Arc of '72

As ICE shreds state contracts, Ammiano bill to protect California from failed S-Comm program moves forward

Sacramento – As the controversy surrounding the “Secure” Communities or S-Comm deportation program reaches a national boiling point, Assemblymember Tom Ammiano (D – SF) announced today that after a 4-month process of consultation with community leaders and legal experts, the TRUST Act (AB 1081) will be re-tooled in early January and then continue to move through the State Senate.

“Regardless of the Obama Administration’s blatant on-going deception about S-Comm, every day Californians are being unfairly deported leading to tragic consequences for communities both here and across the country.  Now more than ever we need to restore trust and I urge that our state leaders take a more active role on this critical issue as we continue to work towards suspending this damaging program. Together we need to do what is right for California,” said Assemblymember Ammiano.

AB 1081 passed the Assembly (47-26) and the Senate Public Safety Committee (5-2) earlier this year before the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) stunned the public and legislators by shredding all S-Comm agreements on August 5. DHS and ICE then declared by fiat the program would be “mandatory” without any mechanism for local oversight. ICE provided no sound legal basis for the move, which California leaders slammed as “an affront to democratic governance” and “a stunning display of bad faith.”

The bill’s goal is to reform California’s participation in the troubled S-Comm program, which has come under fire from law enforcement leaders and civil rights advocates for deporting large numbers of innocent community members, including victims of domestic violence and street vendors arrested for nothing more than selling food without a permit. Originally, the bill would have ensured Californians were protected from the program by amending the state’s Memorandum of Agreement with ICE that the agency has now unilaterally shredded.

“The bad faith move to take away state’s role in the process and conscript local police into the federal scheme is just one more legally dubious maneuver by ICE. We’re exploring every legal option available to hold the agency accountable and continue to protect California residents,” said Angela Chan of the Asian Law Caucus.

Chan and a team of attorneys are currently conducting a new, in-depth analysis, to be released in the coming days, of internal ICE documents unearthed earlier this year through a Freedom of Information Act lawsuit. The new analysis will provide documented proof that ICE repeatedly conveyed to state officials that California’s approval was required for fingerprints to be shared with ICE under S-Comm. A preview of the analysis is available by contacting Chan.

The recent doubling down by the White House in defense of the program has only inflamed nationwide opposition with walk outs and peaceful civil disobedience occurring at S-Comm hearings across the country and localities passing new legislation in protest of the program and to protect the community policing initiatives which S-Comm threatens.  Just yesterday, in a decision with national implications, Cook County, IL (where Chicago is located) voted to refuse to comply with ICE requests to hold immigrants needlessly in jail unless the county receives full reimbursement from the Federal Government.

Chris Newman, Legal Director of the National Day Laborer Organizing Network added, “The need for the TRUST Act is greater now more than ever. Californians are stronger and more united in our determination to keep our communities safe, prevent the destruction of civil liberties, and end the dragnet separation of families.”

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Documents Show Broad Deception and Disagreement Within Federal Agencies on Opt Out; Raise New Questions About ICE’s Mandatory Stance

New York, August 18, 2011- In the wake of protests and civil disobedience in Chicago yesterday and across the country criticizing the Obama administration’s Secure Communities program, immigrant advocates called on the government to turn over remaining documents about the program sought in a Freedom of Information lawsuit and to halt the controversial program.

A batch of unredacted documents released by court order this week, which federal district court Judge Shira A. Scheindlin called “embarrassing,” included acknowledgement by Immigration and Customs Enforcement (ICE) attorneys that they would have to “rewrite” memos on whether the program is mandatory for states and localities and revealed schisms between the Federal Bureau of Investigation (FBI) and Immigration and Customs Enforcement (ICE) on the right of states and localities to opt out of the program.  In her order, Judge Scheindlin chided the agencies for going “out of their way to mislead the public about Secure Communities,” and pointedly stated that the “purpose of the [Freedom of Information Act] is to shed light on the operation of government, not shield it from embarrassment.”

The judge has not yet ruled on whether the government must release other documents relating to the legal authority to make Secure Communities mandatory.  Strikingly, the government continues to attempt to withhold documents that shed light on that policy.  ICE will be back in court today arguing it should be able to keep secret documents relating to the agency’s purported legal basis to impose S-Comm on unwilling states like Massachusetts, Illinois and New York.

The documents are being sought in a Freedom of Information lawsuit brought by the Center for Constitutional Rights and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law with the law firm of Mayer Brown LLP on behalf of the National Day Laborer Organization Network.

One previously redacted email chain of over 100 pages shows the director of Secure Communities, David Venturella, dodging questions from Margo Schlanger, an important official from the Department of Homeland Security Office of Civil Rights and Civil Liberties (OCRCL). When ordering release of this document, Judge Scheindlin observed that the exchange showed “clearly obfuscating” and “non-responsive” answers from ICE in response to a request for clarification from OCRCL about Secure Communities policy.  DHS000196-000317.

Another email chain from July 2010 discussing a draft response to Representative Zoe Lofgren’s letter requesting clarification on the agency’s opt-out policy indicates that the FBI was considering an opt-out option.  The FBI had concerns that if no opt-out was allowed, states might consider not sending fingerprints to the FBI for other purposes.  The email notes that “moving away from the mandatory stance” would require “S1” (Secretary Napolitano) and AG approval. ICE FOIA 10-2674.0002039.

The back-and-forth and deception was clearly frustrating to ICE officials.  In an angry email dated August 6, 2010, a Secure Communities employee comments: “We never address whether or not it is mandatory – the answer is written to sound like it is but doesn’t state it.  It’s very convoluted – or is that the point?  I’m all about shades of grey but this really is a black and white question…Is it mandatory?  Yes or No.  Ok, so not such an easy question to answer.”  ICE FOIA 10-2674.0011165-ICE FOIA 10-2674.11171.

Commenting on the documents, Sunita Patel, staff attorney with the Center for Constitutional Rights said, “The previously redacted portions of these documents—now public for the first time—reveal the extent of ICE’s deceit and political game-playing in its communications with states and localities.  Perhaps more disconcerting, though, is the confusion and flip-flopping within the agency about their own policies and plans for deployment of such a high-impact and unprecedented program.”

Added Bridget Kessler, an attorney with the Cardozo Immigration Justice Clinic, “These newly unredacted documents signal that the fight is not over yet.  ICE’s purportedly ‘mandatory’ S-Comm policy appears to lack a sound legal basis, and is certainly misguided and confused as a matter of policy.  Massachusetts, New York and Illinois should continue to push the federal government to honor their rejection of S-Comm.”

Sarahi Uribe, national organizer for the National Day Laborer Organizing Network said, “Even as they moved full-speed-ahead with deploying this program across the nation, at times top-level agency officials didn’t seem to fully understand—or disagreed about—how the program would work.  Everywhere around the country people are resisting—there have been walkouts and arrests during S-Comm hearings, rallies, and thousands of petition signatures delivered to President Obama.  The time has come.  It’s time to halt S-Comm.”

The groups said they will continue to litigate this case to obtain the full information about S-Comm that the public is entitled to.

Visit CCR’s NDLON v. ICE case page or the joint website, UncovertheTruth.org, for an index of the newly released documents, the text of the FOIA request,  the lawsuit filed in the Southern District of New York and all other relevant documents.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org.

The mission of the National Day Laborer Organization Network is to improve the lives of day laborers in the U.S. by unifying and strengthening its member organizations to be more strategic and effective in their efforts to develop leadership, mobilize day laborers in order to protect and expand their civil, labor and human rights. Visit www.ndlon.org.

The Immigration Justice Clinic of the Benjamin N. Cardozo School of Law was founded in 2008 to provide quality pro bono legal representation to indigent immigrants facing deportation. Under the supervision of experienced practitioners, law students in the Clinic represent individuals facing deportation and community-based organizations in public advocacy, media and litigation projects. Visit www.cardozo.yu.edu.

National Leaders, Experts, and Victims of S-Comm Conclude Program Should Be Ended

08.16.2011 –  Today, the National Day Laborer Organizing Network, along with Northern California organizations Asian Law Caucus and Immigrant Legal Resource Center, made public an authoritative report condemning the so-called “Secure” Communities or S-Comm deportation program and recommending its termination.

The release comes on the heels of a major protest in Los Angeles yesterday against the program, which is facing significant opposition nationwide for undermining public safety and operating without transparency or local oversight.  Meanwhile, a Northern California Community Forum on S-Comm, planned for August 27th in Oakland, will bring together community organizations and political officials from throughout the region to discuss how to end S-Comm in California.

The report includes expert testimony from San Francisco Sheriff Michael Hennessey, University of San Francisco law professor Bill Ong Hill, former District Attorney of New York Robert Morgenthau, heads of law enforcement, and victims of S-Comm like Isaura in Los Angeles whose 911 call for help resulted in her deportation proceedings.

The report recommends that the program be terminated, that the current Office of Inspector General investigation of S-Comm be expanded to other, related programs, that the Department of Justice begin its own investigation into the mysterious role of the FBI in Secure Communities, and that states not be compelled to share biometric data with ICE.

The following statement can be attributed to the National Community Advisory Commission:

“This report confirms what immigrant communities have long known. The program called Secure Communities results in the opposite. Entangling local police in immigration enforcement is not just bad policy as the experts testify. Conscripting local police into immigration enforcement has provoked a massive civil rights crisis our country now faces. The only suitable approach is to end Secure Communities.”

The Commission includes:

American Friends Service Committee, Project Voice New England, Asian Law Caucus, CASA de Maryland, CENTRO de Igualdad y Derechos, Coalition for Humane Immigrant Rights of Los Angeles, Colorado Immigrant Rights Coalition, Detention Watch Network, Grassroots Leadership, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, National Day Laborer Organizing Network, National Immigrant Justice Center, National Immigration Law Center, National Immigration Project of the National Lawyer’s Guild, Northern Manhattan Coalition for Immigrant Rights, Rights Working Group, Unitarian Universalist Association of Congregations, We-Count!

The report is available at http://altopolimigra.com/s-comm-shadow-report/

Background on S-Comm is available at www.uncoverthetruth.org and in a press brief at http://ndlon.org/pdf/scommbrief.pdf

August 5, 2011 – Amid a growing chorus of national criticism of the flawed “Secure” Communities or S-Comm program, Immigration and Customs Enforcement (ICE) earlier today unilaterally canceled memorandums of agreement with 39 states over the program (including California) and announced that those states would still be forced to participate in the program without any sort of local oversight or accountability. S-Comm has faced significant opposition for undermining public safety and operating without transparency or local oversight.

Background: ICE’s maneuver follows decisions by the Governors of New York, Massachusetts, and Illinois to end or suspend participation in the program earlier this year, and comes just days before an “Advisory committee” – which advocates had deemed “wholly inadequate” – was to begin a series of hearings on the program. Meanwhile, California’s TRUST Act (AB 1081-Ammiano), which would limit the state’s participation in the flawed program and allow counties to tailor participation based on local needs, passed the State Assembly (47-26) in May and the Senate Public Safety Committee (5-2) in July.  Below are statements by Assemblymember Ammiano, author of the TRUST Act, and a coalition of leading civil rights and community groups:

Assemblymember Tom Ammiano (D-CA 13): “ICE’s outrageous announcement is an affront to both public safety and the most basic principles of democratic governance and transparency. If the Administration truly had the authority to force this dysfunctional program down the throats of every local government, why would they waste thousands of hours signing binding contracts with state officials across the country?”

Ammiano continued: “S-Comm has torn more than 40,000 Californians from their families, 70% of whom were presumed innocent or brought in for crimes as minor as selling food without a permit. Immigrants want to live in safe communities, but the program is shattering trust between immigrant victims and witnesses of crime and police. It’s far past time to pull the plug on this disastrous program, and I will continue to push for California to take a leadership role in advancing real solutions.”

The following statement is released on behalf of the Asian Law Caucus, the ACLU of California, the California Immigrant Policy Center, the Coalition for Humane Immigrant Rights of Los Angeles, the National Day Laborer Organizing Network, and PICO California:

“Today’s announcement is a shocking display of bad faith on the part of an agency that continues to overstep its bounds and trample on basic constitutional precepts in the process. US District Judge Shira Scheindlin’s strong condemnation of ICE’s deception in her ruling last month bears repeating: “There is ample evidence that ICE and DHS have gone out of their way to mislead the public about its ‘Secure Communities’ program.

We call on California Governor Jerry Brown and Attorney General Kamala Harris to exercise leadership at this critical time, and launch a thorough review of ICE’s repeated misrepresentations and deception.

The fact is, neither the federal government nor states like Arizona and Alabama can force our local police to act as immigration agents, especially when public safety is grievously harmed. Today’s attempt to tie the hands of states who are seeking to uphold signed agreements does nothing to fix our broken immigration system, and everything to make matters worse. In fact, it confirms that the Department of Homeland Security’s much celebrated “reforms” to S-Comm and “Advisory committee” are nothing more than window-dressing.”

Additional background information: Internal ICE documents show state Memorandums are required

Internal ICE documents uncovered from a Freedom of Information Act lawsuit reveal a drastically different position from today’s announcement.  In August 2010, then S-Comm Assistant Director Venturella further clarified to Barbara Leen, Counsel to the Senate Judiciary Committee and staffer for Senator Feinstein, in a meeting with aides from offices within the California Congressional Delegation that S-Comm requires a state MOA because the State Identification Bureau possesses and controls how fingerprint data is used

From document ICE FOIA 10-2674.0013231:

“Ms. Leen said she has received conflicting information that suggested the local jurisdictions would have to enter into an agreement with ICE under SC, but based upon the information being provided, it appears that the agreement is with the state. Mr. Venturella confirmed that the formal agreement is with the state because they own the data systems at the state level and control what is submitted to federal authorities. Further, state and local law enforcement agencies are “users” of the system so any requests related to how information is used is made by the state.”

Press Release from Asian Law Caucus, ACLU of CA, CIPC, CHIRLA, NDLON, PICO California, and Asm. Tom Ammiano.  Posted by Angela Chan, Staff Attorney, Asian Law Caucus.

 San Francisco – Civil rights groups are applauding Mayor Ed Lee’s decision to immediately begin implementation of a city law, passed in November 2009, that restores due process for immigrant youth in San Francisco’s juvenile justice system and ensures that innocent youth are not torn from their families for deportation.  However, at the same time, the groups are expressing disappointment that the Mayor will only be implementing the policy for accompanied youth (i.e., youth who have immediate family here) and not for unaccompanied youth.  The groups urge him to fully implement the duly-enacting, common-sense law so that all innocent youth receive protections.

The due process policy is a city law passed by a supermajority of the Board of Supervisors in November 2009. The law ensures that all immigrant youth receive their day in court for any alleged charges and that only youth who are found to have committed a felony are reported to ICE for deportation.

Implementation of the broadly-supported law, endorsed by over 70 organizations, had been stalled until today due to former Mayor Newsom’s refusal to enact the law.  Under Newsom’s direction, Juvenile Probation reported over 160 youth to ICE at the point of arrest, prior to the youth receiving due process, based only on a juvenile probation officer’s “reasonable suspicion” that a youth is undocumented.  The problematic past policy tore innocent youth from their families and spread fear among immigrant residents of coming forward to cooperate with police.   

Juvenile Probation Department (JPD)’s prior policy of reporting youth for life-altering deportation at arrest went well above and beyond any obligations under federal law.  As a cadre of legal scholars, including University of San Francisco Law Professor Bill Ong Hing, have repeatedly made clear, there is no requirement imposed on city officials under federal law to ask about immigration status or to report individuals suspected of being undocumented. 

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NOTE: Originally published on Asian Pacific Americans for Progress on April 7, 2011.

This article has been re-posted with the permission of the authors.

By Karin Wang, Vice-President, Programs & Communications, Asian Pacific American Legal Center

On March 28, 2011, the New York Times picked up a story that ran a few days earlier in the Pasadena Star-News, a local Southern California newspaper, about the discovery of a home in the Los Angeles area catering to Chinese “maternity tourists.”  In doing so, it touched off the latest round of debate on the 100+ year legal principle that confers U.S. citizenship on anyone born in the United States.  Two days later, a subsequent investigation by the same Star-News reporter concluded that incidents of “maternity tourism” are isolated and the numbers of births are very low.  But by then, the media had picked up the story and it took on a life of its own.

Lost in the frenzy of reporters and bloggers trying to weigh in on this issue was a more important reason for March 28 being a notable date in the history of “birthright” citizenship:  More than 100 years ago, on March 28, 1898, the U.S. Supreme Court issued its landmark decision in United States v. Wong Kim Ark, holding that children born in the United States, even to parents not eligible to become citizens, were nonetheless citizens themselves under the 14th Amendment of the U.S. Constitution.

The 14^th Amendment states that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” Adopted after the Civil War, it was intended to prevent states from deciding on their own, particularly with regard to the children of freed slaves.  In Wong Kim Ark, the Supreme Court confirmed that this right extended to the children of non-citizens as well.

Born in San Francisco to Chinese immigrants who were barred under the Chinese Exclusion Act from ever becoming U.S. citizens, Wong was denied re-entry to the United States after a trip to China, on the grounds that the son of a Chinese national could never be a U.S. citizen.  Wong sued the federal government, resulting in the Supreme Court’s seminal decision that for 113 years has shaped the uniquely diverse character of our nation, by giving root to countless immigrant communities from all races and ethnicities.

For Chinese Americans and in fact all Asian Americans, Wong Kim Ark’s courage has subsequently and significantly led to the growth and integration of a community that a century ago lived in dwindling isolation and segregation under the Chinese Exclusion Act.  By confirming the U.S. citizenship of children born in the United State to immigrant parents, the Wong Kim Arkdecision allowed Asian migrants to slowly gain a toehold in American society, creating generations of Asian Americans who know no other home than the United States and who have fully integrated into American society and culture, as scientists, doctors, entrepreneurs, lawyers, teachers, artists.  In fact, through immigration and births, Asian Americans have emerged as the fastest-growing community over the past decade, jumping 34 percent in California and at least 43 percent nationally.

In context of the rapid growth and integration of the Asian American community, it’s clear that the “maternity tourism” case in Southern California represents an aberration in the Chinese immigrant experience.  The New York Times reported that in 2008 (the most recently available data), out of approximately 4.3 million total births, only 7,462 were to foreign residents overall – a tiny 0.17% of the births in that year – and births to “maternity tourists” would comprise an even smaller subset of that tiny number.  Those who clamor to abolish the long-standing right of constitutional citizenship would eliminate a fundamental principle cherished by all Americans, in order to punish a few individuals.  Such a sweeping reform would be an outsized response to a non-issue.

So, while the sensationalized story of “maternity tourism” grabs headlines, the more important story of the 14^th Amendment is in how it laid the foundation for our extraordinarily diverse nation, by granting citizenship to the children of freed slaves and immigrants from around the globe.  While challenges to birthright citizenship will likely continue, all Americans should celebrate Wong Kim Ark’s courage and defend his legacy of guaranteeing the constitutional right to citizenship.

For more information re the Asian Pacific American Legal Center, a member of Asian American Center for Advancing Justice, visit us at: http://www.apalc.org or http://www.facebook.com/APALC.

 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. 

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Santa Clara, CA and Arlington, VA County Boards Unanimously Vote to Opt Out of ICE’s Controversial S-Comm Program

Arlington, San Francisco, and Santa Clara – The Santa Clara Board of Supervisors and the Arlington County Board both voted unanimously on Tuesday, September 28th, to opt out of S-Comm, which is a controversial Immigration and Customs Enforcement (ICE) data sharing program also known as Secure Communities.  Both resolutions are available at http://uncoverthetruth.org.

A broad coalition of civil rights groups applaud Santa Clara and Arlington for joining San Francisco in requesting to opt out of ICE’s dangerous fingerprinting program.  S-Comm is a program that automatically shares with ICE any fingerprints taken by local law enforcement right after individuals are arrested, even if the criminal charges are eventually dismissed or the result of an unlawful arrest.  The program has sparked strong opposition from civil rights organizations, law enforcement, and city officials from Washington, D.C. to San Francisco, over concerns it is being forced on hundreds of counties without any mechanism for oversight or accountability.

Jill Malone from Justice For Immigrants Catholic Campaign in Santa Clara, states, “I applaud the Board of Supervisors for taking a unified stand against S-Comm.  This has been a long journey with the Board of Supervisors and we will continue to work with them to demand that ICE follows its policy and allow local jurisdictions to opt out.  By opting out of this program our community will feel safer and will be able to reach out to local law enforcement for the protection of themselves and the great community.” Read the rest of this entry »

Civil Rights Groups Applaud Sheriff Hennessey for (Again)
Requesting to Opt Out of the Dangerous Fingerprinting Program

San Francisco – A broad coalition of civil rights groups today applaud Sheriff Hennessey for sending another letter to Immigration and Customs Enforcement (ICE) and the California Department of Justice to request that San Francisco be allowed to out of a dangerous finger printing program known as S-Comm (i.e., Secure Communities).  S-Comm is a program that automatically shares with ICE any fingerprints taken by local law enforcement right after any individuals are arrested, no matter how minimal the charge or whether the individual is eventually found to be innocent of alleged charges, thereby resulting in increased deportations and the tearing apart of families.  In the past six months, ICE has tripled the number of jurisdictions operating S-Comm, and it is now in 494 jurisdictions in 27 states.[1]

Sheriff Hennessey sent the letter requesting to opt out of S-Comm on August 31st in response to a document issued by ICE that confirms that participation in S-Comm is voluntary, and not mandatory.  The ICE document, entitled, “Setting the Record Straight” states 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.” Read the rest of this entry »