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Can Cities Really Opt Out of Secure Communities?

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As Immigration and Customs Enforcement continues to aggressively expand its newest local immigration enforcement program, some localities are looking to put on the brakes. Secure Communities is touted as a voluntary partnership between federal, state and local agencies that "supports public safety by strengthening efforts to remove the most dangerous criminal aliens from the United States." When an individual is booked by a police officer in a participating agency, her fingerprints are automatically sent by the state to federal immigration databases to check for violations; if there is a match, ICE agents then decide whether she will be targeted for deportation. Secure Communities is slated to cover every city, county and state by 2013.

Advocates have rightly raised a number of red flags about the program, chiefly that it has not effectively targeted criminal immigrants but instead focuses on deporting immigrants who have committed minor offenses, or none at all. City leaders in San Francisco and Washington have also spoken out. Both cities have decades-old policies that limit police involvement in immigration enforcement, policies that Secure Communities will almost certainly override. What's more, San Francisco already reports individuals who are arrested for violent offenses and felonies -- the supposed targets of Secure Communities -- to the feds. Enrollment in the program completely undermines the Sheriff's ability to use this discretion.

D.C. Councilman Jim Graham says : "In D.C. we have had a long-standing tradition of separation between what our police force does and what immigration agents do. We can't have police behave like immigration officers. Our police have their hands full with local crime." Back in May, the Council unanimously sponsored a bill that opposed participation in Secure Communities, and by July, D.C. was the first in the country to formally withdraw. But D.C. is a special case. ICE typically negotiates agreements regulating Secure Communities with each State Identification Bureau, not with cities or counties. Thus the District of Columbia had a direct agreement that it could terminate -- not so for San Francisco. Once California signed a statewide Secure Communities document, the city of San Francisco was enrolled. Despite numerous efforts to get out of this "voluntary" program, local officials found their hands tied.

In July, Representative Zoe Lofgren drafted a letter to the agency requesting clarification about Secure Communities, and noting that "significant confusion" surrounded the opt out process. Official statements from ICE on the issue were inconsistent at best. From a Salon article:

ICE spokesperson Mark Medvesky asserted that cities could not opt out of Secure Communities. But Medvesky was quoted in an Aug. 21, 2009, Philadelphia Inquirer article saying that Philadelphia could opt out, "but I can't imagine why they would want to. It's not a mandate."

Sounds like a mandate to me. In an August document titled "Setting the Record Straight," ICE seemed to deny that any ambiguity existed. For the first time, the agency vaguely outlined how a city or county could avoid joining. The document states that if a jurisdiction wants to opt out, various stakeholders will meet to "discuss any issues and come to a resolution, which may include... removing the jurisdiction from the deployment plan." To date, no city has successfully been able to do this. But San Francisco may be the first; this week, Sheriff Hennessey sent a letter to DHS officials reiterating the city's request to exit the program. And just yesterday, leaders from two other California counties followed suit. ICE officials are reportedly considering this appeal.

We should all keep an eye on how this proceeds. What ICE decides to do with San Francisco will set an important precedent for other cities and counties that want to stay out of the nation's fastest growing federal immigration enforcement program.

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