Hundreds of emails from U.S. Immigration and Customs Enforcement released yesterday illustrate the confusion over Secure Communities, a federal fingerprint sharing program whose involuntary nature has frustrated local law enforcement in some jurisdictions, including in California.
The emails include internal communication between ICE officials and with state officials in California. They were obtained through Freedom of Information Act litigation by legal advocacy groups that include Los Angeles' National Day Laborer Organizing Network, the Center for Constitutional Rights and the Benjamin N. Cardozo School of Law's Immigration Justice Clinic. The groups have described the content of the emails as attempts to deliberately mislead California officials about the nature of the program, initiated in 2008, which many at first believed to be voluntary.
"At a bare minimum, there was a disarray in the communications that were taking place," said Chris Newman, legal director of the Los Angeles day laborer organization. "That is putting it generously."
An ICE spokeswoman wrote via email yesterday in response to the released documents that “deliberative, internal correspondence should not be confused for final policy.”
What does come across in the California emails is, at least, a seeming lack of cohesive strategy and clear definition of what opting out meant as Secure Communities was rolled out, state and other officials began asking questions, and federal officials scrambled to answer them.
In an email dated May 7, 2010 titled "Santa Clara Secure Communities," an unnamed official wrote to David Venturella, the ICE official in charge of the program:
I just got a call from Congresswoman Lofgren’s staff. They heard from the Santa Clara County Police Chief who said that the County was forced into Secure Communities and told they had no choice in the matter by ICE as well as the State. Do you have any info on this? It’s my understanding that the MOA is with the state and that counties can opt in. Needless to say, Lofgren is up in arms about this. If I can get them an answer tonight it would probably be best.
Santa Clara County is one of several jurisdictions that have unsuccessfully tried to opt out of Secure Communities. While it does not enable local police to enforce immigration laws, the program allows for the fingerprints of people booked into local jail systems to be checked against the Homeland Security department’s database of immigration records. If the fingerprints match, immigration officials are alerted.
San Francisco and Arlington, Va. have also been among the jurisdictions that have tried to opt out, with law enforcement officials fearing the program might alienate immigrant communities and interfere with local policing efforts.
ICE's Los Angeles-area spokeswoman Virginia Kice reiterated yesterday that participation in the program is not optional. She provided this statement:
There has been substantial confusion as to what is meant by “opting out” in the context of Secure Communities and whether “opting out” is possible. Where Secure Communities is deployed, it is mandatory that the fingerprints state and local jurisdictions submit to the FBI be shared with ICE.
...The United States government has determined that a jurisdiction cannot choose to have the fingerprints it submits to the federal government processed only for criminal history checks. Nor can a jurisdiction demand that the identifications that result from DHS’s processing of the fingerprints not be shared with local ICE field offices in that jurisdiction. The ICE local field office, and not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate. In that sense, a state or local jurisdiction may not “opt out” of Secure Communities.
A jurisdiction may, however, choose not to receive the identifications that result from processing the fingerprints through DHS’s biometric system. A jurisdiction’s decision not to receive this information does not affect whether the local ICE field office in that jurisdiction will or will not take enforcement action based on those identifications. In that sense alone, jurisdictions may “opt out” of only this limited aspect of Secure Communities.
The federal government's communication about the involuntary nature of Secure Communities wasn't so clear in the past. The misperception of it as voluntary was supported by letters sent last fall to Rep. Zoe Lofgren, a Democrat from San Jose and chair of the House immigration subcommittee. The letters from Homeland Security chief Janet Napolitano and a U.S. Department of Justice attorney stated, among other things, that if a law enforcement agency opted not to participate in Secure Communities, then the local agency must take responsibility for notifying immigration officals of "suspected criminal aliens."
It wasn't until later last fall that it became clear there was no opt-out.
Some of the communication from ICE last year didn't help with the public confusion. The degree of clarity in the messages released yesterday varies.
In one email sent to Venturella and other officials last May 17, as San Francisco city supervisors prepared to vote on whether to "opt out," spokeswoman Kice clarified that "jurisdictions can choose not to receive the immigration-related information on individuals who are fingerprinted, but that information will still be provided to ICE." This, she wrote, would be explained to reporters.
A couple of hours later, an email from Venturella addressed how to handle the San Francisco situation:
I think we need to say we will honor SFR's desire not to participate in this info sharing initiative. This means the immigration information maintained by ICE will not be shared with SFR law enforcement authorities.
If they want to receive this information in the future they can submit a written request through the SFR SC Field Coordinator.
To the outside, it looks like we are asking for local LEAs to share their data with us when in reality it us sharing our data with the locals in an automated way.
It is a nuanced way of saying the same thing but allowing us to move forward and the local to say they are declining our offer.
Am I making any sense?
Newman, of the Los Angeles day labor group, said the emails were posted yesterday to "show the astonishing leval of miscommunication that has accompanied the program." He described their general content as illustrating "disarray and confusion. And there was likely some deception and some effort, I think, to gerrymander the process."
Frustration over Secure Communities in the Bay Area led to the recent introduction of a state bill that would make it optional for law enforcement agencies to participate. Sponsored by Assembly member Tom Ammiano, a Democrat from San Francisco, the proposal would remove California counties from the program temporarily, then allow them to rejoin if desired.
Multi-American's sister NPR Argo blog The Informant at KALW in San Francisco recently reported that the Northern California counties of Santa Clara and Contra Costa lead the way in Secure Communities-related detentions. One of critics' biggest complaints about the program in California and elsewhere is that while the idea was to target immigrants with criminal records, a large percentage of those netted through the program have turned out to not have prior criminal convictions.
Nonetheless, Secure Communities has been implemented throughout California and continues to be rolled out elsewhere. Kice said the program is operating in 1,188 jurisdictions in 41 states, and is expected to be in use nationwide by 2013.
Additional documents were posted by the advocacy groups pertaining to Secure Communities programs in other states and jurisdictions, among them Colorado, Illinois and Washington, D.C.