April 22, 2011
A California congresswoman Friday called for an investigation into the actions of federal immigration officials, saying they lied about whether counties and states had the right to opt out of a controversial nationwide enforcement program that screens for illegal immigrants in local jails.
"It is inescapable that the [Department of Homeland Security] was not honest with the local governments or with me" about whether local jurisdictions must participate, said Rep. Zoe Lofgren (D-San Jose). "You can’t have a government department essentially lying to local government and to members of Congress. This is not OK."
The so-called Secure Communities program, launched in 2008, was promoted to local and state leaders as a way to focus enforcement efforts on "serious convicted criminals." But the program, which uses fingerprint data, has come under fire because it has ensnared a high proportion of immigrants who were arrested but never charged or who have been charged with minor infractions.
Critics say it discourages illegal immigrants from reporting crimes and opens the door to racial profiling.
A number of local jurisdictions -– including Santa Clara and San Francisco counties -– have sought to opt out of the program or asked that their fingerprint data not be sent to U.S. Immigration and Customs Enforcement.
Federal officials initially told them they could do so, an assertion repeated by Homeland Security Secretary Janet Napolitano and Assistant Atty. Gen. Ronald Weich in September letters to Lofgren.
But internal correspondence recently released to immigrant and civil rights groups in response to Freedom of Information Act litigation reveals that ICE officials had long known that the program was not voluntary.
A month after Lofgren received the letters, Napolitano held a news conference to clarify that local officials had no say in the program.
Lofgren, whose legal staff spent a week reviewing the internal documents, said she will seek a probe of whether Napolitano or ICE Director John Morton were aware of the strategy.
"It’s unacceptable and if she knew about it, something has to be done about her, and, if she didn’t, she has to do something about those who did," Lofgren said. "Clearly the people in the department were dissembling and deceiving."
A Department of Homeland Security official said in a statement 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 by ICE when the program began. Thanks to outreach with local jurisdictions and members of Congress, we have since made the parameters of the program clear to all stakeholders involved."
Lofgren also questioned the legal authority for implementing the program, which by 2013 will effectively involve all local jails in immigration enforcement. The rollout began in 2008 and 1,211 jurisdictions in 41 states now participate. States have always shared local fingerprint data with the FBI, which conducts criminal background checks.
Under Secure Communities, the FBI now shares that data with U.S. Immigration and Customs Enforcement, Homeland Security’s investigative arm.
An ICE spokesman said the program does not require local or state approval, since it is "fundamentally an information sharing program between federal partners."
But officials sought for nearly two years to cajole local jurisdictions to support the program -– before telling them they had no choice but to participate.
ICE also has signed "memorandums of agreement" with states that currently forward local fingerprint data to the FBI. Homeland Security officials now say those agreements are merely educational and that fingerprints from all jails will be forwarded by the FBI to ICE by 2013.
Santa Clara County’s Board of Supervisors voted unanimously not to participate before being told they had no choice. San Francisco’s sheriff also sought unsuccessfully to opt out. They oppose the program because they contend it erodes community policing efforts by ensnaring all undocumented immigrants booked into jail –- regardless of the severity of the crime.
Recently released data show that half of the immigration holds issued since the inception of the Secure Communities program have been for non-criminals or those charged with misdemeanors -- not the violent criminals the program has purported to prioritize
Lofgren said Friday that if communities had known from the beginning that they had no choice in the matter, they probably would have fought the program in court. But the repeated assertions -– which continued through October -– that locals had a mechanism for opting out deceived them.
"Had they been honest to begin with, the localities that feel strongly about this would have challenged their legal authority early on," she said. "They tried to play by the rules. Unfortunately they didn’t realize that the department was not on the level."
Chris Newman, legal director of the National Day Laborer Organizing Network, among the groups that sued in federal court to obtain Secure Communities data and correspondence, said he was "grateful for the congresswoman’s attempt to get to the bottom of this" and called on the Obama administration to freeze the program pending further study. --Lee Romney reporting from San Francisco