DHS’s “Secure Communities”: No Rules of the Road
The Secure Communities program is a U.S. Immigration and Customs Enforcement (ICE) program that allows fingerprints of individuals arrested by state and local law enforcement to be sent to the U.S. Department of Homeland Security (DHS) in order to identify persons with an immigration history. Although the program purportedly targets “criminal aliens” who have been convicted of serious offenses, Secure Communities applies to immigrants regardless of guilt or innocence, how or why they were arrested, and whether their arrests were based on racial or ethnic profiling or were just a pretext for checking immigration status. ICE has stealthily rolled out Secure Communities, manipulating data and definitions, ignoring flaws fundamental to its structure, and flouting even its own rules in a race to implement the program nationwide.
DHS is imposing Secure Communities on localities nationwide despite earlier insistence that the program was voluntary.
From the program’s launch in March 2008 until October 2010, ICE characterized the Secure Communities program as being voluntary. During that period, localities believed that the program could not be imposed on them against their will. In an August 17, 2010, memo entitled “Setting the Record Straight,” ICE confirmed the voluntary nature of the program:
If a jurisdiction does not wish to activate on its scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing (email, letter or facsimile). Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction’s activation date in or removing the jurisdiction from the deployment plan.
DHS again confirmed the voluntary nature of the program in a letter from Homeland Security Secretary Janet Napolitano to U.S. Representative Zoe Lofgren (D-CA) on September 7, 2010, stating that a jurisdiction choosing not to participate must formally notify ICE and the state identification bureau. However, Napolitano directly contradicted herself in a press conference on October 6, 2010, in which she stated that DHS did not “view this as an opt-in, opt-out program.” A week before this announcement, the Washington Post had quoted an anonymous senior ICE official as stating that, in fact, the so-called opt-out is “not a realistic possibility — and never was.”
It is now clear that ICE intentionally misled the public as to the voluntary nature of the program. On February 17, 2011, the Center for Constitutional Rights, the Cardozo School of Law, and the National Day Laborer Organizing Network released excerpts from 15,000 pages of documents received through their Freedom of Information Act (FOIA) lawsuit against ICE. These documents show that ICE adopted an intentionally misleading definition of “voluntary” in order to expand implementation of the program before the expected “pushback” from localities.
ICE’s public documents had suggested that ICE was interested in honoring the interests of localities in its implementation of Secure Communities. In the August 17 memo, ICE stated that,
As part of the Secure Communities activation process, ICE conducts outreach to local jurisdictions, including providing information about the biometric information sharing capability, explaining the benefits of this capability, when they are scheduled for activation, and addressing any concerns they may have.
Given its reluctance to allow communities to opt out, ICE’s statements of outreach are clearly disingenuous. San Francisco and Santa Clara, CA; the District of Columbia; and Arlington, VA, all passed local resolutions seeking to opt out, and ICE entertained their interests in opting out for months before revealing that it had never intended to give them the option.
ICE also has been willing to operate the program in complete secrecy, without a locality even being aware it had been imposed on the community. A state’s agreement to participate in the program normally begins with a state investigation bureau’s (SIB’s) signing a memorandum of agreement (MOA) with DHS. However, as revealed by documents received from ICE through a FOIA request by the National Immigration Law Center, ICE agreed to implement Secure Communities in Pennsylvania without having the state sign an MOA. Moreover, ICE has even backed off from the necessity of a state signing an MOA, stating that the MOA with a state is “an unnecessary formality.”
While states may still be able either to opt out or modify their SIBs’ agreements with DHS, even that possibility is not assured for the future. According to ICE’s Secure Communities brochure, the enhanced technology and fingerprint checking is offered by the program through a partnership between DHS and the U.S. Department of Justice (DOJ).
While states and localities have deliberated over participation in the program, ICE has rolled out the program at breakneck speed. ICE announced the initiation of the Secure Communities program in March 2008, and implementation of the program began in October 2008. As of February 15, 2011, the program was operational in 1,049 jurisdictions in 39 states. ICE expects to expand the program to all jurisdictions throughout the country by 2013.
Secure Communities is an unfunded mandate that local communities enforce federal immigration law.
The Secure Communities program does not have a statutory mandate, which means that critical oversight of the program has not been required. Meanwhile, Secure Communities is burdensome and costly for police departments. ICE insists that law enforcement agencies (LEAs) “incur little to no cost” due to implementing the program, but police tell a different story. According to Sheriff’s Lieutenant Michael Barry in Martin County, FL,
Time is . . . a factor for our staff. Sending I.A.Q.’s [Immigration Alien Queries], waiting for responses, making phone calls to different immigration officials for clarification on detainees [sic] status, gathering additional information for immigration such as photos, booking sheets, fingerprints, and palm prints [for Secure Communities] takes away from the deputies [sic] regular duties within the [jail] facility.
Because of the logistics of processing arrestees through Secure Communities, police officers lose time that would otherwise be spent serving and protecting their communities. Local jails also bear the cost of housing arrestees who are held under immigration detainers rather than being released on bond. A detainer is a request from ICE that the arresting agency notify ICE before its release of a noncitizen so that ICE can assume custody. The detainer provides the jail with the authority to hold a noncitizen for 48 hours if the person is not already subject to detention. For the 48-hour duration of the detainer, the local jail bears the cost of housing the arrestee. Then, when the ICE officer goes to the jail to evaluate whether the arrestee should be taken into ICE custody, the local jail bears the burden and cost of accommodating the ICE officers. Finally, the local jail — not ICE — is legally liable if the arrestee is held over the 48-hour period authorized under the detainer, or, as has occurred in several locations, if the detainer is mistakenly placed on a citizen.
Secure Communities is an unfunded mandate that makes local law enforcement do the work of federal immigration enforcement and bear the costs.
The Secure Communities program targets everyone who has ever had any dealings with the immigration system — not a prioritized set of dangerous criminals.
From its inception, Secure Communities was touted as a program intended to target “the worst of the worst.” ICE’s Secure Communities brochure states that ICE prioritizes “the most dangerous and violent offenders.” In practice, however, Secure Communities does not do that. The use of preconviction fingerprint-scanning to identify persons who have a history of contact with the immigration system could never serve that purpose because a preconviction fingerprinting system is a broad dragnet that catches mostly noncriminals and low-level offenders. The dragnet also ensnares lawful permanent residents who may or may not be deportable and even citizens who are not deportable under any circumstances.
Despite various iterations of priorities and risk-based levels, ICE has failed in practice to prioritize the most dangerous, convicted, criminal immigrants for deportation. ICE claims that it operates the program according to a risk-based approach intended “to identify aliens charged with or convicted of a serious criminal offense and incarcerated in jails and prisons throughout the United States,” in accordance with a hierarchy of prioritized levels. However, ICE has created no mechanism to ensure that Level 1 offenders who have been convicted of crimes are prioritized for removal. On the contrary, ICE uses the mechanism of the detainer to ensure that all arrestees are channeled into the immigration enforcement system, regardless of their criminal history. After an immigration “hit,” ICE places a detainer on the arrestee without consideration of its priorities and regardless of whether he or she is a dangerous, high-priority criminal.
In November 2009, ICE announced that during the first year of the program it had identified 110,000 criminal aliens through Secure Communities. Shortly thereafter, ICE corrected its press release to say that it had identified more than 111,000 aliens “charged with or convicted of crimes.” Initially, ICE considered anyone “identified” by Secure Communities a “criminal alien.” Only after the numbers were challenged did ICE specify that these were actually not all “criminals.” In fact, by ICE’s own numbers, less than 10 percent of those identified were charged with or convicted of the prioritized Level 1 offenses, and 5 percent were U.S. citizens.
Data obtained through the FOIA lawsuit filed by the Center for Constitutional Rights, the Cardozo School of Law, and the National Day Laborer Organizing Network shows that 79 percent of individuals deported through Secure Communities between October 2008 and June 2010 were either noncriminals or were picked up for low-level offenses such as traffic violations. As of November 2010, this percentage remained relatively unchanged. Since the program’s inception, it has failed to target violent and dangerous criminals and has instead cast a net over noncriminals and low-level offenders.
ICE has also deliberately manipulated data. According to purportedly cumulative data collected by ICE between April and June 2010, the actual number of noncriminals deported in many Secure Communities jurisdictions inexplicably decreased. Here are some examples of decreases in the number of noncriminal Secure Communities deportees between April and July 2010:
Maricopa County, Arizona: decreased by 40 percent (1731 individuals)
San Diego, California: decreased by 57 percent (1374 individuals)
Travis, Texas: decreased by 47 percent (279 individuals)
Dallas, Texas: decreased by 32 percent (357 individuals)
Los Angeles, California: decreased by 21 percent (401 individuals)
This cumulative data was summed, month by month. ICE must answer how cumulative numbers can decrease. Perhaps the decrease represents a shift in the way ICE was categorizing “noncriminals” — arguably for the sake of making it appear that ICE was deporting more “criminals.” Regardless, ICE does not appear to be subject to basic laws of mathematics.
The Secure Communities program operates in a rule-free environment.
Implementation of Secure Communities has been marked by lack of transparency and accountability. ICE has imposed Secure Communities in 39 states without a congressional mandate and without promulgating regulations through a process that would allow public input. ICE has simply announced the progam’s “rules” on its website and then changed them repeatedly and without prior notice.
Nor is ICE governed by rules or requirements regarding its collection and release of Secure Communities–related data. Only through FOIA requests has the public gained any sense of who ICE is channeling into removal proceedings through Secure Communities. But even here ICE makes up the rules as it goes along. Syracuse University’s Transactional Records Access Clearinghouse (TRAC), which collects and catalogs anonymous statistical data about the arrests, detentions, charges, and removal activities of ICE, was notified by ICE in October 2010 that certain information historically submitted to TRAC was now “unavailable.” ICE touts its success in removing criminal aliens, so the requested information is certainly available. It appears, therefore, that ICE has exempted itself from disclosure laws that govern all federal agencies.
For all the problems associated with the program, Secure Communities offers a meager, hidden complaint procedure with no meaningful redress. Rather, ICE’s main Secure Communities webpage directs persons who locate its “Civil Rights and Civil Liberties” link to the DHS Office of Civil Rights and Civil Liberties (OCRCL) website for purposes of filing complaints. The program’s complaint procedure assumes that a person whose rights have been violated knows about Secure Communities, knows that his or her rights were violated as a direct result of the program, has computer and Internet access, locates the Secure Communities webpage within ICE’s website, reads English, and already knows that OCRCL is responsible for keeping Secure Communities accountable. And the complaint procedure assumes that such a person is willing to file a complaint even though the complaint will not necessarily be kept confidential within DHS, such that the complainant may be subject to retaliation.
Finally, serious questions remain as to how far-reaching the fingerprint-sharing between DHS and DOJ will be. Will the fingerprints of teachers applying for jobs be checked against DHS databases? Will the fingerprints of immigrant attorneys who wish to take the bar examination be stored in case they later have contact with the police? Will mobile fingerprint scanners be used to match fingerprints against DHS databases, so that taking a person into custody will not even be required? From launch to implementation and from implementation to rights violations, the Secure Communities program operates without rules.
 For background information on Secure Communities, see Overview of the Key ICE ACCESS Programs (National Immigration Law Center, Nov. 2009), www.nilc.org/immlawpolicy/LocalLaw/ice-access-2009-11-05.pdf; see also More Questions than Answers about the Secure Communities Program (NILC, Mar. 2009), www.nilc.org/immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf.
 Secure Communities: Setting the Record Straight (U.S. Immigration and Customs Enforcement, Aug. 17, 2010), available at www.nilc.org/immlawpolicy/LocalLaw/ice-scomm-setting-record-straight-2010-08-17.pdf, p. 6.
 Letter from Janet Napolitano, Sec’y, U.S. Dept. of Homeland Security, to Rep. Zoe Lofgren, U.S. House of Rep. (Sept. 8, 2010).
 See related press release, “Secretary Napolitano Announces Record-Breaking Immigration Enforcement Statistics Achieved Under the Obama Administration,” Oct. 5, 2010, www.ice.gov/pi/nr/1010/101006washingtondc2.htm.
 Shankar Vedantam, “Local Jurisdictions Find They Can’t Opt Out of Federal Immigration Enforcement Program,” Washington Post, Sept. 30, 2010, www.washingtonpost.com/wp-dyn/content/article/2010/09/30/AR2010093007225.html.
 Preliminary Briefing Guide: Newly Released Documents Chronicle Agency’s Deception about Opting-out of “Secure Communities” Program (Center for Constitutional Rights, National Day Laborer Organizing Network, Cardozo School of Law, Feb. 17, 2011), http://uncoverthetruth.org/wp-content/uploads/Uncover-the-Truth-FOIA-Briefing-Guide-2-17-111.pdf.
 See id., citing an email message from Randi Greenberg, Secure Communities Program Outreach and Communication Director, to various ICE officials, Aug. 26, 2009, Subject: SC Guidance Voluntary/Mandatory Question, ICE FOIA 10-2674.00018-0001832 (“The SC initiative will remain voluntary at both the State and Local level. Once activated, 30-days written notice will be required in order to suspend or terminate the information-sharing. Until such time as localities begin to push back on participation, we will continue with this current line of thinking.”) See also an email message from Dan Cadman, ICE, to Marc Rapp, Acting Director, Secure Communities, ICE Nov. 9-Nov. 12, 2010, Subject: Strategy for Difficult Interoperability Deployment Locales, ICE FOIA 10-2674.001811-1812. In response to an inquiry from an ICE official about what “voluntary participation” and “opting out” of Secure Communities mean, Marc Rapp, Acting Director of Secure Communities, says: “SC defines voluntary strictly as the ability to receive the immigration response. If the local jurisdiction elects not to receive the immigration response they will not be routed back. This does not invalidate the requirement for CJIS to deploy interoperability by 2013. Id. As you know certain jurisdictions have not been overly receptive to attending our outreach meetings and some states are even hesitant to sign the MOA. It is these locations that the strategy needs to address.” All documents obtained through the Freedom of Information Act lawsuit NDLON et al. v. ICE, 10-CV-3488, are available at http://ndlon.org/feb/.
 Secure Communities: Setting the Record Straight, supra note 2, p. 6.
 See Melissa Keaney, “Smoke and Mirrors: FOIA Reveals ICE Deception in Secure Communities Program,” Immigration Impact, Sept. 1, 2010, http://immigrationimpact.com/2010/09/01/smoke-and-mirrors-foia-reveals-ice-deception-in-secure-communities-program/.
 See Secure Communities Weekly Executive Report: Dec. 15-19, 2008 (Secure Communities, U.S. Immigration and Customs Enforcement), available at http://immigrationimpact.com/upload/docs/Secure%20Communities.pdf.
 Maria Sacchetti, “U.S. Pushes State to Join Security Plan,” Boston Globe, Oct. 6, 2010, www.boston.com/news/local/massachusetts/articles/2010/10/06/us_asks_mass_police_to_join_ice_plan/.
 Activated Jurisdictions (Secure Communities, U.S. Immigration and Customs Enforcement, Mar. 1, 2011), www.ice.gov/doclib/secure-communities/pdf/sc-activated.pdf.
 “Benefitting Law Enforcement throughout the United States” (undated 1-pg. flyer published by Secure Communities, U.S. Immigration and Customs Enforcement), www.ice.gov/doclib/secure-communities/pdf/lea-benefits.pdf.
 Memo from Lt. Michael Barry, Martin County, FL, Sheriff’s Office, to Major Steve Chase, Re: Immigration Procedures, Feb. 28, 2008, available at www.fiacfla.org/Quote%201%20-%20Martin%20County%20Memo.pdf, p. 2.
 8 CFR 287.7(a).
 8 CFR 287.7(d).
 Cacho et al. v. Gusman, No. 11 Civ. 225 (E.D. La. filed Feb. 2, 2011) (civil rights action for damages based on violation of the 48-hour time period); Quezeda v. Mink et al., No. 10 Civ. 879 (D. Colo. Dec. 12, 2010) (same); Florida Immigrant Coalition et al. v. Bradshaw, No. 9 Civ. 81280 (S.D. Fla. filed Sept. 3, 2009) (same); Ramos-Macario v. Jones et al., No. 10 Civ. 813 (M.D. Tenn. filed Sept. 28, 2010) (same); Rivas v. Martin et al., No. 10 Civ. 197 (N.D. Ind. filed June 16, 2010) (same).
 ICE Fiscal Year 2008 Annual Report (U.S. Immigration and Customs Enforcement, undated), www.ice.gov/doclib/news/library/reports/annual-report/2008annual-report.pdf, p. 5.
 “Secure Communities: A Modernized Approach to Identifying and Removing Criminal Aliens” (2-pg. brochure published by Secure Communities, U.S. Immigration and Customs Enforcement, Jan. 2010), www.ice.gov/doclib/secure-communities/pdf/sc-brochure.pdf.
 On June 30, 2010, ICE published the following updated hierarchy:
- Level 1 offenders: aliens convicted of “aggravated felonies,” as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as “felonies”;
- Level 2 offenders: aliens convicted of any felony or three or more crimes each punishable by less than one year, commonly referred to as “misdemeanors”; and
- Level 3 offenders: aliens convicted of crimes punishable by less than one year.
[Emphasis added, clarifying notes omitted.]
Memorandum for All ICE Employees from John Morton, Assistant Secretary for U.S. Immigration and Customs Enforcement, Subject: “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” June, 30, 2010, www.ice.gov/doclib/detention-reform/pdf/civil_enforcement_priorities.pdf.
 “Memorandum of Agreement between U.S. Department of Homeland Security Immigration and Customs Enforcement and [State Identification Bureau]” (prototype memo, undated), www.ice.gov/doclib/foia/secure_communities/securecommunitiesmoatemplate.pdf.
 “Secretary Napolitano and ICE Assistant Secretary Morton Announce That the Secure Communities Initiative Identified More Than 111,000 Aliens Charged with or Convicted of Crimes in Its First Year,” U.S. Immigration and Customs Enforcement press release, Nov. 12, 2009, www.ice.gov/news/releases/0911/091112washington.htm. When it was first issued, however, this press release’s headline was “Secretary Napolitano and ICE Assistant Secretary Morton Announce That the Secure Communities Initiative Identified More Than 110,000 Criminal Aliens in Its First Year.”
 Briefing Guide to Secure Communities, ICE's Controversial Immigration Program: New Statistics and Information Reveal Disturbing Trends and Leave Crucial Questions Unanswered (Center for Constitutional Rights, National Day Laborer Organizing Network, Cardozo School of Law, Aug. 2, 2010), http://ccrjustice.org/files/Secure%20Communities%20Fact%20Sheet%20Briefing%20guide%20%208-2-2010%20Production.pdf.pdf.
 Secure Communities: IDENT/IAFIS Interoperability Monthly Statistics through November 30, 2010 (U.S. Immigration and Customs Enforcement, Dec. 13, 2010), www.ice.gov/doclib/foia/secure_communities/nationwide_interoperability_conviction-nov10.pdf. Low-level offenders include ICE Levels 2 and 3. As of Nov. 2010, 77 percent of those deported were noncriminals and low-level offenders.
 Immigration and Customs Enforcement (ICE) Agency’s Spin Cannot Obscure the Truth about the “Secure Communities” Program: Rights Groups’ Advocacy Leads to Critical ICE Admissions and Breakthroughs Related to the Flawed Program (Center for Constitutional Rights, National Day Laborer Organizing Network, Cardozo School of Law, Sept. 1, 2010), www.ccrjustice.org/files/CCR%20NDLON%20Cardozo%20Response%20to%20ICE%20Spin%209-1-10%20FINAL.pdf.
 “ICE Declares That Key Data It Holds Are ‘Unavailable’: Unlawful Denial of Records Blocks Public Understanding of Immigration Enforcement,” Transactional Records Access Clearinghouse news release, Oct. 4, 2010, http://trac.syr.edu/foia/ice/20101004/.
 See www.ice.gov/secure_communities/, bottom of the webpage.
 See www.dhs.gov/xabout/structure/crcl.shtm.