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Napolitano Confirms There Is No Opt-Out Option for Secure Communities

Department of Homeland Security Secretary Janet Napolitano confirmed today that Secure Communities, a program that provides federal immigration officials with fingerprint data from local police, is mandatory for local jurisdictions. “We don’t consider Secure Communities an opt in/opt out program,” Napolitano said, according to an Immigration and Customs Enforcement spokeswoman. Her statement was official confirmation of news The Washington Post broke last week: Despite allowing local communities to believe they could opt out of sharing fingerprints with ICE, DHS actually set up the program to go over their heads to get the information directly from the FBI.

Local law enforcement agencies share fingerprints of those they arrest with the FBI to detect fugitives. Some, though, do not want to share this information with immigration enforcement. Four communities — Washington, San Francisco, Santa Clara, Calif., and Arlington, Va. — have so far attempted to opt out of Secure Communities, arguing the program can damage trust in police and threaten public safety.

This is a marked change from previous statements from ICE and Napolitano herself. ICE laid out a process for opting out of the program in an August document called “Setting the Record Straight,” writing that communities could be removed from the “deployment plan” after meeting with state officials and ICE.

In a Sept. 7 letter to Rep. Zoe Lofgren (D-Calif.), Napolitano confirmed the steps for communities to opt out of the process, even if she never used the words “opt out”:

A local law enforcement agency that does not wish to participate in the Secure Communities deployment plan must formally notify the Asisstant Director for the Secure Communities Program, David Venturella…. The agency must also notify the appropriate station identification bureau by mail, facsimile, or e-mail. If a local law enforcement agency chooses not to be activated in the Secure Communities deployment plan, it will be the responsibility of that agency to notify its local ICE field office of suspected criminal aliens.

It sounds like it’s optional there, but an ICE official confirmed to TWI today that communities can only opt out of receiving information back about the illegal immigrants they detain — not actually opting out of sharing the biometric information itself. As The Washington Post reported last week, Secure Communities is actually an information-sharing program between the Department of Justice and the Department of Homeland Security. Communities cannot opt out of giving their data to the FBI, so they also cannot opt out of the data going to ICE.

That also directly contradicts previous statements from the government. Ronald Weich, assistant attorney general, restated Lofgren’s definition of “opting out” in another letter to the congresswoman, implying localities could, in fact, opt out (emphasis mine):

In your letter, you specifically asked for “a clear explanation of how local law enforcement agencies may opt out of Secure Communities by having the fingerprints they collect and submit to the SIBs checked against criminal, but not immigration, databases.” A local law enforcement agency that does not wish to participate in the Secure Communities deployment plan must formally notify the Assistant Director for the Secure Communities program at ICE and the appropriate state identification bureau (SIB).

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