To Opt or Not to Opt

By William Fisher

Will U.S. local law enforcement be forced to participate in a program that it says will put city police in the position of enforcing federal immigration law and, in the process, divert scarce resources from essential community policing, discourage immigrants from working with police to solve crimes and increase racial profiling?

Or is it a voluntary program?

Those are the questions being raised by civil rights advocacy groups in a federal court filing seeking an injunction requiring the Immigration and Customs Enforcement (ICE) Agency to turn over critical documents concerning the ability of communities to “opt-out of what they label “the massive deportation dragnet,” the Secure Communities -- S-Comm -- program.

The groups seek to clarify ICE’s statements, which they say have been “inconsistent and confusing.” In August, ICE released a memo entitled, “Setting the Record Straight” which sets forth an opt-out policy:

“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 fax). 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.”

Janet Napolitano, Secretary of the Department of Homeland Security (DHS), later confirmed that process to be accurate.

But subsequent communications to and from ICE have muddied the waters, making it less clear that there is any opt-out policy at all. The Washington Post claims that opting out of Secure Communities “is not a realistic possibility, and never was.” This question takes on significance because a number of municipal and country law enforcement agencies have made it clear that they do not wish to participate in S-Comm.

Advocates who have reviewed the initial S-Comm documents from the FOIA case say they ”reveal a pattern of dishonesty. Information about the nascent program has been scarce, and the development of operational details has been shrouded in secrecy,” they say.

Sunita Patel, an attorney with the Center for Constitutional Rights (CCR), told IPS, “The mis-named Secure Communities program is the Department of Homeland Security's current scheme to rope local cops into immigration enforcement. Though branded as a race-blind way to arrest certain people, the numbers show it's actually trap.”

And Francis Boyle, a law professor at the University of Illinois, told IPS,
“This is simply an exercise in racial profiling against Latinos.”

On August 10, the groups filing the new FOIA suit -- The National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR), and the Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law -- released internal government documents newly obtained through a Freedom of Information Act (FOIA) lawsuit filed in a New York federal court in April. According to advocates who have reviewed the documents, they reveal a pattern of dishonesty regarding the S-Comm program.

S-Comm, which currently operates in approximately 600 jurisdictions across the country, functions like the controversial 287(g) program and Arizona’s SB1070, making state and local police central to the enforcement of federal immigration law.

The program automatically runs fingerprints through immigration databases for all people arrested and targets them for detention and deportation even if their criminal charges are minor, eventually dismissed, or the result of an unlawful arrest.

Several local jurisdictions have already asked to opt-out, and were given a variety of responses. In May 2010, Sheriff Michael Hennessey of San Francisco requested an opt-out from ICE, but ICE directed them to speak to California state officials. The California Attorney General denied the Sheriff’s request and claimed that there was no opt-out option.

Arlington County, Virginia, held a community forum in July to discuss opting out of the program, at which the Chief of Police stated that ICE had told him that there was no opt-out -- Secure Communities was federally mandated.

Others, including Congresswoman Zoe Lofgren, a Democrat from California (San Jose), the Santa Clara Board, and the San Mateo County Board of Supervisors, all contacted ICE asking for information about the opt-out policies. None received an immediate response.

In the meantime, in response to legislation before the Council of the District of Columbia to terminate Secure Communities, the Washington DC Chief of Police terminated the city’s Secure Communities program with ICE.

So now at least two counties, plus Washington, DC have decided not to participate in the program. Why?

The groups bringing the lawsuit claim that “People are concerned that, similar to the 287(g) program, there is no oversight of Secure Communities. The data provided by ICE thus far has shown that contrary to ICE’s intention to focus on immigrants with serious criminal convictions, the majority of people identified by Secure Communities have minor criminal convictions or have no criminal convictions.”

They add that, in some cases, “U.S. citizens have been wrongly identified by the program. There are also concerns that the program leads to racial profiling and pretextual arrests. Furthermore, local law enforcement agencies that suspect that persons in their jails may be deportable immigrants already have the ability to contact ICE directly.

The Secure Communities program, launched in 2008, is currently active in 658 jurisdictions in 32 states, according to ICE, who plans to activate the program in every jurisdiction in every state by 2013.

According to the groups, “The merger of immigration enforcement and local criminal justice agencies is not only bad public policy, it also sabotages local law enforcement agencies’ core mission of protecting public safety by undermining the trust of the communities they serve. It discourages people from turning to the police when they need to, even to report crimes. It undermines public safety by diverting scarce resources away from local policing and focuses them on false threats from people who look or sound foreign.”

Secure Communities, 287(g), and the Criminal Alien Program – the Obama administration’s signature immigration enforcement programs – all rely on heavy involvement from and cooperation with local law enforcement to siphon immigrants into the immigration enforcement and detention system and, ultimately, through deportation proceedings.

Meanwhile, in a related development, the Department of Justice (DOJ) will be in federal appellate court in San Francisco on Monday, November 1, urging the court to keep in place an injunction blocking the core provisions of SB 1070, Arizona's racial profiling law.

The American Civil Liberties Union and a coalition of civil rights groups will also be present. They filed a friend-of-the-court brief in the case in September, supporting the injunction and illustrating the serious harm that SB 1070 would cause.