Secure Communities and the Campaign to End ICE Holds
What is Secure Communities?
In 2008 the Bureau of Immigration and Customs Enforcement (ICE) initiated Secure Communities (S-Comm), a federal immigration program intended to identify “criminal aliens” using biometric information sharing between local law enforcement agencies (LEA) and the Department of Homeland Security (DHS). The controversial program aims to focus federal funds on the identification and removal of convicted criminals, repeat immigration violators, and individuals who otherwise are deemed a threat to national or public safety. It does so under a pre-existing information sharing program in which fingerprints submitted to the Federal Bureau of Investigations (FBI) are cross-checked with immigration databases at DHS. When an individual is booked by a local police authority, his or her fingerprints are automatically submitted to ICE. Under Secure Communities, ICE determines whether or not the individual falls within its enforcement priorities. If ICE believes the individual in question to be a criminal alien or otherwise deportable, it may issue a detainer to the LEA in custody of that individual, informing the agency that ICE intends to assume custody and requesting that the agency hold the person in question for 48 hours (excluding holidays and weekends) beyond when they would otherwise have been released. Once ICE assumes custody of an individual, proceedings determining whether or not he or she will be deported transpire outside of the state criminal justice system.
Initially, Secure Communities was deployed in select jurisdictions dependent upon the approval of the states in which they were located. State governments signed a Memorandum of Agreement (MOA) consenting to the program, but ICE, which derives its authority to identify, arrest, detain, and deport aliens from the Immigration and Nationality Act, has since determined these MOAs to be unnecessary for the operation of Secure Communities and plans to expand its operation to all jurisdictions nationwide by the end of 2013. ICE maintains that the program is an effort to concentrate on the removal of criminal aliens and immigrants that otherwise fall within its enforcement priorities. The metric used by ICE is as follows:
Priority 1: Aliens who pose a danger to public safety or a risk to national security
Priority 2: Recent illegal entrants
Priority 3: Aliens who are fugitives or otherwise obstruct immigration controls
In determining who falls within Priority 1, an additional categorization is used. Level 1 (L1) offenders are those who have been convicted of an aggravated felony, or two or more felonies; Level 2 (L2) offenders are those who have been convicted of any felony or at least three misdemeanors; Level 3 (L3) offenders are those who have only been convicted of a misdemeanor or other minor offence. Taken together, ICE priorities can hardly be considered selective, and encompass a broad spectrum of offences ranging from homicide and rape to undeclared re-entry and minor traffic violations. Determining how to enforce this expansive set of priorities is left to individual ICE field agents, whose record up to this point has been questionable at best and an abject failure at worst.
Since its inception in 2008, the program has been responsible for the deportation of more than 234,000 immigrants. In FY 2012 alone, ICE deported a record number of 409,849 individuals, of which 83,815 have been directly attributed to Secure Communities. The expansion of the program to all jurisdictions nationwide over the course of the coming year is likely to lead to an increase the impact of S-Comm on federal immigration enforcement. ICE lauds the success of its efforts, claiming that 55 percent of all removals were convicted criminals. However, it is important to note that of those removed as a result of secure communities, only 30 percent were L1 offenders, while an additional 30 percent were merely convicted of L3 offences. Thus, although ICE claims that 96 percent of all removals have fallen within its enforcement priorities, the broad scope of these priorities and the specific distribution of removals among those priorities suggest that Secure Communities has been less effective than has been claimed by immigration authorities.
Lucha y resistencia
Any evaluation of Secure Communities must involve an assessment of the degree to which it is truly contributing to greater security within the nation’s communities. Both in name and in theory, the program pays tribute to the belief that government can and should play a key role in the provision of security. The institutions of governments are brought into being precisely because they have the capacity to bring about a greater sense of collective security than could be achieved by individuals acting alone. And in so doing, they attempt to unite a disparate coalition of individuals into a coherent community in search of a common good and a better life. Institutions that fail to fulfill this purpose must be corrected or disposed of, lest the public good be placed below a select group of powerful interests or simply left to the bureaucratic inertia that can take hold in the absence of active community participation in politics. While S-Comm was an attempt to provide a degree of rationalization to an immigration regime that is outdated and dysfunctional, it has failed to meet that mandate, and has only underscored the fact that piecemeal solutions cannot solve systemic problems.
According to Director John Morton, the primary objectives of ICE are “national security, public safety, and border security.” Secure Communities was conceived as a common sense way to address these objectives by focusing immigration enforcement efforts on convicted criminals that posed a serious threat to public safety. However, in the translation from theory to practice, the emphasis on public safety appears to have become lost, and in its place an institutional apparatus has arisen whose primary focus has been an annual increase in the number of individuals being deported. As Andrew Becker, with the Center for Investigative Reporting, has documented, ICE officials have been under internal pressure to find ways to increase the number of deportations and when these have been insufficient, even artificially inflated deportation statistics. Since the initiation of Secure Communities, each year has brought new record numbers of deportation, totaling more than 1.2 million individuals. Instead of assisting local enforcement agencies in maintaining the rule of law and providing security to those within their jurisdictions, S-Comm has undermined residents’ trust in those agencies and funneled unprecedented numbers of people into an increasingly privatized criminal justice system that has sought to turn a profit from the fracturing of the nation’s communities.
From our experience working with day laborers and immigrant communities, some of the most marginalized and vulnerable sectors of society, we have found that S-Comm, has not only failed to fulfill its own mandate adequately, but has undermined the sense of trust between the community and law enforcement authorities that is necessary for the maintenance of public safety. The statistics kept by ICE demonstrate that each year tens of thousands of individuals have been deported for minor offences. Additionally, many have been deported without convictions, since ICE maintains that persons who are deportable for other reasons (such as having been subject to a prior removal) may be deported without being convicted of a crime in a court of law. As an organization, we have become familiar with the stories of those whose families have been torn apart, for what we maintain to be the unjustifiable criminalization of immigrants. For instance, one woman recently called the police to report the abuse of her children at the hands of a neighbor. Upon arriving, the responding officers took the woman into custody because of her immigration status instead of addressing the crime she had called to report. This is not an isolated incident, and concerns about the impact of Secure Communities on the reporting of domestic violence have triggered internal debate about the program among ICE officials. For all of these reasons Voz has deemed it necessary to intervene and fight for a reformed immigration regime that serves the interests of the community and that treats all human beings with dignity and respect deserving of their status as free, conscious individuals.
The Campaign to End ICE Holds
At the local level, the implementation of Secure Communities depends upon the collaboration of local law enforcement and federal immigration officials. Specifically, the detainers issued by ICE, and the compliance of the Sheriff’s office with these hold requests are the cornerstones of the program’s operation in Multnomah County. Furthermore, since ICE has determined that states may not opt out of Secure Communities, the county has been firmly situated as a central arena for combating the built-in injustices of the immigration system. Thus, the primary objective of our campaign against the criminalization of immigrants has been to end county compliance with ICE holds. Since responsibility for this compliance rests ultimately with the Multnomah County Sheriff’s Office (MCSO), we have focused our efforts on encouraging Sheriff Dan Staton to fulfill his duty to protect and serve the people of Multnomah County without the flagrant undermining civil liberties and communal trust that has attended the implementation of Secure Communities.
Since 2009, Activists Coming Together for Dignity and Justice (ACT) has been working to build a broad-based coalition of immigrant advocates, faith and labor organizations, and civil rights groups to respond to the threat posed to the safety of our communities by police/immigration collaboration in Oregon. Formerly known as the Safe Communities Project, the ACT Network, has waged a sustained and determined campaign to protect our communities from the flawed and destructive policies laid out by ICE that have estranged individuals from their families, denied hardworking immigrants an equal opportunity to participate in the creation of a better life and stronger society, and inflicted unacceptable damage upon the trust that binds our communities together.
In 2010, the Portland Human Rights Commission convened a task force to address concerns about the negative impacts Secure Communities might have. The report registered “deep concern regarding the recent announcement that ICE intends to unilaterally implement the controversial Secure Communities program without the consent of individual states.” The Human Rights Commission concluded that the implementation of S-Comm would “ultimately have a large impact on public safety and human rights for immigrant communities not only in Portland, but throughout Oregon.” In December 2010, ACT submitted three policy recommendations to the Sheriff’s Office, requesting that steps be taken to respect the rights of detained individuals. First among these was that Sheriff Staton make a formal request to the Oregon State Police for Multnomah County to withdraw from Secure Communities. Second, ACT recommended that the Sheriff’s Office limit the distribution of “country of birth” information collected at the time of booking, to minimize the information sharing with ICE for individuals booked with minor charges. Third, ACT recommended that in the interest of fairness and transparency, the Sheriff’s Office inform detainees that they could be subject to an ICE hearing, that they did not have a right to an attorney at such a hearing, and that they had the right to refuse to answer questions fielded to them.
The Human Rights Commission report and the continued activism of the ACT Network led the Multnomah County Board of Commissioners to draft a resolution in 2011 requesting ICE to use prosecutorial discretion in carrying out its objectives within the county. Prosecutorial discretion is authority granted to ICE officers and field agents to treat detainees favorably depending on the circumstances of their detention. The Board encouraged the exercise of prosecutorial discretion citing an “erosion of public trust and public safety” that would result from the implementation of Secure Communities in Multnomah County. Despite the support of County commissioners and City Council, eradicating the fear that ICE holds have brought to immigrant communities in Portland and the surrounding areas depends upon concrete actions that can only be taken by the Sheriff. Although Sheriff Staton expressed a willingness to work with ACT to address concerns, he stopped short of taking concrete steps towards meaningful reform and elected not to implement the recommended policy prescriptions.
Throughout 2012, ACT focused on building a constructive dialogue with the Sheriff’s Office with the hope of holding Sheriff Staton accountable to the community that elected him. Since ICE has determined it has the authority to initialize Secure Communities without consent from state governments, the program itself cannot be terminated by a jurisdiction. The only path of resistance at the local level is noncompliance with hold requests by the Sheriff’s Office. Direct meetings were held with Sheriff Staton to find ways to collaboratively work towards ending ICE holds, but they yielded mixed results at best. The Sheriff continued to insist that he understood the issues at stake and that he wanted to work with ACT, yet refusing at the same time to take significant actions. He explained for instance that it was not county policy to investigate immigration status or request “country of birth” documents, but we have worked with individuals whose experience demonstrates that the apparent policy is divergent from the reality of local law enforcement practices.
In September 2012, ACT presented Staton with a second series of recommended reforms based upon resolutions that had been implemented in Santa Clara County, CA, Cook County, IL, and Washington, DC. The detainer ordinances implemented in each of these jurisdictions derive the right to noncompliance from the financial burden Secure Communities imposes upon local enforcement agencies. Because the federal government has been unwilling to cover the costs of detaining individuals due to ICE holds, these jurisdictions have argued that they are under no obligation to enforce immigration detainers. Cook County and Washington, DC both apply this logic to all ICE hold requests, and are thus operating in complete non-compliance with Secure Communities. Santa Clara County has maintained that it will enforce immigration detainers only if they pertain to individuals convicted or charged with an aggravated felony. None of these jurisdictions have been penalized in any way for their refusal to assist in the enforcement of ICE’s priorities.
Sheriff Staton however, has thus far proven unwilling to implement a similar ordinance in Multnomah County. When first presented with the framework drafted by ACT, he stalled for time, claiming that he wanted to discuss the issue with other counties at a meeting of the Oregon State Sheriff’s Association. He assured the delegates from ACT that he would issue a public response to their recommendations by October 15, 2012. On the 15th, having received nothing in the way of a response, ACT staged a rally and press conference at the Sheriff’s Office to support Staton in putting an end to ICE holds in Multnomah County. However, the promised response was not forthcoming and days of silence on the part of the Sheriff’s office turned into weeks. Frustrated with Staton having reneged on his agreement, ACT staged a second rally and delivered a letter to the Sheriff voicing the community’s insistence that action be taken and reiterating the importance of the issue.
The joint commitment of activist organizations and a supportive public, and the unwillingness to let an issue important as the integrity of our community go overlooked seems to have forced Sheriff Staton to finally address the issue. The following week he conducted a legal review of the issue and released a public statement laying out his official position on noncompliance. The statement was an unfortunate and misguided abdication of responsibility in which Staton claimed to lack the authority necessary to change County policy regarding the enforcement of immigration detainers. In some respects this unwillingness to claim authority in the matter is not unreasonable. Legal ambiguities abound with regard to the implementation of Secure Communities, and since the program’s origins, ICE has failed to consistently or coherently articulate the legal authority on which it rests. First ICE declared that state consent was a requisite for coordination with local enforcement agencies; then ICE terminated all memoranda of agreement, claiming consent was unnecessary. In both declassified internal documents and external public communications, ICE has explicitly stated that a detainer is a request, and yet continues to maintain that law enforcement authorities that are recipients of hold requests “shall maintain custody of the alien for a period not to exceed 48 hours.” To date, ICE has not satisfactorily resolved the apparent contradiction posed by a mandatory request.
The mere existence of these ambiguities does not, however, make the Sheriff’s response any more satisfactory. Multiple jurisdictions have declared noncompliance with ICE hold requests – none have been sanctioned by the Department of Justice and none have been penalized for their actions. There are therefore no empirical precedents that would preclude Sheriff Staton from joining the ranks of other Sheriffs that have taken a stand against S-Comm in the name of restoring community trust in law enforcement. His unwillingness to act appears to stem instead from his personal convictions, which pose perhaps the most troubling obstacle in the struggle to break ICE’s hold on our communities. In his public statement Staton wrote: “I was not elected to interpret the law, I was elected to enforce the law, whether the law is popular or not.” Staton appears to fall into a false dichotomy here, for enforcement necessarily entails interpretation. In any given instance, upholding the law requires a determination of how concrete circumstances fit within the boundaries of an abstract moral framework. Any such determination requires an interpretation between the realm of abstract reason (the law), and that of concrete reality (the circumstances in question). Indeed, one might say that the sole purpose of law enforcement is to ensure that this interpretation is carried out properly. Where the law is clear, the interpretive factor in enforcement may be simpler, and therefore less obvious, but where the law is vague the need for interpretation becomes more apparent. Secure Communities represents an instance of legal ambiguity that requires careful interpretation. Based upon the existing precedents around the country, we believe that the legal argument against noncompliance is unsubstantiated and unconvincing. Furthermore, because continued cooperation between ICE and the Multnomah County Sheriff’s Office undermines both safety of our community and the efficacy of the local law enforcement, we would posit that noncompliance is both practical and ethical. Lastly, we reject the Sheriff’s claim that law enforcement should not be held accountable to the public will. In a democratic society, “whether the law is popular or not” should not be wantonly dismissed but rather held as the final arbiter of whether or not that law is just. Because we cannot accept the Sheriff’s statement on legal, ethical or practical grounds, we have no choice but to continue the struggle to end ICE holds in Multnomah County and to fight for an immigration policy that treats all human beings striving for a better life with the dignity they deserve.