In August, in response to the Center for Constitutional Rights, Immigrations and Customs Enforcement issued a letter purporting to "set the record straight" about its record of immigration enforcement, angrily rejecting the criticisms of immigrants rights groups. In particular, ICE criticized these groups for suggesting that its "Secure Communities" program, under which the biometric identifying information of anyone arrested by local police is automatically forwarded to ICE, was mandatory. "ICE does not coerce states and localities into participation in Secure Communities," the letter reads, "nor does it coerce states and localities into “widespread routine civil immigration enforcement.”
If a jurisdiction does not wish to activate on its scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing (email, letter or facsimile). Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction's activation date in or removing the jurisdiction from the deployment plan.
The law, according to critics, creates similar problems as Arizona's SB 1070, incentivizing racial profiling, discouraging undocumented immigrants from talking to police, and turning local cops into immigration enforcers. In response to ICE's declaration, several "participating" jurisdictions, including Washington DC, and counties in Virginia and California, voted to opt out.
So what happened? According to an anonymous source interviewed by the Washington Post, ICE was lying.
A senior ICE official, speaking on the condition of anonymity because he was not authorized to talk about the involuntary nature of the program, said: "Secure Communities is not based on state or local cooperation in federal law enforcement. The program's foundation is information sharing between FBI and ICE. State and local law enforcement agencies are going to continue to fingerprint people and those fingerprints are forwarded to FBI for criminal checks. ICE will take immigration action appropriately."
The only way a local jurisdiction could opt out of the program is if a state refused to send fingerprints to the FBI. Since police and prosecutors need to know the criminal histories of people they arrest, it is not realistic for states to withhold fingerprints from the FBI - which means it is impossible to withhold them from ICE.
Sunita Patel, a Staff Attorney at CCR which is currently involved in a FOIA lawsuit over information related to Secure Communities, said they were relying on the information relayed in a letter Homeland Security Secretary Janet Napolitano sent to Rep. Zoe Lofgren of California confirming the right to opt-out.
"Janet Napolitano is the ultimate decisionmaker about how these things work, and we want to trust her word that this is the voluntary program,” Patel said. "But this shows that there is a need for more public information about opt-out...Local jurisdictions across the country have put an enormous amount of resources into mobilizing their communities and lawmakers to halt the implementation of this program. ”
