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Secure Communities: How much latitude do states have?

The back-and-forth between the federal government and states over the federal Secure Communities immigration enforcement program goes back a long way, with controversy and confusion that began brewing shortly after the program first began rolling out in late 2008.

First there was confusion over the voluntary-vs.-mandatory nature of the program, through which the fingerprints of people booked by local and state cops are entered into a database that allows them to be shared not only with the FBI, but with immigration officials. Next, after several state and local leaders tried to withdraw, fearing Secure Communities might impede policing, the federal government asserted the program was mandatory. State contracts that implied otherwise were rescinded by U.S. Immigration and Customs Enforcement director John Morton last August.

Since then, some local and state officials have been formulating alternate plans to limit their participation in Secure Communities, even if participation is required; in California, the state Senate recently approved a bill that would limit the immigrants that local cops may detain for ICE to convicted felons and others with serious criminal records.

As these scenarios play out, how much latitude might states have? There's some food for thought in a written testimony released today from ICE director Morton on Secure Communities and state and local partnerships, presented before a House committee. From his testimony:

Secure Communities’ use of this information sharing capability does not in any way authorize a state or local agency to enforce immigration laws. The determination to make an arrest is at the sole discretion of the state and local law enforcement officer, acting under the criminal law authority of the jurisdiction in which they operate.

Not every person arrested will be subject to a Secure Communities’ IDENT/IAFIS Interoperability query. Only when state or local law or policy prescribes that the fingerprints be taken from an individual in custody for a criminal charge and then be submitted to the FBI’s IAFIS database will that individual’s fingerprints be checked against DHS’s immigration databases. Even when an individual’s fingerprints are submitted, ICE may choose not to take action if the individual does not meet ICE enforcement priorities.

While state and local law enforcement officials decide whom to arrest and whether to submit fingerprints to the FBI, when there is a biometric match through Secure Communities’ use of this information sharing capability an ICE official reviews both the criminal record and the immigration history and then determines if an immigration enforcement action is warranted in light of ICE’s enforcement priorities.

While subject to interpretation, Morton's testimony is interesting in light of proposed measures like California's TRUST Act, the gist of which is to give state and local authorities flexibility in deciding who gets held for deportation at the request of ICE. Similar measures have been passed elsewhere at the local level, including in Washington, D.C. and Santa Clara County, California.

In his testimony, Morton also stated that "only those fingerprints submitted to the FBI in relation to a criminal charge are subject to Secure Communities’ use of IDENT/IAFIS interoperability," meaning that they are subject to being checked against the immigration database.

Of course, "criminal charge" can be something minor. A recently released series of emails between California and federal officials illustrated how even people pulled over at drivers's license checkpoints, and fingerprinted for lack of valid identification, are subject to having their biometric data shared with immigration agents under Secure Communities.

The entire written testimony can be viewed here.