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As Deportations Soar, States and Municipalities Find they Are Locked into Controversial Federal Immigration Enforcement Program

Federal immigration officials recently reported that they deported a record 392,892 immigrants over the last year - a figure significantly higher than during the last year of President George W. Bush's term and the second straight year the nation has experienced an increase in deportations. Only half of those deported - 195,772 - were convicted of crimes, meaning roughly half of those who were deported committed no crime at all.    

The spike in deportations is largely believed to stem from a controversial and rapidly-expanding federal immigration enforcement program, Secure Communities.  This administrative program seeks to establish data-sharing agreements between state and local police departments and the federal Immigration and Customs Enforcement (ICE) agency, the entity responsible for enforcing immigration law. In jurisdictions with such agreements, all individuals who are booked (regardless of whether they are actually convicted) have their fingerprints run through a federal immigration database by local law enforcement.  If an individual is found to be undocumented, they are turned over to federal immigration authorities and often rapidly deported - regardless of whether they have been convicted of a crime.   

In fact, several legal and immigrant rights groups have submitted Freedom of Information Act (FOIA) requests, which have found that a large proportion of immigrants are apprehended through Secure Communities on suspicion of committing low-level misdemeanors such as driving with a broken tail light.  As advocates have pressed for clarity on the program's oversight mechanisms (DHS has never issued guidelines for states with Secure Communities agreements), other immigrant rights groups have pressed for the ability to opt out of the program, which many believe burdens already-overstretched law enforcement professionals and erodes hard-fought advances in community policing.   

As recently as last month, the Department of Homeland Security (DHS) continued to characterize Secure Communities as a voluntary program based upon a formal agreement between ICE and state or local police departments, and as a targeted immigration enforcement initiative that aims to focus on apprehending undocumented immigrants that commit violent crimes.  Secure Communities is the linchpin of DHS's immigration enforcement plan, and already operates in 32 states and 660 counties and jurisdictions nationwide.  The Obama administration plans to have the program up and running in all states by 2013.    

The initiative continues to expand rapidly across the country, yet confusion abounds in communities and state legislatures as to whether the program is actually voluntary, and which state or local agency has the authority to enter into such agreements with the federal government. Conflicting recent statements from the Department of Homeland Security have now raised alarms that states and municipalities lack the power to decide not to participate in the program.  Amid longstanding and widespread concerns about the program's effect on community-police relations and the lack of due process afforded to those apprehended and deported through the program, states and localities are increasingly finding Secure Communities is not voluntary.   

Notably, Arlington County, Virginia's City Council voted at the end of September to pull out of the Secure Communities program, citing its negative impact on police-community relations. Arlington joins San Francisco, where Sheriff Michael Hennessey's efforts to clarify the necessary steps for the city to opt out of the program via letters to DHS have so far proven futile; Santa Clara County, California; and the District of Columbia, where the City Council voted unanimously to opt out of the program earlier this year. In Colorado, where the state has already negotiated a broad Secure Communities agreement with the Department of Homeland Security, immigrant rights groups are engaged in intensive negotiations with Governor Bill Ritter to amend the agreement to allow jurisdictions to opt out.  All of these jurisdictions are now in limbo after the recent DHS announcement.    

Until last month, DHS maintained that participation in Secure Communities is voluntary, and that state and local law enforcement jurisdictions have the option to opt out of participating in the program.  However, DHS has been extremely vague on the course of action jurisdictions must  pursue to opt out - prompting US Rep. Zoe Lofgren (D-CA) to send a letter to Homeland Security Secretary Janet Napolitano asking for clarification on how to do so.  In response, Napolitano confirmed in a September 8th letter that states and localities do have the choice to opt out of the program.  Immigrant and criminal justice advocates then redoubled their administrative and legislative advocacy efforts to urge sheriffs and state or local governments such as City Councils to decide or vote to opt out - and in turn, the cities above did so.    

However, an anonymous DHS official subsequently admitted that participation in the program is actually not optional for states and municipalities.  And on October 12th, just a month later, Napolitano changed the Department of Homeland Security's position when she said municipalities in fact have no power to choose whether or not to participate in Secure Communities.    

Murkiness about the supposedly "voluntary" nature of the program echoes a troubling lack of transparency from ICE about the program, including negotiations with municipalities about it.  For example, a recent FOIA request filed by the National Immigration Law Center (NILC) found that ICE proceeded with implementing the program throughout the state of Pennsylvania without a formal agreement and without informing local communities of the agreement - a strategy that runs counter to ICE's public statements in the past. In addition, it appears other states will be seeing this approach: according to a Secure Communities December 2008 weekly report, ICE notes its plans to pursue such stealth negotiations in a similar fashion (for example, without a formal agreement and without notifying local communities) elsewhere.    

These concerns about Secure Communities highlight the flawed nature of broad immigration enforcement programs that seek to deputize state and local law enforcement as immigration agents - responsibilities many police officers are reluctant to assume.  Progressive States Network has previously detailed that such local immigration law enforcement efforts are not only extremely costly (diverting much-needed taxpayer dollars away from pursuing criminals to round up undocumented residents at a time of historic budget deficits), but also ineffective.  As federal comprehensive immigration reform lags, state and local police officers must focus on building trust among immigrant residents, rather than inspiring fear.