Last week, the Obama administration filed suit against Arizona's controversial immigration law, which instructs law enforcement to question residents if there is a "reasonable suspicion" that a person is "unlawfully present in the United States."
This is the response you might expect from a president whose political base believes the new law essentially legalizes racial profiling. But there's a twist: Under Obama, immigration enforcement has actually been characterized by the very same heightened collaboration between local police and federal immigration authorities that many find so troubling in Arizona, and it's prompting objections from city leaders across the country.
At issue is the Immigration and Customs Enforcement's (ICE) Secure Communities program, a federal-local partnership in which the fingerprints of suspects booked into local police stations are checked with immigration agents, who then move to deport any detainee suspected of being in the country illegally. Secure Communities was launched by George W. Bush's administration, but under Obama it has undergone a dramatic expansion.
From Washington, D.C., to San Francisco, city officials are questioning the wisdom of the program, arguing that it undermines trust for the police in immigrant communities and unfairly targets immigrants who have merely been charged with (and not convicted of) petty crimes.
"In D.C. we have had a long-standing tradition of separation between what our police force does and what immigration agents do," says Jim Graham, a councilman in the nation's capital who opposes Secure Communities. "We can't have police behave like immigration officers. Our police have their hands full with local crime."
The pushback comes after advocates lobbied against Secure Communities in city halls around the country, and as politicians move to stake out positions on immigration ahead of November's midterm elections. Currently implemented in 437 jurisdictions in 24 states, ICE plans to have Secure Communities in place nationwide by 2013. But it is unclear how -- and whether -- localities that oppose the program can opt out.
"It's very clear they're voluntary agreements that states are signing on to," says Bridget Kessler, clinical teaching fellow at the Benjamin N. Cardozo School of Law's Immigration Justice Clinic. Cardozo has joined the Center for Constitutional Rights and the National Day Laborer Organizing Network in filing a lawsuit to compel ICE to respond to a Freedom of Information Act request about the program. "Once it gets to the level of locality, after the state has signed on, it gets a lot more complicated because no agreements are negotiated at that level."
ICE's deputy press secretary, Richard Rocha, counters that nothing complicated is afoot, and that Secure Communities is a matter for cities to settle with state government. But ICE is on the record saying otherwise.
"That's a complete lie," says San Francisco sheriff Michael Hennessey, who has joined a majority of the city's supervisors -- but not Mayor Gavin Newsom -- in opposing Secure Communities. "I spoke with the deputy director of Secure Communities personally, and he said, 'No, there is no opt out.'"
In an earlier interview, ICE spokesperson Mark Medvesky asserted that cities could not opt out of Secure Communities. But Medvesky was quoted in an Aug. 21, 2009, Philadelphia Inquirer article saying that Philadelphia could opt out, "but I can't imagine why they would want to. It's not a mandate. It's considered a tool for law enforcement agencies to use." Responding to the seeming contradiction, Rocha wrote that localities can choose between "full participation," "delayed activation" and "limited participation." The purpose of the latter option, under which localities choose not to receive information back from ICE, is unclear.
In May, Washington became the first city to move against Secure Communities, introducing legislation with unanimous City Council support. But D.C. may prove to be an anomaly since it is not a part of a state and thus negotiates directly with ICE. Congress, which oversees the District, is unlikely to overturn the decision since Democrats tend to be more respectful of the city's home rule.
In San Francisco, Sheriff Hennessey says he cannot withdraw from the program. Since city fingerprints sent to the state police and FBI are now transferred to ICE, there is no way to keep local data from being shared.
"They're saying I can choose not to receive the info from ICE. That would be opting out in their opinion," says Hennessey. "I could not fingerprint minor offenders, but that's not wise from a law enforcement perspective."
Hennessey and ICE even disagree as to whether local police are required to honor requests to hold a suspected undocumented immigrant, known as a detainer.
And there are other ambiguities. In Philadelphia, Mayor Michael Nutter is considering not renewing a related program that allows ICE direct access to the police computer database, the Preliminary Arraignment Reporting System, or PARS. It is unclear how many other cities have given ICE direct, real-time access to police records, and whether the agency is attempting to gain access to such databases nationwide.
"I don't know that there's a system like PARS in other jurisdictions," says Rocha. "I don't think it's accurate to say that we go out soliciting the stuff, although we obviously encourage participating and the sharing of information from law enforcement agencies."
Yet it was ICE that requested access to the database, suggesting that such relationships may exist in jurisdictions around the country. ICE has a long track record of fostering a climate of ambiguity around enforcement programs.
In March 2010, the ICE inspector general released a report critical of the 287(g) program, which allows certain police to directly enforce immigration laws. It found "ICE statements about the 287(g) program that did not reflect actual program activities," and that "ICE provided misleading information [about the scope of enforcement measures] to the public in a September 2007 Fact Sheet." The report also found that "ICE had not established a comprehensive process for assessing, modifying, and terminating current agreements."
But older programs like 287(g) and the Criminal Alien Program, which deploys agents into local jails, are agreed to directly with local law enforcement agencies, so local police could more straightforwardly opt out. Secure Communities agreements are agreed to at the state level, leaving localities out of the decision-making process. D.C. councilman Graham says that police chief Cathy Lanier signed without ever consulting the council. He only learned of the program's existence after being approached by advocates.
Targeting the most dangerous criminal aliens?
"Fighting crime without the help of one's community," according to an Op-Ed by Salt Lake City police chief Chris Burbank and other law enforcement experts, "is like trying to disarm a hidden mine by stomping on the ground. By the time you have found the problem, it is already too late."
The perception that police are enforcing immigration laws can lead to widespread fear in immigrant communities. A victim of domestic violence, for example, might think twice about calling the police on an abusive husband if it could lead to his being deported. Longtime Manhattan District Attorney Robert Morgenthau spoke out against Secure Communities in a Wall Street Journal Op-Ed.
"When immigrants perceive the local police force as merely an arm of the federal immigration authority," he wrote, "they become reluctant to report criminal activity for fear of being turned over to federal officials," a big problem in a city that is over one-third immigrant.
To be sure, some local agencies, including the Harris County Sheriff's Department, embrace the program. A spokesperson for the department, which oversees Houston jails, recognized "concerns that such programs might suppress immigrant-community cooperation with law enforcement." But he wrote that they "have seen no evidence of suppression" and that "the sheriff has made it clear his deputies should not interrogate victims, suspects, witnesses or anyone outside the jail about their immigration status."
For its part, ICE has apparently failed to research the potential effects on local law enforcement operations. Rocha tells Salon that they don't "know specifically if there was a study done to determine what sort of effects this would have on local LEA."
But there is a clear potential for abuse. While Secure Communities doesn't directly authorize police to enforce immigration laws, an officer who wishes to may do so by engaging in "pre-textual" arrests. Police can arrest a suspected undocumented immigrant for any sort of charge -- even an invented one -- with the intent of enforcing immigration laws. Once ICE has the fingerprints, it doesn't matter whether the charge is ever held up in court -- an immigrant found not guilty of the crime for which he or she was arrested can still be deported. It remains unclear what, if any, oversight mechanisms are in place that would discourage this.
"There's a requirement in the standard operating procedure and all of the memorandums of agreement that says no local law enforcement should violate the Constitution," says Sunita Patel, a lawyer at the Center for Constitutional Rights. "But are they asking any questions of local law enforcement about who they're picking up, and why they're being picked up?"
Once inside the immigration legal system, an immigrant faces an uphill fight: an overworked and inconsistent parallel court system characterized by lack of access to counsel and widespread abuse and denial of medical treatment in ICE-run and private detention centers, including nearly 200 that are secret.
ICE beset by equivocation
ICE has not been forthcoming, and too few journalists have been asking questions. The handful of major media articles on the subject have referred to Secure Communities as a "little-noticed" program that was "quietly" implemented with a "lower profile." Activists have launched a nationwide campaign, including the FOIA lawsuit, to secure more information from ICE.
"It's urgently critical to get the info now," says CCR's Patel. "ICE is ramping up its rolling out process, so now is the time the information is critical to the public and to decision-makers."
ICE is sticking to talking points, and the memorandum of agreement requires states to coordinate all media communications through the agency. In April, an ICE memo outlining media strategy -- including the placement of Op-Eds, and interviews with reporters from the New York Times, the AP and other outlets -- was leaked to the National Day Laborer Organizing Network. In a section titled "Sound Bites," the memo offers a window into ICE efforts to reframe the debate away from the deportation of hardworking immigrants to a non-controversial matter of law enforcement and national security.
"Secure Communities is not about immigration," the memo reads. "It's about information sharing with local law enforcement agencies so they have all the facts about the people in their jails."
Rocha acknowledges ICE's focus on managing information, calling "misinformation about this program" the agency's "biggest challenge." It is a challenge that ICE appears to be meeting with success. Under Secure Communities, there are no photographs of immigrants handcuffed outside of meatpacking plants, an image better suited to the Bush administration's brand of "compassionate conservatism." The public pays little attention to what goes on in prisons, so Obama can keep his distance from stories of deportation and family separation while stumping for immigration reform.
"It hides the profiling," says Patel. "It's not public like it was in the street models of the 287(g) program, like checkpoints. Now the enforcement is happening behind the walls of a jail, where there's very little public scrutiny to begin with."
Obama has pledged to focus on deporting dangerous criminal aliens, ending the massive workplace raids carried out during President Bush's second term. But Secure Communities nets plenty of people picked up for minor crimes.
The most recent data ICE has made public is from the program's first year , from October 2008 to November 2009. More than 88 percent of immigrants deported under the program (14,615) were arrested for the least serious offenses (Levels 2 or 3), while just 1,911 allegedly committed the most serious Level 1 crimes.
"They claim that Secure Communities prioritizes," says Kessler. "The few numbers that they have released from the pilot phase don't bear this out. The majority that have been deported were accused of low-level crimes."
An ICE spokesperson provided Salon with more recent data through May 31, indicating an increased focus on immigrants charged with more serious crimes: 8,584 with Level 1 crimes, 17,113 with Level 2, and 5,149 with Level 3.
But the numbers do not speak for themselves. An ICE memo from June 30 puts a renewed emphasis on Level 1 and 2 offenders, whereas the original standard operating procedure only emphasized Level 1. Stranger still, the memo outlines changes to what counts as Level 1, 2 and 3 offenses, expanding the scope of what constitutes a "serious criminal offense."
This is not the first time that ICE has wandered astray of its stated goals. The ICE inspector general report criticized similar shortcomings in the 287(g) program, finding that "although ICE has developed priorities for alien arrest and detention efforts, it has not established a process to ensure that the emphasis of 287(g) efforts is placed on aliens that fall within the highest priority level." And an October 2009 Department of Homeland Security report found that the majority of all immigrants detained by ICE continue to have no criminal record.
The legal situation of those immigrants deported under Secure Communities remains unclear. Rocha says that all were deported after being convicted of a crime, something that others vigorously dispute. San Francisco sheriff Hennessey points to Cesar Chavarria, an undocumented immigrant booked at his jail. Chavarria, who had no criminal record, was arrested for driving without a license on June 2. ICE picked him up within 24 hours.
Another woman from Langley Park, Md., now faces deportation after her arrest for selling calling cards from her home without a license. A Philadelphia teen is reportedly facing deportation after he was caught with a kitchen knife he accidentally brought to school. He was arrested under the school district's zero tolerance policy and then picked up by ICE. Day laborers, who wait in parking lots and on street corners for temporary work, are particularly vulnerable.
"Day laborers are constantly harassed by police and charged with very minor crimes (trespassing, spitting, riding bicycle on sidewalks, etc.) sometimes pre-textually," Sarah Uribe of the National Day Laborer Organizing Network wrote in an e-mail. "Essentially any charge can lead to a day laborers' deportation with programs like SCOMM [Secure Communities]."
ICE claims that no formal complaints have been lodged against the program, and immigrant advocates concede they are not aware of any. But it is unclear whether immigrants, who often face deportation without a lawyer, would even be informed that their detention was related to Secure Communities. Despite documented problems with past ICE-police collaborations, the agency rejects the potential for civil rights violations out of hand.
"I think it's offensive to local law enforcement officers for anyone to assume that they would do that," says Rocha. "Local law enforcement receive racial profiling training as well. And if there were ever any allegations of racial profiling, or any misuses or any of our technology, we should make sure to address those with local law enforcement agency."
Anti-immigrant populism is surging. In Utah, a list of supposed "illegal immigrants" living in the state is circulating, apparently based on confidential information leaked by a state worker. It seems that just about everyone now considers him- or herself qualified to enforce immigration laws, but addressing improper enforcement has never been a priority for ICE. Secure Communities turns police into de facto immigration agents, raising questions for communities and law enforcement around the country -- the very same concerns prompted by Arizona's Orwellian new law. As of now, the Obama administration has not been forthcoming with answers.
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