John Morton, director of U.S. Immigration and Customs Enforcement (ICE), recently announced that his agency deported 400,000 persons this past fiscal year that ended in September. This is the largest number of removals in the agency’s history and the third year in a row that a new record was set. Currently, almost 300,000 individuals are in deportation proceedings.
ICE credits much of its success to a targeted enforcement strategy, which focuses removal efforts on criminal offenders and others who pose a threat to national security. Central to this strategy is a program called Secure Communities, the newest and most controversial immigration enforcement program. The University of California, Berkeley, law school and the Benjamin N. Cardozo School of Law in New York recently published a study of the program’s results. Not surprising to most, the study exposed severe flaws with Secure Communities, such as deportation of individuals with U.S. citizen spouses and children, disproportionate targeting of Latinos, detainment of U.S. citizens, and lack of appropriate checks or opportunities to challenge detention and/or deportation.
The report reveals a program that not only compromises public safety, but violates basic rights granted to both citizens and non-citizens, and completely diminishes the asserted “success” of ICE’s recent deportation numbers.
Background on Secure Communities
Secure Communities was first introduced by the Bush administration in March 2008 and piloted in 14 jurisdictions beginning in October 2008. Under President Obama, the program has expanded dramatically. It is active in 1,595 jurisdictions in 44 states and territories. ICE plans to have the program active in all jurisdictions in the United States by 2013.
Secure Communities was designed by DHS and the FBI as a tool to improve public safety by deporting dangerous criminal aliens. The program mobilizes local law enforcement agencies’ resources to enforce federal civil immigration laws, mostly by sharing fingerprint records.
Local law enforcement has shared fingerprint data with the FBI for years. But now, if that data comes from a Secure Communities jurisdiction, the FBI forwards the fingerprints to ICE and ICE checks the fingerprints against their fingerprint system.
When a match is detected, ICE examines its records and if it believes an individual may be deportable, or if it wishes to further investigate an individual’s immigration status, it issues a detainer. A detainer is a request to local police to notify ICE when the individual is going to be released from custody and to hold the individual for up to two days more for transfer to an ICE facility.
Key Findings on Secure Communities
The report compiled by the University of California, Berkeley, law school and the Benjamin N. Cardozo School of Law is based on a random national sample of 375 individuals. The key findings of the report include:
More than one-third (39%) of individuals arrested under Secure Communities report that they have a U.S. citizen spouse or child, meaning that approximately 88,000 families with U.S. citizen members have been affected. This could be an undercount, as immigrants fear disclosing personal information.
Approximately 3,600 U.S. citizens have been arrested and detained by ICE through the Secure Communities program, even though citizens are not subject to removal proceedings.
- Latinos comprise 93% of individuals arrested through Secure Communities, though they only comprise 77% of the undocumented population of the U.S.
- Only 52% of individuals arrested through Secure Communities are slated to have a hearing before an immigration judge. Of those, only 24% of them had an attorney, compared to 41% of all immigration court respondents who have counsel.
- ICE does not appear to be exercising discretion based on its own prioritization system (detaining and deporting dangerous criminal aliens) when deciding whether or not to detain an individual. For example, only 27% of the individuals were charged with removal based on a criminal conviction.
Major Criticisms of Secure Communities
Secure Communities leads to lack of trust between communities and local law enforcement. ICE maintains that Secure Communities is merely a data-sharing program. There is, however, a strong perception in immigrant communities that local police act as ICE agents and that the program encourages racial profiling through the targeting of Latinos (and other immigrant populations) for minor violations or pre-textual arrests. This has eroded the trust between communities and local police, and has led to minimal reporting and cooperation in resolving criminal activity.
Secure Communities has not stayed true to its original stated goal of only removing individuals who pose a threat to public safety. According to ICE’s own figures, well over half of those deported through Secure Communities had either no criminal convictions or had been convicted only of very minor offenses, such as traffic offenses.
Only approximately one quarter (27%) of the individuals in the report’s sample were charged with removal based on a criminal conviction. Nearly half (45%) of the cases analyzed in the report were solely charged with being Present Without admission (PWA) – a charge that does not indicate any criminal history. Only 8% were charged with being removable following an aggravated felony conviction. ICE’s statistics show that about 12% of the individuals removed were merely recent border crossers and 24% were repeat immigration violators or immigration fugitives.
Some jurisdictions are fighting the program. In Santa Cruz County Jail (California), 149 persons had immigration holds placed on them in the past year, but 44% of them had never been convicted of a crime. In response, the County Sheriff’s office has instructed law enforcement to only honor a detention request from ICE if the person has been convicted of a serious or violent felony within the past 10 years, or if the person has even been convicted of a homicide.
There is a lack of due process for individuals identified for removal by Secure Communities. Unlike criminal defendants, immigration detainees are not afforded the basic procedural protections that come with criminal proceedings – they are not provided with attorneys, many are not afforded the right to bond due to harsh mandatory detention laws, and they are routinely transferred thousands of mile away to remote detention facilities in far off jurisdictions.
Conclusion
Secure Communities was created for the purpose of focusing deportation efforts on individuals who pose a genuine danger to communities, but that objective has not been maintained. Those with no criminal history and those with U.S. citizen children or spouses who have only minor traffic violation are still at high risk of being deported. Local enforcement authorities are losing credibility and trust within their communities, leading to reduced reporting of criminal activity (i.e. less secure communities). Though the Secure Communities program may have had a noble purpose, the actual results show a different story and highlight ongoing flaws in the nation’s immigration system.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.
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About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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