Blog & Updates
Secure Communities: Do we Know Anything For Certain?
March 02, 2011 - Posted by Lena Graber
The roll out of Department of Homeland Security’s massive immigration enforcement program, “Secure Communities,” has been an Orwellian rollercoaster since its inception in late 2008.
Is it mandatory or not mandatory?
Does DHS even have the authority to make it mandatory?
Will things be different in 2013?
What choice do communities have in this process?
Does Secure Communities catch “dangerous criminals” or just immigrants? Does the program even distinguish between those?
Ongoing litigation under the Freedom of Information Act (FOIA) has brought a vast number of internal DHS documents to light. Unfortunately, that light really doesn’t illuminate the answers to many of these questions. Much like the public statements that DHS has made about the program, the agency’s internal documents and communications contradict themselves.
Let’s start with the few facts of which we can be fairly certain. Secure Communities operates by sending fingerprints taken by local law enforcement agents for comparison with federal immigration databases, in addition to the standard check against FBI criminal databases. If there is a match with prints in the immigration databases, ICE may respond by investigating the person’s status or pursuing immigration enforcement proceedings against him or her.
Opting out of the Secure Communities Program
Can a town or county or state decide they do not want to participate in Secure Communities?
Here the stories diverge considerably.
Originally, DHS promised that the program was entirely voluntary. In fact, facing criticism over the program, ICE detailed exactly how a jurisdiction could opt-out or delay enrollment in Secure Communities in a document called “Setting the Record Straight.” Furthermore, Secretary Napolitano, and Assistant Attorney General Ronald Weich wrote in a September 8, 2010 letter to Congresswoman Zoe Lofgren that, “If a local law enforcement agency chooses not to be activated in the Secure Communities deployment plan, it will be the responsibility of that agency to notify its local ICE field office of suspected criminal aliens.”
But the following month, in October 2010, DHS reversed its position and claimed that no local jurisdiction was allowed to opt out of the program. “We don’t consider Secure Communities an opt in/opt out program,” Napolitano said. ICE Assistant Secretary John Morton stated that ICE would meet with localities, but agreements were between the state and the federal government.
DHS then stated in an internal memo that “opt-out” was being redefined to mean that a local jurisdiction could opt out of receiving the results from the database search, but not that the fingerprints would not be sent to ICE at all. (This position had been floated as early as November 2009, but was evidently not DHS’s final position until late 2010.) On November 5, 2010, ICE told officials from Arlington County, Virginia, that their only way out of Secure Communities was to not send any fingerprints to the FBI or check the criminal history or identity of anyone they arrest.
But even as DHS leadership was telling Arlington County that this was the only way out of Secure Communities, other states and counties were getting completely different messages. In a discussion of news articles about the new DHS position that Secure Communities is not optional, an unnamed ICE Regional Coordinator for Secure Communities wrote: “First, it isn’t precisely true – witness the fact that Chicago and Cook County IL have in fact opted out; and the fact that in New York State, we are required to ask each and every law enforcement organization in the state whether or not they wish to participate before we will be permitted to activate them. How does any of that square with the “no opt-out for locals”? Doesn’t.”
So is opting out technologically possible?
A mostly agreed-upon premise is that Secure Communities will be operational nation-wide by 2013. By that date, the federal government is merging its database searches under “Next Generation Identification.” By 2013, all federal criminal and immigration databases are supposed to be “interoperable,” which more or less means that any search of criminal databases will simultaneously search immigration databases. At that point, choosing not to send fingerprints to ICE may no longer be an option.
Currently, however, emails released by DHS under the FOIA show that it is technologically possible to prevent fingerprints taken at a local jail from going to ICE. The FBI division that conducts fingerprint matching can separate out the fingerprints originating from a single site (i.e. a single jail, even if other jails in the county participate in Secure Communities) and not send them to ICE databases. An email from August 23, 2010 stated, “Under our current infrastructure it is technically possible for a SC participating site (ORI) to be deactivated from the search of IDENT.”
However, jurisdictions asking to be taken out of the program have met significant resistance from ICE. While claiming that “no participating site has officially requested” to opt out, ICE was holding meetings with San Francisco, Arlington County, and others to try to pressure them to stop opposing the program.
DHS’s most recent position is that localities have no choice over participation in Secure Communities, because at the federal level DHS has agreed with the FBI to share the data. However, it is unclear whether DHS has authority to make that decision for any locality. Shouldn’t a city or county have control over who receives information on its residents? Why would that be up to DHS? ICE’s own legal research into the question admits that mandatory participation may be a matter for the courts to decide.
Why would a jurisdiction want to opt out?
Secure Communities is billed as a program to identify and deport dangerous “criminal aliens.” However, like many ICE programs, the results diverge dramatically from the stated intent. According to the data, Secure Communities has resulted in the deportation of more people with no criminal record than people who have committed serious or violent offenses.
Meanwhile, the consequence of Secure Communities is that any encounter with local public safety officers may trigger deportation proceedings. This merging of immigration and police work has a tremendous chilling effect: immigrants or even those with mixed status family members may decline to report crimes or refuse to be witnesses. Their hesitation is reinforced by experience—even victims of domestic violence have been arrested and placed in deportation proceedings as a result of seeking police protection. Jurisdictions where police have carefully cultivated the trust of immigrant communities understand that Secure Communities has the potential of undermining that trust. By contrast, in many communities that have activated Secure Communities, the program has raised racial profiling concerns, as local police may target immigrants and arrest them for minor violations as a pretext to bring them to jail and run their fingerprints through the database.
A California Assemblyman has the right idea. Tom Ammiano has introduced a bill in California that would not only require the program to be voluntary in the state, it would mandate additional safeguards against racial profiling, offer special protection to victims of domestic violence, and most importantly, share fingerprints with immigration officials after someone is actually convicted of a crime, not at the time of arrest.
Let’s recap, just so everything is clear, or at least the lack of clarity is clear.
DHS says Secure Communities is mandatory and there is no opt out.
But in some places they do let jurisdictions opt out.
DHS says they decide whether or not the program is mandatory.
But legally and constitutionally, it may not be DHS’s decision at all.
Opting out is technologically possible.
But by 2013, the government may have merged federal databases so that all fingerprint searches check immigration status.
Secure Communities is supposed to identify dangerous “criminal aliens.”
But so far it has largely captured traffic offenders and individuals without any criminal record.
Image by Flickr user Exercise Tradewinds 2009