{"id":1967,"date":"2015-11-11T01:25:39","date_gmt":"2015-11-11T01:25:39","guid":{"rendered":"http:\/\/www.nilc.org\/?page_id=1967"},"modified":"2016-07-12T13:05:55","modified_gmt":"2016-07-12T20:05:55","slug":"scomm-no-rules-of-road-2011-03-0","status":"publish","type":"page","link":"https:\/\/www.nilc.org\/issues\/immigration-enforcement\/scomm-no-rules-of-road-2011-03-0\/","title":{"rendered":"DHS\u2019s \u201cSecure Communities\u201d"},"content":{"rendered":"
[vc_row el_class=”holder” css=”.vc_custom_1444345515294{margin-top: -100px !important;}”][vc_column][vc_row_inner][vc_column_inner][vc_empty_space height=”0px”][\/vc_column_inner][\/vc_row_inner][vc_row_inner][vc_column_inner width=”3\/4″][vc_column_text]\n

DHS\u2019s \u201cSecure Communities\u201d: No Rules of the Road<\/h1>\n

MARCH 2011<\/strong><\/p>\n

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.\u00a0 Although the program purportedly targets \u201ccriminal aliens\u201d 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.[1]\u00a0<\/a> 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.<\/p>\n

DHS is imposing Secure Communities on localities nationwide despite earlier insistence that the program was voluntary.<\/h3>\n

From the program\u2019s launch in March 2008 until October 2010, ICE characterized the Secure Communities program as being voluntary.\u00a0 During that period, localities believed that the program could not be imposed on them against their will.\u00a0 In an August 17, 2010, memo entitled \u201cSetting the Record Straight,\u201d ICE confirmed the voluntary nature of the program:<\/p>\n

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 <\/em>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 <\/em>the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction\u2019s activation date in or removing the jurisdiction from <\/em>the deployment plan.<\/em>[2]<\/a><\/p>\n

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.[3]<\/a>\u00a0 However, Napolitano directly contradicted herself in a press conference on October 6, 2010, in which she stated that DHS did not \u201cview this as an opt-in, opt-out program.\u201d[4]<\/a>\u00a0 A week before this announcement, the Washington Post<\/em> had quoted an anonymous senior ICE official as stating that, in fact, the so-called opt-out is \u201cnot a realistic possibility \u2014 and never was.\u201d[5]\u00a0<\/a><\/p>\n

It is now clear that ICE intentionally misled the public as to the voluntary nature of the program.\u00a0 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.[6]\u00a0<\/a> These documents show that ICE adopted an intentionally misleading definition of \u201cvoluntary\u201d in order to expand implementation of the program before the expected \u201cpushback\u201d from localities.[7]\u00a0<\/a><\/p>\n

ICE\u2019s public documents had suggested that ICE was interested in honoring the interests of localities in its implementation of Secure Communities.\u00a0 In the August 17 memo, ICE stated that,<\/p>\n

As part of the Secure Communities activation process, ICE conducts outreach to local jurisdictions, <\/em>including providing information about the biometric <\/em>information sharing capability, explaining the benefits of this capability, when they are scheduled for activation, and addressing any concerns they may have.<\/em>[8]<\/a><\/p>\n

Given its reluctance to allow communities to opt out, ICE\u2019s statements of outreach are clearly disingenuous.\u00a0 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.<\/p>\n

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.[9]<\/a>\u00a0 A state\u2019s agreement to participate in the program normally begins with a state investigation bureau\u2019s (SIB\u2019s) signing a memorandum of agreement (MOA) with DHS.\u00a0 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.[10]\u00a0<\/a> Moreover, ICE has even backed off from the necessity of a state signing an MOA, stating that the MOA with a state is \u201can unnecessary formality.\u201d[11]<\/a><\/p>\n

While states may still be able either to opt out or modify their SIBs\u2019 agreements with DHS, even that possibility is not assured for the future. \u00a0According to ICE\u2019s 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).[12]<\/a><\/p>\n

While states and localities have deliberated over participation in the program, ICE has rolled out the program at breakneck speed.\u00a0 ICE announced the initiation of the Secure Communities program in March 2008, and implementation of the program began in October 2008.\u00a0 As of February 15, 2011, the program was operational in 1,049 jurisdictions in 39 states.[13]\u00a0<\/a> ICE expects to expand the program to all jurisdictions throughout the country by 2013.<\/p>\n

Secure Communities is an unfunded mandate that local communities enforce federal immigration law.<\/h3>\n

The Secure Communities program does not have a statutory mandate, which means that critical oversight of the program has not been required.\u00a0 Meanwhile, Secure Communities is burdensome and costly for police departments.\u00a0 ICE insists that law enforcement agencies (LEAs) \u201cincur little to no cost\u201d due to implementing the program, but police tell a different story.[14]<\/a>\u00a0 According to Sheriff\u2019s Lieutenant Michael Barry in Martin County, FL,<\/p>\n

Time is . . . a factor for our staff.\u00a0 Sending I.A.Q.\u2019s [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\u00a0[for Secure Communities] takes away from the deputies [sic] regular duties within the [jail] facility.<\/em>[15]<\/a><\/p>\n

Because of the logistics of processing arrestees through Secure Communities, police officers lose time that would otherwise be spent serving and protecting their communities.\u00a0 Local jails also bear the cost of housing arrestees who are held under immigration detainers rather than being released on bond.\u00a0 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.[16]<\/a>\u00a0 The detainer provides the jail with the authority to hold a noncitizen for 48 hours if the person is not already subject to detention.[17]<\/a>\u00a0 For the 48-hour duration of the detainer, the local jail bears the cost of housing the arrestee.\u00a0 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.\u00a0 Finally, the local jail \u2014 not ICE \u2014 is legally liable if the arrestee is held over the 48-hour period authorized under the detainer,[18]<\/a> or, as has occurred in several locations, if the detainer is mistakenly placed on a citizen.<\/p>\n

Secure Communities is an unfunded mandate that makes local law enforcement do the work of federal immigration enforcement and<\/em> bear the costs.<\/p>\n

The Secure Communities program targets everyone<\/em> who has ever had any dealings with the immigration system \u2014 not a prioritized set of dangerous criminals.<\/h3>\n

From its inception, Secure Communities was touted as a program intended to target \u201cthe worst of the worst.\u201d[19]\u00a0<\/a> ICE\u2019s Secure Communities brochure states that ICE prioritizes \u201cthe most dangerous and violent offenders.\u201d[20]\u00a0<\/a> In practice, however, Secure Communities does not do that.\u00a0 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.\u00a0 The dragnet also ensnares lawful permanent residents who may or may not be deportable and even citizens who are not deportable under any circumstances.<\/p>\n

Despite various iterations of priorities and risk-based levels,[21]<\/a> ICE has failed in practice to prioritize the most dangerous, convicted, criminal immigrants for deportation.\u00a0 ICE claims that it operates the program according to a risk-based approach intended \u201cto identify aliens charged with or convicted of a serious criminal offense and incarcerated in jails and prisons throughout the United States,\u201d in accordance with a hierarchy of prioritized levels.[22]<\/a>\u00a0 However, ICE has created no mechanism to ensure that Level 1 offenders who have been convicted of crimes are prioritized for removal.\u00a0 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.\u00a0 After an immigration \u201chit,\u201d 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.<\/p>\n

In November 2009, ICE announced that during the first year of the program it had identified 110,000 criminal aliens through Secure Communities.\u00a0 Shortly thereafter, ICE corrected its press release to say that it had identified more than 111,000 aliens \u201ccharged with or convicted of crimes.\u201d[23]<\/a>\u00a0 Initially, ICE considered anyone \u201cidentified\u201d by Secure Communities a \u201ccriminal alien.\u201d\u00a0 Only after the numbers were challenged did ICE specify that these were actually not all \u201ccriminals.\u201d\u00a0 In fact, by ICE\u2019s 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.<\/p>\n

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.[24]<\/a>\u00a0 As of November 2010, this percentage remained relatively unchanged.[25]<\/a>\u00a0 Since the program\u2019s inception, it has failed to target violent and dangerous criminals and has instead cast a net over noncriminals and low-level offenders.<\/p>\n

ICE has also deliberately manipulated data.\u00a0 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<\/em>.<\/a>[26]\u00a0<\/a> Here are some examples of decreases in the number of noncriminal Secure Communities deportees between April and July 2010:<\/p>\n