BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1081 ( Ammiano) 1
As Amended June 8, 2011
Hearing date: June 14, 2011
Government Code
SM:dl
ICE SECURE COMMUNITIES PROGRAM:
OPT-IN AUTHORITY FOR COUNTIES
HISTORY
Source: Asian Law Caucus; National Day Laborer Organizing
Network
Prior Legislation: None
Support: Alameda County Board of Supervisors; Berkeley City
Council; Chief of Police (Retired) Arturo Venegas,
Sacramento; City of Berkeley; City of San Pablo City
Council; City of Watsonville ; County of Santa Clara
Board of Supervisors; San Francisco Sheriff; Yolo
County Sheriff; Supervisor David Campos, San Francisco
- District 9; Supervisor Doreen Farr, Santa Barbara -
District 3; Supervisor Efren Carrillo, Sonoma -
District 5; Supervisor Eric Mar, San Francisco -
District 1; Supervisor George Shirakawa, Santa Clara -
District 2; Supervisor Gloria Molina, Los Angeles -
District 1; Supervisor Greg Caput, Santa Cruz -
District 4; Supervisor Salud Carbajal, Santa Barbara -
District 1; African Advocacy Network; Alameda Labor
Council, AFL-CIO; Alliance of South Asian Taking Action
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(ASATA); American Civil Liberties Union; American
Friends Service Committee, San Diego; American Friends
Service Committee, Pacific Mountain Region; Arab
Resource and Organizing Center; Asian Americans for
Civil Rights & Equality; Asian Americans for Community
Involvement; Asian Law Alliance; Asian Pacific Islander
Justice Coalition; Causa Justa: Just Cause; California
Labor Federation; California Immigrant Policy Center;
California State Council of the Service Employees
International Union (SEIU); California Partnership to
End Domestic Violence; California Public Defenders
Association; Californians United for a Responsible
Budget; Canal Alliance; Central American Resource
Center; Centro Legal de la Raza; Centro Laboral de
Graton (Graton Day Labor Center); Chinese for
Affirmative Action (CAA); Coalition for Humane
Immigrant Rights of Los Angeles; Community Action Board
of Santa Cruz County, Inc.; Community Legal Services in
East Palo Alto; Community United Against Violence;
Congregations Organizing for Renewal and our Clergy
Coalition; Contra Costa Interfaith Supporting Community
Organization (CCISCO); Council on American-Islamic
Relations California; Critical Resistance; Diocese of
San Bernardino; Diocese of San Jose, Justice for
Immigrants Steering Committee; East Bay Interfaith
Immigration Coalition; Enlace; Equality California;
Filipino Advocates for Justice; Hayward Day Labor
Center; Immigration Center for Women and Children;
Immigrant Legal Resource Center; Institute of Popular
Education of Southern California; International
Institute of the Bay Area; Iranian American Bar
Association, Northern California Chapter; Jewish
Community Relations Council (Bay Area Counties); La
Raza Centro Legal, Inc.; LYRIC (Lavender Youth
Recreation and Information Center) ; Lawyers' Committee
for Civil Rights of the San Francisco Bay Area; Legal
Services for Prisoners With Children; Los Angeles
Federation of Labor, AFL-CIO; Mexican American Legal
Defense and Educational Fund ; Mujeres Unidas y
Activas; National Center for Lesbian Rights; National
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Immigration Law Center; National Lawyers Guild San
Francisco Bay Area chapter; National Network for
Immigrant and Refugee Rights; Nicaragua Center for
Community Action; Nuestra Casa; Oakland Community
Organizations; Peninsula Interfaith Action; People
Organizing to Demand Environmental and Economic Right
(PODER) ; PICO California; Pomona Economic Opportunity
Center; PUEBLO Action Fund; San Francisco La Raza
Lawyers Association; San Francisco Pride at Work and
HAVOQ (Horizontal Alliance of Very Organized Queers);
Services Immigrant Rights and Education Network
(SIREN); Silicon Valley Alliance for Immigration
Reform; Silicon Valley Community Foundation; St.
Joseph, The Worker Church Social Justice Committee;
Street Level Health Project; The Bar Association of San
Francisco; The Council of Mexican Federations (COFEM);
The East Bay Refugee Forum; UNITE HERE Local 2850;
United Food & Commercial Workers Union, Local 5; Young
Workers United; Numerous Individuals
Opposition:Californians for Population Stabilization; California
State Sheriffs' Association; Calaveras County Sheriff;
Siskiyou County Sheriff; Alameda County Sheriff; Orange
County Sheriff; Los Angeles County Sheriff; Stanislaus
County Sheriff; Kern County Sheriff
Assembly Floor Vote: Ayes 47 - Noes 26
KEY ISSUES
SHOULD THE LEGISLATURE DIRECT THE ATTORNEY GENERAL TO MODIFY THE
MEMORANDUM OF AGREEMENT (MOA) WITH THE DEPARTMENT OF HOMELAND
SECURITY REGARDING THE IMMIGRATION AND CUSTOMS ENFORCEMENT'S (ICE)
SECURE COMMUNITIES (S-COMM) PROGRAM TO REQUIRE COUNTIES TO OPT-IN IF
THEY WISH TO PARTICIPATE, AS SPECIFIED?
IF THE ATTORNEY GENERAL IS UNABLE TO SO MODIFY THE MOA, SHOULD SHE
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BE DIRECTED TO TERMINATE IT?
PURPOSE
The purpose of this bill is to (1) direct California's Attorney
General to modify the Memorandum of Agreement (MOA) with the
Department of Homeland Security regarding the Immigration and
Customs Enforcement's (ICE) Secure Communities (S-Comm) program
to require counties to opt-in if they wish to participate; (2)
require that counties opting-in must prepare a plan to monitor
the program for racial profiling; (3) require the modified MOA
include specified safeguards against racial profiling; (4)
require the modified MOA to include an agreement that ICE post
specified data on its website regarding the program; and, (5)
direct the Attorney General that, if she is unable to so modify
the MOA that she terminate it.
Existing federal law authorizes the Secretary of Homeland
Security under the 287(g) program to enter into agreements that
delegate immigration powers to local police. The negotiated
agreements between ICE and the local police are documented in
MOAs. (8 U.S.C. § 1357(g).)
Existing law provides that all protections, rights, and remedies
available under state law, except any reinstatement remedy
prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for
employment, or who are or who have been employed, within the
state, and further provides that, for purposes of enforcing
specified state laws, a person's immigration status is
irrelevant to the issue of liability, and prohibits in
proceedings for discovery immigration status except where the
person seeking to make the inquiry has shown by clear and
convincing evidence that the inquiry is necessary in order to
comply with federal immigration law. (Labor Code § 1171.5.)
This bill would require the Bureau of Criminal Identification
and Information within the Department of Justice to modify the
memorandum of agreement with the United States Department of
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Homeland Security regarding the implementation of the
Immigration and Customs Enforcement's Secure Communities program
in accordance with all of the following requirements:
The modified agreement shall authorize a county to
participate in the Secure Communities program only upon the
legislative body of the county submitting an authorized
written request to Immigration and Customs Enforcement's
Secure Communities Program Executive Director.
The modified agreement shall require a county that opts
to participate in the program, as, to prepare a plan to
monitor and guard against racial profiling, discouraging
reporting by domestic violence victims, and harming
community policing overall. This plan shall be deemed a
public record for purposes of the California Public Records
Act.
This bill would require the modified agreement to include all of
the following limitations to the Secure Communities program:
Protections for crime victims including, but not limited
to, domestic violence victims.
Protections for juveniles.
An explicit limitation on the sharing of fingerprints
with Immigration and Customs Enforcement officials to only
those individuals convicted, rather than merely accused, of
a crime.
This bill would require the modified agreement to include, but
not be limited to, all of the following safeguards against
racial profiling:
A prohibition against obtaining fingerprints for the
purposes of the Secure Communities program through the use
of checkpoints, and the stopping of individuals solely
based on perceived immigration status.
A requirement that the Immigration and Customs
Enforcement establish a complaint process that allows for
expedited review of claims by those put into immigration
removal proceedings prior to conviction as a result of the
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program.
This bill would require the modified agreement to include a
requirement that Immigration and Customs Enforcement make
available to the public on its Internet Web site quarterly
statistics on the Secure Communities program in this state that
include the following metric criteria:
Number of searches to IDENT.
Number of matches to IDENT data.
Number of detainers issued by Immigration and Customs
Enforcement based on Level 1, Level 2, and Level 3 offense
categories.
Number of detainers issued by Immigration and Customs
Enforcement where charges are never filed, are later
dismissed, or where there is ultimately no conviction.
Number of Level 1, Level 2, and Level 3 arrestees who
are transferred into Immigration and Customs Enforcement
custody after being subjected to an Immigration and Customs
Enforcement detainer, where charges are never filed, are
later dismissed, or where there is ultimately no
conviction.
Number of identified detainees prosecuted criminally in
federal and state court.
Number of identified detainees removed from the United
States.
Number of identified United States citizens and persons
with lawful status identified through the Secure
Communities program.
Nationality, age, and gender of individuals identified
and removed through the Secure Communities program.
This bill would require that if the bureau is unable to fulfill
the requirements of subdivision (a), it shall exercise its
authority under the agreement to terminate the agreement.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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Secure Communities (S-Comm) is an Immigration and
Customs Enforcement (ICE) program that enlists local
law enforcement to engage in civil immigration
enforcement through the sharing of biometric data at
the point of arrest. The program automatically leads
to investigation of the immigration background of
every individual, citizen or non-citizen, at the point
of arrest by electronically crosschecking fingerprints
through an immigration database allowing ICE officials
to detain and deport non-citizen individuals - without
the basic right to a day in court.
California was one of the earliest states to sign on
to S-Comm, in the spring of 2009. The Memorandum of
Agreement (MOA) that California signed is the boiler
plate agreement that ICE puts forward as a first offer
to every state. Since California signed on, however,
it has become clear that ICE is willing to negotiate
modifications to make MOAs responsive to specific
state concerns. Colorado, New York, and Indiana have
all negotiated modified MOAs. Also, Washington State
and Washington D.C. have refused to enter into a MOA
with ICE. More recently, Illinois has terminated their
agreement and New York has suspended their agreement
and participation in S-Comm citing that the program is
not meeting its stated goal and has serious
consequences for witnesses, victims of crime, and law
enforcement.
While U.S Immigration Customs and Enforcement's (ICE)
stated mission for S-Comm is to target serious
offenses, the program casts far too wide a net. ICE's
own data shows that in California 7 out of 10
individuals deported under S-Comm had no convictions
or were accused only of minor offenses.<1>
Unfortunately, this means immigrant residents who are
----------------------
<1> U.S. Immigration and Customs Enforcement, Secure Communities
IDENT/IAFIS Interoperability Monthly Statistics October 27, 2008
through Feb. 28, 2011.
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victims or witnesses to a crime now fear cooperating
with police since any contact with law enforcement can
result in separation from their families and
deportation. This program is eroding trust between
immigrant communities and local law enforcement. As a
result, years of community policing initiatives are
ruined as entire communities lose trust in law
enforcement and stop reporting crimes or seeking help.
S-Comm makes us all less safe and sends the state in
the wrong direction. The program is exactly what ICE
said it is not supposed to be, a simple tool for mass,
indiscriminate non-criminal immigration enforcement.
In addition to the public safety concerns, S-Comm has
also failed to provide accountability and
transparency. ICE has given contradictory and
inconsistent answers to questions from Congress,
media, and local officials regarding the participation
of unwilling jurisdictions. Forcing this problematic
program on localities against their will creates an
undue burden and jeopardizes local community policing
strategies.
This bill enables municipalities concerned with the
inherent problems of S-Comm to choose not to
participate while those who opt-in will have the
option to do so with safeguards to protect our
communities from the program's pitfalls. This bill
adds safeguards to protect Californians and prevent
civil rights violations. If localities want to
participate, this bill will require a plan to prevent
racial profiling and keep children, crime victims, or
survivors of domestic violence from being wrongfully
targeted. This bill also brings S-Comm out of its
shadowy misinformation and creates clear reporting
requirements that let us know how it's operating and
who is impacted.
2. California's MOA with the Department of Homeland Security
In April 2009, California's Department of Justice signed a
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memorandum of agreement (MOA) with US Immigration and Customs
Enforcement (ICE) regarding a program developed by ICE called
"Secure Communities." The purpose of the program, as described
in a letter from the program's director to DOJ urging DOJ to
sign the MOA, is "to improve community safety by identifying,
detaining and removing all aliens convicted of serious crimes
who are held in state or local correctional facilities."
(Letter dated January 23, 2009 from David J. Venturella (ICE) to
Linda Denly (DOJ), on file with the Committee.)
The MOA itself states the goals of Secure Communities as
follows:
ICE is committed to improving public safety by
transforming the way the federal government cooperates
with state and local law enforcement agencies to
identify, detain, and remove aliens who have been
convicted of and incarcerated for a Priority Level 1
offense and who are therefore amenable to removal. SC
will apply a risk-based methodology to focus
resources. This is accomplished by using advanced
technology to improve information sharing among law
enforcement agencies, leading to the removal of
high-risk convicted aliens.
The MOA states that it would identify "qualifying aliens
convicted of serious crimes" based on a "3-level hierarchy of
aggravated felonies and other serious crimes." It identifies
the three levels as:
Level 1 - Individuals who have been convicted of major
drug offenses and violent crimes such as murder,
manslaughter, rape, robbery or kidnapping;
Level 2 - Individuals who have been convicted of minor
drug and property offenses such as burglary, larceny,
fraud, and money laundering; and,
Level 3 - Individuals who have been convicted of other
offenses.
(Memorandum of Agreement between Department of Homeland Security
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Immigration and Customs Enforcement and California Department of
Justice Bureau of Criminal Identification and Information, on
file with the Committee.)
The MOA provides that DOJ will electronically submit
fingerprints of arrested individuals who are being booked to the
FBI, who will then enter that data into its Automated Biometric
Identification System (IDENT) and, where a match is found, check
the person's immigration status. ICE will send search results
back to DOJ, who will relay that information to the local law
enforcement agency that submitted the fingerprints to DOJ.
Lastly, the MOA provides that "Following identification of a
Level 1 alien who is found to be subject to removal, ICE will
take the alien into custody after completion of the individual's
sentence and proceed to institute removal (deportation)
proceedings."
3. Mounting Concerns about the Secure Communities Program
The S-Comm program has created controversy and raised concerns
among state governments that have entered MOA's similar to
California's, several members of Congress, as well as civil
rights organizations, and some local law enforcement agencies.
Some of the areas of concern are:
Failing to Comply with Stated Priorities
For some time S-Comm has been criticized for not adhering to its
stated purpose of targeting serious offenders but rather using
local law enforcement officers as immigration agents and
deporting large numbers of undocumented people who have either
no criminal convictions at all or only for minor offenses. One
such critic is San Francisco Sheriff Michael Hennessey. (See,
Immigration Bait and Switch, New York Times Editorial (August
17, 2010).) The Times editorial stated:
It turns out the critics were right.
The Immigration and Customs Enforcement records show
that a vast majority, 79 percent, of people deported
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under Secure Communities had no criminal records or
had been picked up for low-level offenses, like
traffic violations and juvenile mischief. Of the
approximately 47,000 people deported in that period
only about 20 percent had been charged with or
convicted of serious "Level 1" crimes, like assault
and drug dealing. (Id.)
Recent national statistics provided by ICE documenting
deportations under S-Comm through April of this year are not
much different than those cited in the Times editorial of last
August. They reveal that 108,994 people have been deported as a
result of this program and only 28,156 or 25% of these were
Level 1 offenders. The remaining three-fourths are undocumented
immigrants who have been convicted of minor offenses or who have
never been convicted of a criminal offense. California has, by
far, the highest number of deportations of all the states
participating in S-Comm. In California, from May of 2009 to May
2011, 41,883 undocumented immigrants were deported as a result
of S-Comm. Of the 41,883 deportations, 28% or 12,133 had no
criminal convictions and another 40% or 17,017 are classified by
ICE as low-level offenders. (U.S. Immigration and Customs
Enforcement, Secure Communities IDENT/IAFIS Interoperability
Monthly Statistics October 27, 2008 through April 30, 2011.)
Public Safety Concern
One concern is that using local law enforcement agencies for
immigration enforcement may cause victims and witnesses to crime
to be afraid to report criminal activity for fear of themselves
or a loved one being deported as a result. (See, Immigration
Initiative May Put Domestic Violence Victims At Risk, (March 3,
2011), California Watch,
http://californiawatch.org/dailyreport/immigration-initiative-may
-put-domestic-violence-victims-risk-8993.) Sheriff Hennessey
recently wrote, "The use of fingerprints to initiate immigration
scrutiny is of particular concern to victims of domestic
violence. In a recent case in San Francisco, a woman called 911
to report domestic violence, but the police arrested both her
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and her partner. Although no charges were ever filed against the
woman, she is now fighting deportation. There should be no
penalty for a victim of a crime to call the police." (Secure
Communities Destroys Public Trust, Michael Hennessey, San
Francisco Chronicle, (May 1, 2011),
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/01/INB81
J8OCL.DTL#ixzz1OGDTs6gK)
On November 2, 2010, the Sacramento Bee reported:
Every day, 2-year-old Kimberly Vrabo peeks around her
apartment complex for her mom. If she hears police
sirens, she runs inside.
Kimberly's mother, Maria Magdalena Perez-Rivera, got
into a fight with her boyfriend, Vicente Tellez, on a
Saturday night.
The next morning, Perez-Rivera's sister called Lodi
police. Two days later, the undocumented couple were
deported to Mexico, leaving behind Kimberly and the
couple's 3-month-old son Anthony Tellez.
Their swift removal has shattered the family. And
Sacramento's Mexican Consul General Carlos González
Gutiérrez and UC Davis Law School Dean Kevin Johnson
question whether justice has truly been served.
* * * * * * *
"Instead of giving them a chance to talk to a judge
and present their case for some type of legal relief
to resolve the issue, two days later the ICE van picks
them up and they are sent to Mexico," said González
Gutiérrez. "The tragedy is that there are two little
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kids who remain with the grandmother."
* * * * * * *
"This deportation scenario is all too common. It
illustrates the potential pitfalls of local police
cooperating with immigration authorities," said
Johnson. "Immigrant women in particular are going to
underreport domestic violence, and generally,
immigrant communities are going to be less likely to
cooperate with police for fear of being deported."
(Deported Mexicans Leave Two Small Kids in Lodi, (November 2,
2010) Sacramento Bee,
http://www.sacbee.com/2010/11/02/3151148/deported-mexicans-leave-
two-small.html#ixzz1OK7n0NA8)
Pre-Textual Stops and Racial Profiling
Due to the fact that, under the S-Comm program, no criminal
conviction is required before the person's fingerprints are sent
to ICE, local law enforcement may be encouraged to stop people
who appear to be foreign nationals without a legal basis for the
stop, which poses Fourth Amendment concerns. An officer may not
detain a motorist without a showing of reasonable suspicion.
This objective basis, or reasonable suspicion, must consist of
specific, articulable facts which, together with objective and
rational inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.
(U.S. v. Brignoni-Ponce, (1975) 422 U.S. 873, 884.) Ethnic
appearance is not an appropriate factor in the reasonable
suspicion analysis. (U.S. v. Montero-Camargo (9th Cir. 2000)
208 F.3d 1122, 1132-1135.)
To protect these Fourth Amendment guarantees, items or
statements obtained during an unlawful stop or seizure are
generally inadmissible as evidence in a criminal proceeding.
(See Mapp v. Ohio (1961) 367 U.S. 643, 657, Penal Code Section
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1538.5 .) For individuals arrested and detained under S-Comm,
even if the arrestee was unlawfully arrested or the charges are
later dropped, the arrestee will still likely be placed on an
ICE detainer for deportation proceedings because their
fingerprints are shared with ICE and the FBI upon arrest only,
not a conviction. This removes the deterrent that is meant to
discourage any police officers who might be so inclined from
making unlawful stops based on racial profiling or perceived
immigration status because ICE will take them into custody once
the criminal case is concluded, even if all charges are dropped.
Data from ICE confirms that at least one jurisdiction which has
been criticized for racial profiling, Maricopa County, Arizona,
has an extraordinarily high rate of fingerprint submissions
under the S-Comm program: 593,227 submissions as of April 30,
2011, amounting to 82% of all submissions from the entire state
of Arizona. (U.S. Immigration and Customs Enforcement, Secure
Communities IDENT/IAFIS Interoperability Monthly Statistics
October 27, 2008 through April 30, 2011.)
Inconsistent Statements by ICE on Counties Ability to Opt-Out
On July 27, 2010, Representative Zoe Lofgren, then the
Chairwoman of the House Subcommittee on Immigration,
Citizenship, Refugees, Border Security and International Law,
wrote Janet Napolitano, Secretary of Homeland Security and Eric
Holder, the United States Attorney General:
There appears to be significant confusion about how
local law enforcement agencies may "opt out" of
participating in Secure Communities, such that
fingerprints submitted by them to State Identification
Bureaus (SIBs) in order to be checked by the Federal
Bureau of Investigations (FBI) Criminal Justice
Information Services Division (CJIS) Integrated
Automated Fingerprint Identification System (IAFIS)
will not also be checked against databases or
identification systems maintained by the U.S.
Department of Homeland security for purposes of
determining immigration status. Staff from the
Subcommittee on Immigration, Citizenship, Refugees,
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Border Security and International Law were briefed on
this program by ICE and were informed that localities
could opt out simply by making such a request to ICE.
Subsequent conversations with ICE and FBI CJIS have
added to the confusion by suggesting that this might
not be so.
(Letter on file with the Committee.)
On April 25, 2011, the Los Angeles Times reported, "U.S. Rep.
Zoe Lofgren (D-San Jose) on Friday accused ICE officials of
lying to local governments and to Congress and called for a
probe into whether ICE Director John Morton and Homeland
Security Secretary Janet Napolitano, who oversees the agency,
were aware of the deception." (Non-criminals Swept Up In
Federal Deportation Program (April 25, 2011)
http://www.latimes.com/news/local/la-me-secure-communities-201104
25,0,1739725.story)
The Times reported further:
Supporters applaud Secure Communities for replacing ad
hoc immigration enforcement with a nationwide effort
that targets criminals.
"Before what was happening was the local officers had
no way of knowing or had to take special steps to find
out if the people they arrested were potentially
removable from the community," said Jessica Vaughan,
director of policy studies for the Washington,
D.C.-based Center for Immigration Studies, which
advocates for tougher immigration enforcement. Los
Angeles County Sheriff Lee Baca also supports the
program.
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But Lofgren and others are upset over what they see as
the deception with which the Secure Communities
program was implemented.
The congresswoman was most angered by the hundreds of
ICE internal documents recently released by order of a
federal judge. A review of the correspondence reveals
an agency that misled local and state officials as it
struggled to defuse what one email called "a domino
effect" of political opposition.
As early as November 2009, Secure Communities Acting
Director Marc Rapp declared in an email that
"voluntary" meant "the ability to receive the
immigration response" about fingerprint matches, not
the ability to decline to provide the data in the
first place.
But for nearly a year that was not made clear to local
agencies. "They said, 'You set up a meeting and you
opt out.' That's why we're pretty unhappy," said Santa
Clara County Counsel Miguel Marquez.
San Francisco County Sheriff Michael Hennessey also
unsuccessfully sought to opt out of the program last
summer. Hennessey is developing a policy that would
honor ICE detainer requests only for felons and
misdemeanants whose crimes involve "violence, guns,
and certain sex offenses." Santa Clara County is
exploring a similar policy.
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In July, Lofgren wrote Napolitano and U.S. Atty. Gen.
Eric Holder seeking "a clear explanation of how local
law enforcement agencies may opt out of Secure
Communities by having the fingerprints they collect ?
checked against criminal, but not immigration
databases." In September, she received letters back
stating that locals need only submit the request in
writing to state and federal officials.
ICE officials knew the language was misleading. "I
like the thought. But reading the response alone would
lead one to believe that a site can elect to never
participate should they wish," an FBI staffer wrote to
ICE colleagues in an August email exchange about the
draft. In October, Napolitano and Morton finally held
a news conference to clarify that opting out of Secure
Communities is not possible.
A Homeland Security official said Friday that "Secure
Communities is not voluntary and never has been.
Unfortunately, this was not communicated as clearly as
it should have been to state and local jurisdictions."
(Id.)
4. Illinois and New York Withdraw from S-Comm, and Massachusetts
Stays Out
On May 5, 2011, the Congressional Hispanic Caucus wrote
President Obama asking him to "freeze the Secure Communities
Program ('S-Comm'), effective immediately." (Letter dated May
5, 2011, from Rep. Charles A. Gonzales, Chair, Congressional
Hispanic Caucus, to President Barack Obama, on file with the
Committee.)
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On May 4, 2011, Illinois Governor Pat Quinn terminated that
state's MOA with ICE regarding S-Comm. In a letter to the
Acting Assistant Director of the Secure Communities program he
wrote:
ISP ÝIllinois State Police] and ICE executed the
Secure Communities MOA in November 2009. The stated
purpose of the program, as set forth in the MOA, is to
"identify, detain and remove from the United States
aliens who have been convicted of serious criminal
offenses and are subject to removal" (emphasis added).
ICE statistics on the Secure Communities Program,
compiled through February 28, 2011, reveal that the
implementation of the Secure Communities program in
Illinois is contrary to the stated purpose of the MOA:
more than 30% of those deported from the United
States, under the program, have never been convicted
of any crime, much less a serious one. In fact, by
ICE's own measure, less than 20% of those who have
been deported from Illinois under the program have
ever been convicted of a serious crime.
(Letter dated May 4, 2011 from Illinois Governor Pat Quinn to
Mr. Marc Rapp, Immigration and Customs Enforcement, on file with
the Committee.)
On June 2, 2011, New York Governor Andrew Cuomo announced that
he was suspending New York's participation in S-Comm. Mylan
Denerstein, Counsel to Governor Cuomo, wrote in a letter to John
Sandweg, Counselor to the Secretary of Homeland Security:
ÝU]ntil the numerous questions and controversies
regarding the program can be resolved, we have
determined that New York is best served by relying on
existing tools to ensure the safety of its residents,
especially given our overriding concern that the
current mechanism is actually undermining law
enforcement. As a result, we are suspending New
York's participation in this program.
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(Letter dated June 1, 2011, from Mylan Denerstein, Counsel to
Governor Cuomo, to John Sandweg, ICE, on file with the
Committee; see also Cuomo Ends State's Role in Checking
Immigrants (June 2, 2011) New York Times,
http://www.nytimes.com/2011/06/02/nyregion/cuomo-pulls-new-york-f
rom-us-fingerprint-checks.html?scp=2&sq=%22Secure%20communities%2
2&st=cse )
On June 3, 2011, Mary Heffernan, Massachusetts Secretary of
Public Safety and Security sent a letter to the Acting Director
of the Secure Communities program stating that Governor Deval
Patrick has directed that Massachusetts not enter any MOA to
participate in the program for reasons similar to those stated
by the Governors of New York and Illinois. (Letter dated June
3, 2011, from Mary Heffernan, Secretary of Public Safety and
Security, to Marc Rapp, Acting Director, Secure Communities,
Immigration and Customs Enforcement, on file with the
Committee.)
5. What This Bill Would Do
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This bill would require the California Attorney General to
modify the MOA to provide that counties may only participate in
S-Comm if authorized by their county government to do so.
Counties choosing to "opt-in" to participation in S-Comm would
be required to "prepare a plan to monitor and guard against
racial profiling, discouraging reporting by domestic violence
victims, and harming community policing overall." The modified
MOA would be required to contain unspecified "protections" for
crime victims and juveniles and would be required to contain
several restrictions on the collection and use of fingerprints,
as specified above. Finally, the modified MOA would also
require ICE to post specified data concerning the S-Comm program
on its website. If DOJ is unable to fulfill these requirements,
the bill directs DOJ to "exercise its authority under the
agreement to terminate the agreement."
SHOULD THE ATTORNEY GENERAL BE DIRECTED TO MODIFY THE MOA
REGARDING THE SECURE COMMUNITIES PROGRAM, AS SPECIFIED?
IF THE ATTORNEY GENERAL IS UNABLE TO MODIFY THE MOA AS
SPECIFIED, SHOULD SHE BE DIRECTED TO TERMINATE THE AGREEMENT?
6. Argument in Support
Yolo County Sheriff E. G. Prieto states:
As a law enforcement official, my most important
responsibility is enforcing criminal law and ensuring
public safety. We rely on the trust and cooperation
of community members - including immigrants - to do
our job well. When immigrants fear that contact with
the police could trigger their deportation, they are
reluctant to report crimes, to provide information for
investigations, or to act as witnesses. S-Comm
creates barriers between law enforcement and the
communities we are trying to protect, making all of us
less safe.
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Additionally, S-Comm places additional financial
burdens on our law enforcement agencies at a time when
California Counties are already struggling with budget
cuts. When S-Comm finds a fingerprint match, ICE may
issue a "detainer" to the local jail to keep ICE
appraised of the individual's custody status or to
detain the individual for up to 48 hours, excluding
weekends and holidays, so that ICE may take him or her
into custody once his or her local charges are
resolved. The administrative costs of receiving,
tracking, and responding to these detainers, as well
as the cost of providing bed space, food, and medical
care to individuals until ICE picks them up, are
significantly draining on our already overtaxed law
enforcement budgets. S-Comm does not reimburse
localities for these costs.
7. Argument in Opposition
The California State Sheriffs' Association states:
Currently, Secure Communities is mandatory in all 58
California counties due to the state entering into an
agreement with the federal government. AB 1081 would
give individual counties the ability to opt out of the
agreement with the federal government. This measure
also has significant fiscal impacts on state and local
State Criminal Assistance Program (SCAAP) funding.
Prior to SC, departments would run manual reports for
ICE when they would come into the jail, which put an
additional burden on clerical staff. However,
sheriff's departments now fingerprint everyone, and
the information is transmitted electronically to ICE,
relieving staff of the additional work and eliminating
the accusation of profiling. Local law enforcement
agencies are grappling with significant budget cuts
over the last several years while trying to maintain
critical services. To not provide information to ICE
would be violating the sheriff's oath of office by
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refusing to work with a Federal Law Enforcement
organization.
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