Art by José Luís Agapito/Flickr (Creative Commons)
Immigration officials may not have intentionally misled lawmakers or the public about the controversial Secure Communities immigration enforcement program, but their communication strategy was a mess, according to an investigation by Homeland Security's Office of Inspector General.
The OIG investigation was requested last year by California's Rep. Zoe Lofgren, a Democrat from San Jose, after states and local jurisdictions trying to withdraw from the federal fingerprint-sharing program began learning they could not. It's one of two new OIG reports related to Secure Communities, the other addressing the program's operations.
The communications analysis is perhaps the most interesting of the two, among other things examining the Secure Communities memorandums of agreement, called MOAs, which states and jurisdictions signed after the program began rolling out in late 2008.
The use of MOAs generated questions as to whether participation in Secure Communities was voluntary or mandatory. According to current and former ICE personnel, the agency chose to use MOAs because they had been used in past enforcement and removal programs, such as the 287(g) Program, to establish the responsibilities of ICE and States or local jurisdictions. However, the 287(g) Program was a voluntary program.
...All 42 MOAs we reviewed included a modification and termination clause that may have added to the confusion regarding participation in Secure Communities. The clause stated that “either party, upon 30 days’ written 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.” Because it allows for unilateral termination, a State could interpret the language of this clause to mean it could choose not to submit fingerprints to DHS and to end its participation in Secure Communities.
That was just the beginning. The report critiques the information that ICE continued to put out as confusion over the nature of the program, which allows fingerprints taken in local jails to be shared with immigration officials, continued to mount. In response to a series of inquiries from legislators, local officials, media and other stakeholders between 2009 and 2010, "ICE, and in one instance DHS, provided unclear and inconsistent responses," the report reads. It continues:
Our review of internal and external correspondence showed that ICE had not clearly defined or agreed on whether the participation in Secure Communities was mandatory or voluntary. We reviewed correspondence that included definitions of participation, such as letters to stakeholders, as well as ICE interoffice emails, presentations, talking points, and public affairs guidance. These documents revealed that, from August 2009 through August 2010, the definition of participation changed five times.
A series of attempts at communicating the nature of the program failed for lack of clarity, like a document cited from August 2010 called "Setting the Record Straight." The report reads:
This document contained information on Secure Communities, including an explanation as to how jurisdictions could choose not to participate. It explained that if a local jurisdiction did not wish to activate information sharing on its scheduled date, it would have to formally notify the State identification bureau and ICE in writing. ICE would then discuss the jurisdiction’s concerns and reach a resolution, which could include adjusting the activation date or removing the jurisdiction from the implementation plan.
Although the document was intended to clarify participation in Secure Communities, it was confusing since it implied that local jurisdictions could choose not to participate.
In the end, though, the report does not claim an intent to mislead. It concludes:
We did not find evidence that ICE intentionally misled the public or States and local jurisdictions during implementation of Secure Communities. However, ICE did not clearly communicate to stakeholders the intent of Secure Communities and their expected participation.
This lack of clarity was evident in its strategic plan, its outreach efforts, memorandums of agreement signed by States, and its responses to inquiries regarding participation. ICE senior leadership also missed opportunities to provide clear direction to its officials implementing Secure Communities. As a result, 3 years after implementation began; Secure Communities continues to face opposition, criticism, and resistance in some locations.
The resistance became so strong in some jurisdictions and states - including Illinois, Massachusetts and New York, in which lawmakers announced plans to with draw - that in August of last year, ICE director John Morton terminated the memorandums of agreement, essentially forcing participation.
Th communications report was coupled with a different OIG report analyzing operations, which deemed Secure Communities successful in its goal of identifying "criminal aliens" but urged better documentation of actions from ICE agents. It concluded that in order "to improve the transparency and thoroughness of its processes under Secure Communities, the agency needs to eliminate the duplication of research and ensure that officers fully document their actions."
In response to both reports, Lofgren released a statement today criticizing the audits for failing to answer questions about whether the program nets too many non-criminals, a frequent complaint, whether it undermines community policing efforts, and if racial profiling is a problem.
Lofgren added regarding the communication breakdown: "The OIG doesn't say whether DHS or ICE provided misinformation through incompetence or dishonesty. That leaves me concerned about the thoroughness of this review."