ICE Loses Another Round

By William Fisher

Commenting that “I think the government is dragging its feet,” Federal Judge Shira A. Scheindlin expressed shock at the government’s long-standing refusal to release documents relating to the Department of Homeland Security’s “Secure Communities” program.

Nearly a year after the initial request for documents to clarify the program, the government has largely failed to satisfy the requests for information. As the government has delayed, the program has dramatically expanded, prompting growing controversy about the secrecy, confusion, and mixed signals sent by Immigration and Customs Enforcement (ICE) and chain of command with the Department of Homeland Security (DHS), of which ICE is part.

The principal issue is whether local law enforcement can or cannot opt-in or opt-out of the program, of whether it’s mandatory. ICE and other DHS officials have alternated between “yes” and “no,” sewing confusion among those police departments, and entire states and counties, that are interested in dropping out.

To find an answer, the National Day Laborer Organizing Network NDLON), represented by the Center for Constitutional Rights (CCR) and the Kathryn O. Greenberg Immigration Justice Clinic (IJC) of Cardozo Law school initially filed a freedom of information act request for files relating to the rapidly expanding deportation program that culls fingerprints from local law enforcement databases after the agency’s continuous misinformation. Due to the agency's rejection of transparency, the groups took ICE to court in litigation for the documents.

“ICE has been withholding key information from the communities its coercing into its dragnet program,” said Sarahi Uribe of NDLON. “Today, Judge Scheindlin echoed our demand and told ICE to uncover the truth.”

The judge responded to the government’s case, “I’m somewhat confused. The defense agreed to do this back in July and here we are in December,” said Judge Scheindlin. “I think the government is dragging its feet... This is serious."

Thus the NDLON moved closer to a win. A federal judge ordered the defendants in NDLON v. ICE to produce all records relevant to the opt-out issue by January 17th.
CCR staff attorney Sunita Patel told IPS, “We’re hopeful the government will finally provide documents to reveal information that will help advocates and policy makers determine how voluntary the program remains.”

She said, “As advocates across the country are pushing on the state and local levels to find a way to opt-out of Secure Communities, we are going to court to obtain information that the public and advocates need to determine how and if it's possible to opt-out. Only the government has the information everyone needs.”

Judge Scheindlin set January 17, 2011, as the new date for ICE to release the documents or explain why they must be withheld. She also set February 25, 2011, as the deadline for ICE to release a second set of documents related to other topics in the records request.

The judge noted several times that if the defendants fail to produce documents in the two upcoming hearings they will face possible contempt sanctions.

Secure Communities is a program that allows state and local police to check the fingerprints of an individual they are booking into a jail against Department of Homeland Security (DHS) immigration databases. If there is a “hit” in an immigration database, Immigration and Customs Enforcement (ICE) is automatically notified, even if the person has not been convicted of any criminal act.

The emergency injunction specifically requests documents related to the voluntary nature of the program, which has been unclear and the subject of mixed messages thus far. Advocates and community leaders across the country have called this program “dangerous” and say it strains local law enforcement and resources while damaging already the already tenuous relationship between immigrant communities and the police.

“To keep our families together, we need to keep police and ICE separate. The Orwellian-named Secure Communities program does the opposite of making us safer,” said Sarahí Uribe of NDLON. “We see innocent people swept up in a massive dragnet sending a chilling effect through migrant communities.”

Advocates argue that ICE’S unwillingness to provide clear information about the program’s opt-out process at a time when municipalities such as San Francisco and Santa Clara in California and Arlington, Virginia voted to opt-out and numerous others localities are deliberating their participation, requires court-ordered immediate access to key documents.

The groups say immigration authorities in charge of the program, which culls fingerprint data from local jails, have been “inconsistent and dishonest in representing the relationship between local governments and the federal program.” In an email to New York Governor David Patterson, the agency said “We get it. No one will be forced.’. In a press conference two months later, ICE said, “We do not see this as an opt-in opt-out program.”

The Washington Post recently published “ICE Reversals Sowing Mistrust.” The article said, “cities worried about the program’s effects on community-policing efforts are interested in opting-out of the overly broad dragnet.” The plaintiffs maintain that “the on-going dishonesty and desire to opt-out makes gives today's injunction urgency.”

Secure Communities is one of several ICE programs that rely on continuing cooperation from local law enforcement authorities. In the 287(g) program, for example, local police and sheriffs have been recruited to help federal immigration authorities by arresting and detaining persons suspected of having committed immigration crimes.

While many local law enforcement authorities have become part of the program, many others have refused to participate. They say Secure Communities can lead to racial profiling. They also contend that enforcing Federal immigration law is the job of the federal government; that local peace officers don’t have the training and experience to enforce complex immigration law; and that existing police manpower is needed for community policing.

In addition, it has been revealed that many of those who have been deported by the Barack Obama Administration have committed only minor infractions such as broken taillights and driving without a license. ICE’s programs are supposedly geared toward deporting dangerous criminal aliens.

With thirteen states yet to join the program, New York and numerous other activated jurisdictions still trying to opt out, and with its current spokespeople unwilling to set the record straight, advocates are asking a judge to counteract the misinformation by opening the files related to the “opt-out” policies immediately.