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Local police have shared information with federal officials for decades. Over the last two years the “Secure Communities” program has been rolled out in fits and starts, with states being given the option of sharing information with Immigrations and Customs Enforcement (ICE), or not. But last week, the federal government called off all local agreements about the program — effectively requiring full participation from all parties. We’ll explore what this means for localities and why the program continues to cause controversy around the country.
- David Martin Warner-Booker Distinguished Professor of International Law, University of Virginia; Deputy General Counsel, Department of Homeland Security (2009-2011)
- Sunita Patel Staff Attorney, Center for Constitutional Rights
- Brian Bennett Washington bureau reporter, Los Angeles Times
MR. KOJO NNAMDIFrom WAMU 88.5, at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, a protest mostly missing from international headlines, why a quarter of a million Israelis took to the streets over the weekend. But first, last Friday, governors in 39 states received letters from the Department of Homeland Security.
MR. KOJO NNAMDIThe letters informing them that agreements they had signed authorizing participation in the secure communities program, which routes information on people who are arrested to Immigrations and Customs Enforcement, were void, and that DHS didn't need permission to operate in their states, in other words, an official end to agreements that were first reported to be unnecessary last fall.
MR. KOJO NNAMDITurns out, the notion that individual states and not -- and localities had the option of participating or not was a miscommunication. Joining us in studio to help to try to unravel all of this is Brian Bennett. He's a reporter with the Los Angeles Times. He covers immigration issues with the -- from the Washington bureau. Brian Bennett, thank you so much for joining us.
MR. BRIAN BENNETTHey, happy to be here with you.
NNAMDIWe have to ask the question. What does this latest development mean for immigrant communities and law enforcement? And what, if any, recourse do states and localities have? But first, numerous localities in 39 states have been sharing information on people they arrest with Immigrations and Customs Enforcement as part of the secure communities program. How does it work? And what has it accomplished in that time?
BENNETTSo this program, the secure communities program, is a way for ICE to be notified, immigration officials to be notified whenever someone is fingerprinted in a local jail. So what happens is -- and this is happening in 70 percent of jurisdictions around the country at the moment -- when someone is brought in and booked, they may not be -- they aren't -- they're arrested and booked because they're suspected of a crime of some sort and fingerprinted.
BENNETTRoutinely, a sheriff's office, a local jail will send those fingerprints to the FBI, to see if there are other warrants on that person, if there's information about them in the FBI database. Well, what this program has done is linked the FBI database with the immigration database.
BENNETTAnd so when those fingerprints are sent from a local jail, automatically, the immigration officials are flagged and is -- and it is possible for them, for immigration officials to go to the jail and begin deportation proceedings on someone who is out of immigration status.
NNAMDIHow has that been working so far? What has been accomplished since the secure communities program was put into effect?
BENNETTWell, there are mixed reviews on how it's working. The Obama administration says it's working very well. And they point to the program as a way for them to focus resources to deport people who have criminal records. They say that they're able to deport about 400,000 people a year, and they want to make sure that when they use those resources they're using them to deport people who are dangerous to society, who present a threat to the public.
BENNETTAnd they point to the secure communities program as one of the ways that they've been able to increase -- dramatically increase the number of people with rap sheets who they're deporting as a percentage of the total number of people they're deporting. On the other side, looking at -- activists inside the community looking at ICE, the immigration statistics, have said that, actually, a lot of dolphins are being caught in the net.
BENNETTYou get a lot of people who maybe are brought in because they were -- had some sort of a traffic violation that the local ordinance requires them to be booked for or fingerprinted or driving without a license in certain jurisdictions. Or they were on the scene when police arrived and the police couldn't sort it out, so they brought everyone in and booked them. And by being fingerprinted, their immigration status came up.
BENNETTAnd their deportation proceedings began. This is of most concern in situations like domestic violence, people who are victims of domestic violence. What's...
NNAMDIBecause, routinely, if a woman calls to report her husband or to accuse her husband of brutality or domestic violence, both parties are often arrested and fingerprinted.
BENNETTSometimes, the officers who respond won't be able to sort out who's on which side of the domestic violence dispute and so will bring all parties into the station. And they will all be fingerprinted. And so what's concerned some local sheriffs is that this program could be a deterrent to victims of domestic violence abuse who are out of immigration status and would be a disincentive for them to call the police when they're being beaten by their spouse or partner.
NNAMDIBecause it has to be -- I guess, one has to remember that being in the country illegally is not a criminal violation. It is a civil violation. 800-433-8850 is the number to call. Do you think states should have the option of opting out of the secure communities program? Why, or why not? Call us at 800-433-8850. We're talking with Brian Bennett. He's a reporter with the Los Angeles Times. He covers immigration issues from the newspaper's Washington bureau.
NNAMDIYou can also communicate with us by email at email@example.com, send us a tweet, @kojoshow, or go to our website, kojoshow.org. Ask a question or make a comment there. Earlier this year, the governors of New York, Illinois and Massachusetts announced that they were suspending or canceling their participation in the program. What were some of the reasons states gave for opting out?
BENNETTGovernors are being concerned about -- what we were just discussing about domestic violence -- victims of domestic violence being reluctant to cooperate with law enforcement. Also, local sheriffs are concerned that in communities that have a lot of illegal immigrants that the illegal immigrant community will be reluctant to report crimes and coming into contact with the police, and so it can impact community policing.
BENNETTAnd governors were also expressing just concerns about the mixed information that they were getting from DHS about the program. And so a number of governors expressed their desire to withdraw from the program. Thirty-nine governors had signed agreements with DHS, and 11 had not. Most notably, Deval Patrick, the governor of Massachusetts, had been in discussion with DHS and announced in June that he was not going to sign an agreement for the reasons that we talked about earlier.
NNAMDIThe last time we talked about security communities in early May, a number of local governments also were reconsidering their participation in the program. What does the latest development mean for them?
BENNETTWhat it means is that no one can opt out of the program, that DHS has decided that this is a federal information-sharing program between the FBI and immigration authorities. And it doesn't matter what local jurisdictions want or what they've signed, whether they negotiated an agreement with DHS or not, that this program will move forward.
BENNETTDHS says that they planned -- they're currently in 70 percent of all jurisdictions in the country, with a total of 1,400 law enforcement jurisdictions in the country. And they said they plan to be at 100 percent by 2013. So what's really interesting about this story is that DHS and the states and local jurisdictions have spent two years in hard negotiations writing these agreements.
BENNETTAnd some states, like Colorado, for example, really pushed to put protections in for victims of domestic violence abuse, for example. And now, DHS on Friday said, actually, this was all an exercise that didn't really have any real-world effect. The program is going to go on without an agreement from the states. And they tore up all of those 39 signed agreements that they had made.
NNAMDIHence my reference to Joseph Heller's "Catch-22" earlier. This news came out about 5 o'clock on Friday evening. Good timing, huh?
BENNETTWell, it makes it difficult for reporters to make their deadlines when news comes out at 5 o'clock on a Friday. And, you know, you can't help but be cynical about it and think that DHS wanted to try to bury the story because it's embarrassing to them. And I really had to struggle on Friday myself to get the story into the paper, and, fortunately, we did. But all along, I think DHS has struggled with rolling out this program.
BENNETTThey've been inconsistent in their public statements about what the program meant, about what the agreements meant and whether or not communities needed to be a part of the program. I talked to one administration official who described it -- who's frustrated about how DHS has handled the program and described it as if they were building the airplane while it was in flight.
NNAMDIBuilding the airplane while it was in flight. What do you think of that? Call us at 800-433-8850. If you've been involved in secure communities in any way, let us know what your experience has been. You can go to our website, kojoshow.org, to do that, or send us a tweet, @kojoshow. This is a program introduced by President Bush, but it's been embraced by the current administration. How does it fit in to the Obama administration's plans for immigration reform?
BENNETTThis is an important -- the Obama administration points to secure communities as an important part of their immigration enforcement policy. So the Obama administration has taken the stand that they want to be tough on immigration enforcement. They have -- since they came into the office, have steadily increased the number of people who are deported for immigration violations every year, year on year.
BENNETTAnd it seems, to me, looking, you know, from -- someone from the outside, that they -- the Obama administration looks at immigration enforcement as part of a negotiating strategy for immigration reform. They're on the record that they are serious about immigration reform. They've pushed for laws like the DREAM Act, which would give immigration status to young people who are here illegally but complete a certain amount of education or serve in the U.S. military.
BENNETTAnd they've -- Obama administration officials also said that they care about reforming immigration laws. And I think that they see enforcement as a way to come to the table to show the Republicans that, yes, they're serious about law and order. Look, the deportations are up year on year, and try to answer Republicans' calls for that. But, so far, the Republicans have just pushed farther to the right, and we've seen that with the new Republicans in Congress.
NNAMDIYou mentioned earlier that states and local jurisdictions routinely passed on arrest information to the FBI to see if there are any outstanding warrants or anything else against those people who have been arrested. Well, conspiracy theorists in the audience may be wondering if the whole idea of opting in was an illusion all along.
NNAMDISince -- if the information sent to the FBI by states and localities that had not opted in is already being sent to ICE -- is there any evidence of that?
BENNETTWell, it's unclear exactly how much information sharing is going on between the FBI and the immigration officials. In this program, for, as I said, 70 percent of the jurisdictions in the country, when ICE -- when the FBI receives a fingerprint, they automatically send it to immigration officials and notify them and that immigration officials can act on that information and go and start deportation proceedings on someone who's out of status.
BENNETTNow, whether or not -- you know, how robust that information sharing is, we don't know. And DHS officials say that they are -- they cite laws that were enacted after Sept. 11, saying that they are mandated to be actively sharing information between the FBI and DHS.
NNAMDIGot to take a short break. When we come back, we will be joined in this conversation. You can join it by calling 800-433-8850. Do you think states should have the option of opting out of the secure communities program? Why, or why not? You can also go to our website, kojoshow.org, or send email to firstname.lastname@example.org. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on Secure Communities. We're talking with Brian Bennett. He's a reporter with the Los Angeles Times. He covers immigration issues from the newspaper's Washington bureau. Joining us now by telephone is Sunita Patel. Sunita Patel is a staff attorney at the Center for Constitutional Rights. Sunita Patel joins us by telephone from New York. Thank you so much for joining us.
MS. SUNITA PATELThank you for having me.
NNAMDIThere seems to be a lot of confusion about whether this program was optional in the first place. Last month, a federal judge in New York ruled that federal immigration authorities seemed to have gone out of their way to mislead the public about Secure Communities and issued mixed messages about whether the program is optional or not. You were involved in that case. What's happening on that front?
PATELWell, last April, the Center for Constitutional Rights, along with the National Day Laborer Organizing Network and the Cardozo Immigrant Justice Clinic, filed a lawsuit under the Freedom of Information Act to force the government to turn over records related to the Secure Communities program. And in January, the judge ordered release of opt-out information.
PATELWe received thousands of pages of emails and internal correspondences related to this opt-out issue. I think what's really at issue here is this public trust concern. The decision to get rid of the contracts with the states doesn't help the perception that the government has been hiding the ball. It's exactly what the court said.
PATELThe court looked at documents that had been redacted and withheld from the public and determined that there was enough evidence in the record to show that they were just trying to hide embarrassing information, not trying to keep from the public information that could lawfully be withheld under FOIA law.
NNAMDIWhat were state and local officials originally told about how the program worked and their participation in it? At least, what is your understanding of that?
PATELWell, it's clear from the emails and the record, the official public record, that the program was voluntary. As far back as we can tell, at least from April 2009, there was a question for the record presented in Congress where the agency took the position that the program was clearly voluntary. And we provided that document to the court.
PATELAnd just last week, she decided that any records that show -- that discuss the voluntary nature of the program following April 2009 should be disclosed to the public.
NNAMDIThere are reports that some of the people deported under Secure Communities have committed minor offenses or no crime at all. Do you have a sense of how many immigrants who are innocent of crime have been deported under this program?
PATELWell, I mean, we know that, according to ICE's -- the agency's own data, that there's at least about a quarter of people that they categorized as non-criminal nationally that have been removed because of the program.
PATELBut I think what's really important to also look at is the fact that in some jurisdictions that are under investigation by the Department of Justice, such as Maricopa County, have really high numbers of people with very minor criminal arrests or without even criminal arrests being removed because of Secure Communities. You have a situation where the government is launching forward at record speed a program that everyone is questioning.
PATELThey are being, perhaps, dishonest about the intent of the program from the beginning and allowing jurisdictions that have a terrible track record to have additional tools in order to enforce immigration laws and act with impunity around law enforcement procedures.
NNAMDIIf they have, in fact, been being dishonest about the intent of the program to begin with, what have you inferred or concluded is the intent of the program?
PATELWell, we think the program is a massive deportation dragnet. I mean, this is part and parcel of this enforcement-first approach to immigration, which we really should not stand for. Here, you have a policy that states have been courageous enough to stand up against. They stood with the people instead of with this immigration enforcement approach.
PATELAnd despite the fact that states have taken the stand, the federal government has just continually flip-flopped. And how can we trust what they are saying? How can we trust that they are actually going to implement this policy in any kind of a meaningful way? I mean, it's very clear that they are trying to implement this policy one way or the other, either through by hook or by crook.
NNAMDIJoining us now by telephone is David Martin. He served as deputy general counsel for the Department of Homeland Security from 2009 to 2011. He is currently the Warner-Booker distinguished professor of International Law at the University of Virginia. David Martin, thank you for joining us.
PROF. DAVID MARTINThanks for inviting me.
NNAMDIAs I mentioned, you were deputy general counsel for the Department of Homeland Security when the Secure Communities Program was, well, in its infancy. I'll ask you the same question I asked Sunita Patel. What were communities and governors initially told about their participation in the program? And where do you think this confusion arose?
MARTINWell, it seems there was a decision early on when this was launched back in 2008 -- that was before I was there -- to go by way of these memoranda of agreement, these contracts. And the contracts had a termination clause. The main -- the best I have been able to determine is that that was primarily as a way of providing information to the officers, to the state and local officials about how it operate and to set up communication back and forth.
MARTINI think that was a very awkward way to do it and that, clearly, there where many missteps in the signaling that was there. But the -- I've had occasion to look very closely at the legal background, particularly in connection since I left DHS with my scholarly work. And I think it is the federal -- it is right under federal law that the information sharing is required.
MARTINIf the information is sent to the FBI, they're required under these post-9/11 laws to make the information available to ICE. I'd also say that this is actually -- if we could take a step back from all the missteps that were made, this is a good program, a sound program. It does, what I believe -- it works toward a goal that I believe is very widely shared.
MARTINAnd that is to focus immigration enforcement resources on people who are involved in criminal activity. It provides a much more efficient way of doing that. It does it in a way that it's only federal officials who are making the decisions about someone's immigration status.
MARTINIt takes that out of the hands of locals, so that way it's superior, I would think in the eyes of most advocates, to a separate program, a 287 (g) program, which gives a much larger role to states and locals. So it provides an efficient way of involving -- of getting information at a crucial time to enable Homeland Security to act on people who are involved in criminal activity.
MARTINAnd let me just say, it was set-up from the beginning precisely to minimize conflicts with community policing. DHS is also interested in sustaining good relations between local police and ethnic communities. And so it's set up so that it gathers information only on people who are actually arrested. It does not get people who are just -- information from just a traffic stop. They have to be brought in, booked and fingerprinted.
MARTINAnd, therefore, it does not gather fingerprint information on witnesses or victims. So I think the complaint about domestic violence is misdirected. If it's directed at ICE, if the local police are just arresting everybody when they go to a crime scene and sorting it out later, then they've already got a -- well, a misstep in their own community policing.
MARTINBeyond that, if it turns out that someone is, in fact, the victim in domestic violence, there are a great many protections under immigration law. And DHS has worked really hard over the last 10 years to implement statutes that provide really solid protection and, usually, an avenue towards permanent resident status for people who are victims of domestic violence. So that can be sorted out.
MARTINAnd I think quite appropriate. So both on support for community policing and in dealing with victims and witnesses, there are -- the system design is designed to address this appropriately and concentrate on people involved in crime.
NNAMDIBut immigration is a federal issue, David. How delicate is the balance? And I'll get to you in a second, Sunita Patel. But, David, how delicate is the balance between the rights of states and local jurisdictions and the power of the federal government on this issue?
MARTINWell, I think it's quite appropriate for the federal government to say that its priorities are going to prevail in the area of immigration. Now, those need to be wise priorities. And there's been a lot of work on that front to try to do with that. But I just like to challenge people in the immigrant-ethics community who say that, with regard to secure communities, ICE, the Department of Homeland Security, have to defer to the states.
MARTINIf you really mean that, then they need to defer to the states, states like Arizona or Alabama or Georgia, that have adopted very harsh laws. The federal government, I think, quite appropriately, has sued a couple of those states to block that and say no immigration. We want to cooperate. The federal government wants to cooperate with states and locals.
MARTINBut the federal government is the one that sets the standards and the priorities, and that -- if that applies to Arizona, it has to apply to Illinois as well.
PATELWell, I just wanted to respond, just to correct a few things. One is that the jurisdictions where sometimes people get arrested -- there are many states that have dual arrest policies where that's just the policy that they follow. And it's not quite accurate to say that that's just the fault of the local law enforcement. That's actually just a policy of the state. I also think it's important to point out...
NNAMDIThat is, be clear. The policy -- you're saying that the -- wait, wait, wait. Are you saying that the policy of the state in cases of complaints of domestic abuse is often to arrest both parties?
PATELSome jurisdictions do have policies where that's actually what's done in order to work it out later or in order to address sometimes retaliatory actions by...
NNAMDIWell, David Martin, could you not see how such jurisdictions would have concerns about fingerprints being sent to ICE in such cases?
MARTINWell, yes. But then I would say, if it turned -- once they figure out who's actually the victim, then the process is go forward. They've been reinforced lately to protect the victims under immigration laws. Beyond that, I mean, if a jurisdiction like that...
PATELBut their fingerprints have already been...
MARTINI'm just surprised that the community policing objection is based on that. From a community that's like that, they have already deterred people from reporting domestic violence. I don't think ICE can be held responsible for that.
NNAMDIBut, Brian Bennett, what has been the reaction of this latest development from state and local governments at -- that you've been talking to and from members of the immigrant community?
BENNETTWell, some of the states who have spent a lot of time negotiating these agreements were frustrated and angry that the agreements were, you know, torn up on Friday because they spent a lot of manpower thinking about it and trying to put in specific protections for their state. I do have a question for Dave.
BENNETTI was wondering if, in your research, your legal research on this, if you've looked at some of the agreements, the original agreements between the FBI and the states, and whether the FBI sharing the -- sharing these fingerprints with another federal agency contravenes any of those original agreements that states and FBI have made decades ago.
MARTINYes. So, I mean, there is room for the states to negotiate with the FBI. The federal government can't mandate a state -- under Supreme Court precedent, they can't mandate a state to send information. But once they send it, then it's a federal government decision about how it will actually be used.
MARTINAnd, again, I think it makes -- I just want to emphasize. This sharing of information primarily is used to identify people who -- for whom I think there'd be very wide agreement, they should be prioritized for deportation. They're people who've committed crimes. They're causing problems in the communities, and they should be removed. And this is largely people -- it's not the crime that makes them deportable. So it's not the level of the crime.
MARTINThese are people who, clearly, are here unlawfully. They've sneaked into the country, or they overstayed a visa. And then, if they're also committing crimes, this arrest is the occasion for ICE identifying them and then making a decision about whether to take action according to their own priorities.
NNAMDIRunning out of time very quickly -- go ahead, Sunita Patel.
PATELI just wanted to point out a quick thing that the FBI assistant director Dan Roberts has said in the past that when states submit fingerprints to them, that it's governed not only by federal law, but by a complicated set of state laws that also govern the privacy of the citizens of the state. So it's not true that only the federal laws trump here. I think it's a much more complicated analysis than that.
PATELThe law that Prof. Martin cited does not say Secure Communities has mandated it. It doesn't say that. And I think, finally, I just wanted to point out that a lot of this is about not just non-citizens' information being shared, but also citizens. So now you have a situation where the FBI, through this program, can institute a way to share information at any point of contact with law enforcement for all of us.
PATELThere is a massive new database that's being created called the Next Generation Identification initiative that's going to replace the FBI's current database. And it's not just fingerprints. It's also going to eventually have iris scans, palm prints and other kinds of biometric identity information. So this is not just about an immigration issue. This is also a larger privacy concern that we should all be aware of.
NNAMDIAnd that's an issue we'll be looking at in a later broadcast. For the time being, Brian Bennett, where does this issue go from here?
BENNETTWell, what's interesting about DHS' action on Friday is that, apparently, it doesn't affect the Secure Communities program at all and that it will -- DHS plans for it to continue as it has been implemented. It's currently in 70 percent of all law enforcement jurisdictions in the country. And DHS predicts that they will be -- have the immigration resources to have Secure Communities in 100 percent of jurisdictions by 2013.
NNAMDIAnd these two emails or an email and a comment on our website indicate how our listeners might be divided on this. The email from Philip says, "Since the federal government is responsible for immigration and for implementing these programs, states and localities should participate. The guest does not have any factual proof that non-compliance with 287 (g) or Secure Communities dissuades reporting of crimes or spousal abuse.
NNAMDI"287 (g) requires local officials, like Herndon, to only inquire about immigration when an agreed offense has been committed." And this website comment we got from Ayanna, (sp?) "States should be able to opt out. This program seems like a huge step back, alienating communities, distancing local police from neighborhoods and degrading the sovereignty of states by making it harder for them to safeguard their residents.
NNAMDI"In many ways, this policy seems to be doing the opposite of what it espouses." Well, we'll be revisiting this at some point in the future. Brian Bennett, thank you for joining us.
BENNETTHappy to be here.
NNAMDIBrian is a reporter with the Los Angeles Times. He covers immigration issues with the newspaper's Washington bureau. Sunita Patel, thank you for joining us.
PATELThank you for having me.
NNAMDISunita Patel is a staff attorney at the Center for Constitutional Rights. And, David Martin, thank you for joining us.
MARTINThank you, Kojo.
NNAMDIDavid Martin served as deputy general counsel for the Department of Homeland Security from 2009 to 2011. He's currently a professor of international law at the University of Virginia. We're going to take a short break. When we come back, an international story that has not been making very big headlines. Why a quarter of a million people took to the streets in Israel demonstrating this past weekend. I'm Kojo Nnamdi.
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