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Secure Communities Opt-Out May Be on the Table

As the Immigration and Customs Enforcement (ICE) Secure Communities program continues to expand aggressively, ICE is finally suggesting a procedure for local jurisdictions to opt out of the newest local immigration enforcement program.

As the Immigration and Customs Enforcement (ICE) Secure Communities program continues to expand aggressively, ICE is finally suggesting a procedure for local jurisdictions to opt out of the newest local immigration enforcement program.

Touted as a voluntary partnership between federal, state and local agencies which “supports public safety by strengthening efforts to remove the most dangerous criminal aliens from the United States,” Secure Communities (S-Comm) was set up to allow local law enforcement officials to share their data with ICE, in order to prevent undocumented immigrants with serious criminal records from being let out of jail.

Advocates have raised a number of red flags about the program since its inception in 2008, saying that it does not effectively target criminal immigrants, but instead focuses on deporting individuals with minor offenses, or none at all. Critics of the program also argue that it adds obstacles to community policing and encourages racial profiling.

Though the program is not mandatory, ICE has never offered a clear path for localities to opt out. It has provided contradictory information and ignored requests for opt-out information – until now.

In response to mounting public pressure and the release of internal ICE documents obtained by a Freedom of Information Act request from a group of civil rights organizations, including the Center for Constitutional Rights, the National Day Labor Organization and others, the agency issued a document describing for the first time what may be an opt-out process.

“Local governments, law enforcement and the public demand that ICE immediately amend the S-Comm agreements to outline a clear and functional opt out process and respect the requests of jurisdictions … to opt out of the program’s implementation,” said Sarahi Uribe of National Day Laborer’s Organizing Network and lead organizer of the “Uncover the Truth Behind ICE and Police Collaborations” campaign. “Details have been scarce, and frankly, there has been an Orwellian tone to Assistant Secretary Morton’s S-Comm propaganda campaign. Despite clear warning signs from Arizona about the dangerous consequences of the ICE-police mergers, the assistant secretary has accelerated its expansion.”

ICE Assistant Secretary John Morton has declared his intention to implement the program in every city, county and state by 2013 – it already operates in 574 jurisdictions in 30 states. Morton has defended the program as an innocuous information-sharing program, and has said it does not require local police to enforce immigration laws.

Under the program, an individual picked up by a police officer in a participating agency will have his or her fingerprints automatically sent by the state to federal immigration databases to check for matches. If the immigrant has a prior violation, he or she is likely to be targeted for deportation.

In this sense, S-Comm is distinct from the separate but overlapping 287(g) program, which allows ICE to delegate immigration work to local authorities.

So far, Secure Communities has led to the removal of 47,000 people. According to government data, a quarter of these people – 12,293 – were considered non-criminals, while others were picked up for low-level offenses such as shoplifting or driving without a license. In Travis County, Texas, non-criminals accounted for 82 percent of individuals deported due to Secure Communities collaboration.

Jazmin Segura, from Services, Immigrant Rights and Education Network, called S-Comm “a dangerous program that increases the collaboration between local law enforcement and ICE. This collaboration, which makes immigrants reluctant to trust local authorities, can critically undermine the health and well-being of all residents – including US citizens. We are pleased ICE has taken the first step in ensuring a clear opt-out process so that counties like Santa Clara can continue to protect and promote the public safety of our community.”

Law enforcement in a number of localities has spoken out against the program – city leaders in San Francisco and Washington D.C. have decades-old policies in place which limit police involvement in immigration that Secure Communities is likely to override.

In May, the Washington, DC Council unanimously sponsored a bill opposing participation in Secure Communities, and in July 2010 became the first county to formally withdraw. The district’s special, non-state status allowed it unusual leeway – ICE usually negotiates agreements with a state, thereby automatically enrolling all cities in that state.

In spite of San Francisco Sheriff Michael Hennessey’s attempt to get out of the supposedly voluntary program, he found his hands tied. San Francisco already reports individuals arrested for violent offenses and felonies to federal authorities, discretion that enrollment in S-Comm would undermine.

“Despite ICE’s contention that a local jurisdiction may opt out of Secure Communities by submitting a formal request in writing, my experience has shown this not to be true,” Hennessey said.

Santa Clara County Supervisor George Shirakawa shared a similar experience: “The County of Santa Clara has been struggling to understand the so-called ‘voluntary’ roll-out of Secure Communities in our jails. Santa Clara County has a long-standing policy of not entangling immigration enforcement with local policing. We are not in a position to do ICE’s work.”

Citing the “significant confusion about how local law enforcement agencies may ‘opt out’ of Secure Communities,” Rep. Zoe Lofgren (D-California) drafted a letter to the agency in July, requesting clarification about the program.

In response, ICE spokesperson Mark Medevsky said cities could not opt out of Secure Communities, despite his earlier assertion in news interviews that the program was not a mandate.

It was in August 2010, in a document titled “Setting the Record Straight,” that ICE first began to outline how a jurisdiction could avoid joining Secure Communities. According to the document, if a city or county wanted to opt out, stakeholders would meet to “discuss any issues and come to a resolution, which may include … removing the jurisdiction from the deployment plan.”

San Franciscoís sheriff resubmitted a request to opt out this week, citing the new ICE procedure in a letter to the California Attorney General and the Department of Homeland Security. On Wednesday, leaders from two other California counties called for similar withdrawals.

However, the process remains murky. Unlike 287(g), the Secure Communities program does not require a Memoranda of Agreements with local law enforcement, because all fingerprints are sent to federal agencies through the state. According to ICE agency spokeswoman Lore Haley, jurisdictions could opt not to receive the results of immigration checks, but fingerprints collected would still be available to ICE.

The Secure Communities program was one of the central issues discussed this year in a conference of the Consortium for Police Leadership in Equality, attended by police chiefs from 27 major cities. San Francisco’s case is likely to be closely watched as an important precedent for other cities and law enforcement agencies who hope to opt out of the nation’s fastest growing federal immigration enforcement program.

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