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New Developments in Secure Communities and the Next Generation Identification Initiative
Advocates Confront FBI about its Role in Massive Deportation Program
In June, advocates traveled to Buffalo, New York to confront the FBI about its role in the Secure Communities deportation Program. Representatives from the National Day Laborer Organizing Network, the Criminal Defense Immigration Project of the New York State Defenders Association, and the Cardozo Immigration Justice Clinic, and NYU doctoral candidate Travis Hall attended the semi-annual meeting of the FBI’s Criminal Justice Information Services Advisory Policy Board (APB) and presented to the group about the negative impacts of S-Comm on public safety, community policing, and privacy. They also obtained updates on developments in Secure Communities and the Next Generation Identification initiative, of which S-Comm is one part.
An analysis from the Electronic Frontier Foundation of the privacy concerns raised by these new developments will be available shortly as well.
The APB advises the FBI on how to manage the FBI’s civil and criminal databases. It was the APB that first decided to make Secure Communities a mandatory program. But the APB made this decision without considering any of the public safety and privacy issues that have made S-Comm so controversial. At the June meeting, advocates forced those issues onto the agenda.
The next APB meeting is scheduled for December, in a location to be determined. For more information, or to get involved, contact jkarp at ndlon.org.
July 13, 2012, New York – Today, in an important victory for open government, Judge Shira A. Scheindlin, of the Southern District of New York, ruled that the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have failed to adequately search for and disclose information pursuant to the Freedom of Information Act (FOIA). The ruling comes in NDLON v. ICE, a FOIA lawsuit brought by the National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, with representation by Mayer Brown LLP. The suit seeks government records relating to the controversial Secure Communities (SCOMM) program.
Said Center for Constitutional Rights attorney Ghita Schwarz, “Today’s decision rightly holds the government to standards of transparency and accountability, an important step in stopping the harm this program is causing in our communities. Despite claims that SCOMM targets serious criminals, the fact is that SCOMM has done nothing but break families apart and undermine public safety by intimidating victims and witnesses of real crimes from reporting them.”
In a strongly worded opinion, Judge Scheindlin sided largely with plaintiffs, stating that “[t]ransparency is indeed expensive, but it pales in comparison to the cost of a democracy of operating behind a veil of secrecy.” Judge Scheindlin flatly rejected the defendant agencies’ claim that they should be “trusted to run effective searches” for records responsive to plaintiffs’ FOIA request “without providing a detailed description of those searches.” Particularly harsh in its conclusions about the FBI’s failure to search for documents, Judge Scheindlin characterized as “absurd” their position that ordering an office to conduct a search and receiving no response satisfied government obligations under FOIA. Pointing out that FOIA requires the government to “use twenty-first century technologies to effectuate congressional intent,” the decision broke new ground by ordering the government to “work cooperatively” with plaintiffs to “design and execute” new searches.
Said co-counsel Anthony Diana from Mayer Brown LLP, “Particularly important is the court’s recognition that the government should work with the FOIA requester to help alleviate some burdens associated with the search of a large volume of electronic data. In an era when government policies are crafted and implemented almost entirely through electronic documents, we hope that applying lessons learned in the civil e-discovery context in FOIA cases will promote transparency and accountability in government across the board.”
Said Jessica Karp of NDLON, “It is fitting that today’s decision comes at the end of a national week of action to ‘Restore Trust’ broken by the Secure Communities deportation program. Transparency and accountability are essential if we are to repair the damage done by this program that is spreading Arizona-style policies around the country. We are especially hopeful that the new searches will bring much-needed transparency to the role of the FBI in forcing this dangerous program on unwilling states and localities.”
Said Sonia Lin of the Immigration Justice Clinic of the Cardozo School of Law, “Today’s decision underscores the importance of transparency about controversial government policies such as SComm. The court rightly observed that this FOIA litigation has ‘influenced much of the public debate over Secure Communities’ and that through this litigation, FOIA has ‘therefore served its purpose of engendering a more informed public and a more accountable government.’ Indeed, this week, Chicago announced a proposal to reject SCOMM and former Manhattan District Attorney Robert Morgenthau publicly called for state and local ability to opt out of the program, which he described as ‘the worst kind of public policy.’”
SCOMM is an ICE deportation program that checks the immigration status of anyone arrested by local and state police, regardless of the charges and whether those charges are later dismissed.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org and follow @theCCR.
The mission of the National Day Laborer Organization Network is to improve the lives of day laborers in the U.S. by unifying and strengthening its member organizations to be more strategic and effective in their efforts to develop leadership, mobilize day laborers in order to protect and expand their civil, labor and human rights. Visit www.ndlon.org
The Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law was founded in 2008 to provide quality pro bono legal representation to indigent immigrants facing deportation. Under the supervision of experienced practitioners, law students in the Clinic represent individuals facing deportation and community-based organizations in public advocacy, media and litigation projects. Visit www.cardozo.yu.edu/immigrationjustice
“Sort of True” Still “Good Enuf” for ICE: Newly Disclosed Documents Confirm ICE Detainers are Voluntary, Suggest ICE Misled Public About Costs of Compliance
“Sort of True” Still “Good Enuf” for ICE
Newly Disclosed Documents Confirm ICE Detainers are Voluntary, Suggest ICE Misled Public About Costs of Compliance
July 6, 2012—Newly disclosed internal documents from the Immigration and Customs Enforcement agency (ICE) repeatedly describe immigration detainers as voluntary “requests” and confirm that there is no “procedure to force a[ local law enforcement agency] to honor detainers.” The documents also show that ICE does not reimburse localities for detainer costs and that officials considered providing misleading information to reporters to obscure the lack of federal funding.
The question of local control over immigration detainers has assumed prominence as cities and states address harms caused by ICE’s “Secure Communities” deportation program (http://altopolimigra.com/s-comm-shadow-report/). Today’s disclosure comes before a national week of action to “Restore Trust” by limiting police collaboration with ICE. Over the past year, Chicago, New York, San Francisco, Washington, DC, and Santa Clara County, California have all passed local laws limiting compliance with immigration detainers. The California Senate is currently considering a similar bill at the statewide level, known as the “TRUST Act.” Backers of the laws say they are necessary to repair public trust destroyed by S-Comm.
The documents disclosed today confirm that compliance with immigration detainers is a matter of local discretion. Local authorities are not required to detain people in order to assist ICE deportations. The documents also confirm that the federal government does not reimburse locals for detainer-related cost. But ICE may have suggested otherwise to reporters. In one email, an ICE official considered telling a reporter that a federal funding program covers the cost of detainers despite acknowledging that “[s]aying [the] money is available for detainer cases is a little out of whack.” Another official responded by suggesting the statement would be “sort-of true . . . and that’s good enuf!” [sic].
Newly Obtained Documents Reveal Secure Communities Program Leads to Deportations of People Who Have Never Been Arrested, Despite Objection of California Department of Justice (PR)
Newly Obtained Documents Reveal Secure Communities Program Leads to Deportations of People Who Have Never Been Arrested, Despite Objection of California Department of Justice
July 3, 2012—Today, advocates released emails from the FBI and the Immigration and Customs Enforcement agency (ICE) that show that ICE’s controversial Secure Communities deportation program is sweeping in individuals who have never been criminally arrested, despite objections raised by the California Department of Justice. The emails—which were obtained as a result of Freedom of Information Act litigation brought by the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Cardozo Immigration Justice Clinic—show that people who are unable to satisfactorily identify themselves at drivers’ license checkpoints are processed for deportation through Secure Communities.
According to the emails, in May 2011, California attempted to obtain assurance from ICE and the FBI that “the [Secure Communities] Program will only affect persons who are arrested for a crime, and not those who may simply be stopped at a drivers’ license checkpoint.” Instead of providing the requested assurance, the FBI apparently informed California that even prints for individuals who had been arrested for identification purposes only would have their immigration status checked through Secure Communities. Moreover, the FBI informed California that, although it was technically possible to change this process, it would not do so.
The audacity of this response was not lost on federal officials, who acknowledged that the “answer is going to create an issue,” and that “DHS/ICE” had previously made “abundantly clear . . .” that Secure Communities “is only for individuals being booked into jail.”
The emails were originally disclosed in heavily redacted form in August 2011. Less redacted versions were disclosed in June 2012. This is the first time they have been publicly released.
Chris Newman, Legal Director of the National Day Laborer Organizing Network, said: “This is the latest proof that Secure Communities is not a targeted immigration enforcement program, but a deportation dragnet. California must take action to protect its residents against this Arizona-like program. We call on the California Senate to pass the TRUST Act to restore a bright line between criminal and immigration enforcement.”
Sonia R. Lin, Clinical Teaching Fellow at the Cardozo Immigration Justice Clinic, said: “Secure Communities turns drivers’ license checkpoints into a ‘show me your papers’ demand. California’s leaders should heed the advice of law enforcement leaders across the country and prioritize true public safety by standing up to Secure Communities.”
FOIA Documents Released July 3, 2012:
PR: Controversy Over "Secure Communities" Deportation Program Widens as FBI Role is Scrutinized At Bi-Annual oversight meeting, Advocates Call on FBI to alter program to protect public safety
FOR IMMEDIATE RELEASE
Thursday, June 7, 2012
Contact: Jessica Karp, NDLON: [email protected], 917-855-7682
Controversy Over “Secure Communities” Deportation Program Widens as FBI Role is Scrutinized At Bi-Annual oversight meeting, Advocates Call on FBI to alter program to protect public safety
Buffalo, New York–Today, immigrants’ rights and privacy advocates are addressing the bi-annual meeting of the FBI group charged with managing the nation’s criminal databases. Their topic is the controversial “Secure Communities” deportation program. The advocates say the FBI makes the program possible by automatically forwarding all arrest fingerprints to DHS for an immigration background check. And they say the FBI should change that policy in response to growing calls from governors, police chiefs, and communities across the country–including New York City, Washington D.C., Massachusetts, and Vermont, where Secure Communities was recently activated over strong local opposition.
Said Jessica Karp, Staff Attorney and Soros Fellow with the National Day Laborer Organizing Network: “We know from documents received through the Freedom of Information Act that Secure Communities has generated fierce debate within the FBI between those who support states’ right to opt out and those who want to keep the program mandatory. Top FBI officials have described their position as ‘being caught in a nuclear war,’ saying, ‘[a]ny way we go will contradict one of our partners.’ We hope today’s meeting will show the FBI that the right way forward is clear—it must end its facilitation of this ill-conceived and mismanaged deportation program.”
Sonia Lin, Attorney and Clinical Teaching Fellow at the Cardozo School of Law Immigration Justice Clinic, says: “The FBI is supposed to partner with state and local police to promote public safety. But Secure Communities was imposed on states and local agencies without their consent. It undermines community policing, diverts local resources, and turns local law enforcement agencies into gateways to deportation. The FBI has the authority—and the obligation—to rethink its involvement in this deportation dragnet.”
Travis Hall, a PhD candidate at New York University studying biometric programs, said: “There are many ways to set up biometric databases–they can either increase detrimental forms of surveillance and encroach upon privacy rights, or they can be used to bolster security and be privacy enhancing. This depends a great deal on the values embedded into the technologies during their design and application. Right now the Secure Communities program is a textbook case of ‘function creep’, when information collected for one purpose is inappropriately used for another. It is my hope that the FBI will take into consideration the concerns of privacy and immigration rights activists in setting the standards and policies that structure their collection and dissemination of personally identifiable information.”