By Elise Foley
First Posted: 12-10-10 07:34 PM | Updated: 12-13-10 09:18 AM
WASHINGTON — Immigration advocates won a victory on Thursday when a federal judge ruled that government officials must reveal the decision-making process behind a controversial fingerprint-sharing program that critics say hurts the undocumented.
Judge Shira Scheindlin of the Southern District of New York ordered Immigration and Customs Enforcement officials to turn over documents that were requested in February by the Center for Constitutional Rights and Cardozo Law School on behalf of the National Day Laborer Organizing Network. The documents could help answer lingering questions as to whether the Obama administration had overreached in its efforts to force counties to participate in the so-called “Secure Communities” fingerprinting program, which was created in March 2008.
Critics of the program say the ruling could help them determine whether — and perhaps stop altogether — ICE is implementing it nationwide. The Obama administration has planned to nationalize the program by 2013. More than 680 jurisdictions in 33 states already participate in the program, but whether or not they currently have the capacity to opt out is the subject of considerable debate in the immigration-rights community.
Several counties voted to opt out of the program, which ICE officials had originally said was a possibility. Then things changed: ICE officials said the program is mandatory and fingerprint sharing will happen in states that have agreed to the program, whether officials like it or not.
“We can’t go based off of these statements that have a pattern of inconsistency and are misleading,” said Sarahi Uribe, a coordinator for Uncover The Truth, a coalition for groups opposing Secure Communities. “That’s why we need the full record.”
ICE officials tout the program as a a major enforcement success, and in terms of sheer numbers, it is. As of August, more than 47,000 illegal immigrants had been removed under the program.
When police take fingerprints of those they arrest, the prints typically go to the state, which runs them through FBI databases to determine whether the arrested person has a criminal background. Under Secure Communities, the fingerprints also go through ICE databases, allowing the agency to net a larger number of illegal immigrants.
But critics of Secure Communities say the program catches too many non-criminal illegal immigrants and could hurt overall public safety by encouraging the undocumented population to avoid police at any cost — even in domestic-violence cases, for example.
One-quarter of the undocumented immigrants deported under the Secure Communities program had no criminal records, according to the August report.
By late September, officials in Arlington, Va., San Francisco and Santa Clara, Calif. had voted to opt out of the program, following a process laid out in a Sept. 7 letter from Homeland Security Secretary Janet Napolitano to Rep. Zoe Lofgren (D-Calif.).
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About a week later, Napolitano said removal from the program was impossible. “We don’t consider Secure Communities an opt-in, opt-out program,” Napolitano said in October.
Confusion over Secure Communities’ removal process — if it exists at all — led Uncover The Truth to file a suit demanding ICE turn over documents after a long delay.
ICE officials did not return requests for comment, but have previously said jurisdictions in states that have agreed to the program are required to hand over fingerprints to the immigration agency. Counties can opt out of receiving information back from ICE about the result of the fingerprint checks, ICE officials say.
Immigration advocates were not convinced.
“They misrepresented the opt-out process,” Uribe said. “ICE knows that isn’t opting out.”
After the judicial order, ICE must turn over documents related to Secure Communities and opting out by Jan. 17, 2011. Other documents requested by the coalition must be turned over by Feb. 25.
“The defense agreed to do this back in July and here we are in December,” Judge Scheindlin said. “I think the government is dragging its feet. This is serious.”
Sunita Patel, a lawyer for the Center for Constitutional Rights who represented the coalition, said she hopes the groups can find a solution in the documents that would allow jurisdictions to turn fingerprints over to the FBI for background checks but prevent them from going to ICE.
“Finally, the public and advocates who have been trying to influence the implementation of Secure Communities will have the information they need to craft appropriate policies and prevent the spread of the unfair policy,” she said.