Can we ever get ICE out of jails?
Newsletter for May 11, 2021
Readers of this substack probably already know that Harris County Sheriff Ed Gonzalez was tapped to be head of ICE. I am not shy about the fact that I think Gonzales is a “savvy pick” to lead ICE because he has sheriff bonafides and has also been outspoken about severing the link between local law enforcement and immigration. Sheriffs are the ones organizing in favor of more immigration restrictions at the moment. And I think Gonzalez will have a sheriff-on-sheriff dispute ahead of him.
Gonzalez also brings high hopes for changes in immigration strategy. The Dane County, Wisconsin, Sheriff David Mahoney wrote an op-ed saying he favored ending 287(g) programs. This was a big deal because Mahoney is the president of the National Sheriff’s Association. Of course, it also happens that Mahoney is not running in 2022, so he probably feels okay making big statements now that he doesn’t have to run for office. But I digress.
Ending 287(g) is a no-brainer. It should have been eliminated as soon as Joe Arpaio joined the program and used it to terrorize his entire county. Rife for racist abuse, it’s just a pointless program that serves only to terrify communities and allow local law enforcement to make additional threats of deportation.
But, here’s the thing I get caught up with. There is STILL immmigration enforcement in jails even without 287(g), and I worry that gets lost. It’s Secure Communities. And, we should care more than ever because there are pending rules that would widen the amount and type of biometric data the federal government collects from every single person who enters the U.S., including children of all ages as well as all family members (citizen or not) of anyone applying for immigration relief.
President Barak Obama created the Secure Communities program in 2008, which was touted as “ICE in every jail.” Secure Communities is just that, the virtual presence of ICE in every jail – after someone is booked into jail, their fingerprints (and, potentially, other biometric data, are automatically processed through all federal databases, including the FBI and DHS (which records everyone who has entered the U.S. as a tourist or on visas and everyone who has applied for residency, been previously deported, is on a terrorist “watch list,” or may have used another person’s identity). By 2013, Secure Communities was operational in every single jurisdiction in all 50 states and Washington, D.C.
The goal behind Secure Communities was, in a way, to make programs like 287(g) irrelevant. Secure Communities does not empower law enforcement agents to act as ICE agents. It basically sends a signal to ICE when there is match between a person who was arrested and booked into any local jail and someone in the Secure Communities database. ICE agents review the matches and then issue detainers (or take other action) based on the current priorities, which change from administration to administration.
This has immense consequences for people in jail who may have civil immigration consequences to their arrest, all pre-conviction. They may be denied bail, disallowed access to diversion programs that would erase arrests from their record, and accept bad plea deals. In almost all cases, such individuals are subject to longer pretrial detention, which is not considered “punishment” and, therefore, not subject to the same Constitutional protections.
A few interesting tidbits about the Secure Communities program. For one thing, there is no way to “opt-out” (or opt-in). Before Secure Communities, local law enforcement could decide whether or not they wanted to participate in the program, which includes sharing the biometric data they may possess, and there was initially some debate over whether jurisidcitions should be required to join. By 2010, ICE’s official position was that it should be mandatory; by 2013 it was all online. Obama’s administration and those that followed simply eliminated the ability of local agencies to decide whether to share data with the federal government or not.
Second, there is no check on the quality of the data being used by Secure Communities. As an individual, there’s no right to see if you, or someone using your name, is going to generate a hit. The Department of Homeland Security has never released any statistics to explain how many “false hits” it gets, including repetitive hits or meaningless ones or just plain wrong ones. And there are good reasons to think the data is corrupt, given that we know U.S. citizens have been deported before. (The Ninth Circuit found this in the Gonzalez decision.)
Secure Communities faced pushback as soon as it was implemented. First, there was the secrecy of the program. Plus, there were American citizens who got deported. How predictable -- who would expect a super-secret government data collection program would have flaws?
In 2014, the Obama administration continued to pursue the Secure Communities program but changed the deportation priorities – the “felons, not families” idea. Under the “Priority Enforcement Program,” ICE could continue to use the Secure Communities program, but it had to justify deportation proceedings by claiming that people fit into certain categories. The 2014 memo is framed as “discontinu[ing]” the program, but then goes on to say:
Secure Communities "must be implemented in a way that supports community policing andsustains the trust of all elements ofthe community in working with local law enforcement”…Accordingly, I am directing U.S. Immigration and Customs Enforcement (ICE) to discontinue Secure Communities. ICE should put in its place a program that will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for criminal background checks.
To me, “fingerprint-based biometric data submitted during bookings” IS Secure Communities. But it was announced as the “end” of the program. For this reason, many experts say Obama “scrapped” Secure Communities, but I think this is a little inaccurate. The problem is that the data-collection structure stayed in place, but the Obama administration required an additional screening before flagging someone for deportation proceedings. So, I stand by my interpretation. But, tell me if I’m wrong.
The main problem, of course, is that Secure Communities set up the infrastructure for large-scale deportations à la Trump (which he used) AND it was a self-fulfilling prophecy because it appeared to target only people who were arrested and booked into jail. For many local governments and law enforcement, this made some sense. Police were not going out and conducting “immigration raids” like Joe Arpaio, but, rather, they were targeting people who were “committing crimes.”
But there’s not a lot of evidence this was true. First, studies suggest that the Secure Communities (as well as 287(g)) do not keep people safe. It turns out that lots of people are booked into jail. Sometimes people are booked and then released right away. Sometimes, witnesses are booked into jail to hold them for trial. People are booked for unpaid fines. People are booked if they do not respond to subpoenas. The net is simply too broad.
Second, an interesting new law review article by Eisha Jain points out that Secure Communities actually amplifies the racial disparities in deportation priorities by expanding civil immigration enforcement into the (already) racially-skewed criminal legal system. Because more people of color are arrested and booked into jail (whether they are prosecuted, acquitted, or convicted), more people of color are processed through the Secure Communities program. It’s a basic selection bias. This makes sense to me. Law enforcement, despite the change in immigration priorities on the federal level, always have targeted people who “look” like immigrants, e.g. people who are non-white, under the auspices of preventing international terrorism or drug trafficking or human trafficking or whatever the latest moral panic is.
I have thought a lot about avoiding jail bookings either by using cite-and-release or by diverting people before they are booked into jail as ways to avoid Secure Communities. While advocates – and sheriffs running for office – have focused on withdrawing from 287(g) programs (which they should), there’s been so little discussion on how sheriffs and jails can stop deportations under the Secure Communities program.
In fact, I think most people are not terribly aware of how it works, which is sort of the evil genius. The act of arrest and booking sets a process into motion that can end in deportation even if the entire case is dropped – say there was no crime or the wrong person was arrested. And, to make things worse, people are not given the option upon arrest to consult with an attorney before booking. They are not necessarily aware of the consequences of their arrest. (This introduces a wrinkle into the whole “do what the police say” thing when what the police say may end up in deportation.)
But, Jain’s article got me thinking that maybe I should be considering other aspects of limiting Secure Communities as well. For example, local law enforcement agencies could refuse to cooperate in the program under the logic that this kind of data-sharing is too sweeping and lacks informed consent at the point where people provide their data. Or, there could be more robust Constitutional protections upfront. But ultimately, she also argues, very persuasively, that arrest, incarceration, and deportation need to be severed forever, which would mean scrapping the data collection network altogether.
Immigration officials cannot rely on criminal arrest as a front-end screening device without fundamentally altering how immigration enforcement unfolds. Without a significant change in either the size of the undocumented population or in policing practices, criminal arrest should not be used for immigration screening.
Additionally, the inaccuracy of the data itself should be of concern and might provide an additional argument to ditching the program altogether. What little information DHS has released suggests that the program doesn’t even serve the stated purpose of identifying human trafficking victims. If we have learned anything, it’s that these structures designed to collect “data” are only as good as the people who are using it. And heaven knows how that can change in an instant.