The California Assembly passed a bill 43-22 today that challenges the embattled federal immigration enforcement program known as Secure Communities. If the bill becomes law, it would allow the state to renegotiate its contract with the Homeland Security department, allowing local jurisdictions to opt out of what is now a mandatory fingerprint-sharing program. The state could choose to opt out altogether as well.
The bill, which now goes on to the senate, has been dubbed the Transparency and Responsibility Using State Tools Act, or “TRUST Act.”
The text of the California bill was posted on Multi-American late last month. Shortly afterward, the governor of Illinois announced plans to withdraw the state from the program. His decision was challenged by Department of Homeland Security officials, who said the department would not allow Illinois law enforcement to opt out of sharing information with immigration authorities.
If the California bill passes and the state moves to opt out of or modify its participation in Secure Communities, can it?
The program's implementation in California was guided by a "memorandum of understanding," or MOA, between Homeland Security and the California Department of Justice dated January 23, 2009. In the section titled "Modifications and Termination," the document reads:
This MOA may be modified at any time by mutual written consent of both parties.
This MOA may remain in effect from the date of signing until it is terminated by either party. Either party, upon written or oral notice to the other party, may terminate the MOA at any time. A termination notice shall be delivered personally or by certified or registered mail and termination shall take effect 30 days after receipt of such notice.
The same section of the Homeland Security MOA with Illinois State Police, available online along with other Secure Communities documents, has the same wording.
Secure Communities allows for the fingerprints of people booked into local jails to be checked against the Homeland Security department’s immigration records. If there is a match, immigration authorities are notified. Some jurisdictions, including San Francisco, have tried to opt out without success. Critics say the program alienates immigrant communities and potentially impedes policing; immigrant advocates have pointed out that while the program is intended to find deportable criminals, it nets many people without criminal records, who are deported.
After Homeland Security's reaction to the Illinois decision, The San Francisco Bay Guardian published a series of opinions on Secure Communities from legal scholars, among them Bill Ong Hing, a law professor at the University of San Francisco who is critical of the program. Ong Hing noted the MOA language: “The implication of this provision is clear: the terms of the MOA are negotiable,” he said.