An immigration program meant to catch the most dangerous criminals has raised questions about the priorities of immigration enforcement.
In mid-November, the New York City Council convened a hearing to discuss immigration policy in its city jails. The meeting ran more than five hours and mixed statistics, testimony and outrage as the audience tried to determine what implementing an immigration program called Secure Communities would mean for the city.
But New York, like many other jurisdictions around the country, found itself with more questions than answers.
Launched in 2008, Secure Communities is a Department of Homeland Security program that identifies deportable immigrants in U.S. jails. Under the program, an arrestee's fingerprints are checked against federal criminal and immigration databases, giving U.S. Immigration and Customs Enforcement (ICE) technological access to local prisons and jails.
ICE and local law enforcement are notified immediately of the arrestee's immigration status. ICE can then issue a detainer against the arrested individual–meaning the person can be held until ICE decides whether to initiate deportation proceedings against them.
Secure Communities has been activated in 788 jurisdictions in 34 states. The agency plans to implement the program in every state and local jail by 2013.
According to ICE's Fiscal Year 2010 Fact Sheet, Secure Communities targets and assists “all local communities in the removal of those criminal aliens representing the greatest threat to community safety.” In fiscal year 2010 alone, the Secure Communities program deported more than 1,000 aliens convicted for homicide, nearly 6,000 convicted of sex offenses, more than 45,000 aliens convicted of drug offenses, and nearly 28,000 convicted of driving under the influence of drugs or alcohol.
'No-cost' immigration control
For many law enforcement officials and community members, the Secure Communities program is a no-cost, simple way to control immigration and protect residents from potentially violent criminals, without turning local police into immigration officials.
“The program identifies individuals who are here in our country illegally and commit serious crimes, without profiling or enforcement of federal immigration laws by our deputies,” says Fairfax County, Virginia Sheriff Stan Barry in an ICE press release. “There's no additional workload for our staff and does not cost a dime to Fairfax County or to our residents.”
Much like Arizona's controversial SB170 law and the 287(g) program, the Secure Communities program is, undoubtedly, changing the face of immigration enforcement in the United States by giving ICE unprecedented access to prisons and jails across the country.
Supporters of the program say that complaints about Secure Communities miss the point: criminal or not, the program targets individuals who broke U.S. law.
“Where it is written that you have to commit a serious felony to have something done to get you out of the country?” says Ira Mehlman, spokesperson for the Federation for American Immigration Reform, an advocacy group that calls for reducing immigration levels. “The penalty is, if you are caught in this country illegally, you are removed.”
Police departments already work with federal agencies, notes Mehlman, adding that ICE shouldn't be exempt.
“Every single day, the New York City police department works with the FBI, the ATF, and the DEA—nobody seems to object to that (and) nobody is asking them to go out and do the job of federal immigration authorities,” he adds. “But if somebody falls into your lap, they ought to have the responsibility to run that person to federal immigration authorities.”
But although the Secure Communities program seems an efficient way to catch and deport immigrant law-breakers, some wonder if the costs of the program outweigh the benefits.
ICE has offered a mixed and perplexing message to the three communities around the country that have tried to opt-out of the Secure Communities program. In September, the County Board of Arlington, Virginia voted unanimously to opt out of the program, because officials feared it would “promote a culture of fear and distrust of law enforcement, ” according to the Board's published resolution.
By early November, after writing a letter to ICE asking for information about opting out, County Manager Barbara M. Donnellan and Arlington's police chief and sheriff met with ICE and found that they had two options. They could either not receive the results of federal database searches, meaning local law enforcement would not receive crucial information about the arrestee–such as known aliases or criminal history–or they could decline to share fingerprints with ICE and the FBI. Virginia law, like many states, requires that an arrestee's fingerprints be checked against both state and federal databases, rendering it impossible for Arlington to opt out.
Like Arlington, San Francisco and Santa Clara, Calif. have each struggled to define their responsibilities and requirements to ICE.
ICE initially told the cities the program was not optional. Then, last September, a memo from Secretary of Homeland Security Janet Napolitano implied that communities could in fact chose not to send fingerprints of those they arrest to immigration authorities.
“A local law enforcement agency that does not wish to participate in the Secure Communities deployment plan must formally notify the Assistant Director for the Secure Communities program,” Napolitano wrote. She added that jurisdictions that did not wish to participate would still be responsible for notifying ICE about “suspected criminal aliens” in their custody.
Both Arlington and San Francisco told ICE in writing that they did not want to be “deployed.” But ICE reversed itself again in November, and informed both that opting out was not, in fact, an option.
“Jurisdictions cannot opt out of Secure Communities as it is fundamentally an information sharing program between federal partners,” wrote ICE spokesman Ivan Ortiz Delgado in an email to The Crime Report. According to ICE, once a state signs an Memorandum of Agreement with ICE approving the program, jurisdictions may decide when, but not if, they wish to begin the program.
“Should a jurisdiction not wish to activate on its scheduled date in the Secure Communities deployment plan, ICE will gladly work with them to address any concerns and determine appropriate next steps,” Delgado added.
Washington D.C. did, however, terminate its agreement with ICE last summer, and it may still be possible to opt out at the state level.
New York balks
Two weeks after the meeting downtown, the New York City Council called on New York State Governor David Paterson to do just that, but the move seems unlikely. Although New York City has resisted signing on to the program, 11 local departments in the state have made moves to implement the fingerprint-sharing plan.
“Communities right now don't have to implement it right away,” says John Caher, spokesman for the state's Division of Criminal Justice Services. But Caher notes that the state has reason to support the program.
“New York State and in particular New York City is by far the premier target in this country for terrorism,” he says. “There is a legitimate rationale.”
New York City already cooperates with ICE through the Criminal Alien Program, which reviews the immigration records of all inmates at the Rikers Island jail complex. ICE interviews about 4,000 people at Rikers each year, 3,000 of which are pre-trial detainees, according to data obtained by the New Sanctuary Coalition in New York, a coalition of pro-immigration advocacy groups and individuals.
ICE detains about 3,200 Rikers inmates a year, who then get sent to facilities across the country, many in the southwest. Criminal charges are habitually dropped, but immigration detainees do not have the legal right to council, so many immigration detention cases go uncontested.
Make the Road New York is one of several immigrant-rights groups in the city that has opposed ICE's presence at Rikers Island. They worry Secure Communities will exacerbate an already problematic program.
“Right now they have carte blanche to do what they want,” says Javier Valdez, deputy director of Make the Road. “We need to make sure that ICE is following the national rhetoric and going after the hardened criminals.”
Who gets deported?
ICE has said that Secure Communities places priority on prosecuting and deporting the most dangerous criminals, convicted of “level one” offenses like murder and other violent felonies. Critics are concerned that the program seeks to deport any undocumented or otherwise deportable but non-criminal immigrant found in the databases.
The numbers seem to support this. According to ICE's, non-criminals seem to be keeping pace with Level 1 and 2 offenders. Last year, ICE booked 33,188 non-criminals and 11,173 Level 3 offenders, or those convicted of a misdemeanor, 36,390 Level 2 offenders, and 30,967 Level 1 offenders.
According to ICE spokesman Ortiz-Delgado, more aliens have been convicted of Level 2 and Level 3 crimes simply because more individuals commit those crimes. However, Ortiz-Delgado says, “ICE prioritizes the removal of criminal aliens convicted of Level 1 offenses, allocating resources to remove those aliens first.”
Those resources have grown exponentially in recent years. ICE appropriated $200 million for the Secure Communities program during fiscal year 2010. But that is only a small sliver of the $5.7 billion budget for the department. About $2.55 billion of that is allocated for detention and removal operations in fiscal year 2010, more than twice the amount budgeted in 2005.
Impact on Community Policing
Many local officials are concerned that the program will discourage immigrant groups from cooperating in police investigations or reporting crime, destroying often hard-earned trust between local law enforcement and communities living off the grid.
Lack of information on the Secure Communities program has also led many immigrants to speculate that local law enforcement and immigration enforcement are one and the same.
“Tight-knit communities have informal methods of communication which aren't always 100 percent accurate,” says San Francisco Sheriff Michael Hennessey. “When they hear the story of someone who was not convicted of a crime being taken away and disappeared, I think it sends a chilling message to that community: 'Don't deal with the police because they are going to turn you over to ICE.'”
“The concern is that if the immigrant community, whether they are here legally or not, will be reluctant to report crimes or come forward as witnesses because they would be fearful of being caught up in the ICE dragnet,” Hennessey adds.
Hennessey says reports are circulating of domestic violence victims being deported after they reported their abuser.
“I know that there are cases where police have responded to a domestic violence call,” he says. “They arrest both parties. One of them is a victim, but they both get reported to ICE.”
Oversight and enforcement
According to federal reports, ICE does not have a strong track record of oversight and management of its enforcement and detention policies.
A 2007 report from the Government Accountability Office found that ICE did not regularly update its training materials and manuals. Some dated from before the Department of Homeland Security was created in 2002. “As a result,” the report said, “ICE officers are at risk of taking actions that do not support operation objectives and making removal decisions that do not reflect the most recent legal developments.”
Another GAO review released in January 2009, found serious issues with the implementation of the 287(g) program, which deputizes local law enforcement to act as immigration officers. ICE told investigators the program strove to enhance the security of communities “by addressing serious criminal activity committed by removable aliens.” Yet investigators found “some participating agencies are using their 287(g) authority to process for removal aliens who have committed minor offenses,” like speeding, open-container violations or public urination.
Like Secure Communities, the 287(g) program does not prohibit local government from pointing ICE toward people arrested for minor offenses. But the GAO report presented an issue that could grow as Secure Communities goes forward. “If all the participating agencies sought assistance to remove aliens for such minor offenses,” the report said, “ICE would not have the detention space to detain all of the aliens referred to them.”
ICE declined to respond to a question about the fiscal impact of the full implementation of Secure Communities, but both supporters and critics of the program believe ICE cannot implement Secure Communities across the country without significantly increasing its detention capacity.
Private companies, with the support of the federal government, have already begun to build new facilities to accommodate the growing number of individuals detained under Secure Communities.
One such facility in Farmville, Virginia, stands to receive about $213,000 in revenue and 300 jobs, according to a recent article in The Washington Post. Over the next year, the $21 million, privately-run center expects to hold over 1,000 detainees, most of them found through the Secure Communities program.
Immigration in the courts
But exactly how many people have been detained and deported through the Secure Communities program remains a mystery. ICE has evaded repeated attempts by groups to obtain specific data on the program.
Data does show, however, that immigration courts are throwing out a significant number of the immigration detention cases that come before them.
During the last three months of fiscal year 2010, courts rejected nearly one out of every three cases, according to a report released by The Transactional Records Access Clearinghouse (TRAC), a non-partisan research and data distribution organization at Syracuse University. In some of the busiest courts–New York, Los Angeles, Miami, Oregon and Philadelphia–more than half the cases were judged to be without merit.
The data suggests that ICE is either not screening cases before they enter the legal system, or is failing to present compelling cases in court, according to Syracuse University professor Susan Long, co-director of TRAC. How much of this is tied to Secure Communities is impossible to know, Long said, because ICE refuses to release that data.
“There are hard choices here, whether we think about it from our tax dollars and efficiency, cheating security, or we think about it from the perspective of how people are being treated and the adverse impacts on people's lives,” says Long.
“If we really want to have a reasoned debate here, which I think the vast majority of people do, we need to have the government release the data so that the facts will be on the table.”
Lisa Riordan Seville and Hannah Rappleye are freelance reporters living in Brooklyn.
Photo courtesy ICE