DHS Proposes Fantasy Remedies to Cure Fundamental Flaws in the Secure Communities Program

JULY 2011

The Secure Communities program[1] is an unprecedented entanglement of state criminal justice systems with federal immigration enforcement.[2] In an attempt to downplay the legal complications that arise from this entanglement, U.S. Immigration and Customs Enforcement (ICE) has deliberately chosen to frame the program as merely an interoperability system between the FBI (to which fingerprints are sent upon the arrest and booking of an individual by a state or local law enforcement agency) and the U.S. Department of Homeland Security (DHS), and as entirely separate from the state criminal justice systems on which it depends.[3] Viewing Secure Communities simply as interoperability between federal agencies, however, ignores a fundamental flaw in the program: it merges the state criminal justice systems and the federal immigration enforcement systems; but no agency, including ICE, has authority to oversee the merger.

ICE has implemented Secure Communities in 1,422 jurisdictions in 43 states and one U.S. territory,[4] and the target date for it to be operational in all jails and prisons in the country is 2013.[5] The program is rolling out with remarkable speed, and the 2013 target date is no accident. Secure Communities is also part of a much larger FBI enterprise called the Next Generation Identification Program (NGI).[6] Secure Communities’ role in NGI is not even mentioned on the ICE website.[7] But according to documents obtained in recent litigation under the Freedom of Information Act (FOIA), Secure Communities is just “the first of a number of biometric interoperability systems being brought online by the FBI/CJIS’ [i.e., the FBI’s Criminal Justice Information Services Division’s] ‘Next Generation Identification’ (NGI) initiative,”[8] which will expand the fingerprint database currently used by the FBI to include real-time iris scans, palm prints, and facial recognition data.[9] ICE’s disregard for the legal, community, civil rights, and civil liberties–related consequences of Secure Communities bodes ill for the government’s consideration of the implications and effects of NGI.

Secure Communities has been fraught with a lack of transparency since its inception, with ICE providing wildly conflicting information about whether states or localities could decline to participate in or opt out of the program.[10] The program has not followed ICE’s purported focus on persons convicted of serious crimes, instead sweeping into the immigration enforcement system persons who have been convicted of minor crimes, such as traffic offenses, or who have no convictions at all.[11] Auditing, oversight, and opportunities for redress have been minimal. Complaints about the effects of the program on community policing and racial profiling have led three states to decline to participate in the program and local jurisdictions to seek to opt out of it.[12]

ICE—without making public any legal analysis or issuing any defining regulations—claims that under 8 U.S.C. § 1722 interoperability between the FBI and DHS fingerprint databases is congressionally mandated.[13] Nevertheless, the agency has felt the heat of criticism from Capitol Hill and beyond about how Secure Communities has operated.[14] On June 17, 2011, ICE director John Morton and Office of Civil Rights and Civil Liberties (CRCL) director Margo Schlanger announced “reforms” to the program:[15]

• Creation of an advisory committee whose first job would be to make recommendations within 45 days “on how ICE can adjust the Secure Communities program to mitigate potential impacts on community policing practices, including how to implement  policies stopping the removal of individuals charged with, but not convicted of minor traffic offenses . . . .”[16]
• Training for state and local law enforcement agencies about Secure Communities and its relationship to civil rights laws.
• A new policy directing ICE officers to exercise discretion so that witnesses and victims of crimes are not “penalized” by removal.
• A new detainer form emphasizing that jail authorities may not hold arrested persons for more than 48 hours after they would otherwise have been released.
• A new complaint system.
• A quarterly statistical review of the program to identify effectiveness and improper use of the program.

Morton also announced the issuance of two memos to provide guidance on the exercise of prosecutorial discretion. One of the memos focuses on the enforcement priorities of the agency for the apprehension, detention and removal of non-U.S. citizens,[17] while the other discusses protection of victims, witnesses, and plaintiffs.[18]

To fully appreciate the ineffective nature of these “reforms,” these memos and announcements must be viewed through the lens of the state criminal justice system/federal immigration enforcement merger and the unmanageable nature of the system that Secure Communities has created. The federal government is limited by the Tenth Amendment in its ability to compel the states to comply with federal initiatives, so even if interoperability between the FBI and DHS fingerprint databases is in fact mandatory, ICE, as a federal agency, has no authority to oversee the local law enforcement agencies (LEAs) that participate in Secure Communities. Therefore, merely tweaking the fundamentally flawed program without addressing the root of the problem will be insufficient.

The following questions and answers take a look at what the memos do and don’t do.

Do the prosecutorial discretion memos on enforcement priorities and victims and witnesses fix the deficiencies of Secure Communities?

• No. The general prosecutorial discretion memo does not even mention Secure Communities. Only ICE’s press statements make the connection: “ICE Director Morton has issued a new memo providing guidance for ICE law enforcement personnel and attorneys regarding their authority to exercise discretion when appropriate—authority designed to help ICE better focus on meeting the priorities of both the agency and the Secure Communities program to use limited resources to target criminals and those that put the agency at risk.”[19]
• Conspicuously absent from both memos is any discussion of how the agency’s purported priorities and policies with respect to victims, witnesses, and plaintiffs will be enforced and what remedy there is for failure by ICE officers to follow the asserted priorities and policies. While the memos give a wide range of officers the discretion not to proceed with immigration enforcement, they do not mandate the circumstances under which that discretion should be exercised.
• The memo on victims and witnesses simply states that it is against ICE policy to begin removal proceedings against a person known to be a victim of or witness to a crime or to be involved in a legitimate effort to protect his or her civil rights or civil liberties, but provides no mechanism for ensuring this policy is followed or for providing the individual with redress when the policy is violated.[20]
• Further, the memo on victims and witnesses does not provide any guidance to ICE officers on what they should do instead of initiating removal proceedings when they encounter a victim or witness, such as referring the individual to victim advocates.
• The general prosecutorial discretion memo refers to a March 2011 ICE memo on enforcement priorities,[21] which itself leaves the Secure Communities program without meaningful priorities or any indication of how priorities will be enforced. The category of those convicted of minor offenses remains within the highest priority for enforcement. The March memo makes clear that “[n]othing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States,”[22] leaving clear authority for enforcement against those not convicted of any offense at all.
• Advocates for immigrants will certainly use the criteria in the memos to argue on behalf of their clients. But the essence of prosecutorial discretion is that the agency can choose to exercise it or not.
• ICE union leaders rejected the memos’ proposals to use prosecutorial discretion to not carry out immigration enforcement. They immediately issued a unanimous no-confidence vote on Morton, calling the policy a “law enforcement nightmare.”[23]
• ICE agents’ resistance to the memos is entirely consistent with historical resistance to ICE directives.[24] The general prosecutorial discretion memo’s instruction to exercise prosecutorial discretion “as early in the case as possible” is unlikely to be obeyed.[25] The victim and witnesses memo’s direction to “pay particular attention” to victims, witnesses, and individuals exercising their civil rights is similarly unlikely to be followed.[26]
• The role of police officers authorized to enforce immigration law under section 287(g) of the Immigration and Nationality Act in exercising prosecutorial discretion is left completely unaddressed by the memos.

Will an advisory committee change the nature and operation of Secure Communities?

• No. The advisory committee will consider a narrow issue that comprises only a fraction of Secure Communities’ deficiencies; it will operate behind closed doors on an accelerated timeline; and it will be at least two steps removed from any decision-maker.
• The advisory committee is actually a task force that will submit a report to the Homeland Security Advisory Council, which itself makes recommendations to the Secretary of Homeland Security on matters related to homeland security.[27]
• The task force can only offer recommendations (and only to an entity that makes recommendations to the actual decision-maker), but cannot compel any agency to follow its recommendations.
• The meetings of the task force will not be open to the public.
• The task force’s role is “limited specifically to recommendations about minor traffic offenses.” This is far narrower than the role outlined in ICE’s press release, which reported that the advisory committee’s first instruction is to “provide recommendations on how ICE can adjust the Secure Communities program to mitigate potential impacts on community policing practices, including how to implement policies stopping the removal of individuals charged with, but not convicted of, minor traffic offenses who have no other criminal history or egregious immigration violations.”[28]

Will the advisory committee’s recommendations related to minor traffic offenses have an impact on deficiencies in the program’s operation?

• No. The advisory committee’s narrow area of inquiry will not have a meaningful effect on Secure Communities. Obtaining a conviction for a minor traffic offense is relatively easy, so distinguishing between individuals charged and individuals convicted of minor traffic offenses is essentially meaningless. A noncitizen arrested for driving without a license (because state law prohibits noncitizens from obtaining a license) will be easily convicted and therefore subject to immigration enforcement through Secure Communities.
• Any recommendations on this narrow issue that arise from the advisory committee will be just another empty attempt by ICE to appear responsive to concerns about Secure Communities, but will lack the force of actual reform.

Can CRCL effectively train law enforcement agencies regarding Secure Communities?

• No. ICE has announced training for LEAs that it can neither mandate nor supervise.
• ICE and CRCL will offer downloadable videos and discussion guides primarily to be used at muster/roll briefings at the start of officers’ shifts.[29]
• But as CRCL has repeatedly made clear, it has no jurisdiction over LEAs. It cannot compel them to show a training video or to comply with the training.
• CRCL can’t build accountability into the proposed training because it has no authority to mandate it.

Does the new detainer form solve the problems with detainers?

• No. Detainers, which are a request that ICE be notified when an arrested person is going to be released from custody,[30] are the linchpin of programs that link the state criminal justice system with federal immigration enforcement, such as the 287g program and Secure Communities. Detainers are issued beyond the scope of the statute that authorizes them to be issued in drug cases;[31] they are issued without regard to whether the person is deportable; jails often interpret them as a requirement, rather than a request, to notify ICE; jails often hold arrested persons beyond the 48-hour period authorized by law; and arrested persons lack the basics of due process, including notice of the detainer or the means to have it lifted.
• A form is just a form. ICE has not issued any guidance to localities instructing them about the meaning of detainers. In fact, ICE has chosen not to issue a draft guidance, which ICE circulated months ago and which was criticized by nongovernmental organizations that reviewed it.[32]
• A change in the form does not affect when ICE actually issues a detainer, which is the real problem.
• A change in the form does not provide arrested persons with due process of law. Contrary to Morton’s claim that the form requires local law enforcement to provide arrestees with a copy,[33]the form merely includes a request for the LEA to do this. No oversight of the process is built in, nor is there any accountability if the LEA does not provide the arrestee a copy. The form also does not contain instructions about how to get a detainer lifted.
• The form contains conflicting information about whether it is merely a request to maintain custody of the arrested person or a requirement to maintain custody of the individual.

Will the ICE/CRCL protocol regarding complaints involving state or local law enforcement agencies provide effective oversight of the Secure Communities Program?

• No. Effective oversight must cover the whole merger of state criminal justice systems with federal immigration enforcement.
• But according to CRCL’s website, “Under 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1, the Office for Civil Rights and Civil Liberties . . .  reviews and assesses information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion, by employees and officials of the Department of Homeland Security.”[34] This is only half of the oversight equation.
• Local law enforcement officials are also in a position to engage in potential abuses, discrimination, and profiling; however, CRCL has no authority to mandate complaint procedures for LEAs. CRCL can only request cooperation from LEAs and hope that they comply:
• “CRCL will . . . often lack a compulsory process or the ability to require state and local law enforcement to cooperate in our investigations. Based on varied factors and relationships, CRCL and ICE will strive to obtain the level of state and local law enforcement cooperation needed.”[35]
• “DHS/ICE oversight of Secure Communities does not put DHS or ICE in a position to superintend all law enforcement conduct in jurisdictions where Secure Communities has been activated.”[36]
• CRCL may “make a limited document request” to the LEA.[37]
• “We anticipate that law enforcement agencies will voluntarily cooperate with our investigations.”[38]
• Even assuming CRCL’s intention is to try to exercise oversight over Secure Communities jurisdictions, it has neither the staffing nor the funding to do this effectively.
• DHS’s complaint process over its own employees regarding Secure Communities is insufficient. Arrested persons would need to use the general CRCL complaint process, which does not take into account that arrested persons do not have access to it in jail and that CRCL cannot compel a jail to post the complaint process.
• CRCL’s track record to date is uninspiring. In April 2010, the ACLU of North Carolina filed 57 complaints about the 287(g) program with CRCL. It was not until June 2011 that CRCL even opened an investigation into the complaints.

Will a quarterly statistical review of the program to identify effectiveness and improper use of the program constitute effective oversight?

• Since the inception of the Secure Communities program, immigrant and civil rights advocates have called for the collection of statistical data about it. Only beginning in June 2011—well into the program’s existence—did ICE and CRCL announce analysis of arrest and conviction data.
• The program will be firmly in place before those administering it and other interested parties have had an opportunity to analyze arrest, conviction, detainer, etc., data to any significant degree.
• Totally absent is a mechanism or an inclination to take action against an LEA that misbehaves.

Conclusion

Contrary to ICE’s contention that it has responded to concerns about Secure Communities, the purported “reforms” announced in the June 17, 2011, memos are without substance. By making minor changes that skirt the fundamental issue of merging state criminal justice and federal immigration systems but provide no authority for oversight, ICE merely appears to be responsive to advocates’ concerns without actually addressing them in a meaningful way. Moreover, Secure Communities’ role in the development of NGI raises serious questions about what direction the larger biometric program will take. The only truly effective reform is for the agency to scrap the fundamentally flawed Secure Communities program in its entirety or, in the alternative, to immediately suspend current operation or any expansion of the program as the implications of both Secure Communities and NGI are examined and the civil and privacy rights of all are protected.

Notes: