Secure Communities: burdening local law enforcement and undermining the U Visa.

TABLE OF CONTENTS INTRODUCTION I. SECURE COMMUNITIES A. Purported Purpose B. The Procedure C. Reality and Controversy II. THE U VISA A. Dual Purpose B. Elements the Victim Must Show C. The Problem of Law Enforcement Certifications III. SECURE COMMUNITIES UNDERMINES THE U VISA A. Secure Communities Creates a Chilling Effect B. Secure Communities Harms Victims C. Opt-Out Controversy IV. SECURE COMMUNITIES MUST BE REFORMED A. Effective Coexistence Requires That Congress Modify Secure Communities B. Counterarguments CONCLUSION INTRODUCTION

The Department of Homeland Security (DHS) claims it is making the community safer by targeting and removing dangerous criminal immigrants. (1) But Isaura Garcia, an immigrant living in Los Angeles, was neither dangerous nor a criminal. In fact, all she did was call 911 in February 2011 out of desperation to report domestic abuse by her boyfriend. (2) As is typically the case in domestic disputes, the police arrested both parties and fingerprinted Isaura according to procedure. (3) Because of the Secure Communities program, immigration officials obtained these fingerprints and flagged Isaura, who was undocumented, for removal. (4) Now the question for Isaura's friends and neighbors--many of whom are likely in a similar situation--is whether it is better to endure violent abuse or call for help and face deportation.

Illegal immigration is one of the most prominent issues plaguing the political and legal spheres. DHS estimates that as of January 2011, approximately 11.5 million undocumented immigrants resided in the United States. (5) Just under 60 percent arrived before January 1, 2000, and 29 percent arrived between 2000 and 2004. (6) Although government officials nationwide are quick to make their opinions known, and to create and institute programs intended to deal with illegal immigration, the wisdom of these programs is unclear.

Secure Communities is one such program. In 2008, DHS created Secure Communities as a tool to focus the limited resources of U.S. Immigration and Customs Enforcement (ICE) on identifying and removing the most dangerous undocumented immigrants. (7) Although the program appears to be a legitimate use of limited resources, its actual implementation has expanded far beyond the program's purported purpose. More importantly, the program has had the indirect effect of undermining the U Nonimmigrant Visa (U Visa) by discouraging immigrant interactions with law enforcement. One of the primary purposes of the U Visa statute is to assist local law enforcement in investigating crimes by encouraging the cooperation of victims. Secure Communities has blurred the line between local law enforcement--whose purpose is to protect the community--and ICE. The ultimate consequence of this blurred distinction is that many undocumented immigrant victims, who had been encouraged by the passage of the U Visa to report crimes and cooperate with investigations, have a renewed fear of interacting with the police. Although Secure Communities has made ICE's job easier, it has made the jobs of local law enforcement agencies, particularly in areas with large immigrant communities, significantly more difficult.

Secure Communities cannot continue in its current form. DHS created the program in a manner that extends its reach well beyond its alleged purpose and severely disadvantages local law enforcement. As implemented, this program undermines the U Visa statute and requires modification. If the goal of Secure Communities is truly to identify and remove serious criminals, then DHS should reform the program to accomplish that specific goal. As it appears DHS has no intention of doing so, this Note takes the position that Congress should act, if for no other reason than to prevent ICE from undermining Congress's own legislation.

Part I will detail the Secure Communities program and discuss the divergence between the program's actual implementation and its purported purpose. Part II will describe the U Visa statute and the reasons why Congress created it. Of particular importance will be the relationship that the U Visa encourages between local law enforcement and immigrant populations. Part III will analyze the problematic interaction between Secure Communities and the U Visa. Finally, this Note will conclude by insisting that the best solution is to modify Secure Communities to require a conviction before releasing an immigrant's fingerprints.

1. SECURE COMMUNITIES

   Drawing its authority from a 2002 congressional mandate instructing the Federal Bureau of Investigation (FBI) to share information with ICE, (8) and from several immigration laws regarding the deportability of criminal aliens, (9) DHS initiated in 2008 an information sharing program between the FBI and ICE. (10) The program, called Secure Communities, facilitates the identification and removal of illegal aliens. (11) Starting with only 14 jurisdictions, the program has expanded to over 3000 jurisdictions. (12) The eventual goal was to expand the program nationwide. (13)

   1. Purported Purpose

      ICE receives annual appropriations from Congress that fall drastically short of the amount necessary to apprehend and remove the entire population of undocumented immigrants. (14) For the 2012 fiscal year, the U.S. Senate Committee on Appropriations approved legislation that would grant ICE approximately $5.8 billion. (15) Although this is $34 million more than the appropriation for 2011, (16) it is nowhere near the amount necessary for mass deportation. The estimated cost of apprehending, legally processing, and removing the entire undocumented population would be approximately $200 billion over five years. (17) Admittedly, the government does not ap- portion all of these duties to ICE, but even the cost of apprehension and detention--the tasks of ICE--would be approximately $187 billion. (18)

      Because of its limited resources, ICE purports to prioritize the removal of criminals and those that pose a threat to public safety. (19) ICE created Secure Communities in order to carry out this prioritization. (20) Its three main objectives are to

      (1) identify aliens in federal, state, and local custody charged with or convicted of serious criminal offenses who are subject to removal and at large aliens convicted of a serious criminal offense who are subject to removal; (2) prioritize enforcement actions to ensure apprehension and removal of aliens convicted of serious criminal offenses; and (3) transform criminal alien enforcement processes and systems to achieve lasting results. (21) B. The Procedure

      Secure Communities makes use of an already-existing framework of information sharing between local law enforcement and the federal government. After fingerprinting individuals booked into county and city jails, local jurisdictions have traditionally released the fingerprints to the FBI to check the individuals' criminal records. (22) Under Secure Communities, the FBI automatically sends the fingerprints to ICE. (23) ICE checks the fingerprints against its immigration databases to see if the individuals are unlawfully in the United States or if they are otherwise removable based on a criminal conviction. (24)

      In order to prioritize the removal of serious criminals, Secure Communities identifies criminal charges as fitting into one of three levels, based on the severity of the crime. (25) Level 1 offenses are the most serious. Secure Communities purports to prioritize only the removal of aliens with Level 1 charges or convictions. (26) This category includes national security violations, homicide, sexual assault and other sex offenses, hit-and-run offenses involving injury or death, robbery, aggravated assault, resisting an officer, cruelty toward child or spouse, and drug offenses carrying a sentence of over a year. (27)

      Although the program does not prioritize lesser offenses, it nonetheless classifies them for identification purposes into either Level 2 or Level 3. Level 2 offenses are largely property crimes and include arson, burglary, larceny, fraud, smuggling, embezzlement, and traffic offenses. (28) All other offenses, primarily misdemeanors, are Level 3, including gambling, extortion, property damage, bribery, violations of election laws, public order crimes, and obstructing the police. (29) Secure Communities classifies immigration offenses as Level 3. (30)

      Because the FBI automatically releases information to ICE, local jurisdictions play no part in the process until ICE targets an immigrant for removal. ICE will issue an Immigration Detainer to the local law enforcement office that booked the immigrant. (31) If the jurisdiction has already released the alien before ICE issues the detainer, law enforcement should provide ICE with information relating to the individual's identification and location. (32)

      Local law enforcement cooperation is essential to Secure Communities. After receiving a detainer order, the local law enforcement office must hold the immigrant for up to forty-eight hours, excluding weekends and holidays, to allow ICE to retrieve the alien. (33) After forty-eight hours, the detainer automatically expires, and if ICE does not take custody of the immigrant, the law requires that law enforcement release the alien. (34) Failure to do so subjects the agency to a potential civil rights suit for violation of the immigrant's due process rights. (35) DHS also instructs law enforcement agencies to allow ICE agents access to detainees to conduct interviews and serve documents, as well as to assist ICE in acquiring information about the immigrant. (36) Even beyond procedural involvement, DHS encourages law enforcement offices to promote Secure Communities by including it in community policing and by disseminating information about the program. (37)

   3. Reality and Controversy

      On paper, Secure Communities appears to limit detention efforts to the most serious offenders. Likewise, ICE claims to prioritize the removal of...