The Informant

Courtesy of ICE

Immigration and Customs Enforcement

Janet Napolitano, the Secretary of Homeland Security, has come out and confirmed what had previously been rumored. The Washington Independent reports that Napolitano, in a press conference in DC last week, said the agency doesn’t “consider Secure Communities an opt in/opt out program.”

Secure Communities, as a refresher, is a federal program that’s been growing for the past couple of years. Basically, in any state that chooses to participate, when a person is booked at a local jail, their fingerprints are shared with Immigration and Customs Enforcement (ICE). ICE can then check those fingerprints against their database to try to determine if the person is an undocumented immigrant. If ICE thinks the person is subject to deportation, they can choose to place a hold on that person–which means the jail will keep that person for 48 hours, giving ICE the opportunity to pick them up and begin deportation proceedings. ICE says it’s a great way to get to undocumented immigrants who’re committing crimes in the US. Critics say it’s a sneaky way of using local police to round up undocumented immigrants. And some localities, including San Francisco and Santa Clara counties, want out. (Officials in other counties, like LA–where an estimated fifth of the jail population is undocumented immigrants–are thrilled with the program.)

In San Francisco, Sheriff Mike Hennessey (with the support of the Board of Supervisors) has been trying to figure out a way of getting out of the program since before the county’s June 8 entry date. Then, in August, ICE released a memo detailing, among other things, the “opt out” procedure for localities that don’t want to participate in Secure Communities. Sheriff Hennessey, in accordance with the procedure, sent letters to ICE and had a meeting scheduled with ICE leaders in October to discuss the program (a meeting he asked be moved to November, after the midterm elections). But then, last week, ICE started to say that the program is simply not optional: if a state opts in, its counties must follow. And even if a county or city “opts out” on paper, ICE said, they’ll still be sending their fingerprints (as all jails do) to the FBI, and ICE will therefore still access them.

So what’s next? San Francisco is still in the process of getting a meeting date scheduled with ICE. The Sheriff’s Chief of Staff Eileen Hirst says they’ve sent dates in mid November to ICE and are waiting for a response. With all the memos, letters, and press statements out there, Hirst says she hopes they’ll be able to get all the facts and questions about the program ironed out in person.

From all appearances, a showdown is looming–one that could take a rather dramatic turn. One of the questions that needs to be conclusively answered is whether or not it’s legally binding when ICE places an immigration hold on someone. An attorney for Santa Clara County recently asked ICE that question in a letter and got this response from Secure Communities Assistant Director David Venturella: “ICE views an immigration detainer as a request that a law enforcement agency maintain custody of an alien who may otherwise be released for up to 48 hours.”

From that letter, it appears that counties and cities that want out could simply stop detaining people for ICE. Counties like San Francisco–which notified ICE about undocumented immigrants with felony convictions, felony arrests, or outstanding warrants before Secure Communities existed–could simply stop detaining people for ICE. Or at least, could start ignoring those requests from ICE that aren’t on people with serious criminal records. (San Francisco’s Sanctuary City policy says that the county will send information about those accused or convicted of felonies, and who’re identified through documentation or self-identified as undocumented, to ICE.)

Angela Chan, an attorney for the Asian Law Caucus and a member of San Francisco’s Police Commission, says that,  “may be the next step in this pursuit to prevent entanglement between local law enforcement and federal civil immigration enforcement in order to maintain public safety.”

No word from ICE yet on whether they’re worried about counties who want out ignoring their requests–or clarity on whether places like San Francisco and Santa Clara will be allowed to opt out. So who’ll do what and when? Will ICE simply take information about people in local jails against the wishes of law enforcement? Will places like SF and Santa Clara bust out their own legal moves and start ignoring ICE? There’s such a legal tangle and so many back doors, that it’s hard to say. One thing’s likely however: that this simply won’t get resolved before the November elections are over.