Unanswered Questions Surround ICE's Secure Communities Program

Following an order by a federal district court judge, U.S. Immigration and Customs Enforcement (ICE) released 15,000 pages of documents in mid-February related to the agency's Secure Communities program. The documents were ordered released as part of an ongoing lawsuit filed by a coalition of immigrant advocacy groups that sought to compel ICE to release more information about Secure Communities under the Freedom of Information Act.

However, the documents (along with several recent ICE memos) seem to have only added to the confusion surrounding the nature of Secure Communities. Questions remain as to whether states and localities may choose to opt out of participation in the program, as well as to whether the program effectively targets foreign-born individuals who have committed serious crimes.

Secure Communities is a rapidly expanding ICE initiative that aims to identify deportable "criminal aliens" when they are arrested and booked at a jail or prison by state or local law enforcement agencies. If the arrested individual is determined to be a removable noncitizen, then ICE can decide whether or not to issue a detainer and take custody of the person to initiate removal proceedings.

The cornerstone of Secure Communities is a series of technological advances that enable law enforcement agents to access both an arrestee's criminal background and immigration history at the time of booking.

By screening the suspect's fingerprints, authorities can now access two separate and powerful databases that had not been previously interoperable — the Federal Bureau of Investigation's (FBI) Integrated Automated Fingerprint Identification System (IAFIS), which contains 66 million criminal records, and the Department of Homeland Security's (DHS) Automated Biometric Identification System (IDENT), which holds over 90 million immigration records.

In order for a jurisdiction to participate in Secure Communities, ICE must first sign an agreement with the locality's state identification bureau (SIB). Once the agreement is signed, ICE has the authority to deploy Secure Communities technology to any state or local law enforcement agency within the state's jurisdiction. To date, ICE has signed agreements with 39 SIBs nationwide, as well as one in Puerto Rico.

Criticisms, Questions, and Confusion

The primary goal of Secure Communities is to remove noncitizens with criminal convictions. To that end, ICE has established a hierarchy of criminal offenses and criminal offenders for immigration enforcement purposes.

Under its current priority system, ICE considers noncitizens who have been convicted of two or more felony offenses (or at least one 'aggravated felony' offense) to be Level 1 criminal aliens. Noncitizens who have been convicted of one felony or three or more misdemeanors are deemed Level 2 criminal aliens, while noncitizens who have been convicted of any misdemeanor offense are deemed Level 3 criminal aliens.

Recent statistics released by ICE, however, raise doubts about the program's focus on individuals who have been convicted of serious crimes. According to a March 2011 ICE report, in FY 2010 noncitizens with no criminal conviction at all and noncitizens who were deemed Level 3 criminal offenders made up 56 percent of the total number of individuals placed in removal proceedings by ICE through Secure Communities, and 60 percent of those ultimately removed.

The March report also indicates that the impact of the program is particularly concentrated in a handful of counties. Between October 27, 2008 and February 28, 2011, for example, bookings in Maricopa County, AZ and Los Angeles County, CA together made up 31 percent of the total number of noncitizens administratively booked through Secure Communities nationwide, and 27 percent of the total number ultimately removed.

In addition to concerns about which types of criminals are targeted most, immigrant and civil-rights advocates have protested that Secure Communities can lead to racial profiling. They argue that, while all who are arrested in a participating jurisdiction get fingerprinted by the police at the time of booking and are subsequently screened by ICE, the arrests themselves can be racially motivated. They have also claimed that the program undermines trust between the police and immigrant communities, with consequences for public safety.

Although officials from many law enforcement agencies praise Secure Communities as a cost-effective and efficient way of identifying deportable noncitizens, the concerns mentioned above have resulted in pressure on some individual jurisdictions not to participate in the program, even if their state identification bureaus have signed agreements with ICE.

Initially, ICE officials billed Secure Communities as a voluntary program, and various ICE statements seemed to indicate that individual localities within a state could opt out of participating, regardless of whether or not that state's SIB had signed an agreement to participate. The newly released documents on the program suggest that as late as May 2010, some ICE officials still supported this view. A recently released August 2010 ICE email also states that it is "technically possible" for a jurisdiction's fingerprints to be screened only against the IAFIS database, and not against IDENT.

As more and more individual jurisdictions sought to opt out of Secure Communities, however, confusion grew as to how a locality could actually do so and whether or not ICE would really allow it.

In May 2010, the San Francisco County Board of Supervisors overwhelmingly passed a nonbinding resolution urging its police department not to participate in the program. Subsequently, local officials in Santa Clara, CA, Arlington, VA, and Washington, DC, and state officials in Minnesota, Washington, Colorado, and Massachusetts also began debating the possibility of declining to participate in Secure Communities. In July 2010, Representative Zoe Lofgren (D-CA), the chairwoman of the House immigration subcommittee, sent a letter to Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder, requesting information on how local jurisdictions could opt out of the program.

By the fall of 2010, ICE abandoned its initial stance on the voluntariness of Secure Communities and confirmed that individual jurisdictions could not opt out of participating in the program once their state had signed the official agreement. Statements from ICE now seem to suggest that the only latitude remaining with local jurisdictions is the choice not to receive information from their state SIB about the immigration status of arrested individuals — a decision that does not affect ICE's ability to place detainers on arrestees.

Recent media stories have added to the confusion surrounding the ability of localities to opt out of the program. Reports have indicated that officials in Montgomery County, MD and Cook County, IL were able to avoid participating in Secure Communities by communicating with ICE directly regarding arrested "violent offenders." It is unclear how such a policy reconciles with ICE's current position on the nonvoluntary nature of the program.

History and Growth of Secure Communities

Although ICE officially proposed Secure Communities in March of 2008, the goal of integrating IDENT and IAFIS to identify and remove noncitizens convicted of criminal offenses is longstanding.

Beginning in the early 1990s, officials from the FBI and the former Immigration and Naturalization Service began discussing plans to make the IDENT and IAFIS databases "interoperable." Such plans were hindered, however, because the IAFIS database relied on a system of ten-fingerprint capture, while IDENT used a two-print system.

Then in 1998, in response to congressional concern over the lack of integration between the two systems, the Department of Justice directed its Justice Management Division to report on the feasibility of converting IDENT to a ten-print system.

The pressure to make the two systems interoperable increased following the passage of the USA Patriot Act of 2001 and the Enhanced Border Security and Visa Entry Reform Act of 2002, both of which directed law enforcement agencies to create interoperable database systems. The National Commission on Terrorist Attacks Upon the United States (the "9/11 Commission") also made a similar recommendation in 2004.

By fiscal year (FY) 2008, the technology needed to make the two databases interoperable had been developed. That same year, Congress allocated $200 million to ICE in order "to improve and modernize efforts" to identify and remove foreign nationals who had been "convicted of a crime, sentenced to imprisonment, and who may be deportable." In response, ICE created Secure Communities.

Congress allocated an additional $150 million for Secure Communities in FY 2009, and another $200 million for the program in FY 2010. For FY 2011, DHS has requested $184 million for the program.

Since its inception, participation in the Secure Communities program has expanded dramatically from just seven jurisdictions in October 2008 to about 1,080 jurisdictions in 39 states as of the date of this publication. Moreover, between FY 2009 and FY 2010 the total number of fingerprints submitted through Secure Communities more than quadrupled from 828,119 to 3,376,753, according to ICE statistics. The goal according to ICE officials is to have Secure Communities operating nationwide by 2013.

The Obama administration has supported the continued expansion of Secure Communities and — despite criticisms to the contrary — senior administration officials have emphasized that the program does not allow for racial profiling because, unlike some other federal/local joint immigration initiatives, the program screens everyone booked in a particular jurisdiction and not just those who are foreign born. In October 2010, Secretary Napolitano praised the program, emphasizing that Secure Communities had played a "major part" in her agency's record-high levels of deportations of criminal aliens.

Despite hesitancy on the part of some jurisdictions, the vast majority of state and local law enforcement agencies have also embraced the program. Participating states credit Secure Communities with allowing their law enforcement agencies access to the latest and most advanced federal law-enforcement databases, thereby increasing community safety. To date, Washington is the only state where officials have publicly announced that they do not intend to sign an agreement of participation with ICE.

The 2013 Timeline

Regardless of whether some jurisdictions may choose now to not participate in Secure Communities, any reprieve from participating in the program will likely be short-lived.

By 2013, it is expected that the only federal criminal-screening system that jurisdictions will be able to use will automatically screen both the IDENT and IAFIS databases.

A recently disclosed September 2010 email from ICE's Office of the Legal Advisor states that, beginning in 2013, the FBI and ICE will share all IDENT/IAFIS information with one another — even that which is collected from localities that do not participate in Secure Communities. The email goes on to state that, although ICE and the FBI have the technological capability now to share IDENT/IAFIS information for arrestees in all jurisdictions, ICE has chosen "for policy reasons" to wait until 2013 before sharing biometric information "without state/local participation." It remains unclear what those policy reasons may be.

• Read the legal documents submitted in the recent lawsuit filed to compel ICE to release internal Secure Communities documents, as well as some of the newly released documents.
• Read several of the newly released ICE emails detailing internal conversations about the program.
• Check out the latest information about Secure Communities.
• Find year-to-date metrics on IDENT matches and ICE removals here.
• Read more about Secure Communities in the June 2009 Policy Beat.

Policy Beat in Brief

New J-1 Visas for Same-sex Partners of Diplomats. The Department of State (DOS) has announced a new program that allows U.S. diplomats to apply for J-1 visas for their same-sex partners. J-1 visas are temporary, nonimmigrant visas traditionally granted to foreign-born "exchange visitors," a broad category that includes students, professors, researchers, au pairs, camp counselors, and employees in business and cultural training programs. In February, DOS designated its own human resources department as an exchange visitor "sponsor," a move that facilitated adding same-sex partners of diplomats to the list of eligible J-1 beneficiaries. Under current immigration law, ordinary U.S. citizens and permanent residents are not able to sponsor same-sex partners for immigration benefits.

• Read more about U.S. immigration law and same-sex couples in the March 2009 Policy Beat.
• Read the State Department's description of the new program.

More Funds for Immigration-related Issues in Proposed DHS Budget. The Obama administration proposed a FY 2012 budget of $56.9 billion for DHS, with more than one-third of the budget allocated to the three DHS agencies related to immigration (U.S. Citizenship and Immigration Services, ICE, and U.S. Customs and Border Protection). A proposed discretionary fund of $10.4 billion for Customs and Border Protection (CBP) would fund all-time high levels of Border Patrol agents and CBP officers. The budget also proposes to increase funding for ICE Custody Operations by $157.7 million, and requests $6.5 million in order to add 2,500 enrollees in the ICE Alternatives to Detention program.

• Read the latest immigration enforcement numbers in the Source's 2010 Spotlight on Immigration Enforcement.
• Read the full text of the 2012 DHS budget.

Supreme Court Declines to Hear Appeal on Workers' Compensation for Unauthorized Immigrants. The U.S. Supreme Court declined to hear an appeal in a case regarding the eligibility of unauthorized immigrants to receive workers' compensation benefits, leaving in place a Louisiana court decision that ordered an employer to compensate an unauthorized immigrant for lost wages after he was injured on the job. Currently, state courts are split as to whether unauthorized immigrants should be eligible to receive workers' compensation. Courts in Louisiana, Pennsylvania, Georgia, and Minnesota have held that unauthorized immigrants are eligible for such benefits. Courts in Virginia, Michigan, and Nevada on the other hand have decided against eligibility for the benefits.

• Read more about a similar case in Nebraska involving unauthorized immigrants and workers' compensation.
• Read the Louisiana Appeals Court's previous decision in the case, Vaughan Roofing & Sheet Metal, LLC v. Rodriguez.

Pushback against SB 1070-type Bills. Despite widespread speculation that the passage of Arizona law SB 1070 would prompt other states to follow suit, a number of signs point to some pushback against that trend. In Nebraska, Arkansas, and Colorado, legislative efforts to enact bills modeled after SB 1070 appear stalled, largely as a result of concerns among lawmakers that the passage of such measures would spur costly legal battles. The controversial Arizona law requires state and local law enforcement officers to ask about the immigration status of anyone lawfully stopped by the police if an officer has "reasonable suspicion" that the individual is an unauthorized immigrant. After the federal government brought a lawsuit challenging the Arizona statute last summer, a judge halted implementation of several of SB 1070's key provisions.

• Read more about the new Arizona law in the July and August 2010 Policy Beats.
• Read the text of Arizona's SB 1070.
• Read the text of the new Nebraska immigration enforcement bill, LB 48.
• Read the text of the new Arkansas immigration enforcement bill, HB 1292.
• Read the text of the new Colorado immigration enforcement bill, SB 54.

USCIS Announces E-Verify "Self-Check" Program. Beginning March 18, 2011, U.S. Citizenship and Immigration Services (USCIS) will add a new self-check feature to the E-Verify system, an online program that enables employers to check whether new employees are authorized to work in the United States. The new feature will allow individuals to screen themselves through E-Verify in order to determine whether the government database confirms them as work-authorized. According to USCIS, the feature is intended to help workers identify and resolve database inaccuracies that might otherwise prevent the E-Verify system from confirming their work eligibility. As of January 2011, approximately 243,709 U.S. employers were enrolled in the E-Verify program.

• Read more about the E-Verify system in MPI's new E-Verify Backgrounder.
• Read the official DHS Federal Register notice announcing Self-Check.

ICE to Launch 1,000 Employer Audits. ICE is launching a new round of worksite investigations targeting businesses that are suspected of hiring unauthorized workers. One thousand companies across the country have been notified of upcoming I-9 audits, which are intended to focus more heavily on large businesses. Since 2009, the Obama administration has increased the use of audits of employers suspected of hiring unauthorized immigrants, and the number of such investigations doubled between 2008 and 2010. In FY 2010, ICE performed 2,746 worksite investigations and fined employers nearly $7 million.

• Read more about immigration audits during the Obama administration in the December 2009 Policy Beat.
• Read an ICE press release detailing the newest round of audits.
• Read an I-9 verification form.

Celine Dion's Bodyguard Deemed Not Extraordinary. The U.S. Court of Appeals for the Ninth Circuit upheld a previous decision by USCIS to deny an EB-1 "alien of extraordinary ability" visa to Nikolaos Skokos, the longtime bodyguard of famous Canadian singer Celine Dion. The Immigration and Nationality Act authorizes EB-1 visas for self-petitioning foreign nationals who demonstrate that they have "extraordinary ability" in education, business, the sciences, the arts, or athletics. EB-1 visa recipients are also immediately eligible for lawful permanent residence in the United States. In his initial EB-1 petition, Mr. Skokos failed to provide sufficient evidence of being one of a handful of individuals at the very top of his field.

• Read the section of the Immigration and Nationality Act dealing with EB-1 visas.
• Read USCIS's guidance on applications for EB-1 visas.

Proposed New H-1B Registration Rule. USCIS has proposed a new rule that would create a preregistration system for U.S. employers seeking to petition for foreign-born employees through the H-1B nonimmigrant visa program. The H-1B program allows U.S. employers to petition for up to 65,000 highly skilled foreign-born workers each fiscal year (with another 20,000 visas allotted to foreign graduates of U.S. graduate schools).

Under the new proposed rule, employers who expect to file H-1B petitions would register such petitions with USCIS prior to the first day that USCIS formally accepts H-1B petitions for the upcoming fiscal year (in most years, April 1). If USCIS anticipates that it will receive more petitions by the first filing day than the general annual cap of 65,000, the agency will randomly select 65,000 submitted registrations and notify the selected employers to submit their petitions. The new rule is aimed at reducing employer costs.

• Read about the Spotlight on H-1B visas.
• Read the text of the new proposed rule.

State and Local Policy Beat in Brief

Two New Immigration Bills Advance in Utah. Two new immigration bills have advanced through the Utah State Legislature and are currently awaiting signature by Republican Governor Gary Herbert. The first bill (HB 497) is modeled after Arizona's controversial SB 1070, and includes provisions that would require law enforcement officers to verify the immigration status of anyone arrested and booked for a felony offense or certain misdemeanor offenses. The bill also prohibits localities within Utah from restricting the ability of local officials to communicate with ICE.

The second measure (HB 116) would create a Utah-specific guest worker program, allowing unauthorized immigrants in Utah to apply for two-year work permits if they would pay a fine and pass a background check. It is unclear whether the passage of such a measure would have any practical impact, however, given that only federal law allows for grants of work permits and temporary worker status.

• Read the immigration enforcement bill (HB 497) as marked up by the Utah Senate.
• Read the guest worker bill (HB 116).

Maryland Senate Approves In-state Tuition Bill. By a vote of 27 to 20, the Maryland State Senate has approved a bill that would allow certain unauthorized immigrants to pay in-state tuition at the state’s public colleges and universities. To qualify for in-state tuition under the measure, students would have to demonstrate that they attended three years of high school in Maryland and that their parents filed state income tax returns. Additionally, in order to be eligible for in-state tuition at a four-year college or university, students would have to first graduate from a two-year community college in Maryland. The bill will now move to the Maryland House of Delegates. Democratic Governor Martin O’Malley has already indicated that he will sign the bill if it passes in the House.

• Read the text of the new measure, Senate Bill 167.
• Read more about in-state tuition for unauthorized immigrants in this September 2007 feature story from the Source.

Georgia House Passes Strict Immigration Enforcement Bill. The Georgia House of Representatives passed legislation (HB 87) that would authorize state and local police to verify the immigration status of certain criminal suspects. The bill would also punish individuals who knowingly transport or harbor unauthorized immigrants as well as those who use fake identification to acquire a job, and it would require all employers to use the federal E-Verify system to confirm that new employees are authorized to work in the United States. Mexican consular officials have heavily criticized the bill and expressed concern that it will lead to racial profiling by the police.

• Read more about immigration enforcement measures in Georgia in the November 2010 Policy Beat.
• Read the new Georgia measure, HB 87.

Nebraska Retains In-state Tuition for Unauthorized Immigrants. A bill aimed at preventing unauthorized immigrants from receiving in-state tuition was voted down by the education committee of Nebraska's State Legislature. The new legislation would have repealed a state law passed in 2005 that allows certain unauthorized immigrants to apply for in-state tuition at public colleges and universities if they attended high school in Nebraska. Supporters of the current law argued that the bill assists young people who were brought to the United States as children, and who had no say in their parents' decision to enter the country illegally. Opponents argued that taxpayer funds should not be used to subsidize the tuition costs of unauthorized immigrants.

• Read more the debate over higher education for unauthorized immigrants in this September 2007 feature story from the Source.
• Read the text of the failed Nebraska bill here.

No Change in Driver License Policy for Unauthorized Immigrants in New Mexico. The New Mexico State Senate voted down a bill that would have prohibited unauthorized immigrants from receiving driver licenses by amending a 2003 law that states that New Mexico driver license applicants are not required to show proof of legal immigration status. The bill passed in New Mexico's House of Representatives last week, and also had the strong backing of Republican Governor Susana Martinez. Proponents argued that amending the law was necessary to prevent potential terrorists from obtaining driver licenses in New Mexico; critics argued that the bill would increase the number of unlicensed drivers. The Washington State Senate recently rejected a similar bill.

• Read more about the immigration policies backed by New Mexico Governor Susana Martinez in the February 2011 Policy Beat.
• Read the text of the House version of the driver's license bill, HB 78.