Yesterday, to a flurry of press coverage, New York governor Andrew Cuomo declared that he was pulling his state out of DHS' controversial Secure Communities program, which allows ICE to check the immigration status of anyone checked into a state or local jail. (Note: I work in immigration, but my thoughts in this post, as always, are entirely my own.) Cuomo follows Illinois governor Pat Quinn, who made a similar announcement last month; a bill that would allow California counties to opt out of sharing information with ICE has passed one house of the state legislature. Just because Cuomo says the state is pulling out, however, doesn't mean it actually will. DHS has already said that it won't allow Illinois to leave the program, and since last October officials have consistently maintained that no state or locality can opt out at all. Law enforcement in both Illinois and New York, however, were involved with Secure Communities before October; the Illinois State Police, in fact, signed a memorandum of understanding to enter the program in 2009. (The memorandum, like the one the New York State Police signed with DHS in late 2010, states that "Either party, upon 30 days written notice to the other party, may terminate the MOA at any time.") This means that both states' involvement dates to a time when the official position on "opting out" was at best unclear and at worst misleading. In fact, internal DHS emails show the people involved in implementing Secure Communities were just as confused about whether opting out was possible as the public was. And the deception may be continuing: at least one former contractor claims DHS officials told him unambiguously that it was possible to opt out of the program, and that DHS has released emails the contractor wrote objecting to that policy (with the name redacted) to discredit emails released under his name in which he repeated what he'd been told. Unless it can somehow clear up the controversy and show that New York and Illinois knew they couldn't opt out of Secure Communities when they signed up, DHS should find some statutory authority for mandating participation. (This will be tricky, since Secure Communities wasn't a legislative creation.) But as long as the federal government stands by its position, Cuomo's announcement doesn't amount to much more than a "can not" to DHS' "can too."
