A federal judge issued a ruling on Thursday that, for a moment, turned the tables on federal immigration officials by ordering the Department of Homeland Security to hand over its papers.
The documents are expected to answer lingering questions about whether state and local governments are allowed to opt out of a controversial federal deportation program, called Secure Communities, that checks the immigration status of anyone booked into participating local jails. The federal government claims the program targets serious criminal offenders and the Obama administration has said it plans to implement Secure Communities nationwide by 2013.
Immigration and Customs Enforcement initially announced that local governments could decide to opt out of Secure Communities. But then, in September, ICE backpedaled, announcing that only states, not local governments, have the power to block participation. In recent weeks, even that has been called into question. Advocates and localities were left reeling following the government’s obfuscation. The documents the court has ordered ICE to release are expected to resolve this confusion.
In July, a federal court ordered the release of all government documents related to Secure Communities, following a public information request by Uncover the Truth, a coalition of civil rights and immigrant rights groups. The government released only some documents, which revealed that the program had resulted in the deportation of tens of thousands of non-citizens with no criminal convictions at all, or with convictions for low-level things like traffic violations. But ICE failed to release documents clarifying whether localities can opt out.
On Thursday, District Court Judge Shira Scheindlin ordered ICE to hand over the rest of the documents and threatened to sanction the agency if it fails to do so.
"The defense agreed to do this back in July and here we are in December," Judge Scheindlin said. "I think the government is dragging its feet. This is serious."
Four municipalities–Santa Clara and San Francisco Counties in California; Arlington, Va., and Washington D.C.–have already voted to opt out of Secure Communities, only to be told that they would not be permitted to do so. The documents will clear up whether they’re votes were in vain, and will also send a clear message to other localities considering opting out.
"To be honest, the more we find out about the program, the more we’re confused," said Sarahi Uribe, an organizer with the National Day Laborers Network, which is part of Uncover the Truth coalition. "Until we have the full record, it’s impossible to craft policies and know the way to move forward."
Secure Communities now operates in 788 jurisdictions in 34 states. As of August, almost 50,000 people had been deported through the program.
In general, localities send finger print data to state governments after arrests. States then run the prints through an FBI database for criminal record information. The Secure Communities program adds another step to this data sharing, sending prints from the FBI to ICE, which checks immigration status. The federal government says the program catches immigrants with serious criminal convictions.
But the government’s own data, released to Uncover the Truth, shows that the program is not living up to these claims. Close to 80 percent of those deported through the program had no conviction or a low-level violation.
Advocates believed their best hope for staving off the abuses of Secure Communities was to push local and state governments to opt out. Until ICE’s September backpedaling, this was assumed possible.
Last week, the Seattle Times reported that Washington State is refusing to sign a Secure Communities agreement with ICE, which was seen as a major victory by advocates. But the paper breifly noted that despite Washington State’s decision, the federal government still expects to be able to activate Secure Communities "everywhere, even in states like Washington where they have no signed agreements" by 2013.
The news from Washington State adds yet another layer of haze to an already confused area of policy. The documents, which Judge Scheindlin ordered released by Jan. 17, should provide clarity, one way or another. If it turns out that opting out is not allowed, and the federal government indeed plans to implement Secure Communities nationwide without respect for state or local discretion, immigrant rights groups’ strategy may need to shift increasingly to the courts. If, however, localities can in fact decide to opt out, then local and state efforts to block the program will surely intensify.
"The American public makes decisions based on the information they have," says Uribe. "We don’t want to be led down the wrong path again. Our strategy is absolutely informed by the documents."