NOTE: Originally published in the Daily Journal on November 9, 2010
By Connie Choi (APALC, left) and Angela Chan (ALC, right)
Starting November 5th, U.S. Immigration and Customs Enforcement (ICE) began negotiations with three local jurisdictions that have formally requested to opt out of a controversial federal program known as “Secure Communities” or “S-Comm.” These jurisdictions include two California cities – Santa Clara and San Francisco – as well as Arlington County, Virginia. At issue is whether ICE will honor the counties’ pending requests to opt out of S-Comm.
Along with Washington, D.C., these localities have protested the unilateral imposition of S-Comm as essentially an unfunded mandate from ICE that has taxed local resources and hurt community policing strategies. S-Comm is an immigration enforcement program that automatically shares with ICE all fingerprints taken by local law enforcement agencies immediately after an individual is arrested. Operating on a pre-conviction model, ICE is notified no matter how minimal the charge or whether the individual is later found to be innocent. As a result, S-Comm has facilitated the deportation of over 56,000 immigrants since October 2008.
Although ICE maintains that the purpose of S-Comm is to target serious, convicted criminals for removal, ICE’s own statistics undercut this assertion and underscore the need for oversight and accountability. Recently released documents obtained from a Freedom of Information Act suit against ICE by the Center for Constitutional Rights, Cardoza Law School, and the National Day Laborer Organizing Network show that the vast majority of individuals deported under S-Comm are non-criminals or were charged with misdemeanors and other low-level crimes including traffic violations. The documents from ICE reveal that about 26 percent of all those deported nationwide under S-Comm were categorized by ICE as “non-criminals,” with rates as high as 82 percent in some jurisdictions. In addition, about 53 percent of those deported under S-Comm were picked up for low-level charges. Another troubling finding is that according to ICE, from October 2008 to October 2009, nearly 5 percent of about 5,880 identified as “matches” under S-Comm are actually U.S. citizens.
Despite the troubling contradiction between S-Comm’s stated goal of focusing immigration enforcement on serious criminals and the reality of mass deportations of non-criminals and individuals based solely on pre-conviction charges, ICE has been rapidly deploying S-Comm in jurisdictions throughout the country. Thus far, S-Comm has been activated in 752 jurisdictions in 34 states. In California alone, S-Comm is operational in 38 out of 58 jurisdictions, with ICE adding more jurisdictions each month. Yet very little is known – or understood – about S-Comm, in large part due to confusing and conflicting information disseminated by ICE.
This is particularly true with regard to ICE’s position on whether a local jurisdiction can opt out of S-Comm. Opting out means to prevent fingerprints taken by local law enforcement for state and federal criminal background checks from being shared with ICE to conduct civil immigration enforcement. ICE has flip-flopped on its policy, at one point repeatedly stating in writing that S-Comm is a voluntary program through laying out a procedure for counties to opt out. On Sept. 7, 2010, Department of Homeland Security Secretary Janet Napolitano sent a letter to Congresswoman Zoe Lofgren (D-CA) stating that jurisdictions that wished to withdraw from the program could do so. And in a document entitled “Setting the Record Straight,” it stated in relevant part:
“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.”
However, each protesting jurisdiction has followed the aforementioned protocol, yet S-Comm continues to be active in these communities. For example, in San Francisco, with the support of a supermajority of the Board of Supervisors, Sheriff Michael Hennessey has requested at least twice in writing to opt out of the program. The Board of Supervisors in Santa Clara and in Arlington unanimously passed resolutions to opt out of S-Comm and submitted written requests to ICE.
Instead of turning off S-Comm in these counties, without explanation, ICE has changed its position and is now contending that S-COMM is compulsory. On October 6, 2010, Secretary Napolitano stated at a press conference announcing a record number of 392,000 deportations over the last year that she does not see S-Comm as an opt-in, opt-out program. It is important to note that Secretary Napolitano did not provide any legal justification for her assertion that an ICE program, which is not mandated by federal law, is binding.
The core legal issues underriding the opt out question include whether S-Comm violates the 10th Amendment and the anti-commandeering doctrine, as elucidated in New York v. United States (505 U.S. 144 (1992)) and Printz v. United States (521 U.S. 898 (1997)). The U.S. Constitution recognizes the right of local jurisdictions to resist federal attempts to “commandeer” local officials and resources for the purpose of implementing federal programs. Advocates argue that the federal government cannot require states and localities to carry out its federal immigration enforcement responsibilities, especially if doing so interferes with local policing strategies and burdens local resources.
Another complicating factor with regard to S-Comm is its cooperation with another ICE program known as 287(g), a controversial federal immigration enforcement program that deputizes local and state police to act as immigration agents. For example, since 2005, Los Angeles County has had a 287(g) agreement with ICE. Following a public hearing with the Los Angeles County Board of Supervisors, ICE and the Sheriff’s Office negotiated a memorandum of agreement that would allow for the transfer of individuals to ICE post-conviction. However, the imposition of S-Comm in Los Angeles in August 2009 has resulted in an end-run around the intent of the Board of Supervisors and violates the spirit of a long-standing policy of the Los Angeles Police Department, known as Special Order 40, to not inquire about immigration status pre-conviction.
One of the primary reasons counties are seeking to opt out is the devastating effect of S-Comm on community policing strategies. Under S-Comm, immigrant victims and witnesses of crime have been even more afraid of coming forward to cooperate with the police, for fear they will be automatically reported to ICE should anything go awry. This is particularly true for immigrant victims of domestic violence who are sometimes falsely arrested and fingerprinted pursuant to policies and practices whereby police arrest both parties pending a more thorough investigation. The problem is under S-Comm, by this point, it is too late since the fingerprints are transmitted to ICE upon arrest.
There have been a number of alarming reports of victims of domestic violence calling the police for help, only to find themselves in ICE custody due to S-Comm. Take, for example, the case of a Chinese American woman who called the Sacramento police for help in July. Instead of receiving the assistance she needed, she was arrested, fingerprinted, and promptly transferred into ICE custody. The lesson for immigrant community members watching S-Comm in action is to never call the police again. When crimes go unreported or unsolved because of this justified fear of police/ICE collaboration, everyone’s safety is put at risk.
Like the roundly criticized 287(g) program that deputizes local law enforcement to conduct immigration enforcement, S-Comm also encourages racial profiling. Police officers are incentivized to stop and arrest residents based solely on their appearance, knowing that ICE can return a detainer in a matter of hours under S-Comm and that the resident can and likely will be deported even if he or she was wrongfully arrested. Data from ICE confirms that some jurisdictions, which have been notorious for racial profiling, such as Maricopa County, Arizona, have abnormally high rates of non-criminal S-Comm deportations.
On October 28th, a national coalition of civil rights organizations filed an emergency injunction for public information about S-Comm in light of the pending negotiations between ICE and these counties. The injunction seeks clarity and transparency on the process whereby counties can opt out of this dangerous program. The public safety, racial profiling, and mass deportation problems posed by S-Comm underscore the urgent need for a clear opt out process. More importantly, these concerns also demonstrate the importance of prioritizing passing fair and humane comprehensive immigration reform above ramping up severe and overbroad enforcement programs that entangle local police with ICE.
Connie Choi is a staff attorney for the Immigrant Rights Project at the Asian Pacific American Legal Center in Los Angeles.
Angela Chan is a staff attorney managing the Juvenile Justice and Education Project at the Asian Law Caucus in San Francisco. Both organizations are members of the Asian American Center for Advancing Justice.