Last week, the Department of Homeland Security's Immigration and Customs Enforcement Agency (DHS-ICE) announced that with the addition of six smaller rural counties, the entire state of California is now part of the Orwellian-named Secure Communities program (S-Comm). By co-opting the fingerprint submissions of local police, ICE is now able to automatically check the immigration status of anyone who is arrested. In other words, whether the arrest was lawful or not and before any conviction for the alleged offense, ICE can move in to detain the arrestee.
While publicly insisting that S-Comm targets the "worst of the worst," ICE's own data shows that a majority of those identified and ultimately deported are, in fact, low-level offenders or individuals without any criminal conviction. Simply put, with the chilling effect S-Comm is having on the public's relationship with the police, and the families being torn apart, our state is now increasingly made up of more insecure communities.
The numerous issues surrounding S-Comm have been highlighted by immigrant advocates here in California since the steathily introduced program began to gain notoriety. This was particularly true in cities and counties with policies prohibiting investigations based on immigration status. The uniform thinking behind this approach, as espoused by former LAPD Chief William Bratton, is that it helps the police fulfill its core mission of protecting the public. As the current LAPD Chief Charlie Beck has said on numerous occasions, often while condemning Arizona's SB 1070 and its copycat ilk, the LAPD serves all Angelenos regardless of immigration status. Unfortunately, his good intentions are being undermined by the city's participation in S-Comm as well as the county's voluntary participation in the equally controversial 287(g) program.
But how did California become S-Comm's pilot state? In early 2009, the California Department of Justice's State Identification Bureau received a communication from David Venturella, Executive Director of S-Comm at ICE. This was the cover letter to what would become the first S-Comm Memorandum of Agreement between a state and ICE. One line therein may have helped convince then Attorney-General, now Governor, Jerry Brown to sign the MOA: namely, that counties and cities would be required to sign a "statement of intent" before joining. This would seem to indicate that participation was not mandatory.
However, some 18 months later in response to an inquiry from Santa Clara County Counsel on this matter, Mr. Venturella disavowed this statement and called it an "oversight." In yet another twist, Secretary Napolitano announced in early October 2010 that S-Comm was in fact, "not an opt-in, opt-out" kind of program. An observer would be forgiven for wondering what was going on over at DHS-ICE.
Several prominent organizations last year filed a Freedom of Information Act (FOIA) request and then a lawsuit due to non-compliance, asking the federal government for any and all internal communication relating to the "opt-out" issue. Last month, the plaintiffs finally received a trove of documents that were formatted in an unsearchable way. A federal judge has ordered ICE to change this, writing that she could not accept the agency's "lame excuse" for not doing so already.
Through concerted efforts, advocates including CHIRLA have nonetheless begun to distinguish several paperless trails in this electronic jungle of e-mails and memos. This process has revealed total confusion within ICE as well as multiple departures from the "you have no choice" line that ICE and then AG Brown haphazardly crafted for California. No wonder that Representative Zoe Lofgren, then the Chair of the House Judiciary Immigration Subcommittee, now says, "I don't see how the government has the authority to do this."
So who are these "criminal aliens" we keep hearing about? While ICE publishes one or two "success stories" on its website, it rarely if ever addresses the "collateral damage" that S-Comm wreaks in the communities. This damage is done on several levels: to the individuals and the families swept up in this dragnet, to the upholding of public safety and to the public coffers of our counties and cities.
We are talking about Blanca, arrested by the LAPD for illegal vending in in Van Nuys. As she had no previous contact with DHS, her fingerprints were not recognized by S-Comm. However, as the police-ICE collaboration is so extensive, she was subsequently alleged to be undocumented after being transferred to the county.
As ICE itself has recommended, in cases where there is no S-Comm hit, local police should solicit ICE's help in determining immigration status. In other words, with S-Comm you are damned if you are flagged and damned if you are not.
We are also talking about victims of domestic violence or exploited workers who wind up being arrested and then screened through S-Comm. Even when the initial police action had no malintent and charges are dropped, the immigration consequences can be severe. Even worse, these victims and workers may be eligible for protected status, but they can wind being deported before those are afforded to them.
Thus, the Golden State, home and friend of immigrants, is now serving as ICE's full-time laboratory project. We may not have SB 1070 or massive raids and tear gas, but with S-Comm the results are pretty much the same. Still, in 2011 we can begin to turn back the tide. In Kamala Harris, we have a new Attorney-General who can reassess the S-Comm agreement. Given its insufficient protections, she would be well within her right to follow the example of states that sensed that something was rotten after seeing what had transpired in California. They either negotiated more favorable deals like Colorado and New York; or like Washington State and Washington, DC refused to sign any agreement. In addition, State Assembly member Tom Ammiano has introduced a bill that calls on the Attorney-General to take a second look at S-Comm.
As we move forward, we must work together to turn the insecure communities into safer ones for all Californians. Consigning S-Comm to the dustbin of history would be a good start.
Carl Bergquist, policy advocate at CHIRLA, contributed to this post.