Last month, Illinois Governor Pat Quinn pulled his state out of a federal program that uses fingerprints to catch illegal immigrants in jail. Quinn complained that the program was snagging too many people with only minor convictions or no criminal record at all. But federal records show that, in nearly every other state where the program known as Secure Communities is used, the situation Quinn pointed out is even more pronounced.
Two out of every 10 people deported from Illinois through Secure Communities had no previous criminal record. Nationally, the initiative has led to the deportations of nearly 109,000 people from 42 states since 2008. Overall, three out of 10 of those people had no prior convictions. In a dozen states with 30 or more deportations, more than half of those removed had clean records.
The governors of New York and Massachusetts recently joined Illinois in ending participation in Secure Communities on the grounds that very few of the people being deported have been convicted of serious criminal offenses. The issue is now heating up in California and Colorado, too.
The uproar over Secure Communities is part of the larger debate about how far states should go in cracking down on immigrants who are in the country illegally. Like the controversial immigration law passed by Arizona last year, it raises the question of how deeply local police departments should be involved in enforcing federal immigration laws.
U.S. Immigration and Customs Enforcement (ICE), the federal agency responsible for Secure Communities, has rapidly rolled out the program since its introduction less than three years ago. The approach is supposed to be a simple and efficient way to target illegal immigrants who have run afoul of the law. Participating police agencies send the fingerprints of all of their arrestees to ICE, which then checks those records for prior immigration violations. The goal, according to documents ICE has signed with participating agencies, is to "identify, detain and remove from the United States aliens who have been convicted of serious criminal offenses."
While the program makes serious offenders a priority, federal officials insist it was never meant to deport only people with long rap sheets.
ICE data show that the results from the program vary widely not only from state to state, but also from county to county. For example, Maricopa County in Arizona, where Sheriff Joe Arpaio has drawn national attention for his aggressive tactics in fighting illegal immigration, had a lower percentage than the national average for deporting people with no prior record. But of the 376 people deported from Jefferson Parish in suburban New Orleans, 71 percent had no criminal record.
On Friday, federal officials announced that ICE would review localities in Secure Communities once every quarter for signs of bias. "Jurisdictions are different in terms of a lot of things," Margo Schlanger, the U.S. Department of Homeland Security's chief civil rights officer, told reporters. "They're different in terms of who lives there, they're different in terms of the criminal activity that goes on there."
"Of course, ICE does not want to be a conduit for discrimination," Schlanger said. "We need to do good and solid oversight to make sure that we are not."
The reviews are one of several tweaks to Secure Communities that ICE announced last week in response to escalating criticism, as well as an upcoming review of the program by the agency's inspector general. ICE Director John Norton also said he is considering a change related to deportation of immigrants arrested for traffic offenses. Currently, ICE can go after the suspects even before their traffic charges are heard, but the change under consideration would start deportation proceedings only after they were convicted.
Nearly three quarters of all foreigners living in the United States live in places where Secure Communities has been rolled out. But it is a program still very much in startup mode. Almost half of the 1,200 police agencies it covers joined since October.
There is a lot more ground to cover. Many states have only a few jurisdictions signed up. For example, three of Pennsylvania's biggest counties are on board, but a spokesman for the State Police says ICE has not asked the state agency to join. The first counties in Washington State will go online very soon, but, there, the State Patrol decided it will defer to local sheriffs on whether they want to participate. "We have our hands full enforcing state law," says state patrol spokesman Bob Calkins. "We're not in any hurry to take on a new role that is properly the work of a federal agency."
States play a critical role in Secure Communities, because they often serve as the bridge between local police and the federal government. State police collect arrestee information, including fingerprints, and forward it on to the FBI and, in areas with Secure Communities in place, to ICE.
Illinois is using that link to block its counties from participating in Secure Communities. "Illinois," says state police spokesman Isaiah Vega, "will no longer be a conduit for information between the counties and ICE as it relates to Secure Communities."
In Massachusetts, though, Governor Deval Patrick's decision to opt out of Secure Communities will not apply to Boston, the only locality there that currently sends ICE arrestee information. In fact, Boston's police department was one of the first to join the program in November 2008. A spokesman from the department would not elaborate about why the city is taking a different approach from the rest of the state, but he did confirm that Boston will remain part of Secure Communities.
In the end, the states' resistance may prove futile. ICE plans to get the fingerprint data from the recalcitrant states through the FBI, which runs criminal background checks for arrestees throughout the country. Sharing information between the FBI and ICE will become even easier, because the federal government is integrating its databases so the process would be seamless.
States that want to withdraw face legal obstacles, too. Federal officials have argued that Secure Communities is not voluntary, saying that states cannot withdraw because that would impede the federal government's ability to set immigration policy. Those arguments echo the ones the federal government successfully used to block attempts by Arizona and Utah to step up local enforcement of immigration laws.
"The United States government has determined that a jurisdiction cannot choose to have the fingerprints it submits to the federal government processed only for criminal history checks," explains ICE spokeswoman Nicole Navas. "The local ICE field office, and not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate. In that sense, a state or local jurisdiction may not 'opt out' of Secure Communities."
But Lena Graber of the National Immigration Forum, which advocates on behalf of immigrant rights, says Secure Communities is not a purely federal prerogative. State officials who do not want to participate in Secure Communities are not blocking ICE from enforcing federal law, she says, they are simply saying that the state will not join in those efforts.
"The federal government isn't allowed to commandeer state and local law enforcement to do their job," Graber says. After all, once the federal government identifies an immigrant, it requires local facilities to hold them "on their own dime" until immigration agents can process them. "So the ramifications for states are enormous, both legally and financially."
In fact, San Francisco Sheriff Michael Hennessey has said he would release low-level offenders rather than turn them over to ICE. But ICE officials point out that federal law requires local agencies to hold on to suspects for up to 48 hours when immigration officials request it.
Morton, the ICE director, says the federal government is on track this year to deport more criminals than non-criminals for the first time ever. Secure Communities, he argues, is a big part of the reason why.
The Los Angeles County sheriff's office credits the program for a drop in the percentage of illegal immigrants in its jails from 24 percent to 16 percent. Nearly 15,000 people have been deported from Los Angeles County through Secure Communities.
The sheriff's office has worked with ICE before, but those programs have not led to the same sharp decline, says spokesman Steve Whitmore. In one early collaboration, ICE stationed a couple of agents in the county facilities to identify deportable inmates, but they could not get very far in a jail population of more than 20,000. In another effort known as the 287(g) program, a half dozen sheriff's officers were trained by ICE to help enforce immigration laws. But the officers only screen inmates who had already been convicted and finished serving their sentences, leaving out the vast majority of people in jail who were awaiting sentencing.
That is why L.A. County wants to keep using Secure Communities, Whitmore says, even as state officials in Sacramento consider letting localities opt out or perhaps withdraw the state from the program completely. "Can it be done better? The sheriff is convinced it can be," Whitmore says of his boss, Sheriff Leroy Baca. "But he doesn't want throw out the baby with the bathwater. He doesn't want to stop the program, he wants … to improve it."