Advocates of Immigration hope 'Secure Communities' Documents Will Slow Controversial Immigrant Deportation Program

Immigration activists are hoping internal documents a federal judge has ordered the Immigration and Customs Enforcement (ICE) to release will shed light on why the Department of Homeland Security abruptly announced communities could no longer opt out of a controversial immigration enforcement program this fall.

Washington state and several municipalities like Arlington, Virginia have said they want to opt out of ICE's "Secure Communities" deportation program, which scours local jails for fingerprints of illegal immigrants to deport. Critics of the program point out that about a quarter of those deported had no criminal records, since suspects are fingerprinted for minor infractions, thereby permitting ICE officials to initiate deportation proceedings against them. Detractors also say the program, which has deported 50,000 since its creation in 2008, hampers communication between immigrants and law enforcement, since immigrants fearful of deportation are unlikely to come forward as witnesses in more serious legal proceedings.
At first, Homeland Security Secretary Janet Napolitano seemed sympathetic to these concerns, writing in a September letter (pdf) to Rep. Zoe Lofgren that localities could opt out of the program if they wished. In August, ICE released a document, no longer available on its website, that also suggested there was a way for communities to opt out.
Then, on October 5, Napolitano said at a press conference that the program is mandatory for all, and will be implemented fully by 2013. So what happened?
We may be about to find out. A federal judge has ordered the DHS to release, by January 17, all internal documents related to whether Secure Communities is optional. Critics of the program hope the bevy of documents will shed light on the abrupt change in policy, and perhaps even halt the program's implementation. (The program's supporters, meanwhile, say it has produced a 70 percent increase in deportation of criminals since 2008, and that many non-criminals who get deported have lengthy rap sheets of dropped charges.)
"I think there are serious legal questions that remain about DHS's authority to mandate participation," says Chris Newman, the legal director for the National Day Laborers Organizing Network. The organization joined with two others to sue ICE to release the Secure Communities documents, and is also requesting an injunction on its enforcement. "Up until now this program that [ICE chief] John Morton said would revolutionize immigration enforcement has been rolled out in secret. I don't think any program that will revolutionize immigration enforcement should be done in a vacuum."
Margaret Huang, the executive director of civil liberties-focused Rights Working Group, says she thinks the documents may show that the agency was overwhelmed with requests from communities to opt out of the program, which is why they decided to reverse the opt-out plan. Huang worked with Arlington's city council in their attempt to opt out of Secure Communities, and she says the community is still confused about whether it can opt out because they have yet to receive a written document saying they cannot.
"I think Arlington County elected officials made a decision on this program based on hearing from their constituents, and they did it on the understanding, based on written communication, that it was an option. I think that raises a lot of questions about the appropriateness of the decision and perhaps also about the legality," she says.
The documents may also spark outrage if they show local officials were intentionally misled about the program's optionality.
"I think if the documents show that internally DHS...has intended and designed this program to be mandatory for states and localities, but that they've been giving a different impression all along, I think it will create huge uproar among states and localities," said Greg Chen, advocacy director of the American Association of Immigration Lawyers.
ICE says it has been forthright with the public in promulgating new policy directives. "We have made a very high priority of transparency and candor," Beth Gibson, ICE assistant deputy director, told The Washington Post. "We have posted all our policies online . . . we are operating openly and forthrightly."