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

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This essay was prepared by Robert Goodis to fulfill his Upper Level Writing Requirement at American University, Washington College of Law, in the spring of 2015. The paper appears here in the exact form submitted to WCL faculty for a seminar on advanced issues in immigration enforcement. It is included in the archives of The Goodis Center for Research and Reform, Inc., because of the relevance of the subject-matter to our ongoing research.You can find this essay at work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.Abstract:This essay explores an immigration enforcement strategy known as IDENT/IAFIS Interoperability, comparing the strategy under its original Secure Communities structure, and under the recently-announced Priority Enforcement Program (PEP). In addition to Secure Communities and PEP, this paper discusses related enforcement programs, overall immigration enforcement goals, and the outcomes of recent enforcement efforts. The paper examines Constitutional challenges to the enforcement programs, and explores deeper issues related to the spectrum of state and local criminal laws, community trust in law enforcement, and dangers of the immigration detention system as it currently exists. Ultimately, this essay provides policy recommendations to address the challenges introduced by Secure Communities and the Priority Enforcement Program.

Transcript of Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for...

  • 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

  • Goodis 1

    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), 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