Can state and local governments opt out of the U.S. Department of Homeland Security’s (DHS) controversial Secure Communities program? 

The question seems straightforward enough. Yet more than two years after U.S. Immigration and Customs Enforcement (ICE) officials launched the fingerprint-sharing program, some local government officials are still confused about their rights to opt out.

Secure Communities is an automated fingerprint data-sharing program between local law enforcement offices and federal immigration enforcement agencies. Despite recent DHS claims that the program is mandatory, many elected officials refuse to participate and continue to ask for an out. Most recently, Providence, R.I., Public Safety Commissioner Steven Pare asked the federal government to excuse his city from the program. One month later, Pare told the Providence Journal that he was still waiting for a response.

Christopher Zimmerman, board chairman of Arlington County, Va., said the DHS “has had difficulty giving us straight answers. One official would say this is a voluntary program for local communities, while another was saying they were working to make it mandatory.”

Whether or not the program is eventually deemed successful at removing the most dangerous criminal aliens from the United States, the DHS has had trouble with the intergovernmental and public information aspect of rolling it out. ICE public information officials failed to respond to requests for more information by Government Technology’s deadline.

Internal DHS e-mails released in February 2011 following a Freedom of Information Act lawsuit by the National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigration Justice Clinic show disagreement within the agency about whether state and local governments could refuse to participate. And in a September 2010 letter to Rep. Zoe Lofgren, D-Calif., DHS Secretary Janet Napolitano described how local agencies could choose “not to be activated in the Secure Communities deployment plan.” Yet ICE officials later explained that communities could only opt out of receiving detained immigrant information from ICE, but not from sharing it. Since the program was launched in 2008, several U.S. communities with large immigrant populations, including Washington, D.C.; Arlington County; and Santa Clara, Calif.; have sought to opt out  fearing the program would be used to deport individuals with minor offenses, or none at all, and that it would involve local officials in immigration enforcement.

“This is just one piece of a bigger issue,” Zimmerman said. “We have a very diverse population. One in four Arlington County residents were born in another country. The big issue for us is not alienating a large part of our community.”

He added that the county has a great community-policing program and a relatively low crime rate because public safety officials have built a sense of trust. “If someone sees a crime, we want him or her to tell the police, and not be afraid of being deported or of seeing a family member deported,” Zimmerman said. “This is creating a climate of fear in the community and it is a significant problem.”

How It Works

Traditionally after individuals are charged with a crime and booked, their fingerprints were checked for criminal history against the Department of Justice’s Integrated Automated Fingerprint Identification System (IAFIS). With Secure Communities, fingerprints submitted through the state to the FBI are automatically checked against both the FBI criminal history records in IAFIS and the biometrics-based immigration records in the DHS Automated Biometric Identification System.

If a fingerprint match is found  in the DHS system, the automated process notifies ICE, and ICE determines if immigration enforcement action is required, considering the alien’s status, severity of the crime and the person’s criminal history. Priority for deportation is placed on aliens convicted for major drug offenses, murder, rape and kidnapping.

As of early June, the biometric information sharing capability was activated in 1,379 jurisdictions in 43 states. By 2013, ICE plans to use this capability nationwide.

Since October 2008, more than 62,500 aliens convicted of a crime have been deported. Yet one in four people deported through the program have not been convicted of any crime, said Lynn Tramonte, deputy director of America’s Voice, an advocacy group seeking to transform what it calls a dysfunctional immigration system. “The problem is that this casts too wide a net,” she added. “It creates real fear of the police among the immigrant community. Even victims of crimes such as domestic violence are afraid to report it for fear of seeing a relative deported.”

Tramonte said the federal government has made it impossible for local jurisdictions to opt out — they aren’t going to stop sending fingerprints to the FBI. “The question is, why is the federal government at war with state and local police?” said Tramonte. “They didn’t design this system with enough consultation with law enforcement, and that is why [some] sheriffs don’t want to implement it.”

In September 2010, the Arlington County Board passed a unanimous resolution to opt out of Secure Communities. Some public statements, however, indicated that the county wasn’t allowed to do so. “We said we want to see in writing that it is mandatory,” Zimmerman said.

On March 1, 2011, David Venturella, the assistant director of ICE, responded with a letter saying that the information sharing happens on the federal level. “The only way for a jurisdiction to ‘not participate’ is to choose not to receive the law enforcement and immigration identity information that is available as part of the federal biometric information sharing capability,” he wrote. “ICE receives the results, whether or not a jurisdiction opts to receive the results.”

While acknowledging Arlington County’s concern about the effects of Secure Communities on immigrant communities, Venturella said, “ICE has not received any formal complaints or allegations of racial profiling as a result of Secure Communities. Furthermore, ICE is committed to protecting civil rights and civil liberties and prioritizing the enforcement of immigration law in a manner that best promotes public safety, border security and the integrity of the immigration system.”

Lance Clem, spokesman for the Colorado Bureau of Investigation, explained that it would be very risky for a county to opt out of the information-sharing system. “Not only does it check for arrest warrants, but it also confirms the identity of the person,” he said.

Secure Communities is controversial in Colorado, with many advocacy groups urging the state not to participate. Initially former Gov. Bill Ritter held out for concessions that varied from ICE’s standard memorandum of agreement (MOA) with states. For instance, he wanted domestic violence cases to be exempt, to avoid having a chilling effect on reporting of those crimes. He also wanted records kept about the number of people deported.

“The gist of that agreement was that there would be certain kinds of periodic reporting about the types of crimes that people were committing and what types of warrants they had out to see whether the concerns raised by advocacy groups would be borne out or not,” Clem said. “It is too early yet to determine that.”

In Colorado, ICE is gradually rolling out Secure Communities county by county. “That really has to do with their resource levels,” Clem said. “ICE may not have the personnel to respond to retrieve aliens in all parts of the state yet.”

Although ICE has tried to quell resistance, local and state officials continue to look for ways to work around it. For instance, officials in Chicago and Cook County, Ill., have cited so-called “sanctuary ordinances” that prohibit local officials from involvement in immigration enforcement.

In California, state Assemblyman Tom Ammiano, a San Francisco democrat, introduced a bill (AB 1081) in February that seeks to change the state’s MOA with ICE in several ways, including:

• Local governments would have to submit a plan to guard against and monitor racial profiling associated with its participation in the program.

• Local governments could adopt reasonable exceptions to the implementation of the program to protect juveniles and domestic violence victims.

• Jurisdictions could limit the sharing of fingerprints under the program to those of individuals convicted, rather than merely accused, of a crime.

Santa Clara County, Calif., expressed frustration on its Web portal: “Federal Officials Say They Will Continue Operating the Secure Communities Program in the County’s Jail Against the County’s Will.”

Santa Clara County has a long-standing policy of not entangling immigration enforcement with local policing, county officials said. Juniper Downs, an attorney for Santa Clara County, said the county has created a civil detainee task force to recommend policies about how the county should respond to ICE requests to detain individuals. “We are hoping to find a middle ground and take into account the interests of public safety first,” she added.

One strategy for the handful of states that aren’t already participating may be to avoid signing the MOA with ICE, according to Jessica Karp, staff attorney for the National Day Laborer Organizing Network. Her organization sent a letter in March to Gov. Deval Patrick of Massachusetts urging him not to approve the MOA. The letter noted that Washington state and the District of Columbia have not signed the MOA and so far have not been activated into the program.

“The focus has changed to the state level,” Karp said. “Local law enforcement, immigration advocacy groups and groups working on domestic violence issues will all continue to push for change.”

Arlington County has devoted an entire Web page to conveying that it is not changing its posture toward the immigrant community. “The main thing we are trying to do is minimize the damage caused by this program. We want immigrants to view us as on their side — as allies and not enemies,” Zimmerman said. “We don’t want to create an environment in which we are turning all of our law enforcement people into agents rooting out illegal immigrants.”

David Raths is a regular contributor to Government Technology. He’s also senior contributing editor of Healthcare Informatics magazine.

David Raths  |  contributing writer