Introduction
I. How ICE Plans to Secure Communities
II. What’s Wrong with Secure Communities
This is the third policy report on related themes of immigration enforcement. Also see: Immigrant Crackdown Joins Failed Wars on Crime and Drugs, and Restoring Integrity to the Immigration System.
The Department of Homeland Security (DHS) has a bad case of mission creep. Created in the wake of Sept. 11 to better protect the country against attacks by foreign terrorists, DHS now believes it is also responsible for community security.
DHS, through its immigration and border control agencies, has in the last eight years mounted an array of initiatives—including Operation Community Shield, the 287(g) program, National Fugitive Operations, and Secure Communities, which promise to increase public safety by joining with local police to target immigrants.
The latest and most recent of these programs, Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens, is also the most ambitious. The program plans to make the DHS database available to all local police by 2012. Basically, it is a system engineered by DHS and installed by DHS in collaborating law enforcement jurisdictions. Once in place, the Secure Communities’ system automatically checks the immigration status of those booked by local police.
The program, announced in March 2008, started being instituted in October 2008, and is currently working in at least 48 communities. The Obama administration has repeatedly affirmed its support for the Bush administration initiatives to involve local law enforcement in the hunt for “criminal aliens,” and it has requested more than $1.4 billion for these programs, including a major boost in funding for the Secure Communities program.
Encouraged by DHS Secretary Janet Napolitano’s support for Secure Communities, Immigration and Customs Enforcement (ICE), a DHS agency, has upgraded the program’s web pages, entered into new agreements with local communities, and assured Congress that it hopes to have Secure Communities in operation across the nation in three years.
In his April 2 presentation to the Homeland Security Subcommittee of the House Appropriations Committee, program Executive Director David Venturella described the program’s joint national security/community mission: “Secure Communities is a comprehensive effort to increase national security and community safety by identifying, processing, and removing deportable criminal aliens, beginning with those who pose the greatest known risk to public safety.”
The program is being totally underwritten by the federal government. The $200 million program, part of the larger ICE budget for its criminal alien efforts, is slated for a $39 million budget increase in 2010.
With strong Democratic support in Congress and the enthusiastic backing of the Obama administration, Secure Communities is moving forward with little review, even though similar programs that involve local law enforcement in immigration enforcement have been widely criticized by both nonprofit and governmental watchdog groups. The Secure Communities program highlights four fundamental trends in immigration enforcement:
- Increasing merger of criminal and immigration law enforcement.
- Rapid expansion of federal/local partnerships in immigration enforcement.
- Spearheading the use of identification technology across the spectrum of law enforcement agencies.
- Evolving justifications and mission goals for a crackdown on immigrants, both on the border and in the country’s interior—including protecting national security, upholding “rule of law,” enforcing immigration law and controlling the border as preconditions for comprehensive reform, and, most recently, securing communities.
These four trends embodied in the Secure Communities program raise concerns about the new directions of immigration enforcement, including the following:
- Categorization of increasing numbers of immigrants, legal and illegal, as “criminal aliens” to increase immigrant removals, when most do not represent a threat to public safety.
- Clogging the already overburdened criminal justice system with immigrant prosecutions.
- Loss of community trust in local law enforcement and resulting threat to public safety as police become instruments of immigration enforcement.
- Undermining individual privacy and rights, as government extends data-mining and identity checks without any clear focus either on real national security or public safety threats.
- The deepening and expansion of the immigration enforcement apparatus without any accompanying commitment to immigration policy reform.
- Rapid expansion of the Department of Homeland Security without a clear focus on protecting the country against truly dangerous people.
I. How ICE Plans to Secure Communities
“Through improved technology, continual data analysis, and timely information sharing with a broad range of law enforcement agency partners,” ICE says that Secure Communities is “helping to protect communities across the country.” Secure Communities represents another step toward drawing local law enforcement into round-the-clock policing of immigration law infractions.
Only individuals arrested by local police are subject to Secure Communities. Once arrested and fingerprinted, the arrestee’s data is checked simultaneously against the FBI’s criminal database and the DHS’ immigration database. This system subjects immigrants, legal and illegal, to possible immigration consequences (detention and removal) if ICE determines that the individual is an immigrant with a criminal record or is in the country illegally. The objective of the program is to remove “criminal aliens” from communities, thereby making them more “secure.”
Under Secure Communities, local law-enforcement jurisdictions agree to add simultaneous searches of DHS and FBI databases after fingerprinting arrestees. If there is a match, ICE is automatically notified electronically, and then ICE decides if it will request a detainer for the identified immigrant.
ICE says that Secure Communities has “three pillars.” The first pillar is to “identify criminal aliens through modernized information sharing.” A second program pillar aims to “prioritize enforcement actions to ensure apprehension and removal of dangerous criminal aliens.” The third pillar is to “transform criminal alien enforcement processes and systems to achieve lasting results.”
Identification
Identification is at the heart of the Secure Communities program, and is its first “pillar.” Identifying all “removable” aliens is the main strategic objective for ICE. Secure Communities is an attempt to identify deportable aliens on record anywhere for any crime, using the latest advances in federal identification and communications technology.
As ICE explains, “The Secure Communities plan responds to the identification challenge by using biometric identification technologies currently in use by the FBI and other parts of DHS, and combines them in a new, powerful way.” Not only is a powerful enforcement tool now in use by ICE and Border Patrol agents, it is a technology that enables “local Law Enforcement Agencies to initiate an integrated records check of criminal history and immigration status for individuals in their custody.”
DHS has tapped new government capacities to identify individuals through rapid checking of integrated databases for its immigration enforcement offensive. Previously, such identification checks faced major technical and logistical obstacles.
The rapid advancement in automatic fingerprint identification systems has encouraged the federal government to launch new programs—such as the U.S. VISIT program—to increase the universe of fingerprint files and begin integrating all identity databases. Not only are these databases, which include fields for other information about individuals, being integrated at the federal level, but, led by DHS, they are also quickly extending to local and state governments.
The identification process works this way: “A single submission of fingerprints as part of the normal criminal arrest/booking process automatically will check both the Integrated Automatic Fingerprint Identification System (IAFIS) of the FBI’s Criminal Justice Information Services (CJIS) Division and the Automated Biometric Identification System (IDENT) of Homeland Security’s United States Visitor and Immigration Status Indicator Technology (U.S. VISIT) program.”
If there is a match in the DHS system, ICE evaluates “the individual’s immigration status and provides a timely response to local law enforcement partners.”
While the immediate focus of Secure Communities is the identification of new arrestees, ICE says that the identification system won’t be limited to checking those newly booked. It will also be used to check the immigration status of all those who are serving time in the nation’s jails and prisons and those out on parole.
Prioritization
Prioritization is ICE’s second priority. The problem is ICE does not have the capacity to arrest, detain, and deport all “removable” aliens. It must, therefore, prioritize. Targeting criminal aliens is now a stated ICE priority, but even targeting this population of removable criminal aliens is beyond ICE’s capacity.
ICE estimates that currently there are 300,000-450,000 criminal aliens in federal, state, and local lockups who, resources permitting, could be remanded to the agency for detention and deportation if identified through Secure Communities or other immigration-enforcement programs. According to ICE, the agency would need $2-3 billion to search out and remove all these suspected criminal aliens.
Not having enough personnel and financing to identify and remove all the estimated criminal aliens in the country, ICE says it has been forced to prioritize. Adopting the language of other Border Patrol programs, ICE says it will meet the prioritization challenge by using a “risk-based approach.” This means “assessing the risk each criminal alien poses to the public” and then focusing “immigration enforcement on the most dangerous criminal aliens first.”
Transformation
Transformation is the third pillar of Secure Communities. In all its interior enforcement operations, ICE is making the case that by cooperating in immigration operations local communities will improve public safety. Through the Secure Communities program, ICE claims that it is “transforming community safety by transforming the way the federal government cooperates with state and local law enforcement agencies to identify, detain, and remove all criminal aliens held in custody.”
ICE says that the vast new identification infrastructure that Secure Communities is installing—”deploying to the approximately 30,000 local jails and booking stations throughout the nation”—will tax its capacity to detain and deport all the aliens identified through the program, and it must, therefore, “transform [the agency’s] processes and systems.”
Basically, ICE is saying that it needs to expand its detention and removal apparatus while also becoming more efficient so it can process more immigrants for removal. “To accommodate the increased number of criminal aliens,” ICE claims that it “is taking a mission-centric approach to optimize capacity—detention bed space, transportation resources to facilitate detainee transfers, and professionally trained staff to work the cases.”
Thus far Secure Communities has encountered no opposition in Congress and little public concern as it pushes its way into local law enforcement throughout the country. That’s understandable, given its promise to make communities more secure and its focus on criminal aliens.
Also making Secure Communities attractive is the easy, no-cost integration into the booking and fingerprinting processes overseen by local police and sheriff deputies. Unlike the more controversial 287(g) program, which cross-deputizes local law enforcement officers but provides no compensation for the added immigration enforcement expenses, Secure Communities comes with little cost.
“This is a win-win situation both for the community and law enforcement,” said Fairfax County Sheriff Stan Barry. “We will be able to identify illegal immigrants who commit crimes in Fairfax County and get them in the process for deportation, and it does not require additional funds or manpower from us.”
“We view our participation in Secure Communities as an additional tool to enhance what is already a very effective partnership with Immigration Customs Enforcement,” said Larry Boyd, chief of police in Irving, Texas, which joined up in February.
II. What’s Wrong with Secure Communities
There is still very little known about how Secure Communities works in the field. But in addition to the broad concerns raised about the new directions in immigration enforcement, there are four specific concerns being raised by immigrant advocates and community activists about Secure Communities. These are 1) the lack of regulated prioritization, 2) the undermining of community trust in public safety, 3) the double jeopardy of facing both criminal and immigration consequences, and 4) the pre-conviction, guilty or innocent, processing of arrested individuals.
Problem One: Lack of Regulated Prioritization
Secure Communities chief David Venturella has assured Congress that the program will follow a “risk-based” approach. “We have enhanced ICE’s risk-based strategy that prioritizes the identification and removal of the criminal aliens who pose the greatest threat to our communities by developing classification levels for all criminal aliens based on the seriousness of their crimes and the totality of their criminal history,” said Venturella.
The classification system developed by ICE consists of three levels of criminal aliens. Level One encompasses “individuals who have been convicted of major drug offenses and violent offenses such as murder, manslaughter, rape, robbery, and kidnapping.” Level Two includes “individuals who have been convicted of minor drug offenses and mainly property offenses such as burglary, larceny, fraud, and money laundering.” Level Three extends to “individuals who have been convicted of other offenses.”
ICE says it is using these three levels to prioritize Secure Communities resources. But ICE has not explained how it will ensure that this prioritization process will be honored in practice. Given that Secure Communities states that any immigrant who has been convicted of any offense is within the purview of the program, ICE is signaling that it will not limit immigration arrests to dangerous criminals.
“By prioritizing immigration enforcement actions on the most dangerous criminals, from apprehension through removal from the United States,” ICE says that it using “its resources judiciously.” In other words, at least part of ICE’s prioritization scheme is based on the agency’s perceived lack of sufficient resources to process all three levels of criminal aliens detected by Secure Communities.
ICE does not currently have the resources (agents, prison beds, removal budget) to detain and deport the 300,000-450,000 immigrants that ICE estimates are held in federal, state, and local lockups, even without considering the tens of thousands of immigrants who will be identified by the Secure Communities as “removable.”
As the administration and Congress annually increase funding to Secure Communities and other criminal alien programs, there are unanswered questions about the relationship between increased resources and ICE prioritization. With greater capacity to detain and deport people as its resources increase, will ICE be less judicious in its prioritization? If there are unoccupied detention beds and available ICE agents in the vicinity, will ICE seriously evaluate the threat to community security when deciding whether to detain an immigrant identified by a computer match or will round-ups become even more indiscriminate?
Doubt about the integrity of ICE’s declaration that it will prioritize dangerous criminal aliens in the Secure Communities program also arises from the lack of prioritization in other ICE enforcement programs, including Operation Community Shield, Operation Return to Sender, National Fugitive Operations, and the 287(g) program. The absence of any demonstrable prioritization has led to widespread complaints that many of those arrested were simple violators of immigration law rather than criminals or fugitives.
A January 2009 Government Accountability Office report, “Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws,” concluded that ICE was violating its own risk-based standards in the implementation of the 287(g) program.
Although the main objective of the program is “to enhance the safety and security of communities by addressing serious criminal activity committed by removable aliens,” concluded the GAO, participating agencies had used their 287(g) authority “to process for removal aliens who have committed minor offenses, such as speeding, carrying an open container of alcohol, and urinating in public.” Among the GAO recommendations was that ICE “should establish a plan, including a time frame, for the development of performance measures for the 287(g) program.”
Although there is generally broad public support for the program’s priority targeting of the most dangerous criminal aliens, there is rising concern that in practice ICE does not prioritize. Without internal regulations that enforce the stated prioritization of those immigrants who represent a real threat to community security, the program will involve local law enforcement in a dragnet that picks up all levels of criminal immigrants, illegal and legal.
Irving, Texas is one of the first communities involved in the new ICE criminal alien program. Irving is now beset with intra-community tensions and rising Latino distrust of local police because of its increased cooperation with ICE and the Secure Communities program. In 2007, Irving declined to join ICE’s 287(g) program out of concerns that it would overly involve local police in immigration enforcement. But Irving did enlist for ICE’s 24/7 Criminal Alien Program, which was a type of pilot project for Secure Communities in that it facilitated ICE’s identification and removal of immigrants arrested and booked in the city jail.
When Irving enlisted for the 24/7 Criminal Alien Program, Mayor Herbert Gears explained, “Protecting our community from sex offenders, burglars, drunk drivers, and other law breakers is a local issue. The 24/7 CAP is helping to bridge that gap and accomplish an important goal.” But the program cast such a wide net that it instilled fear and divided the community along ethnic lines. In its first year, 60% of the immigrants caught in ICE’s dragnet for criminal aliens were Level Three violators, most guilty of nothing more than driving violations.
Thus far, the statistics from Secure Communities offer little evidence that ICE is prioritizing dangerous criminal aliens. During the first three months of 2009, 5,707 biometric submissions resulted in an IDENT match. Only 124 were “violent or narcotic offenders.” Available information does not define the character of these violent crimes nor indicate whether the narcotic offenders were large traffickers or solely users of illegal drugs.
The Dallas Morning News reported that Irving police turned over 1,600 residents to ICE in 2007. As a result, “Many Hispanics are afraid to leave their homes or send their children to schools in a suburb where one-third of the population is foreign-born. They feel racially profiled by police and unwanted by white neighbors.”
While elsewhere on its website ICE offers descriptions of a dozen “success stories” of criminal aliens identified and detained as a result of Secure Communities, it has not yet presented figures to demonstrate that it is indeed prioritizing Level One offenders or that it is not instead detaining mostly Level Three offenders, as it has in other federal/local programs.
Without clear and enforced prioritization, Secure Communities could devolve into an unfocused dragnet that harms communities more than it protects them.
Problem Two: Undermining Community Trust
Previous federal/local collaborative programs sponsored by ICE have led to widespread complaints of “racial profiling” by local police. To offset criticisms of the new program, program director Venturella told the Homeland Security subcommittee that such complaints will be minimized since under the new system the FBI and DHS data on all individuals booked in cooperating state and local jails will be checked. As Venturella explained, “The fingerprints of all persons arrested and booked will be processed through the system, regardless of race, nationality, or ethnicity.”
The public safety/community security pitch has persuaded many communities to join with ICE in identifying and detaining immigrants. But many critics, including local and state police, have opposed ICE’s goal of sponsoring widespread federal/local cooperation in immigration enforcement, charging that the merger actually threatens community safety by undermining community trust in local police.
A new report from the Police Foundation concludes that “immigration enforcement by local police undermines their core public safety mission, diverts scarce resources, increases their exposure to liability and litigation, and exacerbates fear in communities already distrustful of police.” The report, The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, is critical of ICE’s failure to prioritize dangerous criminals and says that comprehensive immigration reform would “optimize community safety.”
Numerous other recent reports, including ones by the nongovernmental Justice Strategies and the Government Accountability Office, have raised similar concerns. Nonetheless, DHS, buoyed by enthusiastic congressional support, is forging ahead with its “community security” mission as part of an “enforcement-first” response to the failures of the immigration system.
Immigration enforcement and law enforcement have historically been separate government functions. Even at the federal level, there was little intersection between criminal law enforcement and immigration law enforcement, although until 2003 they were both housed in the Department of Justice (DOJ).
In the wake of Sept. 11, there has also been increasing collaboration between federal immigration agencies and local law enforcement agencies. The legislative authority for cross-designation of local police as immigration agents, however, came in 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. Section 287(g) of the Act authorized the federal government to enter into agreements with state and local law enforcement agencies that permit designated officers to enforce immigration law in cooperation with the Immigration and Naturalization Service (INS).
It was passed by the new Republican majority in Congress, and reflected the rise of an immigrant backlash movement in the country and accumulating support for conservative immigration reform. There was little support, however, for the cross-designation authority of the 287(g) amendment within the legacy INS. It was not until 2002 that the first 287(g) agreement was signed and not until 2005 that the program was widely promoted by DHS.
Since its creation in 2003 ICE has promoted what it calls “law enforcement partnership” using the post-Sept. 11 ideological framework of national security. In its 2006 fact sheet on Law Enforcement Partnership and Section 287(g), ICE made this national security argument for federal/local cooperation in immigration enforcement:
“Terrorism and criminal activity are most effectively combated through a multiagency/ multi-authority approach that encompasses federal, state, and local resources, skills, and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States. During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.”
The administration and DHS are also stepping up federal/local cooperation in the new border security initiative that puts local police in close cooperation with ICE and especially the Border Patrol. Latching onto the concern about the possibility of spillover violence from Mexico, Secure Communities has added the drug war and border security to ICE’s evolving justifications for increased federal/local cooperation.
In the last few years ICE has deemphasized its national security mission as the central justification for its increased cooperation with local law enforcement agencies while pumping up the new community security justification. It continues to argue for the wisdom of a multiagency/multi-authority approach that brings immigration and criminal law enforcement agencies together, while ignoring any public safety downside from such an approach.
While cases of racial profiling in the Secure Communities will likely be less frequent, the new system does not preclude the possibility that local police arrest individuals primarily to have them processed by DHS. Without effective internal regulations, a police officer could arrest any suspected illegal immigrant on flimsy charges as a pretense to run the check against the DHS database. That person may not face any criminal justice consequences, but if determined by a DHS database to have reentered the country illegally or overstayed a visa, then there would likely be severe immigration consequences of a false arrest.
The merger of immigration law enforcement and criminal law enforcement in Secure Communities is likely to undermine community trust in local police. Given the record of other ICE collaboration programs, community members will likely be more hesitant to report crimes if they know that in addition to the criminal consequences (jail time or probation) there will also be immigration consequences (detention and removal).
A neighbor or a wife might be reluctant to call the police to stop an escalating family conflict if they knew that they were also involving immigration police. Not only might the offending person be booked in the local jail to stop the conflict, but that person, possibly the family’s source of income, might also be deported, thereby forever breaking up the family.
Problem Three: Double Jeopardy for Criminal Aliens
Contrary to public perception, only a small number of those labeled criminal aliens by DHS represent a serious threat to public safety. Because of new DHS practices that criminalize immigration violations, most of the newly classified criminal aliens are not criminals at all but only violators of immigration law (illegal border crossers, visa overstays, etc.).
DHS is also increasingly targeting legal immigrants in its crackdown on criminal aliens—many of whom are now being detained and deported for past crimes, including what, for citizens, would be considered misdemeanor violations.
Central to the mission of Secure Communities is the removal of criminal aliens. It is not commonly understood in the immigration debate that ICE’s definition of criminal aliens includes both legal and illegal immigrants who have on at least one occasion become object of the criminal justice system. Since 2005 ICE has been increasingly charging illegal border crossers with criminal violations that result in sentencing and imprisonment in federal prisons.
Legal residents who are not citizens can also be classified as criminal aliens if they are judged by ICE or immigration courts to have committed an aggravated felony, crimes of moral turpitude, or narcotics charges. Since the late 1980s the definition and interpretation of these three categories of crimes has become increasingly broad—so detached from their common meaning that a shoplifting charge can be regarded as an aggravated felony or drug possession used as grounds for deportation.
As the resources of ICE have expanded since Sept. 11, the agency has increasingly included legal immigrants who have a criminal violation in their record in its detention and deportation system. A legal immigrant who has served a prison sentence or has been convicted of a crime but never sentenced is a criminal alien, according to ICE, and may be subject to detention and removal—depending both on the nature of the conviction and on ICE’s available resources.
The Secure Communities program represents further linking of the criminal justice and immigration systems. This merger of criminal and immigration law has been in process since the mid-1990s but has sped up in the past several years with the deepening focus on criminal aliens by DHS and its immigration and border control agencies. Criminal justice scholars refer to this merger as “crimmigration.”
Secure Communities follows ICE’s broad definition of criminal alien to include any noncitizen convicted of an offense. Falling within Secure Communities’ priorities are “individuals who have been convicted of other offenses,” presumably made so broad to include all misdemeanor violations or immigration violations. While this broad sweep approach to securing communities will certainly capture immigrants who do represent a threat to public safety, it extends the immigrant crackdown deeper into the immigrant community, legal and illegal, and will likely result in widespread personal, family, and community insecurity.
Problem Four: Innocent or Guilty
Having one’s fingerprints on file does not necessarily mean that the person has been convicted of a crime. With Secure Communities, the search for a match with the DOJ and DHS databases will take place principally as part of the booking process. Subsequently, charges could be dropped, the case dismissed, or the individual declared innocent. However, if there is a match with the IDENT database, ICE can still issue a detaining order.
If Secure Communities targeted only “dangerous criminal aliens,” then this merger of the criminal justice and immigration systems might be justifiable. But, given ICE’s wide-net practices, the justification for checking the immigration status of those booked in local jails but not yet tried or convicted falters.
There is cause for concern that the crackdown on immigration has gone too far when ICE inserts itself into the criminal justice system in such a way that the system’s fundamental tenet of “innocent until proven guilty” is violated.
III. Conclusion
If Secure Communities is extended nationwide, local jails could become a primary gateway for ICE’s detention and removal program.
As national, state, and local policies make it more difficult for immigrants to obtain driver’s licenses, obtain housing, seek social services, etc., illegal immigrants will increasingly be obligated to operate in the shadows of the law. Even immigrants who have been living and working in U.S. communities for decades will be forced to use false documents, drive without a license, provide false information, avoid seeking needed healthcare for their children, and increasingly carry out their daily lives in an underworld of fear and illegality.
If arrested and booked, immigration authorities will be alerted, and they will be transferred from the criminal justice system to the now closely associated immigration system. The number of legal immigrants who fall into this dual identity as criminals and aliens will also inevitably increase from the current estimates as the result of new infractions, minor or major.
Congress and the executive branch have long been negligent in not formulating a holistic immigration policy that makes sense to citizens and treats immigrants living and working in the country fairly. The Secure Communities program highlights the contradictions generated by the absence of a sensible and fair immigration reform.
This sin of omission is accompanied by a lengthening series of sins of commission. Both the Bush and Obama administrations have justified harsh immigration enforcement practices as a precondition for an immigration reform that would allow unauthorized immigrants to come out of the shadows.
The logic and ethics of the politics of “enforcement first” have always been dubious at best. But as immigration enforcement pushes into new territory—local law enforcement, community security, and the criminal justice system—without an accompanying commitment for immigration policy reform, it is evident that the country’s immigration policy is stuck in enforcement-first.
A major problem with the enforcement-first position is that in the rush to enforce immigration law, DHS has extended interpretations and practices to criminalize immigrants as never before in the nation’s history. Enforcement has become so pervasive and penetrating that all noncitizens—legal and illegal—could potentially fall victim to human round-ups.
Without a major overhaul of immigration laws and DHS practices that cast an increasingly wide band of immigrants as criminal aliens subject to mandatory detention and removal, the Secure Communities program will be a fast-track for the removal of huge numbers of immigrants, legal and illegal, most of whom have no history of violent crime. This will disrupt tens of thousands of families and communities. Now is the time for Congress and DHS to reevaluate the criminalization of immigration law and the merger of the criminal and immigration systems.
At the core of the problem of the reckless expansion of immigration enforcement is the post-Sept. 11 placement of immigration policy within the newly created Homeland Security department. With little oversight or debate, DHS has provided ideological and political cover for the new enforcement practices undertaken in the name of national security.
As the national security justification for harsh immigration enforcement practices has worn thin, DHS mines public and congressional support for the enforcement-first crackdown with dubious promises that it will improve community security. As part of this mission creep at DHS, the immigration system is merging with the criminal justice system and local law enforcement is being increasingly drawn into immigration law enforcement.
There is still no forward movement detectable toward immigration reform. But within the stasis of enforcement-first, DHS in conjunction with local law enforcement agencies and the Justice Department is not only strictly enforcing immigration law but developing innovative and invasive new forms of enforcement, such as the Secure Communities program. Rather than continuing and stepping up enforcement-first practices, the Obama administration should rein in these practices while acting to create a public consensus for immigration reform.
Policy Recommendations
The Secure Communities program represents the latest campaign by DHS to implement an “enforcement-first” immigration policy. Congress and the White House should withhold funding for the program until there is a thorough review of the new directions of immigration enforcement by DHS, particularly the increased federal/local collaboration and the DHS-initiated merger of the criminal justice and immigration systems as part of its crackdown strategy. Secure Communities embodies both of these dangerous new directions in immigration enforcement. Related policy recommendations are listed below, but all should take place in a new policy context established by the Obama administration that terminates the era of enforcement-first immigration reform. Over the past four years, Congress and the White House have ratcheted up enforcement, and many states and communities have paralleled these federal efforts with their own immigrant crackdown initiatives. Still, the underlying problem of having a large population living in the shadows of the law persists, only now that population is living in more fear. The Obama administration, rather than continuing the enforcement-first immigration policy of its predecessor, should insist that immigration reform has waited long enough and must now come first.
Internal Regulations
If community security rather than wide-net immigration enforcement is indeed the objective of Secure Communities, ICE needs to overhaul the program. It needs to assure local police and communities that only the most dangerous illegal immigrants will be subject of the program’s identification and removal systems. Similarly, prospective participating local law enforcement agencies should insist that ICE not use the identification capabilities of Secure Communities to shift vast numbers of immigrants from the criminal justice system into its detention and removal system. Many immigrants arrested by local authorities may later be found innocent. Many others, even if guilty as charged, may be legal or illegal immigrants who do not represent any serious threat to community security.
Federal/Local Collaboration
When enforcing immigration law, the newly developed databases and the cross-checking capabilities are valuable immigration-enforcement tools. But extending these systems into local law enforcement without strict guidelines will undermine community trust in local police and is unwarranted. Secretary Napolitano should halt the implementation of the wide-net Secure Communities program, and Congress should withhold funding until ICE establishes regulations to ensure that the program is more narrowly focused on dangerous criminal aliens. It is also time for Congress to revisit its 1996 authorization for federal/local cooperation in law enforcement and immigration enforcement. The racial profiling and other abuses associated with the 287(g) program should prod Congress and ICE to review not only that program but all ICE and Border Patrol programs that systematically mix immigration and criminal law enforcement. The federal/local cooperation model spearheaded by the 287(g) program is moving quickly ahead in the Secure Communities program without any close review by DHS or Congress. Before it progresses further, Congress should request reviews by the Government Accountability Office, and DHS should initiate reviews by its own Inspector General’s Office. Such reviews should examine the rationale and impact of this dangerously expansive interpretation of DHS’s mission in immigration enforcement. If the program proceeds further, there should be a thorough review of the program’s practice of having a person’s immigration status checked regardless of the severity of the crime for which she or he has been arrested and prior to the determination of that person’s guilt or innocence. ICE may make the argument that all immigrants whose immigration papers are not in order are legitimate targets for detention and removal. As true as that may be, it doesn’t mean that local law enforcement should be engaged in this dragnet.
Criminalization of Immigration Law
Rather than further institutionalize “crimmigration” with the Secure Communities program, Congress should take steps to immediately rollback the criminalization of immigration law. The new administration at DHS should rein in the agency’s campaign to remove criminal aliens and concentrate resources on organized crime activities and violent criminals, regardless of their immigration status. As part of any new immigration reform, Congress should review previous legislation—including the Anti-Terrorism and Effective Death Penalty Act of 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the U.S. Patriot Act of 2002—that have enabled the executive branch to steadily expand its criteria for designating immigrants, both legal and illegal, as criminal aliens.
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