Robyn Gee on Tuesday, Aug. 30th
President Obama announced mid-August that certain folks who are in the U.S. and undocumented, will be considered low-priority for deportation. Factors that could be taken into consideration are a person’s ties to the country, their intention to pursue higher education, and their physical health. On first glance, we might expect to see a decrease in the amount of deportations as a result of this announcement.
But at the same time, the Obama administration approved the increasingly influential Secure Communities (S-Comm) program, implemented under the U.S. office of Immigration and Customs Enforcement (ICE) within the Department of Homeland Security (DHS). The program has been responsible for 120,000 deportations since 2008.
At Turnstyle, we heard the term Secure Communities and wanted to know more. We spoke with two experts who interact with S-Comm cases on a regular basis: Angela Chan, a staff attorney at the Asian Law Caucus, who specifically works on the intersection of the criminal just system and immigration, as well as Allison Davenport, a clinical instructor at the International Human Rights Law Clinic, at the U.C. Berkeley School of Law, who regularly does workshops for ICE detainees about their legal options in Contra Costa County.
The two of them broke down the specifics of the program, using examples from their own work.
What is the program?
Secure Communities is a program started by ICE that connects the local law enforcement database to the federal immigration system. Fingerprints of anyone who comes into contact with the police are sent to a state agency which forwards the fingerprints to the Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS). The fingerprints are then referenced against the Automated Biometric Identification System, called IDENT, that has information about immigration violators as well people with criminal records. IDENT was first activated in Harris County, TX on October 27, 2008. While S-Comm is not active in every county in the United States as of now, ICE plans to “turn it on” in every county by 2013.
What are the proceedings?
According to Chan, when the local police get involved in a situation — be it a traffic violation, a report of domestic violence, or another crime — the police take down the fingerprints, and identification information, of the parties involved.
First, the fingerprints go to the state department of justice and then onto the FBI for a criminal background check.
Now, because of S-Comm, in 44 states those fingerprints are then turned over to the federal immigration office and checked for immigration problems. If someone in local custody is in violation of legal immigration status, ICE can request that the local law enforcement hold that person for 48 hours. This hold happens regardless of what’s happening with the matter that the person was originally brought in for.
After these 48 hours, the person is turned over to ICE, which often entails being transferred to an immigration detention center.
While the intentions of S-Comm are to identify dangerous criminals who are eligible for deportation, Davenport said, in actuality, immigration officials are not discriminating between serious criminals and others. “Now it’s this huge sweeping process. Everyone who gets fingerprinted gets forwarded to the immigration system. People who are not even charged with a crime, or who would be released because of insufficient evidence, are forwarded to the immigration system and transferred to ICE custody, where they spend weeks in a detention facility,” she said. “There is an increase in scope, and a lack of distinction.”
Chan gave the example of someone calling to report domestic violence. “The police might not know who is the perpetrator and who is the victim. The police fingerprint both parties to see who’s lying. When they do that, unfortunately now, in 44 states including California, those fingerprints are turned over to the immigration office,” she said.
Who is affected?
One does not have to be a criminal to be at risk of being held for deportation under S-COMM; the program affects anyone who comes in contact with the local police.
“We’re finding that when [the criminal justice system and the immigration system] overlap and are forced together, it has a devastating impact on members of the immigrant community. S-Comm widens the entry point into the criminal justice system. In both systems, the numbers are increased through programs like S-Comm,” said Chan.
Both Chan and Davenport recounted some cases of individuals who had been affected by S-Comm:
“There was a case of someone named Isuara Garcia. She was 19 years-old. She called the police for help because her boyfriend was battering her. The police came and wanted to conduct further investigation. They took her to the hospital and the doctor said, yes, she is a victim of domestic violence. Because of S-Comm, local police notified ICE and she was transferred into ICE custody. She wasn’t deported–she became active and vocal about her situation. She spoke out, and had strong community support. Many other women deported before they can speak out,” said Chan.
Chan also recalled the case of a woman who called the police because she was worried that her sister was a victim of domestic violence. All three of them were brought into the local police station and fingerprinted. Because of S-Comm, ICE got involved and they were held in a detention center. “Once you’re in ICE custody, you feel isolated… You don’t have the right to a free immigration attorney. You’ll do whatever it takes to get out of there,” said Chan. Both of the sisters signed voluntary departure agreements and left the country, leaving two kids behind.
Can counties and states opt out of enforcing S-Comm?
When S-Comm was originally announced, there was confusion over whether it was mandatory or voluntary.
Chan tried to explain the complicated series of ICE communications that led to this confusion. “ICE sent out a cover letter at the beginning of last year that stated that counties could opt out,” said Chan. But, once more local law enforcements asked to opt out, ICE changed its mind and took back the option for counties to opt out, saying they only wanted to make agreements with state law enforcements.
So, local law enforcements began working with the state to opt out at that level. Once more states began opting out, ICE again changed its mind. “They said, ‘We don’t mean that you can opt out at the state level, we’ll actually operate without any consent from anyone,’” said Chan.
Chan said she received all of these communications from the desk of Janet Napolitano, John Morton (the director of S-COMM), or the White House Blog. “This was a clear and intentional tactic,” she said.
What legal counsel is provided for detainees of S-Comm?
People who have been detained by ICE after being identified through S-Comm have the right to immigration counsel if they can afford it, but do not have the right to a free immigration attorney. “The difference between being represented versus unrepresented in immigration courts makes a huge difference,” said Davenport.
For instance, if one does not pose a threat to the community, or is not a flight risk, then that person could potentially be released on bond while they await their hearing — and for some, this means going back to work, being with their families, and paying rent.
“People have a right to be represented by counsel, but they do not have a right to be represented at the expense of the government in deportation proceedings. Even though we’re detaining them in jail, it’s considered a civil proceeding, not a criminal proceeding,” she explained. “People are desperate for legal representation. …They feel isolated, they want to advocate for themselves, but don’t always have the mechanism to do that,” said Davenport.
Ultimately, the low-priority discretion that Obama mentioned, is in the hands of ICE. “The announcement that they made builds off the memo released in June that talks about the vague outlines of what low-priority cases could look like — veterans, pregnant women, victims of trafficking, those with mental conditions… But that’s all in theory,” said Davenport.
With the 2012 elections gearing up, and immigration policy a pivotal topic, it’s safe to say this isn’t the last time we’ll be hearing about ICE and the Secure Communities program.