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Undeterred by Government Reversal, Communities Keep Up Fight to Opt Out of Immigration Program


Illegal immigrants are held at a detention facility in Phoenix, Ariz. (Mary F. Calvert/ZUMApress.com)

Until last week, local officials in Arlington, Va., Santa Clara, Calif., San Francisco and Washington, D.C., thought they’d have no trouble opting out of the Secure Communities program, an Immigration and Customs Enforcement initiative that runs fingerprints collected by local police through federal immigration databases. After all, Secretary of Homeland Security Janet Napolitano and an assistant attorney general had both written letters confirming that an opt-out was possible, and the ICE website even lists steps for communities to opt out.

[Immigration1] But in the past week, these local officials’ plans have been thrown into turmoil, as a senior ICE official told The Washington Post that opting out of the program was impossible and Napolitano confirmed on Wednesday, “We don’t consider Secure Communities an opt-in, opt-out program.”

Now, however, local officials say they plan to go ahead with the opt-out process. Arlington County Board member J. Walter Tejada, a Democrat, told TWI the county still intends to contact state and ICE officials to begin removing itself from the program.

“I’m aware there is some internal turmoil with ICE, but for us nothing has changed,” Tejada said. “We’re moving forward.”

Local politicians and activists say Napolitiano’s statements have not deterred them from pushing back against Secure Communities, arguing that ICE cannot impose the program without their consent. In many cases, however, it already has: ICE signs a memorandum of understanding with state officials to agree to the program, and local communities are often only notified they are participating after it has already taken place. If guidelines for opting out turn out to be meaningless, critics of the program say, then ICE has misled the public.

“If ICE for some reason decides not to follow through, I think we’re looking at possible massive deception,” said Sarahi Uribe, lead organizer of the Uncover The Truth Campaign, a coalition that opposes Secure Communities. “We’re going to continue to push for transparency and accountability.”

The path of fingerprints from local police stations to ICE has been obscured in public statements from the agency. Secure Communities is often explained as a fingerprint-sharing program between local law enforcement and federal immigration officials, which hints at a straight transfer of biometric information. But as The Washington Post reported, the program actually depends on an agreement between the Department of Justice and the Department of Homeland Security, meaning local jurisdictions have little control over where information they provide to one agency ends up. When fingerprints are submitted to the FBI to check for criminal records, they can be sent along to ICE without additional consent from local law enforcement agencies, an ICE official confirms.

This means opting out, at least in the sense local jurisdictions understood it, is impossible. All local police send fingerprints to states, which send it to the FBI for criminal background checks. The only way to withhold information from ICE under such a system would be to eliminate these checks entirely — something no jurisdiction has indicated it would be willing to do.

Local communities can only opt out of receiving information about why specific individuals needed to be detained; they cannot opt out of sending the fingerprints that could lead to their detention.

“That’s not really opting out because you’re still going to send a lot of people to ICE without due process,” said Angela Chan, an attorney with the Asian Law Caucus in San Francisco. “‘Opt out’ means something much more: It means the information is never sent to ICE in the first place.”

Previous statements by government officials seem to back up that definition. Last month, Rep. Zoe Lofgren (D-Calif.), chairwoman of a House subcommittee on immigration, sent a letter to the Departments of Justice and Homeland Security requesting clear instructions for the opt-out process, which she defined as “how local law enforcement agencies may opt out of Secure Communities by having the fingerprints they collect and submit to the [state identification bureaus] checked against criminal, but not immigration, databases.”

In his Sept. 8 response, Assistant Attorney General Ronald Weich quoted her definition of opting out, then listed instructions for how a local jurisdiction could remove itself from the “Secure Communities deployment plan.”

Napolitano also responded without correcting Lofgren’s definition of what “opt out” would mean. A month later, as communities began to vote to opt out, the message seems to have changed. Immigrant rights groups and local officials are baffled — and angry — after beginning an opt-out process Napolitano now claims does not exist.

“We definitely were led to believe that we could opt out,” said D.C. City Council member Jim Graham, who led the charge for the District to opt out of the program. “Our chief of police had been negotiating a memorandum of understanding with the FBI.”

In San Francisco County, officials say they plan to move forward with removing the county from the program. Sheriff Michael Hennessey has already notified officials his county would like to opt out of the program and plans to meet with ICE staff and the California attorney general’s office after the Nov. 2 elections. Still, he said, the constant confusion over the program is frustrating.

“Obfuscation and misdirection seem to be ICE’s preferred method of communication, because that is all we have been getting so far,” Hennessey said.

Although ICE has said it prioritizes criminal illegal immigrants for deportation — and does deport more criminal than non-criminal illegal immigrants — some critics express concern about those caught up in the system by Secure Communities. Anyone who is arrested has his fingerprints taken, even if he is not ultimately charged with a crime. Even victims of crimes such as domestic abuse can be fingerprinted, and critics of the program argue they might not come forward if they fear they could be deported by reporting their abusers. According to ICE data released in August, one-quarter of the illegal immigrants deported through Secure Communities had no criminal records.

Opting out is also an issue of cost, critics claim. Secure Communities nets a larger number of illegal immigrants than routine law enforcement, particularly in communities that instruct officers not to ask about immigration status. This means higher costs when ICE asks police to hold people for immigration violations, Chan said.

ICE officials say they routinely ask local police to hold suspected illegal immigrants and that Secure Communities does not change that process.

Still, immigrant rights advocates argue the program must be voluntary because it was not created by federal law. Since local law enforcement agencies are not given additional funding for the program, requiring them to participate amounts to an unfunded federal mandate, Chan said.

“Unless it is federally mandated by Congress, then it seems they have to make sure there is a real mechanism for opting out,” said said Margaret Huang, executive director of the Rights Working Group, who lobbied for Arlington to opt out of the program. “If ICE has created a program that cannot respond to jurisdictions that want to be removed, they need to fix the program so they can.”

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