ACLU Statement on Secure Communities

Secure Communities (S-Comm)—a federal immigration-enforcement program being implemented by U.S. Immigration and Customs Enforcement (ICE)—has become the subject of a nationwide controversy. In jurisdictions where S-Comm has been activated, any time an individual is arrested and booked into a local jail for any reason, his or her fingerprints are electronically run through ICE’s immigration database. This allows ICE to identify noncitizens—including lawful immigrants and permanent residents—and potentially to initiate deportation proceedings against them. Because it targets people at the time of arrest, S-Comm captures people who will never be charged with a state crime—including crime victims, witnesses, and individuals subjected to unconstitutional arrests.

Local community members and officials across the country have raised concerns about S-Comm’s impacts on civil liberties, noting among other things that it (1) deters immigrants from reporting crimes and otherwise receiving equal protection of the laws; (2) creates the risk of unlawful detention without criminal charges or a hearing; and (3) invites racial profiling by state and local law enforcement:

• Deterring people from accessing the criminal justice system and receiving equal protection of the laws. S-Comm has contributed to a loss of trust in local law enforcement among immigrant communities. Because any interaction with police and sheriffs in S-Comm jurisdictions carries the risk of apprehension and deportation by ICE, S-Comm deters immigrants—including lawful immigrants and permanent residents—from reporting crimes, seeking protection from domestic violence, serving as witnesses in criminal prosecutions, and receiving equal protection of the laws guaranteed by the Fourteenth Amendment. Moreover, when community members are afraid to cooperate with local law enforcement, local law enforcement is less able to prevent and respond to all types of crime. This jeopardizes the public safety of all, including U.S. citizens.
• Creating the risk of unlawful and extended detentions by local jails. Under S-Comm, once ICE identifies an individual through a database match, it can transmit an “immigration detainer” to the local jail. A detainer is not a warrant. It serves only to advise a local jail that ICE is investigating a detainee in the jail’s custody, and to request that the jail continue holding the detainee up to 48 hours (excluding weekends and holidays) after the detainee’s scheduled release date. In practice, immigration detainers can result in an individual’s detention even if he or she is facing no state criminal charges and would otherwise be entitled to release. And detainers can extend an individual’s detention for days after state charges have been resolved—even for weeks, in cases where the local jail fails to release the individual after the 48-hour period expires. Moreover, ICE has failed to provide any mechanism by which individuals can find out whether they are subject to a detainer, challenge the basis for a detainer, have an erroneous detainer removed, or complain about how they came to the attention of local authorities. [1]
• Inviting racial profiling by state and local law enforcement. S-Comm gives local law enforcement agencies an incentive to book people into jail if they suspect they are undocumented immigrants. Because S-Comm shares fingerprints with ICE at the booking stage, rather than at state charging or conviction, ICE will be notified almost immediately after an individual encounters state or local law enforcement—even if no state criminal charges are ever filed, or even if the arrest is later found to have been unlawful or unconstitutional. S-Comm thus invites local law enforcement agencies to arrest “foreign-looking” individuals for minor infractions or for no reason at all, purely in order to transmit their fingerprints to ICE and trigger their possible deportation. Data obtained through a FOIA lawsuit by the Center for Constitutional Rights (CCR), the National Day Laborer Organizing Network (NDLON), and the Cardozo Law School show that from the date of S-Comm’s activation until April 2010, in some localities—including Maricopa County, Arizona, and Travis County, Texas—the proportion of individuals arrested and deported under S-Comm who had no criminal convictions at all were dramatically higher than the national average. This data suggests that, much like the federal government’s much-criticized 287(g) program, S-Comm may create an atmosphere of impunity, giving the green light to racially motivated arrests for minor infractions.

ICE has failed to offer any meaningful responses to these serious civil liberties concerns. Instead, it has vowed to press ahead with the program and has done so with great speed and minimal transparency. Since S-Comm was first launched in 2008, ICE has expanded the program to hundreds of localities across the country, and it claims to be on track to deploy S-Comm in every county jail by 2013. In response to advocates’ and local governments’ concerns, ICE has provided vague and inconsistent information about how the program operates and whether local jurisdictions will be forced to participate. Despite the program’s professed goal of targeting “the most dangerous criminal aliens” for removal, a very large percentage of the individuals identified and deported under S-Comm have been minor offenders and people with no criminal charges or convictions. ICE’s own data—obtained through the above-mentioned FOIA lawsuit—show that nationwide, just over a quarter (26%) of all those deported under S-Comm from the program’s start in 2008 to June 2010 were classified by ICE as “non-criminals,” meaning they had no criminal convictions. 79% of those deported were either non-criminals or were picked up (and not necessarily charged or convicted) for lower level offenses. Only 21% were charged with or convicted of a serious felony.

Neither Congress nor other components of the Department of Homeland Security (DHS) have acted to oversee S-Comm’s implementation. The ACLU has called on the DHS Office of Inspector General to audit the program, evaluating both its compliance with ICE’s stated priorities and its vulnerability to racial profiling and other abuse. Until meaningful and transparent safeguards, data-tracking, and adequate complaint and oversight mechanisms are implemented, S-Comm will pose real concerns for the civil liberties of U.S. citizens, immigrants and people of color. Unless and until ICE meets the above prerequisites, it should halt expansion of S-Comm and undertake a thorough assessment of the program’s efficacy and compliance with constitutional requirements. The ACLU also supports efforts of local jurisdictions to protect their communities from the civil liberties concerns that S-Comm raises.

[1] See Letter to John Morton, Assistant Secretary of U.S. Immigration and Customs Enforcement, from the ACLU et al. (June 23, 2010), available at https://www.aclu.org/files/assets/Detainers_revised.pdf.