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Opting out of Secure Communities: Law, technology make it tough to not enforce controversial immigrant-focused program

Protest against Secure Communities in San Francisco.
Protest against Secure Communities in San Francisco.
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Under a new federal program called Secure Communities, the fingerprints of anyone arrested are shared with immigration officials. The aim is to find criminals in the country illegally and deport them. But immigrant rights advocates say the program also deports people who aren’t criminals, but were just unlucky enough to get swept up by the cops. Now some law enforcement agencies, counties and even three states want out of Secure Communities.

San Francisco Sheriff Michael Hennessey is a vocal critic of Secure Communities. The chance that someone would get deported over, say, a traffic ticket, seemed excessive to the Bay Area lawman, so he began looking for a way to drop out of the program.

Hennessey said Secure Communities targets anyone arrested who’s in the country illegally, not just felons: "If a person is involved in a serious and violent crime, we’re plenty happy to see them deported. But if it’s just a minor matter, we don’t want to see families broken up because of immigration issues."

Hennessey told KQED in San Francisco that he contacted Immigration and Customs Enforcement, or ICE, several times about dropping out of Secure Communities. But the sheriff said he struck out. "There appears to be no current method for opting out," he said.

And any other jurisdiction that wants out of Secure Communities, like Santa Clara County and the states of New York, Illinois and Massachusetts, will hit the same wall that San Francisco did. A little history and a federal government organization chart help explain why: States already share criminal fingerprint data with the FBI — it’s just good law enforcement practice.

Since Sept. 11, 2001 a number of laws, from the Patriot Act to various appropriations bills, require the FBI, which is part of the Justice Department, to share information with Homeland Security. John Morton, the director of ICE, says the backbone of Secure Communities is information sharing between the Department of Justice and the Department of Homeland Security.

ICE is part of Homeland Security, so when there’s information sharing between Justice and Homeland Security, it means the FBI is sharing with ICE. And that includes the fingerprint data that states like California send to the FBI. Morton says a "fundamental misconception about Secure Communities is that somehow the program involves an agreement by the state for the exercise of federal immigration authority. Obviously that isn’t the case."

This is the case: There aren’t any fines or sanctions involved if a state or county or law enforcement agency wants to opt out of Secure Communities, but there’s no way to do it, either. Keeping fingerprint information away from ICE means keeping it away from the FBI, too. That’s not good law enforcement practice. There are very good reasons why states, counties and law enforcement agencies want the FBI to have the fingerprints of the people they’ve arrested.

But Hennessey still doesn’t like the idea that someone who’s undocumented and gets arrested in his city for a minor offense might be deported. So he says he’ll just release those people from custody, and get around Secure Communities that way.