Immigration Law & You
By R. Mark Frey
On February 7, 2012, the Department of Homeland Security’s Secure Communities program was implemented in the state of Minnesota. Today, approximately 94 percent of all U.S. jurisdictions have joined the program that was established to prioritize resources for removal of certain immigrants by U.S. Immigration and Customs Enforcement (ICE).
The Secure Communities program is concerned with cases involving public safety and national security, the integrity of the immigration system, and border security. To that end, ICE seeks to locate and remove criminal aliens, those who present a threat to public safety, and repeat immigration violators. More specifically, those individuals presenting “the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors – as well as those who have repeatedly violated immigration laws.”
According to ICE, the Secure Communities program is a “simple and common sense way to carry out ICE’s priorities.” It is in essence an information-sharing partnership between the FBI and ICE, built upon an existing relationship between the two.
For quite some time, state and local law enforcement officials have shared the fingerprints of those individuals arrested or booked into custody with the FBI. The new development, through Secure Communities, merely provides for the FBI to automatically share that information with ICE for checks against its immigration databases. If there is a “hit” (i.e., an individual is found to be unlawfully present or removable for a criminal conviction), ICE may then initiate an enforcement action seeking the removal of that person.
Factors considered in that review process include the “person’s criminal history, immigration history (such as whether the person was previously deported or has an outstanding removal order from an immigration judge), family ties, duration of stay in the U.S., significant medical issues, and other circumstances.”
According to ICE, the benefits of the Secure Communities program are many. First, it does not impose new or additional requirements on state and local law enforcement officials. Second, the federal government (not state and local law enforcement officials) makes the decision about appropriate law enforcement action to take. And, the federal government does so “only after an individual is arrested for a criminal violation of local, state, or federal law, separate and apart from any violations of immigration law.”
According to data provided by ICE, more convicted criminal aliens were removed from the United States between fiscal years 2008 and 2011 than ever before, an increase of 89 percent.
On its face, Secure Communities looks like a common sense, pragmatic, and successful program facilitating the removal of the “bad guys” from the United States. But, the Secure Communities program has its critics.
Some such as the American Immigration Council (AIC) have noted that Secure Communities “has not focused exclusively on convicted criminals, dangerous and violent offenders, or threats to the public safety and national security.” Citing DHS data from Fiscal Year 2011, AIC points out that only 26 percent of all Secure Communities deportations involved immigrants with Level 1 convictions (i.e., aggravated felonies such as murder, rape, and sexual abuse of children); another 19 percent were convicted of Level 2 offenses (i.e., a felony or three or more misdemeanors); 29 percent with Level 3 convictions (i.e., minor crimes involving sentences of less than one year); and 26 percent with immigration violations but no criminal convictions.
Given the shortage of resources and ICE’s stated priorities, it necessarily raises the question why those failing to present a threat to public safety and national security are being removed at the same or higher rate than those who do.
Another criticism levelled by the American Immigration Council and assorted civil liberties groups as well as the Homeland Security Advisory Council’s November 2011 Secure Communities Task Force Report is the potential for racial profiling. In short, local law enforcement may make arrests based on individuals’ ethnicity or “pretextual arrests” of such persons suspected of being in violation of immigration laws solely for the purpose of running them through the immigration databases.
ICE has also come under criticism for failing to provide clear procedures for filing civil rights complaints. This is a legitimate concern and readers should be advised that such complaints are filed with the DHS Office of Civil Rights and Civil Liberties (OCRCL). That office maintains a website at “http://www.dhs.gov/xabout/structure/crcl.shtm” which contains a section with detailed instructions for filing a civil rights complaint. Additional information may be obtained by calling 1-866-644-8360 (toll free) or 1-866-644-8361 (toll free TTY), sending an email to “[email protected]”, or writing the office at Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security, Washington, DC 20528.
It seems unlikely that Secure Communities will be eliminated since the number of jurisdictions activated under the program is steadily growing with the passage of time. Hopefully, in response to feedback from various sources, ICE will seek to refocus its priorities for removal, implement stronger protections of civil liberties, and improve upon the program’s transparency.
R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for almost 25 years with an emphasis on political asylum, family immigration, naturalization, and removal defense.