ICE Won’t Honor Requests to Opt out of Secure Communities–And It Won’t Say Why

Cities and counties can’t stop U.S. immigration officials from sifting through local police records to root out illegal immigrants, even though Immigration and Customs Enforcement has characterized the program as voluntary since it started up two years ago, federal documents show.

When a local law authority arrests someone, it submits his or her fingerprints to the FBI to confirm identity and check for a previous criminal record. That’s been a standard part of the booking process in every police agency in America for decades.

Under the disputed program, called Secure Communities, the FBI automatically shares those fingerprints with ICE, which checks to see whether the person is in its database for any reason. If not, ICE steps out of the picture. But if so, ICE then looks more closely to determine whether the person is “eligible for deportation”–either by being in the country illegally or by holding a green card that’s been invalidated by a previous conviction.

If that’s the case, ICE can begin proceedings to take the person into federal custody for possible deportation. {snip}

The program has been implemented in phases since it was created late in the administration of President George W. Bush, and ICE now reviews all arrests in more than 650 cities and counties in 33 states. The Obama administration, which has strongly backed the program it inherited in January 2009, said it hopes to implement Secure Communities nationwide by 2013.

Some local elected officials in nearly every state have objected to Secure Communities, news reports show, citing concerns that immigrants will stop cooperating with police as witnesses for fear of running afoul of ICE.

Some immigration activists also allege that it’s being used as a dragnet to round up illegal immigrants indiscriminately. ICE vigorously disputes that, but its own statistics (PDF) reveal that 78 percent of the 56,358 people deported through the program through August, the last date for which full figures were available, hadn’t been convicted of a violent crime. Twenty-six percent had no criminal convictions at all.

Concerns like those have led at least four communities–San Francisco; Washington, D.C.; Arlington County, Va.; and Santa Clara County, Calif.–to formally request to opt out of Secure Communities.

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At the same time, ICE’s internal documents make it clear that the agency has always considered Secure Communities to be a federal-only program in which local officials have no say. Just last week, Homeland Security Secretary Janet Napolitano said she didn’t “view this as an opt-in/opt-out program.”

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ICE officials have repeatedly refused to clarify whether local jurisdictions can prevent ICE from using their police records to identify deportable illegal aliens. Asked to explain conflicting language in ICE documents that appears to characterize Secure Communities as both mandatory and optional, spokesmen for the agency said they couldn’t comment.

That frustrates local officials in jurisdictions that are seeking to opt out of the program.

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Some activists in the debate over illegal immigration accuse the Obama administration of deliberately leaving the issue in doubt until after the 2012 election, out of fear that confirming it’s mandatory could weaken support for Democratic candidates in jurisdictions with large immigrant populations.

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Other local government and police leaders said they, too, have tried to decline to participate in the program but have been rebuffed. They said they were told that ICE is happy to discuss their concerns and that it could consider delaying the date their jurisdiction is “activated.”

But, they said, ICE’s responses never address their actual request: Can we opt out of the program itself?

When an msnbc.com reporter asked numerous ICE officials that question, they wouldn’t answer. And they said they couldn’t discuss why they couldn’t comment.

In a two-paragraph statement this week in response to detailed written questions, Brian P. Hale, ICE’s director of public affairs, wrote that “ICE independently enforces the immigration law as appropriate” and “seeks to work with local law enforcement agencies to address any concerns and determine next appropriate steps.”

He did not say what those steps might include, and ICE said it couldn’t elaborate.

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In California, the Santa Clara County Board of Supervisors voted unanimously late last month to send formal notice asking ICE to stop using fingerprints collected in the county, even if it turns out the request has no official effect.

Board member George Shirakawa acknowledged that the vote was “merely symbolic.” But he said it was still important because it “sends a message.”

“We are not going to create an atmosphere of fear in our communities,” he declared.