Fingerprinting Plan Will Dramatically Increase Deportations

U.S. Border Patrol agent Gabriel Pacheco walks back to his vehicle along the border fence with its concertino wire topping it Monday Nov. 17, 2008 in San Diego. (AP Photo/Lenny Ignelzi)

The idea of deporting illegal immigrants who are also hardened criminals wouldn’t seem like a controversial idea. So when David Venturella, Executive Director of the Secure Communities Program at Immigration and Customs Enforcement testified to Congress in April, he proudly announced the expansion of his program as part of a “comprehensive effort to increase national security and community safety by identifying, processing, and removing deportable criminal aliens.”

Illustration by: Matt Mahurin

But while there’s strong support for deporting dangerous criminals, federal programs such as this one are extending far beyond that goal and detaining and deporting undocumented immigrants for such minor infractions as running a stop sign or carrying an open container of alcohol.

The Secure Communities program, highlighted in a Washington Post story this week, started as a pilot program by President Bush last year. It requires local police to check the immigration status of everyone booked into a local jail. When suspects are fingerprinted, their identifying information is immediately sent to ICE to determine the suspect’s immigration status. (ICE maintains fingerprint data on all individuals who’ve had contact with immigration authorities.) Undocumented immigrants (and even some immigrants who are legal residents) can eventually be deported after their criminal cases are resolved and any sentence is served. If fingerprints from all 14 million suspects booked into local jails each year were screened this way, DHS estimates, about 1.4 million immigrants would be deemed “criminal aliens” and deportable. By contrast, only 117,000 “criminal immigrants” were deported last year.

But the large numbers of immigrants that could be swept up in the program’s snare is causing serious concern among immigrants’ advocates. Although ICE says its goal is to deport the most serious offenders, under the program, identifying information on all suspects arrested for any sort of alleged crimes will be immediately sent to ICE. If the person shows up in an ICE database as an undocumented immigrant, ICE can place a retainer on the individual — meaning they could begin deportation proceedings against him. So an undocumented immigrant wrongly arrested for a traffic violation could be deported under the Secure Communities initiative as easily as could a convicted felon.

Few statistics are available on who is being targeted and deported under the program so far, since it only began in a few communities last October. But since then, the program has been operating in local facilities that have booked 288,000 people, said Richard Rocha, a spokesman for ICE. Of those, almost 3,000 have been “aliens arrested for or convicted of Level 1 offenses,” said Rocha. A Level 1 offense is a crime that carries a sentence of more than a year in prison, such as murder, robbery, rape or drug crimes. “But we’ve lodged detainers on more than 6000,” said Rocha. So about half of the offenders to be deported were either charged with or found guilty of relatively minor offenses. (Rocha said he did not know how many of the 6000 were categorized as Level 2, and how many were Level 3.)

“It’s deceptively benign,” said Joan Friedland, Immigration Policy Director at the National Immigration Law Center, talking about the Secure Communities program. Friedland and others are particularly concerned because other federal programs aimed at seizing and deporting criminal aliens, such as the 287(g) program, which deputizes local law enforcement to enforce federal immigration laws, have led to charges of racial profiling and, according to the General Accountability Office, deportation of undocumented immigrants picked up for such minor infractions as speeding, carrying an open container of alcohol, and urinating in public. Local police also worry, as a report released this week from the Police Foundation points out, that the program deters undocumented immigrants from reporting crimes and cooperating with local investigations.

Particularly brazen sheriffs in communities with high anti-immigrant sentiment — such as Sheriff Joe Arpaio, the Arizona sheriff known for marching illegal immigrants past news cameras in leg irons and prison underwear — appear to be taking advantage of the law to try to rid their counties of as many immigrants as possible. Arpaio is now under federal investigation for racial profiling and other potential civil rights violations.

Immigrant advocates worry that the Secure Communities program could cause even more problems because 287(g) at least trains local officials on using the immigration laws and targeting dangerous criminals. The Secure Communities initiative, by contrast, has no safeguards to prevent its abuse by local authorities or to ensure that ICE focuses on deporting felons or other serious or repeat offenders rather than those arrested for minor infractions or as a pretense.

“Because of how other programs have operated you’d think you’d want something in place when this one starts to prevent its abuse,” said Friedland. Yet, as Rocha confirmed, the program has no regulations that govern how ICE or local authorities are supposed to implement it.

“The problem with Secure Communities,” said Marty Rosenbluth, an immigration lawyer with the Southern Coalition for Social Justice in Durham, North Carolina, “is there’s no way that we know of to be able to track it. There’s no accountability, there’s no reporting procedures, there’s no way to document in any systematic fashion who’s getting into deportation proceedings because of Secure Communities.” Secure Communities is now operating in 12 communities in North Carolina, and 48 nationwide. DHS plans to expand it to all local law enforcement agencies by the end of 2012.

“Under 287(g) in North Carolina, most people deported have been picked up for driving-related offenses. With Secure Communities, since the identification process is when people are booked, not when they’re convicted, our fear is that the same pattern will duplicate itself,” said Rosenbluth.

Indeed, Ivan Ortiz, an ICE spokesman, told the North Carolina News & Observer when asked about the program: “If the person ran a light, then we need to prioritize our work, and we may not be able to send an agent to the local jail to get them,” Ortiz said. “But I guarantee you, we will catch up to them later.”

Rocha, the ICE spokesman in Washington, confirmed that. “The goal of this plan is to identify and remove all criminal aliens in jails and prisons.” he said. Although the focus will first be “on those who present the greatest risk to public safety and national security,” ICE will also deport other lower-level criminals “as resources permit.”

Immigration lawyers worry that in fact, the low-level criminals will be the bulk of the program’s victims. “Based on my personal experience with 287(g),” says Rosenbluth, “I find it very unlikely that if someone is arrested on a driving-related offense, that if ICE has the capacity to pick that person up, that ICE will just leave them.”

The other problem is that due to flawed databases, the program can ensnare people who are in the United States legally, including U.S. citizens. “I had a client who was in a local jail for three months on an immigration detainer,” said Rosenbluth. “It took me three months to prove he was a U.S. citizen and couldn’t be deported,” he said.

Unlike in criminal court, immigrants don’t have the right to have an attorney represent them in immigration proceedings. So if someone is acquitted of a crime but shows up in a database as being in the United States illegally, he can be deported even if he’s here legally, simply because he can’t prove his legal status and doesn’t have the right to a lawyer who can help him.

“Once Secure Communities hits, particularly in rural areas where there there are very few lawyers, it’s going to be devastating,” said Rosenbluth, who said he’s one of only two immigration lawyers in North Carolina devoted full-time to representing immigrants in deportation proceedings. “People are going to get picked up at a traffic stop, fingerprinted and identified as undocumented even though they have a right to be here.”

What’s more, the program can target people who are innocent, too. “It applies when anyone is fingerprinted by a cooperating law enforcement agent,” said Tom Barry, who directs the TransBorder Project of the Americas at the Center for International Policy. “So if someone is booked for driving without a license and indeed they had a license,” if they’re undocumented, it applies to them, too.

Even people who are legal residents in the United States can be eligible for deportation under the program if they’re arrested and in the past had been convicted of a crime. “It may have been two decades ago,” said Barry. “So people who are longstanding members of a community and legal residents can be deported.”

Ultimately, the determination is made by the ICE officer and whether ICE has room to detain the person. “It depends if they have enough beds, rather than if the person is a dangerous criminal,” said Barry.

According to David Venturella, the Secure Communities program director, between October 2008 and the end of February of this year, ICE has processed “more than 117,000 fingerprint submissions under the program, which resulted in the identification of over 12,000 criminal aliens.” Of those, 862 “have been identified as dangerous criminals,” or Level 1 offenders — which includes nonviolent drug crimes. Even if 862 is a significant number of criminals who can now potentially be deported, that’s only seven percent of the total number of immigrants the program has identified as eligible for deportation. What will happen to the 93 percent of aliens — both legal and illegal — who were arrested for minor infractions remains to be seen.