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 and Customs Enforcement, http://www.ice.gov/secure-communities (last visited Apr. 21, 2015). 11 M. Alex Johnson, Cities, Counties Cant Stop Federal Immigration Checks, NBC News (Oct. 15, 2010), http://www.nbcnews.com/id/39576754/ns/us_news-security/#.VTYDQiFVjBE. 12 Secure Communities: Setting the Record Straight, U.S. Immigration and Customs Enforcement (Aug. 17, 2010). 13 Task Force on Secure Communities Findings and Recommendations, Homeland Security Advisory Council (Sept. 2011) 13. (Task Force Report)

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the program to all jurisdictions by 2013.14 Full implementation was completed on January 22,

2013: Secure Communities expanded to all 3,181 jurisdictions within 50 states, the District of

Columbia, and five U.S. Territories.15

The debate surrounding whether Secure Communities was a voluntary or mandatory

program, and on what legal authority DHS could mandate the program, was the subject of

protracted disagreement. This dispute added to the negative publicity for Secure Communities

when jurisdictions approached major news outlets to explain that their opt-out attempts were

unsuccessful.16 The Homeland Security Advisory Council (HSAC) formed a Task Force on

Secure Communities (Task Force) in June 2011 to address this voluntary-mandatory dispute,

among other challenges for the Secure Communities program such as the role of local law

enforcement agencies, inconsistencies between the programs stated goals and outcomes, and

more.17 In addition to the programmatic challenges assessed by the Task Force, Secure

Communities also raised a series of legal questions regarding the relationship between states and

the federal government, the constitutionality of detainers, and implications for the due process

rights of anyone processed through a police booking procedure, among others.18 The sum of

these problems plagued Secure Communities until DHS announced its discontinuation in favor

of the new Priority Enforcement Program, which was designed to keep the benefits of Secure

Communities while addressing these various problems systemically.

Challenges for the Secure Communities Program

14 Draft memorandum from Riah Ramlogan, Deputy Principal Legal Advisor, Office of the Principal Legal Advisor, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, to Beth N. Gibson, Assistant Deputy Director, Subject: Secure Communities Mandatory in 2013 (Oct. 2, 2013), ICE FOIA 10-2674.0010796. 15 Secure Communities, U.S. Immigration and Customs Enforcement, http://www.ice.gov/secure-communities (last visited Apr. 21, 2015). 16 See notes 11, 13, supra. 17 See Task Force on Secure Communities Findings and Recommendations, note 13, supra. 18 See Mayorov v. United States, No. 13 C 5249, 2015 WL 1345930 (N.D. Ill. Mar. 23, 2015); Makowski v. United States, No. 12 C 5265, 2014 WL 1089119 (N.D. Ill. Mar. 18, 2014); Moreno v. Napolitano, No. 11 C 5452, 2012 WL 5995820 (N.D. Ill. Nov. 30, 2012).

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The Task Force made findings and recommendations in four interrelated primary areas of

concern, and addressed whether DHS should suspend the program. The first area of concern

addressed by the Task Force is described as Misunderstandings Regarding the Secure

Communities Program and the Role of Local Law Enforcement Agencies.19 The Task Forces

findings highlighted confusion about Secure Communities. Noting that Secure Communities

amounts only to IDENT/IAFIS Interoperability, the Task Force explained that the general

perception of Secure Communities deals more with the enforcement activities before and after

the information sharing which defines the process.20, 21 As a matter of practicality, local police

have to send fingerprints to the FBI in order to check for critical information such as arrest

warrants from other jurisdictions. The Task Force explained that this pass-through function

made some local law enforcement agencies uncomfortable, and lead to some community

perceptions that these local police are the equivalent of immigration agents.

Also under this first area of concern, the Task Force observed that Secure Communities

was presented to the States as a program that would target the worst of the worst convicted

criminal offenders, but that many state and local officials felt that ICE was not staying true to the

official priorities for which they had signed up. Similarly, the Task Force noted that DHS/ ICE

had been presenting inaccurate or incomplete information to states and localities, and had been

responsible for a poorly managed rollout of the program.22 This botched rollout was

particularly true of information provided by ICE regarding whether the program is mandatory

19 Task Force Report, 10. 20 Id., 11. 21 In a sense, public perception of Secure Communities is misplaced, and the Secure Communities protests and campaigns would have been better directed at the Criminal Alien Program that Secure Communities built upon and the broader array of immigration policies and enforcement programs. See Mark Noferi, New Study Shows Deportations Dont Reduce Crime, Immigration Impact (September 9, 2014), http://immigrationimpact.com/2014/09/09/new-study-shows-deportations-dont-reduce-crime/ (Secure Communities piggybacked on prior DHS initiatives to use local police as force multipliers including the Criminal Alien Program, which establishes voluntary screening partnerships with local jails). 22 Task Force Report, 12.

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or optional, the programs goals and procedures, and the implementation of the program at the

local level.23

According to the Task Force findings, the Memoranda of Agreement between ICE and

SIBs only added to the confusion. As explained above, Secure Communities originally operated

by MOA, but ICE later determined that the program would be mandatory for all jurisdictions and

unilaterally terminated all MOAs. Language in the MOAs suggested that agencies could opt out

of Secure Communities, which ICE eventually announced would not be possible.

The final point under this category in the Task Force Report is that Secure Communities

is just one of several DHS enforcement programs that may be operating in a jurisdiction, and

that any of these programs may involve the participation of local law enforcement agencies.24

The pre-existing Criminal Alien Program, which Secure Communities built upon significantly,

operates in many jurisdictions alongside Customs and Border Patrol (CBP) enforcement and

287(g).25 The growing participation of local law enforcement in federal immigration programs,

tied in with the lack of accurate and consistent public information about Secure Communities,

contributed greatly to public and even state/local official confusion about the program. The Task

Force emphasized:

In many jurisdictions, the Task Forces hearings revealed, any immigration enforcement action that is seen as disproportionate or unwarranted, such as steps to remove a young traffic law violator who has lived in this country since infancy, is likely to be attributed to Secure Communities. From the standpoint of immigrant communities, the general public, local law enforcement executives and other local officials, it does not matter which particular DHS program may have resulted in the deportation of a person who is apparently innocent of any criminal violations or is a minor offender.26

23 Id. 24 Id., 14. 25 The 287(g) program was created by IIRIRA and codified at INA 287(g). This program allows state and local law enforcement agencies to enter MOAs with ICE and receive delegated authority to enforce federal immigration laws. 26 Task Force Report, 14.

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These problems only increase the tensions in some communities between minorities and the

police, and many advocates and law enforcement officials told the Task Force that this tension

was harming community policing and putting the public at risk: victims and witnesses might be

afraid to report crimes to the police for fear of immigration trouble.

The second overarching area of concern flagged by the Task Force was Perceived

Inconsistencies Between Secure Communities Stated Goals and Outcomes.27 The Task Force

explained that, though ICE promoted Secure Communities as a program to remove the worst

criminal offenders, reality had shown that many minor offenders and even non-criminals had

been removed through the Secure Communities program. Despite the enforcement priorities

written into Secure Communities documents and MOAs, a March 2, 2011, memo from then-ICE

Director John Morton restructured the programs enforcement priorities to focus on:

Priority 1. Aliens who pose a danger to national security or a risk to public safety . . . . Priority 2. Recent illegal entrants . . . . Priority 3. Aliens who are fugitives or who have otherwise flouted immigration controls28

These enforcement priorities reignited heated debate over the use of prosecutorial discretion in

immigration enforcement, with the Task Force ultimately affirming and recommending

continued use of prosecutorial discretion.29 In addition to the disparities between the stated [and

27 Id., 16. 28 Id., 17-18. 29 Sometimes also called enforcement discretion in the immigration context, any discussion of Secure Communities and Priority Enforcement requires a thorough understanding of prosecutorial discretion. The Task Force discussion of prosecutorial discretion primarily appears in a November 17, 2011, letter from members of the Task Force to members of the Senate Judiciary Committee. Additional recommended resources on the issue, many of which directly relate to Secure Communities and were even cited by the Task Force, include: Wayte v. United States, 470 U.S. 598 (1985); Heckler v. Chaney, 470 U.S. 821 (1985); Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Patrol, et. al., Subject: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012); Memorandum from John Morton, Director of Homeland Security, to USCIS Directors, et. al., Subject:

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changing] goals and outcomes, the Task Force reported that the program also suffered a systemic

flaw in implementation due to the fact that state and local law enforcement agencies may have

differing procedures for submitting fingerprints to the FBI, and some departments may not

submit prints at all for minor offenses that result in citations or summonses.30

This point of differing local procedures also related strongly to the Task Forces third

area of concernSecure Communities actions resulting from minor traffic offenses and

misdemeanorswhich the Task Force described as posing the greatest risk of undermining

community relations for local law enforcement. Continuing along these lines, the Task Force

addressed Unintended Consequences of Secure Communities on Community Policing and

Community Impact as its fourth area of concern.31 The Task Force found that Secure

Communities had unintended local impacts, and noted that recent ICE efforts to ensure

protections for crime victims and witnesses were still not well known in immigrant communities.

Furthermore, the Task Force found that transmission of information to local law enforcement

must be done timely, but that it need not contain all types of information about an individuals

immigration status.32 Finally, the Task Force Report indicated that existing complaint

procedures were inadequate and not well publicized, and that [i]ndividuals in jurisdictions with

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum from John Morton, Director of Homeland Security, to USCIS Directors, et. al., Subject: Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011); Memorandum from John Morton, Director of Homeland Security, to All ICE Employees, Subject: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011); Memorandum from Bo Cooper, INS General Counsel, to The Commissioner of INS, Subject: INS Exercise of Prosecutorial Discretion (July 11, 2000); Kate M. Manuel and Todd Garvey, Cong. Research Serv., R42924, Prosecutorial Discretion in Immigration Enforcement: Legal Issues (2013); Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243 (2010). These same issues are partially under review in the United States Court of Appeals for the 5th Circuit in the Texas v. United States challenge to President Obamas DAPA deferred action plan and expansion of DACA. 30 Task Force Report, 18. 31 Id., 24. 32 Id., 25.

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Secure Communities who feel they have been inappropriately profiled or subjected to other civil

rights violations or abuse need to be able to report these complaints to the proper authorities.33

In addition to the challenges identified by the Task Force Report, Secure Communities

also lead to litigation raising constitutional challenges in the United States District Court for the

Northern District of Illinois, Eastern Division.34 In response to Defendants motion to dismiss in

Moreno v. Napolitano, the Court issued a memorandum opinion and order on November 30,

2012, denying the motion and allowing the case to continue. The Plaintiffs had brought the

lawsuit for declaratory and injunctive relief after being subject to an ICE detainer, claiming

that ICEs assertion of authority to instruct federal, state, and local law enforcement agencies to continue the detention of individuals in the LEAs jails so that ICE can investigate their immigration status is a violation of ICEs statutory authority under the Administrative Procedure act, 5 U.S.C. 706(2)(A)-(D), and the Immigration and Naturalization Act, 8 U.S.C. 1226(a), 1357(a)(2), and 1357(d), as well as a violation of Plaintiffs constitutional rights under the Fourth, Fifth, and Tenth Amendments.35

The order also addressed and affirmed Plaintiffs motion for class certification, explaining that

the class certification was possible and would permit the claim to proceed despite the individual

Plaintiffs detainers having been cancelled.

The memorandum order and opinion dated March 18, 2014, for Makowski v. United

States also dealt with a motion to dismiss filed by the Government/Defendants. In this case,

Plaintiff James Aziz Makowski was a naturalized citizen and former Marine in possession of a

certificate of citizenship, U.S. passport, and Social Security card. He was arrested on drug

charges and plead guilty under the impression that his seven year sentence would be waived by

participating in a special 120-day boot camp program. During processing at a state prison for

33 Id. 34 See Mayorov v. United States, No. 13 C 5249, 2015 WL 1345930 (N.D. Ill. Mar. 23, 2015); Makowski v. United States, No. 12 C 5265, 2014 WL 1089119 (N.D. Ill. Mar. 18, 2014); Moreno v. Napolitano, No. 11 C 5452, 2012 WL 5995820 (N.D. Ill. Nov. 30, 2012). 35 Moreno v. Napolitano, 1.

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admission to the boot camp, Makowski met with an ICE officer for Secure Communities

processing, providing the officer with copies of his U.S. passport and Social Security card.

Despite providing this evidence of citizenship, ICE issued a detainer for Makwoski, which

rendered him ineligible for the boot camp. A month and a half later, with the help of an attorney,

Makowskis father had the detainer cancelled, and Makowski was transferred to the boot camp,

where he completed the program and was released after completing the 120-day program. The

Court found that IDENT/IAFIS Interoperability was not prohibited under the Privacy Act36, but

did not dismiss Makowskis claims of false imprisonment and actual damages caused by the

federal agencies failure to maintain accurate and timely records of his citizenship.37

On March 23, 2015, a United States District Judge for the same Court entered a

memorandum opinion and order in the case of Mayorov v. United States, granting in part and

denying in part the governments motion for summary judgment, and denying the Plaintiffs

motion for summary judgment. Prior to this case, Plaintiff Sergey Mayorov had filed as a

defendant intervener in the aforementioned Moreno v. Napolitano case and also filed an

administrative tort claim with ICE. He filed the action resulting in this opinion in District Court

in 2013, raising claims of negligence and false imprisonment and seeking damages for loss of

liberty, pain and suffering, and lost wages.38 Similar to Makowski, Mayorov was a naturalized

citizen who pleaded guilty charges resulting in a four year prison sentence; the sentencing judge

36 In pertinent part, 5 U.S.C. 552a(b) provides that [n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. The Court found that the FBIs transmission of Makowskis fingerprints and criminal records to IDENT and the ICE Law Enforcement Support Center (LESC) were exempted from this Privacy Act restriction because the interoperability was separately mandated and made routine use under the Enhanced Border Security and Visa Entry Reform Act of 2002, 8 U.S.C. 1722(a)(2), and the FBIs Blanket Routine Use 6, 66 Fed. Reg. 33,559 (June 22, 2001). 37 See generally Makowski v. United States. 38 Makowski v. United States, 5-6.

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recommended participation in the same 120-day boot camp program in lieu of the prison

sentence.

During processing at the same corrections center that Makowski had been through,

Mayorov interviewed with two ICE officers, and the officers indicated in notes that Mayorov

was the child of a U.S. citizen, and understood that he had received citizenship pursuant to the

Child Citizenship Act. Mayorov was cleared to participate in the boot camp program. However,

when Mayorov was nearly halfway done with the boot camp program, ICE issued a detainer for

Mayorov due to incomplete immigration records that required further investigation. Rather than

completing the investigation prior to issuing the detainer, ICE notified the Illinois authorities of

the pending investigation and suggested that Mayorov could continue in his program at the

discretion of the State. Under State rules, the detainer disqualified Mayorov from participating

in the boot camp, so he was removed and transferred to prison, where he stayed for over ten

months. When he filed to intervene in Moreno v. Napolitano, ICE agents looked further into his

status and verified his citizenship, canceling the detainer and allowing Mayorov to be reinstated

to the boot camp program. The civil action and judges order in Mayorovs case raised

significant questions about the accuracy and efficiency of ICEs investigations under Secure

Communities, and more importantly, the constitutionality of issuing detainers prior to

completing investigations.39 Similar cases in other jurisdictions variously held that ICE

detainers did not establish probable cause, and that local jurisdictions had violated the Fourth

Amendment by complying with the detainers.40

39 See generally Mayorov v. United States. 40 See, e.g., Miranda-Olivares v. Clackamas County, 2014 WL 1414305, at *11 (D. Ore. Apr. 11, 2014) (holding that county violated the Fourth Amendment by relying on an ICE detainer that did not provide probable cause regarding removability); Morales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I. 2014) (concluding that detention pursuant to an immigration detainer for purposes of mere investigation is not permitted); Gonzalez v. ICE, Case No. 2:13-cv-0441-BRO-FFM, at 12-13 (C.D. Cal. July 28, 2014) (granting governments motion to dismiss, but allowing plaintiffs to file an amended complaint after noting that plaintiffs had sufficiently pleaded that Defendants

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Reforming Secure Communities

While earlier DHS/ICE policy changes had resulted in piecemeal reforms to Secure

Communities before the Task Force Report,41 ICE responded to the Task Force with more

directed reforms than before, issuing a report on April 27, 2012 to highlight steps taken and

planned.42 The ICE Response starts with a letter from John Morton, thanking the Task Force,

highlighting the successes of Secure Communities, acknowledging the confusion around Secure

Communities, and generally offering optimism about the reforms. The ICE Response then

addresses each recommendation offered by the Task Force Report, to wit: recommendation one

stated that ICE must clarify and publicize goals and objectives, as well as parameters and

logistics, of Secure Communities, and must strive for good working relationships with state and

local governments and with communities. Agreeing with this recommendation, ICE noted recent

updates to the agencys website to relay information about Secure Communities43 and described

its efforts to expand outreach and public relations. ICE also reiterated its determination that the

program would continue to seek full implementation and would operate without need for state or

local MOAs.

exceed their authorized power by issuing immigration detainers without probable cause resulting in unlawful detention); Villars v. Kubiatowski, 45 F.Supp.3d 791 at 807, No. 12 CV 4586, 2014 WL 1795631 at *11 (N.D. Ill. May 5, 2014) reconsideration denied in part, No. 12 CV 4586, 2014 WL 3511483 (N.D. Ill. July 16, 2014) (rejecting dismissal of Fourth Amendment claims concerning an ICE detainer issued without probable cause that Villars committed a violation of immigration laws); Galarza v. Szalczyk, Civ. Action No. 10-cv-06815, 2012 WL 1080020, at *14 (E.D. Penn. Mar. 30, 2012) (denying qualified immunity to immigration officials for unlawful detention on an immigration detainer issued without probable cause), revd and remanded on other grounds, 745 F.3d 634 (reversing district courts finding of no municipal liability); Uroza v. Salt Lake City, No. 2:11CV713DAK, 2013 WL 643968, at *6-7 (D. Utah Feb. 21, 2013) (denying dismissal on qualified immunity grounds where plaintiff claimed to have been held on an immigration detainer issued without probable cause). These cases are referenced in note 1 of the Memorandum from Jeh Charles Johnson to Thomas S. Winkowski regarding Secure Communities, dated Nov. 20, 2014, infra at note 48. 41 See, e.g., note 29, supra. 42 Protecting the Homeland: ICE Response to the Task Force on Secure Communities Findings and Recommendations, ICE Office of the Director (Apr. 27, 2012). (ICE Response) 43 And now (April 2015), despite the cessation of Secure Communities over five months ago, the ICE website still shows the same information about Secure Communities without a hint of the programs demise.

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The second recommendation was to improve program transparency, with which the ICE

Response noted agreement and highlighted again the new Secure Communities webpage and

inclusion of Secure Communities statistics in the ICE Freedom of Information Act (FOIA)

library. The ICE Response followed in this pattern for nearly all of the twenty-two

recommendations made by the Task Force in their Report. Perhaps the most significant reforms

noted by the ICE Response were the inclusion of additional information and resources

including complaint procedureson the ICE website, along with the 2012 policy memorandum

regarding prosecutorial discretion for victims and witnesses.44 The ICE Response only indicated

disagreement with two-and-a-half recommendations made by the Task Force: improving data

collection and transparency, tailoring information provided to local police, and establishingas

a pilot initiative in a selected jurisdictionan independent, multidisciplinary panel to review

specific cases.45 With respect to the data collection and transparency recommendation, ICE

stated that it had already taken steps to improve data collection; however, the agency disagreed

with the Task Force discussion of enabling states to monitor enforcement outcomes from the

Secure Communities program because [i]mplementing a panel of state officials to monitor

Secure Communities in every state and territory would interfere with the federal governments

prerogative to set immigration enforcement policy and would be unduly burdensome on ICE.46

As for the recommendation to tailor information provided to local police, ICE took the

position that this would be an inappropriate use of ICE resources, and that the local agencies

could opt out of receiving any information from the DHS databases if states wanted to ensure

that local agencies did not base enforcement decisions on immigration status, for example.

Because ICE had recently implemented and expanded its complaint system and quarterly

44 See note 29, supra, for citation to this policy memorandum. 45 ICE Response 13, 16-17. 46 Id., 13.

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statistical review, the ICE Response addressed the recommendation for an independent review

panel by stating that ICE believes a panel is not necessary at this time.47

ICE continued developing new policies and procedures around Secure Communities and

expanded the program to full implementationwith all 3,181 jurisdictions activated in the 50

states, D.C., and five U.S. territoriesby January 22, 2013. After completing the rollout of

Secure Communities, Secretary of Homeland Security Jeh Charles Johnson announced the

discontinuation of the Secure Communities program as we know it 48 and introduced the new

Priority Enforcement Program partially in response to the 2011 Task Force Report and more

directly in response to the spate of litigation surrounding Secure Communities.49

Designing and Launching the Priority Enforcement Program

As President Obama announced immigration reforms by executive order, DHS

announced the discontinuation of Secure Communities and the introduction of the Priority

Enforcement Program by internal memorandum on November 20, 2014.50 A second DHS

memorandum on the same day issued department-wide guidance for ICE, CBP, and USCIS on

new policies for the apprehension, detention, and removal of immigrants.51 Together, these

memoranda formed the foundation of the Priority Enforcement Program, leaving critics of the

Secure Communities program with new questions and the same bitter taste.52

The first page of the Memorandum on Secure Communities is particularly revealing, and

is best presented in full form, rather than summary:

47 Id., 17. 48 Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting Director of ICE, et. al., Subject: Secure Communities (Nov. 20, 2014). (Memorandum on Secure Communities) 49 See note 40, supra. 50 See Memorandum on Secure Communities, note 48, supra. 51 Memorandum from Jeh Charles Johnson, Secretary of Homeland Security to Thomas S. Winkowski, Acting Director of ICE, et. al., Subject: Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants (Nov. 20, 2014). (Memorandum on Policies) 52 See notes 62, 64, 65, 66, infra.

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The Secure Communities program, as we know it, will be discontinued. The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. But the reality is the program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws. Governors, mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have issued executive orders or signed laws prohibiting such cooperation. A number of federal courts have rejected the authority of state and local law enforcement agencies to detain immigrants pursuant to federal detainers issued under the current Secure Communities program. The overarching goal of Secure Communities remains in my view a valid and important law enforcement objective, but a fresh start and a new program are necessary. As recommended by the Homeland Security Advisory council Task Force, Secure Communities must be implemented in a way that supports community policing and sustains the trust of all elements of the community in working with local law enforcement.53

The memo then went on to order ICE to discontinue Secure Communities and to put in its place

a program that will continue to rely on fingerprint-based biometric data submitted during

bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for

criminal background checks.54 After explaining that this new program would follow the new

enforcement priorities disclosed in the same-day Memorandum on Policies, the Memorandum on

Secure Communities addressed the Fourth Amendment concerns by directing ICE to replace

requests for detention (i.e., requests that an agency hold an individual beyond the point at which

they would otherwise be released) with requests for notification (i.e., requests that state or local

law enforcement notify ICE of a pending release during the time that the person is otherwise in

custody under state or local authority).55 The memo further explains that detainers would be

permitted, notwithstanding the above policy, if ICE specif[ies] that the person is subject to a

final order of removal or there is other sufficient probable cause to find that the person is a

53 Memorandum on Secure Communities, 1. 54 Id., 2. 55 Id.

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removable alien.56 This explanation of the value of Secure Communities, reference to new

enforcement priorities, and change from detainers to notifications formed the foundation of the

Priority Enforcement Program.

The Memorandum on Policies rescinded and superseded five prior memoranda, with

sparse partial exceptions, and emphasized that [w]hile DHS may exercise prosecutorial

discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such

discretion as early in the case or proceeding as possible in order to preserve government

resources. . . Thus, DHS personnel are expected to exercise discretion and pursue these priorities

at all stages of the enforcement process-from the earliest investigative stage to enforcing final

orders of removal. . .57 The Memorandum detailed enforcement priorities under a similar

priority level structure as had prior memos:58 Priority 1 (threats to national security, border

security, and public safety); Priority 2 (misdemeanants and new immigration violators; and

Priority 3 (other immigration violations).59 The priorities also included room for discretion

within each level, which was then further explained in Section D of the Memorandum on

Policies, Exercising Prosecutorial Discretion.60 Additionally, the Memo instructed DHS

agencies to use detention resources according to the given enforcement priorities, except in the

case of aliens subject to mandatory detention, and discouraged the use of detention specifically

for aliens who are known to be suffering from serious physical or mental illness, who are

disabled, elderly, pregnant or nursing, who demonstrate that they are primary caretakers of

children or an infirm person, or whose detention is otherwise not in the public interest.61

56 Id. 57 Memorandum of Policies, 2. 58 See, e.g., priorities listed in the Task Force Report, 17-18. 59 Memorandum of Policies, 3-4. 60 Id., 5. 61 Id.

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Coverage of and reactions to the transition from Secure Communities to the Priority

Enforcement Program have varied significantly in the media and among advocates from any

side. Given the significant concerns of Secure Communities regarding the programs initial

rollout, publicity, clarity, and transparency, media coverage of the new Priority Enforcement

Program offers meaningful insight into some of the same challenges faced by PEPs predecessor.

For example, Frontline PBS reported a day after the memoranda and introduction of President

Obamas executive action immigration reforms that Obamas Immigration Plan Includes End to

Secure Communities.62 This early coverage addressed the criticisms of Secure Communities

and noted the most significant reforms that would occur with the transition to Priority

Enforcement Programsuch as the departure from reliance on immigration detainers. Perhaps

more revealingly from a clarity and transparency perspective, the coverage indicated that

immigration advocates said its still unclear how PEP will work in practice. . . and that

advocates questioned if the change from Secure Communities to PEP was anything more than a

new name for the same old program.63

NBC News also covered the end of Secure Communities on November 21, 2014, in an

article entitled Obama Ends Secure Communities Program That Helped Hike Deportations.

The NBC coverage also highlighted recent controversy and attempted opt-outs of Secure

Communities, but included quotes from an advocate of limited immigration who contended

that it is bad policing to go without the program because ICE repeatedly has passed on

immigrants illegally in the country who went on to commit serious offenses. 64 By December,

62 Sarah Childress, Obamas Immigration Plan Includes End to Secure Communities, Frontline PBS (Nov. 21, 2014), http://www.pbs.org/wgbh/pages/frontline/immigration-2/obamas-immigration-plan-includes-end-to-secure-communities/. 63 Id. 64 Suzanne Gamboa, Obama Ends Secure Communities Program that Helped Hike Deportations, NBC News (Nov. 21, 2014), http://www.nbcnews.com/storyline/immigration-reform/obama-ends-secure-communities-program-helped-hike-deportations-n253541.

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groups such as the American Immigration Council (AIC) and the American Civil Liberties

Union (ACLU) began publicly questioning the efficacy of the end of Secure Communities and

start of PEP. The ACLU published a fact sheet along with questions and recommendations for

DHS regarding PEP on December 17, 2014, noting that the changes do not fully resolve the

constitutional problems seen with Secure Communities and highlighting the risk of PEP

becoming more of the same under a different name.65 Similarly, the AIC published an article

entitled Do the Presidents New Immigration Policies Really Mark the End of Secure

Communities? on December 30, 2014. The AIC article explained that, [i]f the program

functions as promised, the issuance of detainers should significantly decrease, but that [i]n

significant ways, this new program will not function any differently than Secure

Communities.66

The Immigration Legal Resource Center and National Immigration Project of the

National Lawyers Guild issued a document entitled Advisory on Immigration Enforcement:

Summary of New Priorities and Program Changes Announced by President Obama on

November 24, 2014. This document summarized the November 2014 reforms, including new

enforcement priorities and a new plan for southern border enforcement. It also notes the shift in

detention policy, immigration detainers, and Secure Communities, saying [a]lthough the

administration says they have ended Secure Communities, it has actually just been renamed.67

65 DHS Secretary Johnson Discontinues Secure Communities As We Know It: Clarification Is Critical to Achieve Meaningful Change and Not More of the Same Under a Different Name, American Civil Liberties Union (Dec. 17, 2014), https://www.aclu.org/sites/default/files/field_document/2014_12_18_-_aclu_summary_of_dhs_scomm_and_detainer_reforms_final.pdf. (ACLU Report) 66 Emily Creighton, Do the Presidents New Immigration Policies Really Mark the End of Secure Communities?, American Immigration Council Immigration Impact (Dec. 30, 2014), http://immigrationimpact.com/2014/12/30/do-the-presidents-new-immigration-policies-really-mark-the-end-of-secure-communities/. 67 Advisory on Immigration Enforcement: Summary of New Priorities and Program Changes Announced by President Obama, Immigrant Legal Resource Center and National Immigration Project of the National Lawyers Guild (Nov. 24, 2014), http://www.ilrc.org/files/documents/ilrc_enforcement_2_pager-final.pdf.

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Despite five months having passed since DHS announced PEP in November 2014, little if

any information is yet available on the effectiveness and outcomes of the Secure Communities

PEP reforms. The on-the-ground structure of PEP, as disclosed by the memoranda continues to

rely on the infrastructure established under Secure Communities, and has almost identical

logistical operations. IDENT/IAFIS Interoperability is unchanged. Priorities for enforcement

are somewhat more targeted, and detainers areat least according to policynearly abandoned.

The use of detention overall is relatively discouraged under the new PEP policies, and more

emphasis is placed on community relations. In practice, these changes have yet to be seen.

Unresolved Questions with the Priority Enforcement Program

Having just launched in November 2014, the Priority Enforcement Program will likely

require extensive data collection for months to determine whether any of the reforms have been

effective in keeping the enforcement strengths of Secure Communities while minimizing

constitutional violations and misdirected resource allocation. Immediately following the

introduction of PEP, the ACLU raised several questions about the program such as the extent to

which ICE will observe the priorities and, as the ACLU recommends, issue notification requests

only for people who fall within the elevated subset of priorities enumerated in the memowhich

generally means people who have been convicted of a qualifying criminal offense.68

The ACLU also questioned the use of the terms special circumstances in the context of

when ICE would issue immigration detainers, rather than notifications, under the PEP.

Furthermore, in the event that ICE does issue detainers, the ACLU contends that such detainers

would still violate the Fourth Amendment, even with probable cause of an immigration violation,

because the Fourth Amendment requires probable cause to believe a crime has been committed,

and removability is a civil matter[;] LEAs generally lack the authority to detain people on that 68 ACLU Report, 5.

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basis.69 Similarly, the ACLU Report raised issue with a concluding clause from the

Memorandum on Secure CommunitiesNothing in this memorandum shall prevent ICE from

seeking the transfer of an alien from a state or local law enforcement agency when ICE has

otherwise determined that the alien is a priority under the [Memorandum on Policies] and the

state or locality agrees to cooperate with such transfer70suggesting that this statement could

be interpreted too broadly and create an unconstrained exception that swallows the rule.71

In addition to the initial questions raised in the ACLU Report, existing information on

PEP remains sparse, and countless questions remain regarding the statistical data of operations

since inception, the effect of PEP on deferred action grantees, the long-term removal projections

and permanence of the current priorities,72 and so forth. For example, the Advisory on

Immigration Enforcement document73 notes that eligibility for Deferred Action for Parents

(DAPA) depends on NOT being listed in any one of these enforcement priority categories above.

Eligibility for Deferred Action for Childhood Arrivals (DACA) does not depend upon these

enforcement priority categories, but upon the original DACA criteria.74 Since PEP relies on

local and state agencies to submit fingerprints, some question what will ensure cross-

jurisdictional uniformity so that, for example, one state does not opt to stop submitting

69 Id., 5. 70 Memorandum on Secure Communities, 3. 71 ACLU Report, 5. 72 If border security works to slow or stop unlawful entry, and interior enforcement is able to adequately address problems of overstayed visas, et cetera, then continued high levels of removal would logically reduce the undocumented immigrant population to an eventual bottom-line. If these programs are effective, the number of high priority criminal aliens would eventually dissipate, raising the question of how these priorities may change and evolve going forward. Even assuming efforts to control unlawful immigration keep levels stagnant, DHS/ICE/INS enforcement priorities and guidance on prosecutorial discretion have historically changed frequently enough to raise serious concerns over the long-term implications for the Priority Enforcement Program. If it is effective in removing the worst of the worst as Secure Communities was originally sold, will PEP then elevate the priority of lesser offenders or non-criminals? If PEP does have an eventual shift in enforcement priorities, what effect will this have on community relations and local law enforcement that PEP was originally designed in part to correct? On a similar note, is PEP prepared for data collection and transparency? The list of questions is expansive, and given the track-record of DHS/ICE on these issues, there may be no clear answers for some time to come. 73 See note 67, supra. 74 Id., 2.

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fingerprints to the FBI for all misdemeanors and traffic citations, while another state begins

submitting fingerprints after even a non-criminal civil citationsuch as some jurisdictions issue

for housing code violations. Jurisdictional differences in sending fingerprints to the FBI for

lesser offenses, in this sense, jeopardize the due process rights of anyone processed at a state or

local police station. More than that, jurisdictional differences in criminal laws present a major

obstacle for equitable implementation of PEP. How, for example, will the FBI and ICE address

situations where fingerprints are submitted pursuant to booking and processing for truancy, a

class C misdemeanor in Texas?75 How will PEP work with juvenileswhether processed

through an adult criminal justice system or through a juvenile justice system?

Pros and Cons of Biometric Database Interoperability

While certain benefits, harms, and risks of IDENT/IAFIS Interoperability have already

been addressed above, these observations form the heart of Secure Communities and the Priority

Enforcement Program, and therefore merit a more focused discussion herein. Before addressing

the pros and cons of interoperability, however, it is first necessary to revisit the central purpose

of these programsand of the agencies and laws under which they operate. Any pros or cons

must be weighed in the context of the agencies and programs purposes.

PEP involves other agencies such as USCIS and CBP, but primarily operates through the

FBI and ICE, under DHS structure. The Department of Homeland Security has a vital mission:

to secure the nation from the many threats we face.76 ICE exists to enforc[e] federal laws

governing border control, customs, trade and immigration to promote homeland security and

75 Kendall Taggart and Alex Campbell, Texas Sends Poor Teens To Adult Jail For Skipping School, BuzzFeed News (Apr. 22, 2015), http://www.buzzfeed.com/kendalltaggart/texas-sends-poor-teens-to-adult-jail-for-skipping-school#.wddygRg2d. Cf. Eva-Marie Ayala, Texas Senate approves measure to decriminalize truancy, The Dallas Morning News (Apr. 15, 2015), http://www.dallasnews.com/news/politics/state-politics/20150415-texas-senate-approves-measure-to-decriminalize-truancy.ece. 76 About DHS, Department of Homeland Security (Feb. 27, 2014), http://www.dhs.gov/about-dhs.

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public safety.77 The FBI similarly states that its mission is to protect and defend the United

States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws

of the United States, and to provide leadership and criminal justice services to federal, state,

municipal, and international agencies and partners.78 Any program operated by these agencies

must follow and support their respective missions and purposes. While PEP has strengthened

some aspects of prosecutorial discretion, such discretion may not exceed the bounds of the

agencies legal authority.

Looking strictly at the federal immigration statutes, little room exists for undocumented

or unlawful aliens to remain in the United States. With a few notable exceptions, current federal

law establishes the removability of the vast majority of immigrants in the United States who are

present without lawful documentation or after having overstayed visas or otherwise come out of

compliance with their permission to enter or remainfor example, under immigration reform

introduced in the 1990s, otherwise lawful immigrants can lose status and become removable for

minor drug offenses. Even the Obama Administrations touted deferred action reforms fail to

provide legal status to recipients: DACA and DAPA are designed to operate as a function of

prosecutorial discretion in deferring immigration action, not cancelling or otherwise preventing

such action. Ultimately, unless immigration laws are reformed and/or some form of amnesty

not deferred actionis promulgated, the existing legal schemata will require the eventual

removal of all aliens not in compliance with civil immigration laws.

Prosecutorial discretion has a long-established place in law enforcement, and is critical to

an agency carrying out its mission with limited resources.79 Given the legal structure and agency

77 Who We Are, U.S. Immigration and Customs Enforcement, http://www.ice.gov/about (last visited Apr. 24, 2015). 78 About Us: Quick Facts, Federal Bureau of Investigation, http://www.fbi.gov/about-us/quick-facts (last visited Apr. 24, 2015). 79 See note 29, supra.

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missions, effective immigration enforcement would eventually result in the removal of all aliens

not otherwise permitted to remain. If, for example, the federal government passed a new

appropriations bill giving ICE and CBP unlimited resources to fulfill their respective duties, the

number of deportations would likely spike dramatically, and the number of remaining removable

aliens would plummet. In the absence of such funding for immigration enforcement,

prosecutorial discretion will remain the name of the game. From this, it follows that the tiered

foci of the Priority Enforcement Program constitute a necessary function of modern law

enforcement by directing broad prosecutorial discretion while seeking to avoid a level of

arbitrary enforcement that might derail the legality of the entire enforcement structure.

A prosecutorial discretion comparison to draw here might be with local police

enforcement of jaywalking. In most jurisdictions, jaywalking is illegal, but tolerated and

unenforced. Law enforcement agenciesand often communities and political leadersfeel that

enforcement of such minor laws would be a waste of resources when more serious crimes exist.

This, of course, begs the question: why not change the laws, at least until more pressing crimes

are adequately controlled and the use of police resources to combat jaywalking would be

acceptable? Still, in the absence of political will for meaningful reform, prosecutorial discretion

seems the only viable avenue for agencies to follow. As with any issue related to immigration or

criminal justice, though, there are vocal opponents to such exertions of prosecutorial discretion.

Some opponents to President Obamas executive orders have labelled prosecutorial

discretion as a failure to faithfully enforce the laws as required by the office of the presidency, or

even argued that the orders exceed traditional prosecutorial discretion and amount to an

unconstitutional provision of amnesty.80 This, despite significantthough often misreported and

80 See, e.g., Andrew C. McCarthy, No, Prosecutorial Discretion Does Not Justify Obamas Lawless Amnesty: Obamas planned action perverts the meaning of the legal doctrine, National Review (Nov. 20, 2014),

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mischaracterizedremoval numbers throughout President Obamas tenure in the Oval Office.81

As noted above, some advocates have called for an expansion of PEP to do away with the

discretion and tiered priorities altogether and remove all removable aliens processed through the

justice system as they come.82 ICE has explained that the prioritization is necessary in order to

best utilize limited funding for detention and removal operations, but from a strictly statutory

perspective it is indisputable that ICE should be removing even the lower-priority individuals

brought to their attention through PEP.

The same advocates who called for the expansion of PEP above also went on to justify

the need for reducing discretion and mandating removal, explaining that ICE has failed to

remove some lower priority immigrants who went on to commit more serious crimes. The

argument, which frequently invokes not-so-subtle undertones of xenophobia, classism, and

racism,83 suggests that crime can be effectively reduced by removing immigrants. However, as

the above discussion of Secure Communities clearly pointed out, the opposite seems to be the

case in many jurisdictions.

By increasing immigration removals, particularly in lower priority cases, many

communities reported increases in crime, which they attributed to victim and witness reluctance

to report crimes to the authorities due to fear of immigration repercussions. Furthermore,

concerns over potential future crimes of immigrants, in the absence of actual factors, should not

be sufficient to prompt any enforcement actions or reclassification in the removal priorities.

While an alien who is removable for unlawful entry would still be removable regardless of

http://www.nationalreview.com/article/393094/no-prosecutorial-discretion-does-not-justify-obamas-lawless-amnesty-andrew-c-mccarthy. 81 Anna O. Law, Lies, damned lies, and Obamas deportation statistics, The Washington Post (Apr. 21, 2014), http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/21/lies-damned-lies-and-obamas-deportation-statistics/. 82 See discussion on page 18 and citation in note 64, supra. 83 For example, review public comments posted in response to the article cited in note 64, supra.

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criminal convictions, the notion that this alien has a potential for future crimes should not be

given any weight in making enforcement discretion decisions.

The PEP program and late reforms in the Secure Communities program have attempted

to mitigate the negative effects of immigration enforcement on community policing by

increasing public information and awareness of the enforcement priorities and of the protections

available for victims and witnesses of crime. While the current design of PEP has effectively

negated the harm of witness reportingmeaning that PEP will not pull witnesses and victims

down the rabbit hole of immigration enforcementsignificant risk remains for harm to

community policing. PEP has worked on public information campaigns to correct this problem,

but some critics say that these reforms come too late: Secure Communities destroyed any chance

of public buy-in.

Since Secure Communities, and presumably throughout the first several months of PEP,

ICE has also worked with the Administration to train state and local law enforcement agencies

on nondiscrimination policies. Again, while these efforts mark progress, the risk of abuse by

local agenciesand local legislatorsremains. The above-cited example of criminalization of

truancy in Texas84 is just one example of how states could criminalize certain behaviors in order

to target certain classes of residents for processing through the justice system. Similar to the

questions raisedand cons to the PEP program notedabove, the ability of individual

jurisdictions to influence national immigration enforcement in such a manner poses a great risk

of creating an arbitrary enforcement structure in violation of due process standards.

Given the widespread concerns over the effect of PEP on community policing, the

potential for harm to the greater community is increasingly apparent. As recent events across the

nation have revealed, community relations with local law enforcement are strained and tense to 84 See page 22 and note 75, supra.

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degrees not before recognized. The Obama Administration has even taken steps to address the

need for sweeping reforms to local policing nationwide, including diversification of police

forces, utilization of body cameras and other measures for transparency, and significant changes

to training and deployment strategies. Any risk of harm to community policing must be taken

particularly seriously given the current climate across the nation.

Still, the fact is unavoidable that any modern law enforcement agency in the United

States or a territory of the United States would be ill-advised to cease utilizing the FBIs IAFIS

biometric database, at least in the absence of any comparable database85 that could be used

without subjection to federal data sharing and interoperability. Sending fingerprints to the FBI is

part and parcel to the task of state and local law enforcement agencies, and federal

interoperability is an inescapable side-effect of the necessary exchange of information between

jurisdictions. Even some information contained in IDENT and OBIM (formerly US-VISIT)

databases may contain pertinent criminal histories not otherwise available in state or IAFIS

records. Such data sharing is an essential function for law enforcement agencies, including DHS

and ICE, and to end interoperability would jeopardize national security and public safety

immeasurably. As such, it is clear that the continuation of interoperability is necessary to all law

enforcement agencies, so the goal of any reforms must acknowledge this inevitability86 and focus

on harm reduction and risk minimization. Although DHS has emphasized that Secure

Communities was nothing more than interoperabilitydownplaying all internal policy guiding

discretion that was attributed to Secure Communitiestrue reform must look past the key

85 For example, the 50 states, D.C., and territories could join together to create a nonprofit agency that retains biometric data from all state and local jurisdictions for interjurisdictional background checks without sharing such data with the FBI and ICE. This would allow state and local law enforcement to determine whether an individual has outstanding local warrants in other jurisdictions without the local agencies participating in an automated federal interoperability program. Clearly, though, the success of such a program would require universal participation and immense development and infrastructure that is not likely to ever happen. 86 Interoperability will continue. Resistance is futile. See memo cited in note 14, supra, for evidence of this point.

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function of interoperability, and past the name of the program housing interoperability, to

address the systemic issues that are guaranteed to continue plaguing PEP and any successor

program unless dramatic reforms occur throughout U.S. immigration law, policy, procedures,

and priorities.

Suggestions for Continued Reform of Interoperability Programs

Accepting the importance of law enforcement database interoperability, historic trends

reveal several areas for potential reform to the Priority Enforcement Program or any successor

interoperability program. Many of these reforms have been suggested or hinted above, but some

merit reiteration, clarification, or reconsideration. Before considering any reforms to

PEP/interoperability, it is important to highlight that the most effective avenue for reform would

revolve around more comprehensive immigration reform, restructuring the enforcement

mechanisms and completely rewriting the laws on admissibility, removability, and everything in

between. Given the political atmosphere, however, a more practical approach to address

PEP/interoperability concerns must focus on incremental reforms with a comprehensive goal in

mind.

By way of incremental reforms, several options are worth consideration. To start, the

nature of the interoperability program could be altered to reduce arbitrariness across

jurisdictions. ICE has stated that adjusting IDENT-based responses to queries on a case-by-case

basis is unrealistic given the agencys resources. However, this step could be built into

interoperabilitys automated data sharing system at an earlier stage, essentially filtering

information so that only certain queries to the FBI are copied to ICE. In practice, this could

mean that the FBI only copies fingerprint queries to ICE after a jurisdiction reports a conviction

or guilty plea, rather than upon the initial booking as sometimes happens. This could also mean

Goodis 29

that, when local jurisdictions submit prints to the FBI, the queries could be filtered by offense-

type (for example, using the NCIC Code) so that only queries resulting from high priority pleas

and convictions proceed with a query through IDENT/IAFIS Interoperability. By structuring

and implementing the interoperability in such a way, minor traffic offenders and others might be

spared scrutiny from ICE. This could prevent local jurisdictions from receiving key data on

individuals, such as inclusion on a DHS terror watch-list, but such a problem should be

motivation for better integrating criminal records and watch-lists across databases, and

maintaining civil immigration records separately.

Additionally, the current PEP system relies heavily on state and local crimes, which may

vary across jurisdictions. In order to ensure that PEP is sticking to its official enforcement

priorities, new policies and procedures could be issued specifying enumerated crimes that would

constitute each tier of enforcement priority. Thus, rather than saying that the first priority is

threats to national security and public safety, fingerprints could be processed and investigations

and enforcement actions started in order of priority according to the actual crimes of the

individual. Such a policy change should also emphasize reliance on convictions and guilty pleas,

rather than just charges. By enumerating the crimes that constitute threats to public safety,

greater consistency would be guaranteed nationwide, without preventing ICE from stipulating to

the exercise of discretion.

The introduction of PEP accompanied the shift away from detainers to requests for

notification, primarily in response to constitutional challenges lodged in several federal courts.

Initial guidance on PEP87 suggested that this shift would adequately resolve constitutional

challenges to enforcement actions taken as a result of the interoperability program. However, as

the ACLU noted, ICE allowed vague and ambiguous exceptions to the new policy, claiming that 87 See memoranda cited in notes 48 and 51, supra.

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detainers could still be issued after identifying probable cause in specific cases without raising

any constitutional concerns. In that respect, ICE appears to have taken a misguided position,

equating criminal probable cause for continued detention in a criminal facility to the probable

cause required for civil immigration matters. In reality, this may be a distinction without a

difference, given ICEs heavy reliance on prisons and prison-like facilities to detain

immigrants.88 Still, the shortcomings of ICEs detention infrastructure should not validate the

continued use of unconstitutional detainers, and ICE should expand its request for notification

program with the goal of eradicating detainers. This point is further underscored by the PEP

guidance to reduce reliance on detention.89

To ensure the best outcome of the notification request system, ICE should include

language on the request for notification forms and should share this information in training

sessions with all participating jurisdictions and correctional facilities, to the effect that the

request for notification is voluntary, that it does not request or authorize any additional detention,

and that it does not serve to indicate the individuals immigration statusunless ICE has fully

completed its investigation prior to issuing the request for notification, and has made a final

determination of removability. As highlighted in some of the federal court cases described

above, ICE should also make a concerted effort to complete investigations into immigration

status and removability prior to issuing any request for notification. If authorities are concerned

about missing the chance to retain custody of an individual by transferring him or her directly

from a state or local corrections department to ICE, then the agency should work to develop a 88 In other words, if ICE issues a request for notification, and then picks up an individual to transfer him or her officially into ICE custody, only to deposit him or her back into the same or a comparable prison, the distinction between criminal and civil constitutional standards of probable cause has no meaningful effect on the end result. ICE has historically relied heavily on prisons and prison-like facilities to detain immigrantssee Robert D. Goodis, Contemporary Immigration Detention Practices: A Study in Sociology and Human Rights (Nov. 2010) (unpublished B.A. thesis, Bard College) (on file with the author and at the Bard College Library, and available at http://digitalcommons.bard.edu/senproj_f2010/4/). 89 See C of the Memorandum on Policies.

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post-release notification system whereby ICE could coordinate with parole and probation

officials to retake custody of a removable immigrant. Frankly, if ICE is unwilling to expend

resources to locate an individual released from state prison, then the priority of removing that

individual must be questionable at best. Transferring custody directly would certainly maximize

efficiency and further the agencys mission, but this only means that ICE should restructure its

investigation system to keep up with the pace of bookings and releases, rather than delaying

release for continued investigation.

When completing investigations, ICE should also clarify its standards of probable cause,

and should ensure that mismatched records are fully investigated before any action is taken. ICE

should establish internal policies and procedures to ensure that records of foreign birth and the

absence of further immigration records in ICEs databases do not constitute probable cause for

detention, but may only justify further investigation without additional detention. The long-term

viability of any programmatic enforcement discretion such as Secure Communities or PEP will

also require continuous improvement to ICEs public relations and public information.

By renaming an existing program from Secure Communities to Priority Enforcement

Program, changing only portions of the program structure, ICE failed to address many of the

problems of the botched rollout of Secure Communities, including misinformation, local

governmental resistance, community opposition, and a history of systemic failure since 2008.

DHS/ICE should consider implementing broad enforcement priorities, prosecutorial discretion

policies, and restructuring of requests for notification and detainers, to work across the board for

all DHS agencies and programs. Rather than designing these key functions around the

IDENT/IAFIS Interoperability system, DHS and its agencies should address discretion,

detention, and detainers for all programs, doing away with the link specifically between

Goodis 32

IDENT/IAFIS Interoperability and these forms of discretion and detention policies. Despite

what DHS officials may think about the effectiveness of rebranding, a much more dramatic

change is needed in order to restore public faith in local law enforcement, to soften criticism of

ICE programs, and to make IDENT/IAFIS Interoperability sustainable.

Conclusion

No single solution exists to fix immigration enforcement today not even to fix the

problems raised by Secure Communities and the Priority Enforcement Program and how the

implementation of these programs corrupted such a fundamentally simple task as IDENT/IAFIS

Interoperability. In the absence of comprehensive immigration reform and thorough

restructuring of enforcement agenciesincluding all agencies in DHS, as well as potentially the

FBI and state and local law enforcementand even nationwide changes to state and local

criminal laws to create more uniformity and parity, incremental reforms to PEP must be designed

to address the systemic failures obviated by Secure Communities. ICE must take the

constitutional challenges to PEP seriously and not seek ways to skirt around the issues or play

semantics. Changing the name of a program will not fool a nation, and claiming to use probable

cause to justify detainers will not work if the probable cause itself is the farcical result of word-

play. IDENT/IAFIS Interoperability should continue at the federal level and when running

checks for local and state agencies. Nevertheless, any program guiding the discretion in events

before and after IDENT/IAFIS Interoperability database queries, as well as any program guiding

the enforcement tactics employed after completing the initial fingerprint query, should be

redesigned from the ground up with the goals of uniformity, constitutionality, agency efficiency,

public perception, and community policing in mind.