The Informant

Asian Law Caucus

Today, a group of immigrants rights advocates filed an emergency injunction to obtain Immigration and Customs Enforcement files related to the department’s Secure Communities program.

San Francisco was brought into the program in June. Run through Immigration and Customs Enforcement, the program uses fingerprints collected at local jails to track undocumented immigrants who are accused or convicted of crimes. The program has come under fire from immigrants rights groups, as well as San Francisco’s Board of Supervisors and county Sheriff Mike Hennessey for deporting non-criminals and straining the relationship between police and immigrant communities. According to documents obtained through the Freedom of Information Act, approximately 26 percent of those deported through the program have been non-criminals and 70 percent have been accused or convicted of low-level offenses. San Francisco has tried to stop participating in the program, but has not been able to opt out so far. Angela Chan, an attorney with the Asian Law Caucus and a member of San Francisco’s Police Commission, has been among the city’s critics of Secure Communities. I sat down with Chan in her office earlier this week.

So give us an update on the situation in San Francisco with Secure Communities.

San Francisco has a pending opt out request to S-Comm officials and also to the Attorney General’s office. And there is a meeting scheduled with ICE between Sheriff Hennessey’s office and ICE for November 8. Santa Clara has their meeting with ICE regarding their pending opt out request on November 9. Arlington, Virginia has their opt out meeting with ICE scheduled for November 5. So all these meetings are scheduled back to back.

[NOTE: The injunction filed today is to get documents in the run-up to these meetings.]

So that’s going to be quite a flurry.

It will be quite a flurry. And at the same time, there is a lot of advocacy work being done on the ground in Arlington, in San Francisco, Santa Clara and also other counties throughout the country. So I think there will be a lot of attention on this issue.

There’s been a bit of confusion over the past few months around statements coming out of ICE. First, it seemed there was a procedure for getting out of Secure Communities, now it they’re saying it’s not really an optional program for cities and counties.

I think it should be very concerning to members of Congress. Because they’ve allocated hundreds of millions of dollars to this program and now this program is sending out inconsistent statements to the public and to local officials. It should be clear what happens to our tax dollars when they’re allocated to ICE. It’s a pattern with how they deploy their programs. They go to Congress and say “we’re going to go after the most serious criminals, give us hundreds of millions of dollars and we will have this great program.” Instead they employ a dragnet program that uses the resources of local law enforcement and local tax dollars to do the work for them. And that harms public safety for everyone. They need to come up with a different strategy for conducting immigration enforcement. They can’t continue to build entire programs around coercing local law enforcement into doing their work for them.

But Secure Communities is described as being almost totally passive. Local authorities don’t have to do anything. They’re just taking information that’s already there. Why would they even need anyone’s permission to take that information if the FBI’s getting it already?

If local law enforcement did not take those fingerprints, that information would not get into the hands of ICE. The reason local law enforcement takes fingerprints is to do criminal background checks, not immigration background checks. And that is part of the reason why Sheriff Hennessey in San Francisco is upset about this program. Because he’s doing his job, which is taking fingerprints to conduct criminal background checks. Now this information is being misused against his intent and his wishes and against the San Francisco Board of Supervisor’s request. And it is wasting local resources because people are now being held in our county jail purely for civil immigration purposes and we’re not getting reimbursed for those costs.

What’s the legality of all this?

It seems from our analysis of just understanding anti-commandeering, 10^th Amendment arguments, that you can’t require states and localities to do the work of the federal government, especially if they’re not being reimbursed. It doesn’t appear that it makes a lot of legal sense and I’d be interesting in hearing from Secretary Napolitano and ICE what the legal basis for their statements that S-Comm is a mandatory program when it’s not a federal law and it’s just a program within ICE.

Even if they are casting a wide net to pick up undocumented immigrants, isn’t that their job? So how much is this an issue of ICE operating in less-than-preferred ways and how much is this just a fundamental question of immigration reform?

I’ve been pondering that balance. I think it’s interesting that Secretary Napolitano is spending her time and her resources touting a program that is deeply flawed, that hundreds of civil rights organizations are opposed to all over the country. Rather than spending her time trying to support comprehensive immigration reform. I think that is a matter of priorities for the Obama administration and they need to consider that. Because the base of the Democratic party is a growing population of immigrant residents. And they are concerned with immigrant rights issues. And so comprehensive immigration reform needs to come to the forefront. It’s unfortunate in the last few years that CIR hasn’t made much traction. Even the DREAM Act which is I think the most sympathetic piece within CIR hasn’t even made traction. And I think it’s important that move forward. The communities I’m seeing right now are in a really difficult spot because on one hand there isn’t comprehensive immigration reform. On the other hand, there are millions of dollars being allocated to mass deportation programs like S-Comm and 287(g). And so these communities really  don’t have any way out.