The "Secure Communities" program was supposed to be the centerpiece of the Obama administration's immigration enforcement policy.
The idea was that local law enforcement would hand over the fingerprints of anyone booked into jails to federal immigration authorities. That way, the federal government could identify unauthorized immigrants and choose whether to deport them. And states and counties could distance themselves from the messy politics of immigration.
But the program has been far more controversial than expected. From its inception, the federal government hasn't clearly communicated to states and counties about who's in control of the program, or who it targets. For the past several years, there's been a trickle of states and counties ending, or limiting, their cooperation with the federal government through the program.
This year, that trickle turned into a flood: over 100 localities have now limited or ended their involvement, including some of the biggest cities — with the most immigrants — in the country.
Now, new Department of Homeland Security Jeh Johnson wants a "fresh conversation" about Secure Communities. It won't be the first time the administration has repackaged the program to try to get states and counties back on board. But is it too late for DHS to persuade local law enforcement that it can be trusted?
How Secure Communities is supposed to work
The Secure Communities program was intended to be the Obama administration's way to "modernize" federal immigration enforcement.
Here's how it's supposed to work: First, local jails would send the fingerprints of everyone booked to be checked against a federal database — which includes immigration status — and the information would be sent to agents at Immigrations and Customs Enforcement. Second, ICE agents could send a request for the jail to detain any immigrant for an extra 48 hours so that the federal government could pick him or her up.
Some immigrant-rights advocates and law enforcement professionals were skeptical of the new program. Any effort by local cops to enforce immigration laws, they felt, would be bad for community policing, since immigrant victims or witnesses of crime wouldn't feel comfortable talking to police. Some were skeptical that ICE's intentions were really to protect public safety, rather than simply to deport unauthorized immigrants more easily. But this was a minority view: most law enforcement professionals supported the program.
There's long been a dispute about whether states and counties had to join
The Obama administration negotiated individual agreements with states and counties to bring Secure Communities into their jails. Some agreements said that local cops would send all fingerprints to Immigrations and Customs Enforcement. Other agreements said fingerprints would only get sent if the immigrant was already convicted, or charged with a serious crime.
But the Department of Homeland Security also said it planned to put Secure Communities in every jail in the country by the end of 2011. And that raised a question for some jurisdictions that didn't want to participate in the program: was Secure Communities voluntary, or not?
Some counties in liberal parts of the country with large immigrant populations, like Santa Clara County in California and Cook County in Illinois, agreed with the critics of Secure Communities. They worried that implementing the program would strain their relationships with immigrant residents. If they were given the choice, they'd choose not to participate. But did they have that choice?
They didn't get a straight answer from DHS for several months. One month, in a letter to Rep. Zoe Lofgren (D-CA), Secretary Janet Napolitano laid out a process for states and counties to "opt out." The next month, Secretary Napolitano told the press, "We don't consider Secure Communities an opt-in, opt-out program." The ambiguity continued throughout 2010, and much of 2011.
As the program came closer to becoming universal, the opt-out question became more urgent. In summer 2011, three states — Illinois, New York, and Massachusetts — declared they were opting out of the program. That forced the issue.
In August 2011, ICE declared unilaterally that all the agreements it had signed with state and local governments were no longer valid. Secure Communities was now something the federal government was doing in state and local jails, whether states and counties liked it or not. In other words, it was no longer a partnership between federal and local law enforcement.
This settled the opt-out question once and for all. But it also confirmed the feelings of advocates and law-enforcement officers who had been skeptical of Secure Communities — who now felt that they were right not to trust ICE to begin with.
States and counties started fighting back by refusing to detain immigrants so that ICE could pick them up
It was now clear that states and counties couldn't limit their participation in immigration enforcement by refusing to send fingerprints of jail residents to ICE. But they could still control the second step of the process: whether or not to cooperate with an ICE "detainer" (that is, a request to hold immigrants for pickup).
The federal government was just as cagey about whether or not ICE detainers were mandatory as they had been about whether Secure Communities itself was mandatory. ICE's official statement on the subject of detainers (as sent to Vox in reply to questions about the program) says that "ICE anticipates that law enforcement agencies will comply with detainers."
Immigrant-rights activists, by contrast, maintained that because a detainer request wasn't a warrant, it couldn't legally be mandatory. "The standard on which you can get a detainer for someone," says San Francisco District Attorney George Gascon, "doesn't even meet the standard for an arrest, which is probable cause." For Gascon and other opponents of detainers, this raised serious concerns about due process.
In September 2011 — just a month after ICE had finally said no one could opt out of Secure Communities — Cook County told local jails not to hold an immigrant in response to any ICE detainer request. Some other counties followed suit.
This move didn't please the federal government — in either the executive or legislative branches. Republican members of Congress began to argue that the Obama administration should sue Cook County for failing to enforce federal law. ICE director John Morton wrote a letter to Cook County saying he had "serious concerns" that the county was releasing immigrants who then went on to commit more serious crimes. (Opponents of ICE detainers point out that non-immigrants also commit further crimes after being released from jail.)
But, in the end, the federal government didn't take any action against Cook County, or other counties that limited, or banned, immigration detainers.
How the Obama administration quietly lobbied California to cooperate
In the summer of 2012, both chambers of the California legislature passed a bill called the TRUST Act. The bill was a slightly more moderate version of the policy Cook County and other counties had passed: California would honor some ICE requests to hold immigrants for pickup by federal agents — but only if the immigrant had been accused or convicted of particular serious crimes.
Governor Jerry Brown waited until the deadline to sign or veto bills for the year… and then, in a surprise move, vetoed the TRUST Act. The veto stunned supporters of the bill.
At the time, advocates suspected that the federal government had stepped in to pressure Governor Brown to veto the TRUST Act. The theory seemed far-fetched: ICE spokespeople had said repeatedly that ICE "does not comment on pending legislation," which many took to mean that the agency didn't have a position on the bill.
But emails obtained by TRUST Act supporters via the Freedom of Information Act, which have not previously been public, appear to show that ICE Director John Morton and other senior ICE officials did lobby the California governor's office to veto the TRUST Act.
The emails appear to show that ICE officials proposed that, instead of signing the TRUST Act, Governor Brown could let ICE launch a "pilot program" in California that would limit ICE's use of detainer requests.
In one of the FOIA emails, dated September 28th — the last weekday before the deadline — a member of the governor's staff emails ICE Director Morton to reject the latest proposal. "This is getting unbelievable. Really? A 90-day pilot? Do you really think that helps the Governor avoid signing the current version of the Trust Act?" the email says. "I feel that the sand is shifting constantly and we are being played."
The FOIA emails do not show a final agreement between ICE and the governor's office, and the "pilot program" never went into effect. Instead, on the Friday before Christmas of 2012, ICE released a new nationwide policy. It told field agents not to ask local jails to hold immigrants for pickup unless the immigrant fell into once of ICE's enforcement "priorities" — convicted criminals, immigrants with previous deportation orders, or immigrants who had previously been deported.
ICE portrayed its new detainer policy as a major reform. But on the ground, since ICE's enforcement "priorities" were so broad, the number of immigrants getting picked up from local jails didn't substantially change under the new policy.
Some supporters of the TRUST Act believe that, in the long run, ICE's clumsy lobbying effort made Governor Brown less inclined to work with the agency. "The inconsistency, and the way they kept changing what they were offering," suggests Angela Chan of Advancing Justice — Asian Law Caucus, who helped lead the effort to pass the TRUST Act, persuaded Governor Brown "that there is a need for state law as opposed to empty promises from ICE." When the TRUST Act was introduced again in 2013, with minor changes suggested by the governor's office, it passed easily.
A court ruled that local cooperation with ICE violates the constitutional rights of immigrants
In February 2014, a court ruling gave the anti-detainer movement a huge boost. A federal district court in Oregon ruled that a county jail had violated an immigrant woman's constitutional rights by detaining her for extra time so ICE could pick her up. Furthermore, the court said, the county was on the hook for damages to the immigrant.
The court ruling gave two major weapons to opponents of immigration detainers. First, it helped them argue that ICE's involvement with local law enforcement wasn't just bad for immigrants — it was downright unconstitutional. Second, it meant that counties that wanted to protect themselves from lawsuits — especially in Oregon and the rest of the Ninth Circuit, which is likely to rule on the case next — needed to pass detainer bans.
In the months since the Oregon court ruling, dozens of jurisdictions have banned ICE detainers — including San Francisco and San Diego last week, and Los Angeles this week.
Could Secure Communities make a comeback?
The places that have limited, or banned, local cooperation with Immigrations and Custom Enforcement have primarily been liberal, pro-immigrant communities. But because many of them are also the places with the largest populations of unauthorized immigrants — Los Angeles, San Diego, Miami, Philadelphia, Chicago — their refusal has an outsized impact on ICE's ability to apprehend and deport people.
And with the Oregon court ruling, banning detainers has practical in addition to ideological appeal. So it's extremely likely that when the deportation review is finally taken off ice in September, the Secure Communities program will have less support from local governments than it did at the beginning of the summer.
Secretary Johnson thinks that a "reboot" of Secure Communities is necessary to win their trust back. "I want a fresh start to this program and a fresh conversation with mayors and governors," he told the House Judiciary Committee last week. "We've got limitations being erected on our ability to conduct this program, and I think it's an important program, but it's gotten off to bad messaging and misunderstanding in state and local communities about exactly what it is."
It's not clear what a "fresh start" for Secure Communities would look like. Angela Chan of Advancing Justice — Asian Law Caucus, who led the push for reforms in California, points to the 2012 changes as evidence that ICE can repackage Secure Communities without changing the fundamental problems with the program.
In 2012, that strategy worked with some law enforcement officials— at least temporarily. Many state and local governments and law enforcement officers genuinely want to believe that the federal government is trying to make immigration enforcement more humane, says Chris Newman of the National Day Laborer Organizing Network, which has led anti-detainer campaigns around the country. As a result, there used to be "a lot of incredulity about the extent to which ICE was being dishonest."
But that incredulity has worn away over time. That means that, this time around, states and counties may not be willing to extend the Department of Homeland Security another opportunity for a fresh start. Opposition to detainers is rapidly hardening into opposition to all local collaboration with immigration enforcement. District Attorney Gascon says he believes that even the Criminal Alien Program, a Bush-era program in which ICE officers went into jails to interview immigrants about their status, would be unacceptable to him at this point. "When you're being detained at a local jail on a civil matter, I think that's inherently problematic," he says. "I don't see how you can reconcile the two."
Secretary Johnson has a couple more months to figure out how to reform Secure Communities in a way that wins back the more than 100 jurisdictions who have lost trust in federal immigration enforcement, without eliminating the program entirely. But in the meantime, more and more jurisdictions are likely to sever their ties.