees and 362 involving CBP employees.

Responding to a question about why his office has recently transferred hundreds of cases involving ICE and CBP employee corruption to the ICE Office of Professional Responsibility, Acting DHS Inspector General Charles Edwards responded that he currently has 2,360 open cases with 219 agents working on them and, with a 38 percent increase in allegations of corruption in the Border Patrol in recent years, he "cannot keep piling up" the cases. The Inspector General's office keeps cases that pertain to civil rights and civil liberties violations; the cases it is transferring relate to corruption, program fraud, and miscellaneous other misconduct.

Yvette Clark (D-NY), a member of the Subcommittee, noted that from Fiscal Year 2010 to present, the ICE Office of Professional Responsibility received nearly 27,000 complaints of misconduct. Mr. Edwards noted that in this fiscal year alone the Inspector General's Office has received more than 10,000 complaints so far. (However, many initial complaints prove not to merit further investigation.)

Most of the incidents of corruption discussed in the hearing related to the efforts of organized crime to find agents who would either assist in carrying contraband across checkpoints or airport security, or would allow contraband to go unscreened. The hearing certainly gave a sense of a problem that has been greatly magnified in recent years with the hiring of so many new Border Patrol, Customs, and Transportation Security agents while at the same time, the offices charged with investigating misconduct have not been given the resources to keep pace.

Testimony from the hearing can be found here.

Alabama Governor Signs Even Tougher Immigration Bill

The Alabama legislative session this spring included an attempt to "tweak" the state's anti-immigrant HB 56. What passed on May 16 at the very end of the regular legislative session was a bill that was very close to one drafted by one of the original supporters of HB 56, State Senator Scott Beason. Beason's bill preserves most of HB 56, including provisions that have been enjoined by the courts, and it adds a new provision:  it requires the Alabama Department of Homeland Security to post on its website the names and counties of all undocumented persons who appear in court for any violation of state law.

Governor Robert Bentley opposed the new provision, but signed the bill on Friday, May 18, after it became clear lawmakers would not remove the provision in special session. In a statement, the Governor said that he signed the bill, "in an effort to remove the distraction of immigration from the other business of the special session."

Over Objections ICE Launches Secure Communities in New York, Massachusetts

On May 15, Immigration and Customs Enforcement (ICE) implemented Secure Communities state-wide in New York and Massachusetts, as well as Arkansas and Wyoming. Both Governor Cuomo of New York and Governor Patrick in Massachusetts have previously objected to the program. Last August, ICE clarified that implementation of the program did not depend on the voluntary cooperation of states and local jurisdictions, but that it was a mandatory federal program. Secure Communities has now been implemented at least in part in nearly every state. There are still battles being fought over how much local jurisdictions will honor ICE detainers that may be issued as the result of a fingerprint check being run through the Secure Communities program.

Justice Department Issues PREA Regs; DHS Not Covered

On May 17, the Justice Department announced a final rule implementing the 2003 Prison Rape Elimination Act (PREA). The Justice Department rule, nine years in the making,  covers facilities operated by the Bureau of Prisons. Other penal facilities, including jails, lock-ups, and juvenile facilities, are also impacted by the DOJ rule. Immigration detention facilites operated by the Department of Homeland Security, and Department of Health and Human Services facilities for unaccompanied immigrant children, are not covered. On the same day as the Justice Department's announcement, a White House memorandum directed other agencies operating detention facilities to draft their own regulations, working with the Justice Department. These "rules or procedures" will be open for public comment and must be proposed within 120 days and finalized in 240 days.

The Forum's statement on the Administration's announcement can be read here.

Senator Rubio Introduces Bill To Deny Tax Credit to Low-Income Immigrant Families

In last week's Policy Update, there was a report on a provision in the House budget resolution that would eliminate the child tax credit for low-income immigrants as part of an offset to pay for restoration of funding for defense that will suffer automatic cuts beginning calendar year 2013.

In the Senate, Sen. Marco Rubio (R-Fla.) has introduced a separate bill, S. 3083, specifically focused on this issue. His bill would prevent low-income undocumented immigrants from claiming the child tax credit for their U.S.-citizen or legal resident children. The child tax credit is available to certain low-income tax filers to help defray the cost of raising children.

For more information on Sen. Rubio's proposal, along with an explanation of the purpose of the child tax credit, see this post from the Center for American Progress.

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Immigration Policy Update for May 14, 2012

May 14, 2012 - Posted by Maurice Belanger

VAWA Passes House Judiciary Committee

On May 8, the House Judiciary Committee approved reauthorization legislation for the Violence Against Women Act that would significantly reduce protections for immigrant women victims of domestic violence. Among the most egregious provisions in the House bill, H.R. 4970, is the lifting of confidentiality protections in the adjudication process. Immigration Officers would be able to obtain testimony from the abuser, tipping the abuser off about the victim's intention to leave the relationship. The bill would block the ability of U visa recipients from applying for permanent residence. U visas are non-immigrant visas available to, among others, victims of domestic violence and human trafficking who are cooperating with law enforcement to prosecute a crime. Taking away the possibility of adjusting to permanent residence will significantly change the risks associated with cooperating with the police; at the end of the U visa term, the victim might be removed from the U.S.

Over time, USCIS has decided these cases can most efficiently be adjudicated by establishing a special unit in the Vermont Service Center. The House bill would have these cases adjudicated in local USCIS offices. For a list of other provisions included in the House bill, see this summary from the Forum, and you can read a narrative explanation of the provisions in the House bill that are troublesome in this blog post from the White House.

The vote in the Judiciary Committee, largely along party lines after a contentious eight hours of debate, was 17 to 15, with Rep. Ted Poe (R-TX) joining 14 Democrats in voting against the bill.

The House bill is opposed by groups that assist domestic violence victims and on May 7, a letter in opposition to the bill signed by 29 faith leaders was sent to Judiciary Committee Chairman Lamar Smith (R-TX) and Ranking Member John Conyers (D-MI).

ACTION: The bill goes to the House Floor most likely on Wednesday, May 16, unless House leaders decide it would not be wise to take up a bill that would roll back protections for domestic violence victims. You can help them decide by making calls to House leaders. CLICK HERE to take action.

House Begins Work on DHS Appropriations 

On May 9, the House Appropriations Subcommittee on Homeland Security met to approve the Fiscal Year 2013 Appropriations for the Department of Homeland Security. These days, not much of substance happens in a subcommittee markup. Members meet to consider a bill that was just introduced (in this case on May 8), and there is no opportunity to actually "mark up," or amend, the bill. That activity happens when the full committee considers the bill, on May 16.

The bill introduced by the Republican Chair of the Subcommittee, Robert Alderholt of Alabama, reinforces the idea that, when it comes to immigration enforcement, there are still many in Congress who will happily throw out their professed concerns about government spending.

The bill keeps Border Patrol staffing at record levels, at 21,370 agents. Context? Illegal crossings of the U.S. Mexico border are at their lowest level in decades and the Border Patrol is struggling to properly train the agents it already has. The Subcommittee also found money to fund immigration detention at record levels--34,000 detention beds, more than the Administration's request. This bill allocates a quarter of the Department's funding to Customs and Border Protection. Immigration and Customs Enforcement will get $142 million more than the President requested, for a total of $5.5 billion.

To pay for the over-resourcing of immigration enforcement, the bill cuts, among other things, funding for the Transportation Security Administration, which takes a $422 million hit. Ironically, this bill was released on a day when the news was dominated by the uncovering of a new effort to get plastic explosives on to airliners. Talk about bad timing.

While the Committee was extremely generous in allocating money for immigration enforcement, it rejected the President's request for $11 million for USCIS' Immigrant Integration Initiative, which includes a grant program for naturalization service providers. The House bill permits USCIS to spend $9.2 million collected from fees paid by applicants for immigration benefits. This presents USCIS with the dilemma of ending the program or possibly raising fees to pay for it.

The Senate Appropriations Subcommittee on Homeland Security will consider its DHS appropriations bill on May 15.

ACTION: You can weigh in and ask that Congress spend more than zero for immigrant integration. To send a letter to select Congressional leaders, go to

DOJ Sues Sheriff Joe Arpaio

On May 10, the Department of Justice filed suit against Sheriff Joe Arpaio and the Maricopa County, Arizona, Sheriff's Office. The suit follows an investigation begun in 2008, which the Justice Department tried to resolve without going to court. The investigation found that the Sheriff's office engaged in a pattern or practice of discrimination against Latinos and a pattern or practice of unlawful retaliatory behavior against perceived critics of the Sheriff's office. The Justice Department negotiated a settlement that included an independent monitor to see that the Sheriff's office complied with the settlement. Arpaio refused to accept a monitor, and so the Justice Department had no other choice but to go to court in its effort to get the Sheriff's Office to comply with the law and the constitution. More details about the basis for the law suit can be found in this statement from Thomas Perez, the Assistant Attorney General for the Civil Rights Division of DOJ.

As Sheriff Arpaio got wind of the Justice Department's impending lawsuit, his office released a document, "Integrity, Accountability, Community" that, according to the introduction, "represents a framework wherein [MCSO] will continue to improve operationally, promote safer communities, and provide a real sense of 'community' through actions and attitudes that respect our differences and diversities." For his part, Assistant AG Perez, reacting to this document, said he would "rather fix the problem than debate the existence of a problem."

The government's complaint against the Maricopa County Sheriff's Office is on the Justice Department's Web site. You can find it here.

House Passes Appropriations Bill for Departments of Justice and Commerce

On May 10, the House passed an appropriations bill to fund the Departments of Commerce and Justice, Science and Related Agencies. In this bill, the House allocated $313.4 million for the Executive Office for Immigration Review (the office that runs the immigration courts and the Board of Immigration Appeals), an increase from Fiscal Year 2012 and meeting the President's budget request. The Legal Orientation Program, providing legal information for detained immigrants, will also receive more money next year. The Committee will allocate a total of $7.96 million for the program, meeting the President's request.

On the floor of the House, an amendment by Representative Diane Black (R-TN) that would prohibit the Department of Justice from overturning, enjoining, or invalidating state immigration laws was approved by a vote of 238 to 173. (More information in this statement from the American Civil Liberties Union.)

An amendment by Representative Joe Walsh (D-IL), adopted by voice vote, would prohibit the Justice Department from providing funds from the State Criminal Alien Assistance Program for localities deemed "sanctuary cities."

Other amendments eliminated funding for the Census Bureau's American Community Survey and Economic Census.  The American Community Survey gathers detailed information about the American population that the decennial census no longer collects, including demographic and economic information that is relied on by a wide variety of researchers and businesses. For more information on the potential impact the House actions will have on the Census Bureau, see this blog post from the Director, Robert Groves, who notes, "Modern societies need current, detailed social and economic statistics; the US is losing them."

House-Passed Budget Would Eliminate Child Tax Credit

On May 10, the House passed a budget resolution that will attempt to reverse cuts in defense spending that are due to come into effect next year as the result of the failure of last year's "super committee" to produce a package of revenue increases and budget cuts that could eventually pass Congress. As part of the deal negotiated during debt ceiling talks last year, automatic budget cuts to discretionary programs, 50% from domestic agencies and 50% from defense and national security, are scheduled to take effect as a result of Congressional failure to come to agreement on deficit reduction. The House bill would change the negotiated agreement by preserving defense spending and paying for that almost entirely by cutting programs that benefit low-income people. One program that was cut was the Child Tax Credit, available to low-income tax filers. The House bill would eliminate the benefit for tax filer using Individual Taxpayer Identification Numbers (ITINs) instead of Social Security Numbers. For more on the history of this issue this year, see this Policy Update from April 19.

The bill will not go further than the House, as the Senate will not take it up, and the White House has threatened a veto. Senate Democrats have not produced their own budget bill.

ICE Reacts to Secure Communities Task Force Recommendations

On April 27, Immigration and Customs Enforcement (ICE) issued a "policy paper" responding to the recommendations of its Secure Communities Task Force. ICE included in its response every change that it has already made over the past year, no matter how tenuous its relation to the Secure Communities program. For an examination of the ICE release, read this article by the Forum's Brittney Nystrom.

Somalia Re-Designated for TPS

On May 1, USCIS announced that Temporary Protected Status (TPS) for Somalis currently protected by TPS will be extended to March 17, 2014. At the same time, Somalis who are in the U.S. and are not protected by TPS may apply. Information about requirements and application periods can be found on the USCIS Web site.

DHS Releases Memo on NSEERS, Fails to Address Concerns of Those Affected

Last month, the Department of Homeland Security issued a memo clarifying that persons who did not register under the National Security Entry and Exit Registration System (NSEERS) when they were supposed to should not suffer immigration consequences. The memo did not, however, offer relief to persons who have already suffered immigration consequences from the NSEERS program. NSEERS was a program launched in the wake of the 9/11 terrorist attacks that required individuals primarily from Arab and Muslim countries to periodically register with the government. Those registration requirements were terminated in April 2011. For more information on this subject, see this article from Denyse Sabagh of the American Immigration Lawyers Association.

Petition to Obtain Justice in Border Patrol Case

On April 20, PBS aired a program in its Need to Know series investigating excessive use of force by the Border Patrol. Included in the report is an eyewitness video of a beating by Border Patrol agents of a man who died of his injuries. That case (like others) has not been prosecuted, and there is a petition circulating (which you can sign here) to obtain justice in this case. As the promo for the program notes, the investigation raises questions as to whether "in the rush to secure the border, agents are being adequately trained." On May 10, a letter to sent to DHS Secretary Napolitano from 15 members of the House, as well as Senator Robert Menendez, calling on her to take steps to make agents more accountable, and asking for information on the agency's policy on the use of force. These Members of Congress also sent letters to the DHS Inspector General and the Attorney General, asking them to look into these issues.

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House Takes up VAWA Bill that would Roll Back Protections for Immigrant Women

May 04, 2012 - Posted by Maurice Belanger

These days, even the most sympathetic causes can become bogged down in partisan squabbling in Congress. When the Violence Against Women Act (VAWA) first passed in 1994, it had 226 sponsors in the House and 68 in the Senate. A house bill introduced on April 27 to make changes to VAWA has already generated plenty of controversy.

This year, Congress has on its agenda the reauthorization of VAWA. The Senate passed a bill on April 26 that would, among other things, make some minor changes to strengthen protections for immigrant women. (Highlights are mentioned in this policy update from the Forum.)

In contrast, the House has taken up a measure that attacks some of the protections provided by existing law. If the House version passes and ultimately prevails, it will be more difficult for an immigrant victim of domestic violence to gain protection from her abuser.

Among other things, the House bill requires that the abuser be notified when the woman attempts to “self-petition” to attain immigration status without her abusive spouse; creates a higher hurdle for a victim of abuse to clear when she petitions for lawful status without her abuser; would make it more difficult to obtain a U visa, available to victims of crime who cooperate with law enforcement; and it would deny U visa recipients the ability to adjust to permanent status.

There is still time to change the House bill, but you must act quickly! Click here to find out how you can take action.

Interior Enforcement

ICE Offers Inadequate Response to Secure Communities Task Force

May 04, 2012 - Posted by Brittney Nystrom

When the Secure Communities program was launched by the Obama Administration in 2008, it was paraded as a way to identify and deport violent immigrants with criminal convictions. Fast-forward almost four years, and the program is the subject of sharp criticism by immigrant, civil rights and law enforcement groups alike because the program has strayed from that mission. Instead, it has mutated into a dragnet for immigrants – regardless of whether they actually pose a risk to public safety. According to the government’s own data, in Fiscal Year 2011, 29% of individuals deported through Secure Communities were individuals convicted of minor crimes resulting in sentences of less than one year and 26% percent had no criminal convictions. Thus, 55% of individuals deported through Secure Communities has either no criminal convictions or minor ones.

In an attempt to appease critics of the Secure Communities program, on April 27 the Department of Homeland Security (DHS) issued a “policy paper” in response to recommendations made by the Secure Communities Task Force last year. (The Forum participated in the Task Force, resigning when it became evident that deep problems with the program would not be resolved through the task force’s efforts.)

The “changes” ICE announced make clear that ICE is not willing to implement any real reforms to this flawed program. ICE included in its response every change that it has already made over the past year, no matter how tenuous its relation to the Secure Communities program. These include: issuance of prosecutorial discretion memos last June and November by Immigrations and Customs Enforcement (ICE), creation of a new immigration detainer form and hotline for those subject to immigration detainers, outreach meetings with stakeholders, termination of Memoranda of Agreement with states (characterized as clarified communication by ICE), the posting of more information about Secure Communities on the ICE website, the creation of a Public Advocate position within ICE, training of management and ICE attorneys on prosecutorial discretion, review of backlogged cases for consideration of prosecutorial discretion, video briefings made by the DHS Office for Civil Rights and Civil Liberties for law enforcement agencies, and hiring of one statistician to review Secure Communities data for indications that a jurisdiction was misusing the program.

One chronic complaint of the Secure Communities program is that it has deviated from its original purpose of identifying and removing dangerous individuals convicted of serious crimes. Regrettably, ICE will continue to pursue low-level offenders through the Secure Communities program, including immigrants convicted of minor traffic offenses, such as driving with a broken taillight or making an illegal U-turn. One revision found in last week’s response to the task force states that for individuals arrested solely for minor traffic offenses, who have not previously been convicted of other crimes and do not fall within any of ICE's enforcement priorities, ICE will only consider commencing enforcement action upon conviction for the minor traffic offense.

While it’s noteworthy that ICE has finally acknowledged that Secure Communities requires reforms, and we are glad they are making some alterations that may dampen discriminatory behavior, disturbing problems with the program remain unresolved. Individuals charged with civil immigration violations are still targeted by a program with the stated goal of identifying individuals who are a threat to public safety; insufficient safeguards allow arrests based on discriminatory policing to drive the program; and communities are not given a choice regarding their participation.

In its current form, the Secure Communities program endangers the public by throwing too big a net that catches the wrong, people while stifling community trust and cooperation with law enforcement because it makes immigrants more reluctant to report crimes as either witnesses or victims. ICE’s proposed minor tweaks to the program are not enough. The Secure Communities program must be halted until key remedies are implemented that fundamentally fix this flawed program.

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