Newly Released Secure Communities Documents Signal Opening for Local Opt-Out
Documents Reveal Program Outside its Mandate, Possibly Outside its Authority
Feb 17, 2011– Today, advocates made available excepts of 15,000 pages of documents released following litigation by the National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic, seeking documents from federal agencies related to the voluntariness of “Secure Communities,” the Immigration and Customs Enforcement (ICE) program quickly spreading throughout the country.
Since the fall, the federal government has taken the position that Secure Communities is not an “opt-in opt-out” program.
Sarahi Uribe of the National Day Laborer Organizing Network, plaintiff in the FOIA lawsuit, commented, “Contrary to the current ICE official position, local opt-outs appear to be possible. The readings indicate that states most likely do have the power to keep this devastating program out of local jurisdictions. The amount of dishonesty revealed in this process would make anyone question whether ICE recognizes it’s operating in a democracy.”
“Reading these documents raises questions about ICE’s authority to require local participation in the program,” continued Bridget Kessler of the Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law. “While the basis of ICE’s policy may be unclear, the bottom line is not: communities should not be forced or coerced into a program with such far-reaching implications for civil liberties and public safety.”
Sunita Patel, Staff Attorney at the Center for Constitutional Rights said, “The internal email communications show government agencies manipulating answers to questions from Congress, media, and local policy makers. This level of deception is contrary to fundamental notions of transparent government.”
The attached briefing document highlights some of the agency’s misleading statements to Congress, state, and local officials, the internal confusion behind the program’s implementation, and questions regarding the legal authority for federal authorities to force the program onto local jurisdictions. Across the country, communities have raised concerns about the impact on community-police relations, the high number of those deported under the program with no conviction record, and the evidence of crime victims being swept up in its dragnet. Advocates continue to call for a moratorium on the program’s implementation due to the extent of disinformation and the questions raised by these new documents.
Emails dated August 23, 2010 and September 2, 2010 with names redacted. Stating that it is technically possible for jurisdictions currently participating in Secure Communities to deactivate but in other emails, seeking definitive clarification about whether jurisdictions have the ability to opt-out.
November 2009 emails between ICE officials Dan Cadman and Marc Rapp, Acting Director of Secure Communities, regarding “Strategy for difficult interoperability deployment locales.” Rapp defines “voluntary” as the ability to receive the immigration response.
August 2009 email from Randi Greenberg (ICE) regarding “SC Guidance Voluntary / Mandatory question.” Secure Communities will remain voluntary at the state and local level and once activated, 30 days written notice is required to suspend or terminate information-sharing. This position will be maintained until localities begin to push back on participation.
Redacted email dated September 20, 2010 from the Associate Legal Advisor, Enforcement Law Division of ICE. Local Enforcement Agencies’ (LEA) participation in SC is not mandatory. If an LEA wishes to opt-out ICE will request a meeting to discuss the request and come to a resolution. Discussing the voluntary aspect as required by the Tenth amendment under which the federal government may not compel the states to implement federal regulatory programs.
Email chain between Beth Gibson (ICE Assistant Deputy Director), Peter S. Vincent (ICE Principal Legal Advisor) and David Venturella (Assistant Director, Secure Communities) and unknown ICE officials from Sept. 29 – Oct. 4. Subject line – “SC and SCAAP issue about opting out”. Discussing ICE actions regarding reworking the “message on the opting out issue emerging in several places” and redrafting the opt-out language and language describing the shift from the “current voluntary formula to the ‘2013’ formula”. Stating that “OPLA” is gathering legal support for mandatory participation in 2013.
June 2010 email exchange between Randi Greenberg (ICE Branch Chief, Communications & Outreach) and redacted SC officials. Discussing updating the “frequently asked questions relating to participation in Secure Communities” Key quote: “I’m totally confused now, I’ve got so many versions of the opt-out language I don’t know what’s current and what’s not. It seems like we have different language for different purposes.”
October 1, 2010 email from Randi Greenberg (ICE Branch Chief, Communications & Outreach) with attached memo from Marc A. Rapp (Acting Director, Secure communities) re: “Clarification of Voluntary Participation in IDENT/IAFIS Interoperability” requesting concurrence from John T. Morton (Assistant Secretary, ICE) on a clarified definition of voluntary participation.
Email from redacted person to Marc Rapp, Secure Communities Acting Director of ICE, October 4, 2010. Subject “House Appropriations Request.” “There is no technical limitation that would prevent ICE from filtering out records from a particular jurisdiction that wishes to opt-out but there are policy limitations requiring federal agencies to share information.”
Email (sender and recipient redacted) dated October 8, 2010, containing notes from House Judiciary Committee meeting following Sec. Janet Napolitano’s October 6, 2010 statement that localities cannot opt-out of SC. Judiciary Committee Members Ur Jaddou, Traci Hong and Tom Jawetz raising concerns about SC (“we’re all in favor of continuing criminal history check but not the immigration check”; asking that “ICE not access this information”, i.e. the fingerprints).
Redacted email exchange dated October 12, 2010 commenting on three news articles that localities cannot opt-out. ICE officials stating that Chicago and Cook Counties have opted out and entire states (i.e. PA and MA) have “turned its back on the initiative even in the face of desire by local LEA’s to participate.”
May 2010 email exchange (most recipients redacted) regarding a call from Congresswoman Lofgren about Santa Clara not being able to opt-out of SC. ICE stating that SC agreements are between States and not local jurisdictions. SC is automatically activated and if the locality wants to opt-out from receiving immigration status reports from ICE, it can do so. Also mentions diffusing the situation before it escalates, reaching out to House members and getting ahead of public misperception.
Email (send and recipient redacted) dated August 23, 2010 regarding whether a locality can cease transmitting fingerprint data to ICE. It is technically possible but policy concerns should be addressed by the “PMO.”
October 12, 2010 email (recipient/sender redacted) with draft of document “Q&A for Website.” Various questions and answers including: whether state/local agencies can opt-out, how SC, 287(g) and Criminal Alien Program (CAP) are different, etc.
ICE Letter to the Editor – MSNBC.com regarding S-Comm strategies and attempting to clarify three points: ICE does not sift through local police records, it uses fingerprints; ICE is not aware of complaints from elected officials in nearly every state; S-Comm. satisfies a Congressional mandate and is in line with 9/11 Commission recommendations for better information sharing among agencies.
September 30, 2010 email chain between several people, regarding opt-out and whether SC or Interoperability is mandatory. Santa Clary County requesting to opt-out and ICE officials looking for SC legislation that speaks to the program being mandatory. Response that “there is no legislation that makes SC mandatory” but there is legislation that makes IDENT/IAFIS mandatory.
Email from Randi Greenberg (ICE) to redacted person in ICE’s legal department dated August 2, 2010 seeking legal authority that “would allow ICE/DHS to request fingerprint information from the FBI for law enforcement purposes regardless of whether states can opt-in or out.”
September 9, 2010 email (redacted sender and recipient) that mentions a “new ‘opt out’ policy approved…in concurrence from OPLA and CJIS.” Agencies can only opt-out from receiving IDR/IAR, they cannot opt-out of interoperability, meaning they must submit fingerprints.
Email exchange dated June 28, 2010 with the subject heading “DRAFT Response to Rep. Honda (D-CA) in regards to the impact of SC on California and Sonoma County. Also mentioning “three options for participation”: full, limited and delayed until 2013. Asking for information on limited participation.
Email exchange from June 2010 with notes from a June 7, 2010 meeting with Speaker Nancy Pelosi’s staff. Information on juvenile offenders, plans to expand from fingerprints to DNA (ICE denies), SC deployment along the Northern Border, Santa Clara requesting to opt-out but the State AG refusing, etc.
Email exchange dated August 13, 2010 regarding a DOJ letter responding to Rep. Zoe Lofgren’s inquiry about how a locality can opt-out by only having fingerprints checked against criminal but not immigrations databases.
Another email regarding a response to Rep. Zoe Lofgren’s inquiry (see ICE-FOIA-10-2674.0011745)
Recipient / sender redacted. Email exchange dated January 5, 2010; subject heading “CHI and NJ Opt-out strategies.” Also contemplating whether New Jersey might be an issue, or want to opt-out.
ICE document titled “Guidance for Handling Sensitive Jurisdictions.” Discussing “Three-Part Approach” to dealing with jurisdictions that don’t want to participate and identifying several “potential objections” jurisdictions might raise with regards to SC.
Draft answers to questions from an Associate Press reporter out of Denver, plus email exchange between ICE officials including Randi Greenberg (ICE). Dated July 21, 2010. Answers regarding SC and domestic violence, juvenile offenders, San Francisco and DC’s participation and ICE’s public communication about the program.
Email to several ICE officials plus attachment regarding the role of Local Enforcement Agencies in Interoperability Activation dated August 13, 2009. Discussing approach to localities about their participation in SC.
Email exchange between several ICE officials dated October 7, 2010 containing talking points on whether SC mandates state and local participation. Subject heading “OPA: Setting up local media interviews with Miami FOD for Orlando visit Oct 18.”
Email exchange between several ICE officials indicating that local agencies can “completely” opt-out. Dated May 24, 2010.
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
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