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The Obama administration’s plans to reform the controversial immigration enforcement program called Secure Communities will do little to make our communities safer.

In an effort to quell state and local backlash, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton recently announced a series of purported “changes” to the program. The June 17 announcement included the release of new policy memos instructing local ICE officers to exercise prosecutorial discretion in favor of victims and witnesses of crime and others who do not have violent criminal records or pose threats to their communities. But as the secretary lauded these new policies as proof that his agency is responsive to concerns raised by local governments and immigrant and civil rights advocates, he made clear that nothing will change as to the fundamental processes of the Secure Communities’ program.

Unfortunately, Morton’s proposals fall short of creating meaningful change. Rather than stop the human rights and due process abuses inherent in the Secure Communities program’s current structure, the new policies only address problems after they have already occurred.  ICE will continue to disregard the sovereign decisions of states like Illinois, New York, and Massachusetts, whose governors rejected the program this spring after determining that it is not in the best interest of their residents.

A program plagued with problems

Secure Communities is a fingerprint-sharing program between state and local law enforcement agencies (LEAs), the Federal Bureau of Investigation, and ICE. It requires local police to simultaneously maintain its role of criminal enforcement while also assisting ICE to identify individuals who may be deportable from the United States and serving as the initial jailer for civil immigration enforcement.  The program screens individuals for civil immigration violations at the point of contact with local law enforcement, regardless of whether their arrest leads to a criminal conviction. The path toward removal proceedings is set in motion when an individual is flagged in the Secure Communities database and ICE issues an immigration detainer instructing the LEA to hold the individual until the agency can assume physical custody.

States and localities already enrolled in Secure Communities have observed that the vast majority of individuals identified and deported under the program have no criminal history or only minor offenses such as traffic violations (read letters from the governors of Illinois and New York). Under Secure Communities, LEAs have no discretion to decide when fingerprints are screened for civil immigration enforcement. The program undermines LEAs’ trust with the communities they are tasked to protect, diverts scarce resources to fulfill ICE’s objectives, encourages racial profiling, and needlessly tears families and communities apart with negligible impact on curbing crime. Morton’s announced “changes” do not address these fundamental flaws.

Morton’s proposals acknowledge these problems but fail to remedy them. Rather than implement measures that would prevent abuses such as racial profiling or arrest of victims, Morton’s proposals rely on officers in the field to address problems after they happen—often once the men and women caught up by the program have already spent several days in detention. ICE has a proven track record of being unable to ensure that policies issued by national headquarters are implemented in the field, meaning that the lack of oversight which currently plagues the system will continue to undermine efforts to eliminate abuses.

Morton’s “reforms” are not solutions

1. Prosecutorial Discretion for Certain Victims and Witnesses of Crimes

Morton’s June 17 prosecutorial discretion memo authorizes ICE trial attorneys to exercise discretion and choose to not proceed with removal proceedings against some victims and witnesses of crimes. Although Morton’s guidance is welcome, it is difficult to see how ICE will be able to uniformly apply it. Through Secure Communities, the screening of an individual’s fingerprints and ICE’s decision to issue a detainer occurs with minimal or no interaction between the LEA and ICE. Unless the LEA or the victim—usually lacking legal representation—proactively raise the possibility of prosecutorial discretion, the most likely scenario is that prosecutorial discretion will occur at or following the initial court appearance, after an individual has already been detained for several weeks. While a welcome stopgap, this policy does not provide adequate protections to victims and witnesses of crime.

2. Prosecutorial Discretion In Accordance with Civil Immigration Priorities

The outlook seems dim for Morton’s June 17 broader guidance directing field offices to consider prosecutorial discretion for certain individuals, particularly since ICE has yet to effectively implement the secretary’s original March 2011 prosecutorial discretion memo. NIJC has observed that ICE’s prosecution decisions have been driven principally by the capacity of its detention system rather than consideration for the circumstances of individual cases. Without a plan for implementation and oversight, it is unclear how the new memorandum will change this dynamic.

More importantly, this newest guidance does not address the problems with Secure Communities but rather seeks to remedy the program’s abuses retroactively, once immigrants have already been detained and separated from their families and communities for days.

3. Initiatives to Address Racial Profiling and Other Abusive Policing Practices

In order to address concerns that Secure Communities incentivizes racial profiling and other abusive policing practices, ICE announced two initiatives in conjunction with the Department of Homeland Security’s Office of Civil Rights & Civil Liberties (OCRCL): (1) on a quarterly basis, OCRCL will release reports with the results of data analysis of various jurisdictions’ use of Secure Communities to determine potential patterns of racial profiling; (2) OCRCL will implement a complaint process by which individuals will be able to report specific police misconduct related to the program.

While both initiatives are welcome small steps toward providing a better understanding of how Secure Communities operates in the field, they will be ineffectual in addressing abuses. Racial profiling and other police misconduct related to Secure Communities principally occur at the point of arrest by the state and local law enforcement. OCRCL is a small administrative DHS office with no enforcement power and with limited jurisdiction to provide recommendations only to DHS. OCRCL Director Margo Schlanger has stated that her office does not view itself as having jurisdiction to investigate and make recommendations to state and local law enforcement. OCRCL would likely not have access to important data on the total number of police encounters that end short of arrest, which would reveal how often people of color are stopped based on racial profiling to determine immigration status.  Moreover, both ICE and OCRCL have indicated that even if they do find patterns of racial profiling by a law enforcement agency, ICE would not suspend its enforcement efforts within that locality. As long as ICE is unwilling to stop its immigration enforcement based on information it believes may have been unlawfully obtained through racial profiling or other abusive policing practices, the agency will continue to incentivize these unlawful tactics and be a conduit for discriminatory policing.

4. Secure Communities Advisory Committee to Secretary Morton

ICE is developing an advisory committee to study Secure Communities and provide recommendations on how to mitigate its deleterious impact on community policing. The members of this committee will be selected by ICE and will include law enforcement, prosecutors, court officials, ICE agents, and community advocates.

Short of bright-line rules that certain categories of people will not be placed in removal proceedings, however, it is difficult to see how any recommendations from the advisory committee can ameliorate Secure Communities’ impact on community policing.

5. Changes to ICE’s Immigration Detainer Form

ICE has revised the detainer form it issues to local LEAs to instruct them to hold individuals for up to 48 hours, until ICE can assume physical custody.
The form now provides a checkbox to allow the issuing ICE agent the option to instruct the LEA not to enforce the detainer until after conviction.

In practice, it is not clear how this instruction can be effectively implemented. The immigration detainer form is issued exclusively to jail officials who are not in the position to know the status of each detainee’s case to effectively comply with this instruction. Moreover, it is unclear how a detainer would affect a person who would otherwise be released on bond while awaiting adjudication of their criminal case.

6. ICE Training Videos for State and Local Law Enforcement

ICE announced that it will produce a series of training videos for state and local law enforcement to explain how Secure Communities operates and its connection to civil rights and civil liberties issues. It is doubtful that these videos will have significant impact, however, because the very existence of Secure Communities legitimizes civil immigration enforcement as a factor in police decision making. Of all of Secretary Morton’s proposed tweaks to Secure Communities, this is perhaps the least effective use of resources.

Reform isn't enough

During a Chicago stop on what ICE officials have dubbed a nationwide “road show” to discuss the agency’s plans for Secure Communities, NIJC today called on the Obama administration to honor states’ rights to refuse to participate in the ineffective and costly program. As NIJC Director of Litigation Chuck Roth told Morton during the meeting, “ICE’s approach is guaranteed to break up families.” Morton’s cosmetic changes will do little to change this reality. Anything short of full suspension of the program puts American families and communities in danger.