Run-Down of NDLON “Secure Communities” Report

The National Day Labor Organizing Network (NDLON) and a National Community Advisory Commission has put together an extensive report detailing the “Secure Communities” program (“S-Comm”) of the U.S. Immigration and Customs Enforcement (ICE), which brutally cracks down on immigrants with deleterious effects on local communities. In their August 2011 report, “Restoring Community,” NDLON summarizes some of the most blatant problems with S-Comm as well as meaningful recommendations to fix these problems, citing the opinions of community leaders, academics, judges, and law enforcement officials. The following is a run-down of this report prepared by the San Jose Peace and Justice Center.

The full report can be found here: http://altopolimigra.com/s-comm-shadow-report/

The premise of S-Comm is simple. When local law enforcement submits fingerprints from individuals for criminal background checks, they are automatically searched against immigration databases. If ICE decides that an individual may be “deportable,” it requests that local police detain an individual and transfer him to ICE for possible deportation (2). The program was originally voluntary, but after pressure from local communities against it, it was made mandatory.

NDLON points out a number of serious issues with police-ICE entanglement. S-Comm results in diminished trust in law enforcement in target communities, making effective community policing techniques impossible. NDLON quotes Ron Hampton of Black Law Enforcement in America, “Immigration and Customs Enforcement’s (ICE) ‘Secure Communities’ program is incompatible

with community policing” (4). Because S-Comm turns every police encounter into a risk of deportation for immigrants, immigrant eye witnesses and victims become afraid to come forward. NDLON points out that this risk is not hypothetical, as S-Comm has resulted in numerous victims of violent crimes being recommended for deportation upon calling the police (4). NDLON quotes New York District Attorney Rob Morgenthau on this issue:

When immigrants perceive the local police force as merely an arm of the federal immigration authority, they become reluctant to report criminal activity for fear of being turned over to federal officials. That’s why during the 35 years I was district attorney in Manhattan, I made it a policy never to turn over names of individuals involved with the criminal justice system to immigration authorities until after they were convicted of a serious crime (9).

These aspects of S-Comm thereby compromise public safety. Furthermore, S-Comm has a “dragnet” effect, resulting in the arrest and deportation of individuals with minor or no criminal convictions. According to ICE’s own numbers, one third of immigrants arrested have never been convicted of anything, and nearly sixty percent have either been convicted of nothing or are guilty of misdemeanors such as traffic offenses. This aspect of the S-Comm program was heavily criticized by Sheriff of San Francisco Michael Hennessey:

This fear of the arbitrary use of immigration laws is only reinforced when you have a high-ranking ICE official telling law enforcement, “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” This is a quote from James Pendergraph, the former executive director of the ICE Office of State and Local Coordination, who was speaking in 2008 to the Police Foundation’s national conference on immigration issues…My main criticism of Secure Communities is that it casts too wide a net and scoops up the fingerprints of everyone not born in the United States whether or not they pose a criminal risk (6).

NDLON also points out that S-Comm results in distracting police officers from serious crimes. For example, Sheriff Mark Curran of Lake County, Illinois, writes ““I view Secure Communities as a distraction…[T]he program has diverted my department from more serious law enforcement responsibilities” (8). That is, in addition to potentially deporting victims and eye-witnesses, S-Comm distracts law enforcement from serious crimes altogether! Finally, NDLON points out that S-Comm “incentivizes racial profiling,” pointing to an excerpt from the Rights Working Group’s 2010 report, Faces of Racial Profiling. The report points to “abnormally high rates of non-criminal deportations under Secure Communities,” from ICE data, strongly suggesting that S-Comm is not “prioritizing criminal aliens for enforcement action based on their threat to public safety” but rather deporting individuals for minor offenses and even drawing in U.S. citizens for enforcement actions—further evidence that this ICE initiative is encouraging racial profiling.” (10).

“Restoring Community” also discusses injustice in the immigration and criminal justice systems. S-Comm exacerbates many aspects of discrimination amidst a climate of anti-immigrant laws which have caused a skyrocketing level of deportations in recent years. From twenty thousand deportations in 1980, the level of annual deportations has grown to four hundred thousand deportations in 2010. By entangling law enforcement with immigration, S-Comm creates a “two-tiered system of justice” for targeted immigrants, “in which non-citizens are routinely denied bail, jailed for longer periods, and disqualified from alternative release programs” in addition to well-documented biases against defendants in the criminal justice system (14). NDLON quotes director of the National Immigration Project of the National Lawyers Guild Dan Kesselbrenner, about this disadvantage: “By leveraging their considerable resources against the criminal justice system and “criminal aliens,” ICE subverts its purpose. Interjecting immigration enforcement into the criminal justice system undercuts people’s attempts to represent themselves effectively in their criminal case” (15). Furthermore, according to Kesselbrenner, ICE and S-Comm have invented a legally undefined and vague term, “criminal alien,” allowing ICE to net and harass a number of citizens through the criminal justice system. Another means of using the criminal justice system to harass individuals over suspected immigration offenses has been to use the “war on drugs” and “war on terror” to simultaneously target immigrant communities. From anti-drug laws that limit means to challenge deportation, to the PATRIOT Act which allows the state to detain immigrants and hold them without charge indefinitely, S-Comm is part of a trend of using law enforcement and the criminal justice system to harass immigrants.

NDLON also argues that ICE has “gone rogue” through S-Comm, which exacerbates ICE’s historical secrecy and lack of accountability with “new levels of deception” (25). NDLON writes, “On July 11, 2011 a federal district judge concluded that “[t]here is ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities.”20 Numerous reports confirm that ICE misled local, state, and federal government officials about S-Comm’s scope and ostensibly compulsory nature” (25). Indeed, through Freedom of Information Act (FOIA) requests, internal documents from ICE reveal a lack of clarity in defining the scope or the nature of S-Comm in its entirety. NDLON reports, “Despite the program’s vast scope, not a single statute or regulation specifically defines its parameters. Indeed, ICE appears to be inventing legal authority as it goes along—and, as with the opt-out controversy—repeatedly changing its mind along the way” (28). Indeed, a number of documents obtained through FOIA suggest that ICE officials have been lying to public officials throughout the country regarding the scope of the program (26). Finally, NDLON quotes Jennifer Lynch of the Electronic Frontier Foundation regarding S-Comm’s effect on privacy rights. Exploiting the lack of defined scope of the program, Lynch reveals.

It now appears that the FBI is using [S-Comm] to accumulate a massive store of personal biometric information on citizens and non-citizens alike. Documents obtained through Freedom of Information Act litigation … have exposed the concerted efforts of the FBI and DHS to build a massive database of personal and biometric information…the FOIA documents show for the first time how FBI has taken advantage of the DHS Secure Communities program and both DHS and the State Department’s civil biometric data collection programs to build out this $1 billion database (30).

NDLON documents that one area of strength for local communities opposed to S-Comm is the voluntary nature of ICE holds, or forty-eight hour detention holds of arrested immigrants requested by ICE. Because ICE is a federal agency, the tenth amendment prohibits ICE from using local law enforcement to detain individuals over immigration enforcement. Thus, many Sheriffs have refused to perform ICE holds on those charged with minor offenses. NDLON claims that such “hold campaigns constitute a key form of resistance available to localities concerned about the dangers of police-ICE mergers” (33).

“Restoring Community” concludes with a series of powerful personal accounts of those affected by the S-Comm program. In addition to documenting the real-life sentiments of those families torn apart and threatened with deportation by the program, these accounts also include those of victims of violent crimes and abuse who were threatened with deportation. In addition, the report includes a number of additional resources and citations for further critiques of the S-Comm program.

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