January 9, 2012—Today, NDLON, CCR and Cardozo Immigrant Justice Clinic released a 9-page legal memo from the Immigration Customs Enforcement (ICE) agency dated October 2, 2010, just days before Department of Homeland Security Secretary Janet Napolitano announced Secure Communities would no longer be considered a voluntary program. The memo reversed the position of ICE, stated in an earlier memo, that making Secure Communities mandatory would raise constitutional concerns.
CONTACT: B. Loewe, National Day Laborers Organizing Network, 773-791-4668; Jen Nessel, Center for Constitutional Rights, 212-614-6449, [email protected]; Sonia Lin, Cardozo School of Law Immigration Justice Clinic, 212-790-0213, [email protected]
DISTRICT COURT ORDERS RELEASE OF KEY ICE MEMORANDUM
Court Criticizes ICE’s Efforts to Avoid Disclosure as “Offensive” to Freedom of Information Act
October 25, 2011, New York—Last night, Judge Shira Scheindlin ordered the Immigration and Customs Enforcement (ICE) agency to publicly disclose by November 1 a previously withheld internal memorandum that advocates believe will shed light on the agency’s legal justification for turning Secure Communities into a mandatory immigration enforcement program.
The decision follows motions for summary judgment filed by all parties in NDLON v. ICE about the memorandum. The government claimed the memorandum was exempt from disclosure under the attorney-client and deliberative process privileges. Plaintiffs the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic argued the memo was improperly kept secret from the public in the midst of important policy decisions related to Secure Communities. Indeed, this summer, opposition to Secure Communities reached new levels with the Governors of Illinois, Massachusetts, and New York formally rejecting the program. In response, ICE announced that all of its Memorandum of Agreements with States were dissolved and that the program would be imposed unilaterally. Despite serious questions from States, local jurisdictions, and advocates about ICE’s legal authority to make the program mandatory, the agency continued to withhold information about its legal reasoning and sought to keep the legal authority memorandum secret.
The court ruled in favor of plaintiffs and determined the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory; that the government failed to prove it had kept the memo confidential; and that the agency had adopted the memorandum’s conclusions and analysis as its internal working law.
The National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic released the following statement in response to the court’s decision:
“Our organizations, along with a chorus of advocates and elected officials across the country, have been seeking to uncover the truth behind ICE’s decision to compel states and localities to participate in its dangerous Secure Communities program. The memorandum ordered disclosed is the only document to date that comprehensively describes the legal authority claimed by ICE in support of its position mandating state and local participation in the controversial program – a deportation dragnet that has raised concerns about racial profiling, due process, the ensnarement of U.S. citizens, community policing, privacy, and other issues.
The judge’s order shines a light on a program that has been plagued with secrecy and lies from its start. We agree with the court’s conclusion that, “an agency’s view ‘that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.’” We believe it’s also offensive to our democracy.
With this decision, the court has rejected efforts by ICE to “radically expand the government’s ability to resist FOIA requests” and has affirmed that FOIA exists “to promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed.” We urge the Obama administration to hold federal agencies accountable for their deception and mismanagement, to recognize the complete failure of the Secure Communities program, and to terminate it immediately. It’s time to restore trust and communities. “
For more information on NDLON v. ICE or to view the court order, visit http://ccrjustice.org/secure-communities.
On October 19, 2011, the Chief Justice Earl Warren Institute on Law and Social Policy of the University of California-Berkley, released its report titled “Secure Communities by the Numbers: An Analysis of Demographics and Due Process” on Secure Communities. Secure Communities, or S-Comm, is an immigration enforcement program launched in 2008 by Immigration and Customs Enforcement (ICE) which utilizes local law enforcement resources to enforce federal immigration laws, largely through the data sharing of fingerprint records. The program was advanced in secrecy despite significant public outcry over its devastating effects on communities, costs to local police and reports that crime victims feared coming forward due to the program.
The report relies on data from federal agencies obtained following Freedom of Information Act litigation brought by the Center for Constitutional Rights (CCR), along with the National DayLaborer Organizing Network (NDLON), and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.
On August 17, 2011, plaintiffs in the suit NDLON v. ICE sent the following letter to OIG office of the DOJ.
“Dear Acting Inspector General Schnedar:
We write on behalf of the National DAy Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR) and the Benjamin N. Cardozo Law SChool Immigration Justice Clinic (the Clinic) to request that your office conduct an investigation into the role of the Federal Bureau of Investigation (FBI) in the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) Secure Communities program. As described below, such an investigation is urgently needed to provide transparency and oversight of the FBI’s role in this controversial program. A DOJ OIG investigation would complement the audit currently being conducted by the DHS Office of Inspector General.”