Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform

Robert D. Goodis JD/MPP Candidate

American University, Washington College of Law Class of 2015

Submitted to Professor Bo Cooper in fulfillment of the Spring 2014 term paper requirements for Law 700I-001: Advanced Issues in Immigration Enforcement

and of the Upper Level Writing Requirement

April 27, 2015

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Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform

In March 2008, the Department of Homeland Security (DHS), Immigration and Customs

Enforcement (ICE) launched a program called Secure Communities1 to improve community

safety by identifying, detaining, and removing all aliens convicted of serious crimes who [were]

held in state or local correctional facilities.2 Secure Communities was designed to enhance

interoperability of state and federal biometric databases by automating a check against ICE and

U.S. Citizenship and Immigration Services (USCIS) records when state identification bureaus

(SIB) submitted fingerprints to the Federal Bureau of Investigation (FBI). The program quickly

became embroiled in controversy, and after reform efforts failed to mend public perception, the

Department of Homeland Security announced an end to Secure Communities as we know it in

November 2014.3 Noting that the overarching goal of Secure Communities remains a valid

and important law enforcement objective, the same DHS memorandum that announced the end

of Secure Communities also introduced a new program in its place: the Priority Enforcement

Program (PEP).4 This paper explores the debate and challenges surrounding Secure

Communities and the Priority Enforcement Program and addresses the effectiveness of reforms

thus-far. Additionally, this paper introduces recommendations for the future of immigration

enforcement programs that rely on similar database interoperability technology.

1 Secure Communities is also known as IDENT/IAFIS Interoperability. The ICE biometric database is known as Automated Biometric Identification System (IDENT), and the FBI biometric database is known as Integrated Automated Fingerprint Identification System (IAFIS). The interoperability program also taps into the broader DHS and USCIS biometric database, now known as Office of Biometric Identity Management (OBIM) and previously (before 2013) known as United States Visitor and Immigration Status Indicator Technology (US-VISIT). 2 Letter from David J. Venturella, Exec. Dir., U.S. Immigration and Customs Enforcement, Office of Secure Communities, to Linda Denly, Bureau of Criminal Identification and Information, California Department of Justice, Re: ICE Secure Communities Memorandum of Agreement (MOA) (January 23, 2009). 3 Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting Director of U.S. Immigration and Customs Enforcement, et. al., Subject: Secure Communities (November 20, 2014). 4 Id.

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Background on Secure Communities

Secure Communities was one of thirteen programs operated under an umbrella scheme

known as ICE Agreements of Cooperation in Communities to Enhance Safety and Security

(ICE ACCESS).5 Two of the better-known programs under ICE ACCESS are the Criminal

Alien Program (CAP) and the 287(g) Delegation of Immigration Authority program, which both

predate Secure Communities and rely on cooperation between local, state, and federal

authorities. When ICE introduced Secure Communities under the George W. Bush

administration in March 2008, the official Secure Communities Fact Sheet stated that, Although

ICE has made considerable progress over the past several years in identifying and removing

criminal aliens through its Criminal Alien Program (CAP), a fundamental change in ICEs

current approach is required to reach the goal of identifying and removing all aliens convicted of

a crime.6 The Fact Sheet went on to note that ICE was already screening all inmates at federal

and state prisons before the implementation of Secure Communities, but was only screening

about 10 percent of the approximately 3,100 local jails throughout the United States.7 CAP

and other ICE ACCESS programs remained in place, and Secure Communities was added to

ICEs arsenal to prevent removable aliens from slipping through the cracks.

An important distinction, though perhaps without a difference, came with the limits of the

Secure Communities program. By design, Secure Communities was only an information

technology protocol whereby IDENT and IAFIS biometric databases became interoperable and

were automatically queried when local jurisdictions submitted fingerprints to their respective

state identification bureaus. Before Secure Communities, a local jurisdiction would send

5 ICE ACCESS Programs: 287(g), the Criminal Alien Program, and Secure Communities, National Immigration Law Center (Nov. 5, 2009), http://www.nilc.org/ice-access-2009-11-05.html. 6 Fact Sheet: Secure Communities, Office of Public Affairs, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement 1 (Mar. 28, 2008). 7 Id.

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fingerprints to the state identification bureau for comparison to the state database and for

submission to the FBI for comparison to IAFIS. With the advent of Secure Communities, a new

query was added to the chain, and the FBI would copy the fingerprints to ICE and USCIS to

check against US-VISIT/OBIM and IDENT. This new query and the resulting answer was the

result of Secure Communities. There remains much public confusion over what Secure

Communities was, how and when the program was triggered in an individual case, and with

what effect. These concerns are further addressed in the section regarding challenges for the

Secure Communities program below.

The above-referenced Secure Communities Fact Sheet identified the four initial Strategic

Goals of the program:

Strategic Goal 1 Identify and process all criminal aliens amenable for removal while in federal, state, and local custody;

Strategic Goal 2 Enhance current detention strategies to ensure no removable alien is released into the community due to a lack of detention space or an appropriate alternative to detention;

Strategic Goal 3 Implement removal initiatives that shorten the time aliens remain in ICE custody prior to removal, thereby maximizing the use of detention resources and reducing cost; and

Strategic Goal 4 Maximize cost effectiveness and long term success through deterrence and reduced recidivism.8

The Fact Sheet went on further to explain the risk-based approach of classifying and

prioritizing individuals based on the severity of the crimes for which they were convicted and to

say that The cornerstone of the Secure Communities plan is to increase state and local

partnerships to ensure time-sensitive screening of all foreign-born detainees and identification of

criminal aliens.9 The rest of the March 2008 fact sheet provides an overview of the Criminal

Alien Program, key enhancements in the Secure Communities plan, and historical context of

earlier programs run by the Immigration and Naturalization Service (INS), such as the 8 Id., 1-2. 9 Id., 2.

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Institutional Removal Program (IRP), Alien Criminal Apprehension Program (ACAP), and

287(g) agreements.

Upon its inception in 2008, the Secure Communities program operated in just 14

jurisdictions.10 The program initially operated on an opt-in basis, where states could elect to

participate by signing a Memorandum of Agreement (MOA) with ICE, and local jurisdictions

could then opt in or opt out through their SIBs to allow interoperability of local databases with

USCIS and ICE databases via the local jurisdictions respective SIB and the FBI. In response to

growing scandalsdescribed in more detail belowsome participating jurisdictions started

efforts to opt out of Secure Communities in at least 2010.11 Many jurisdictions reported great

difficulty in ending their participation in Secure Communities, but ICE explained in August 2010

that participation was voluntary:

If a jurisdiction does not wish to activate on its scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing (email, letter or facsimile). Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdictions activation date in or removing the jurisdiction from the deployment plan.12

One year later, in August 2011, DHS unilaterally terminated all previously signed Secure

Communities MOAs, explaining that IDENT/IAFIS Interoperability is primarily an information-

sharing program between two federal agencies, and that the MOAs were not required in order for

the program to keep functioning.13 An October 2010 memo made public in 2012 through a

FOIA request revealed ICE plans to dismiss opt-out requests, mandate participation, and expand

10 Secure Communities, U.S. Immigration a