Federal immigration authorities must hand over potentially embarrassing documents related to the implementation of a controversial immigration program, a federal judge in the Southern District of New York ordered this week.
According to Judge Shira Scheindlin, federal immigration authorities seem to “have gone out of their way to mislead the public” about the program known as Secure Communities, and they’ve issued mixed messages about whether the program is optional or not.
Secure Communities allows state and local law enforcement to share the fingerprints of their arrestees with the FBI and Homeland Security for the purpose of targeting for deportation immigrants who’ve committed serious crimes. Immigration advocates say that the three-year-old program nets individuals accused of minor offenses and also undermines trust between communities and law enforcement.
New York, Massachusetts and Illinois have already announced they intend to opt out of the program, leaving local authorities free to decide whether their counties should participate. California is considering doing the same.
But as the judge’s latest ruling indicates, it’s long been unclear whether these states will actually be able to opt out. Documents released earlier this year showed that the program—once widely believed to be voluntary—may not have been so voluntary after all, as the Associated Press reported in February:
A voluntary program to run all criminal suspects' fingerprints through an immigration database was only voluntary until cities refused to participate, recently released documents show. The Obama administration then tightened the rules so that cities had no choice but to have the fingerprints checked.
In April, Homeland Security Secretary Janet Napolitano acknowledged that the program was never voluntary. She added that the “whole opt-in, out-out thing was a misunderstanding from the get-go.” Napolitano had previously written a letter to Congress that laid out instructions for any law enforcement agency "that does not wish to participate in the Secure Communities deployment plan."
On its website, U.S. Immigration and Customs Enforcement said that fingerprints submitted to the FBI are automatically shared with federal immigration authorities who can then take enforcement action regardless of what local and state officials decide about the program. The agency acknowleges that past statements have led to confusion but now states unequivocally, "FACT: State and local jurisdictions cannot opt out of Secure Communities."
Siding with civil rights groups and immigrant advocates who brought the suit [PDF], the judge ruled that federal immigration agencies needed to be more transparent about their inconsistencies. In response to a public records request, the agencies had redacted what amounted to embarrassing details about how they switched their positions, and the judge ruled that those redactions were “haphazard” and the details had to be made public.
The confusion of state and local governments over the Secure Communities program is yet another piece of the continuing struggle between states and the federal government over who has the power to act on illegal immigration. As we’ve noted, several states have recently enacted controversial laws that have been challenged in court and curbed by federal judges across the country.
