Insecure Communities: Examining Local Government Participation in Us Immigration and Customs Enforcement's "secure Communities" Program

• Jurisdiction: United States,Federal,California
• Citation: Vol. 10 No. 1
• Publication year: 2011

§ Fall / Winter 2011-#7. Insecure Communities: Examining Local Government Participation in US Immigration and Customs Enforcement's "Secure Communities" Program

Washington Seattle Journal For Social Justice
Volume 10, No. 7
Fall / Winter 2011

Insecure Communities: Examining Local Government Participation in US Immigration and Customs Enforcement's "Secure Communities" Program

Rachel R. Ray*

In the last several years, suffering global economies, war, ethnic and racial tensions, natural disasters, and other exigencies have led to a steady stream of immigrants to the United States. They seek jobs, refuge, asylum, and better opportunities. In fiscal year 2010, the United States Immigration and Customs Enforcement (ICE) removed a record-setting 392,000 undocumented immigrants, half of which were convicted criminals.(fn1) Yet a careful look behind this impressive number would undoubtedly reveal families torn apart by the removal of undocumented spouses, parents, siblings, and children convicted only of nonviolent crimes, traffic violations, or other minor infractions.(fn2) ICE's own data shows that 79 percent of people deported through its "Secure Communities" (S-Comm) program are noncriminals or were detained for lower-level offenses, such as traffic violations.(fn3) S-Comm is just one of many initiatives designed to identify and deport undocumented people, specifically those convicted of crimes. Try as it might, the US government has not yet found a successful way to deter illegal immigration, nor has it developed satisfactory immigration reform.

This article considers ICE's S-Comm program, options for local law enforcement agencies and local governments to resist complying with it, and ways to implement the program less stringently in cases involving noncriminal, undocumented immigrants. Further, this article explores the potential and actual problems that arise with S-Comm, as well as the legal framework for local enforcement of federal immigration laws. Next, this article includes specific examples of immigration enforcement and noncompliance in several counties in California, including Los Angeles, Santa Clara, and San Francisco. Finally, this article suggests improvements that the federal government should make to S-Comm to ensure that the program is just and constitutional. S-Comm has been flawed since its inception, and it must be changed.

I. INTRODUCTION

Historically, immigration enforcement in the United States has primarily been the task of the federal government. Criminal law enforcement, on the other hand, has been state governments' responsibility.(fn4) Immigration and criminal law were intended to remain distinct areas of enforcement. Though this division of enforcement remained intact for many years, it is changing in part because grounds for deportation or inadmissibility as an immigrant arise from violations of criminal laws.(fn5) Since the mid-1990s, state and local governments have become much more engaged in immigration enforcement. State and local law enforcement cooperation with immigration authorities, 287(g) agreements,(fn6) and legislation such as Arizona Senate Bill 1070 (SB 1070)(fn7) break down the traditional division between immigration enforcement and criminal law enforcement.(fn8) The US Immigration and Customs Enforcement's (ICE) "Secure Communities" program (S-Comm) is part of the breakdown of this division of enforcement.

This article examines S-Comm and its effects on local law enforcement agencies (LLEAs), local governments, and immigrant communities, and calls for changes to the program that should be made if it is to be implemented nationwide. Part II describes the steps involved in the S-Comm information-sharing process. Part III discusses S-Comm's potential and actual effects on public safety, family unity, and civil rights. Part IV examines the question of whether S-Comm exceeds the federal government's powers. Part V looks at "sanctuary cities" and other methods of resistance to S-Comm. This article concludes with suggestions for effectively reforming S-Comm by giving examples of the implementation of these reforms with the intention of remedying the detrimental impact of the program on immigrants and their communities. The federal government should allow local governments to opt out of S-Comm, and the government agencies responsible for the program and its oversight must ensure that federal, state, and local government employees implement recently proposed changes to the program.

II. THE SECURE COMMUNITIES INFORMATION-SHARING PROCESS

ICE introduced S-Comm(fn9) in March 2008, referring to it as a "comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States."(fn10) Since its activation in October 2008, S-Comm has helped ICE identify and deport more than 86,616 undocumented immigrants convicted of crimes.(fn11) This number includes more than 12,200 "criminal aliens" convicted of serious crimes and over 29,500 "criminal aliens"(fn12) convicted of less serious crimes.(fn13)According to ICE, "criminal aliens" are undocumented immigrants convicted of a crime.(fn14) Undocumented immigrants who are charged with crimes, but not yet convicted, are not considered to be "criminal aliens."(fn15)

ICE classifies undocumented immigrants convicted of a criminal offense into three categories. Level 1 crimes present the greatest threat and include murder, manslaughter, rape, kidnapping, major drug offenses, and national security crimes.(fn16) Level 2 crimes present the second greatest threat and include minor property and drug offenses, such as larceny, fraud, burglary, and money laundering. Level 3 crimes include all "other offenses."(fn17) Level 2 and 3 crimes "account for the majority of crimes committed by aliens."(fn18)

Though ICE hopes to implement S-Comm nationwide by 2013, the agency is focusing first on "criminal aliens in locations where analysis determines they are most likely to reside."(fn19) As of June 30, 2011, S-Comm was in place in 1,508 of 3,181 jurisdictions in forty-four states and territories.(fn20) For example, only 1 percent of jurisdictions in Kentucky, 4 percent of jurisdictions in both Pennsylvania and Wyoming, and 5 percent of jurisdictions in Montana had been activated as of June 30, 2011.(fn21) No jurisdictions in Alaska, Maine, Minnesota, New Hampshire, New Jersey, North Dakota, District of Columbia, or Vermont had been activated as of that same date. By contrast, 100 percent of jurisdictions in Arizona, California, Delaware, Florida, New Mexico, North Carolina, Ohio, Rhode Island, Texas, Virginia, West Virginia, and Wisconsin had been activated as of June 30, 2011.(fn22)

S-Comm was intended to increase public safety by prioritizing the identification and removal of undocumented immigrants with criminal convictions. S-Comm seeks to achieve this goal by enlisting LLEAs to submit arrestees' fingerprints to the State Identification Bureau (SIB) at the time of each booking.(fn23) ICE requests that LLEAs submit fingerprints electronically to the Integrated Automated Fingerprint Identification System (IAFIS) as soon as possible during the booking process.(fn24)

The SIB then transmits the fingerprints electronically to the Federal Bureau of Investigation's (FBI) Criminal Justice Information Services Division (CJIS).(fn25) State participants in the National Fingerprint File Program send fingerprints to CJIS at the time of the individual's initial arrest.(fn26) CJIS's receipt of the ten fingerprints initiates both IAFIS and United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Automated Biometric Identification System (IDENT) searches.(fn27) If an IDENT search matches a fingerprint, CJIS automatically sends an Immigration Alien Query to the ICE Law Enforcement Support Center (LESC) in order to verify the individual's criminal history and immigration status.(fn28) LESC then creates and sends an Immigration Alien Response (IAR) to CJIS and the local ICE Detention and Removal Operations Office (DRO) within four hours of fingerprint submission to IAFIS and IDENT.(fn29)This entire process takes place before charges have been filed against the immigrant.

After receiving the IAR from the LESC, ICE determines whether to issue a detainer. ICE will file an immigration detainer if the noncitizen in question is charged with a Level 1 offense or if he or she has a Level 1 conviction that could result in removal. ICE files these detainers with the LLEA with custody of the individual at the time of booking.(fn30) Although ICE claims that S-Comm "prioritizes enforcement action toward the greatest threats to public safety" through the removal of "criminal aliens" convicted of crimes such as homicide, kidnapping, rape, and threatening national security (Level 1 offenders), the program permits ICE discretion regarding processing of Level 2 and 3 offenders.(fn31)

Under S-Comm, only ICE determines the individual's "alienage" and removability after a detainer is issued. ICE makes that determination based on an interview it conducts in person or via telephone or video teleconference;(fn32) however, an ICE field office will issue detainers, as deemed "appropriate," with the LLEA.(fn33) If an LLEA releases an undocumented immigrant before ICE issues a detainer, ICE may request information about the individual's location and identification from the LLEA.(fn34) Pursuant to the...