Earlier this week, the Santa Clara (CA) Board of Supervisors and the Arlington County (VA) Board both voted unanimously to opt-out of the Secure Communities program—an ICE program that shares the fingerprints of individuals booked into jails with immigration databases. However, Today’s Washington Post claims that opting out of Secure Communities “is not a realistic possibility, and never was.” The Secure Communities program, launched in 2008, is currently active in 658 jurisdictions in 32 states, according to ICE, who plans to activate the program in every jurisdiction in every state by 2013. It remains unclear, however, whether the program is voluntary.

The Santa Clara and Arlington County votes come after many months of questions and confusion regarding local jurisdictions’ ability to opt-out of the controversial program. Since the program was implemented in 2008, ICE has been saying that they wish to eventually install Secure Communities in all state and local detention facilities nationwide, making it seem like a federal mandate. Local jurisdictions do not sign up for Secure Communities directly with ICE. Rather, State Identification Bureaus, which are responsible for transmitting all fingerprints from local jails to federal agencies, enter into Memorandums of Understanding with ICE to initiate the Secure Communities process. Local jurisdictions within the state are added gradually. Advocates had been asking whether local law enforcement agencies can choose to opt-out of the program, but the responses had not been adequate.

Several local jurisdictions also asked to opt-out, and were given a variety of responses. In May 2010, Sheriff Hennessey of San Francisco requested an opt-out from ICE, but ICE directed them to speak to California state officials. The California Attorney General denied the Sheriff’s request and claimed that there was no opt-out option. All jurisdictions within California were to submit fingerprints to immigration databases as well as FBI criminal databases—all of which are channeled through the State Identification Bureau.

Then there was more confusion. Arlington County held a community forum in July to discuss opting out of the program, at which the Chief of Police stated that ICE had told him that there was no opt-out—Secure Communities was federally mandated. Others, including Congresswoman Zoe Lofgren, the Santa Clara Board, and the San Mateo County Board of Supervisors, all contacted ICE asking for information about the opt-out policies. None received an immediate response.

In the meantime, in response to legislation before the Council of the District of Columbia to terminate Secure Communities, the Washington DC Chief of Police terminated the city’s Secure Communities program with ICE.

Finally on August 17, 2010, ICE released a memo entitled, “Setting the Record Straight” which sets forth an opt-out policy:

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 fax). 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 jurisdiction’s activation date in or removing the jurisdiction from the deployment plan.

DHS Secretary Janet Napolitano later confirmed that process to be accurate in a letter in response to Rep. Lofgren.

So now at least two counties, plus Washington, DC have decided not to participate in the program. Why? People are concerned that, similar to the 287(g) program, there is no oversight of Secure Communities. The data provided by ICE thus far has shown that contrary to ICE’s intention to focus on immigrants with serious criminal convictions, the majority of people identified by Secure Communities have minor criminal convictions or have no criminal convictions. In some cases, U.S. citizens have been wrongly identified by the program. There are also concerns that the program leads to racial profiling and pretextual arrests. Furthermore, local law enforcement agencies that suspect that persons in their jails may be deportable immigrants already have the ability to contact ICE directly.

But now a senior ICE official stated that,

Secure Communities is not based on state or local cooperation in federal law enforcement. The program’s foundation is information sharing between FBI and ICE. State and local law enforcement agencies are going to continue to fingerprint people and those fingerprints are forwarded to FBI for criminal checks. ICE will take immigration action appropriately.

This story continues to get murkier, and what is clear is that ICE has not been transparent about Secure Communities. ICE needs to come clean on its ever expanding, soon-to-be-national program.

Photo by Ricky Romero.