Since the Secure Communities program was announced in 2008, immigrant advocates have consistently asked whether the program is voluntary or mandatory. ICE’s response to the question has changed many times over the years. While ICE has said that the agency will eventually install Secure Communities in all state and local detention facilities nationwide (which makes it seem like a federal mandate), they have also indicated that the program is voluntary. After repeated questions about whether or not localities could opt-out of the program, ICE gave increasingly confusing and conflicting responses. This month, new documents recently released by DHS in response to a Freedom of Information Act (FOIA) only further highlight the internal confusion and shifting definition of the voluntary or mandatory nature of the Secure Communities program.

These internal documents—requested by the National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights, and Cardozo Law School Immigration Justice Clinic—show that ICE was purposefully vague and misleading about its definition of “voluntary” program and “opting out” so that they could deploy Secure Communities as widely as possible before communities began to question it.

A new definition of opting out was coined when ICE decided it would be possible for local law enforcement agencies to send their fingerprints of arrested persons to Secure Communities, but opt out of receiving messages from ICE about the immigration status of those arrested. So local jurisdictions didn’t have a choice whether to share information with ICE or not, but ICE would consider them “opted out” if they didn’t send them a response.

In October 2010, DHS decided that local jurisdictions could not opt out of Secure Communities, but had no clear legal basis for this policy. According to internal memos, ICE employees had concerns about the constitutionality of making the program mandatory and continued to search for a “legal mandate, provision, law, etc.” that would support their position. To date, no legal analysis supporting ICE’s ability to coerce localities into the program has been made public.

At the same time, there was little information available regarding the technology utilized by Secure Communities, and whether or not it was even possible for jurisdictions to opt out, regardless of the official policy. Since fingerprints are automatically sent to the FBI to check against criminal records, and since FBI databases and DHS databases are now shared, jurisdictions may want to know whether it is possible to send fingerprints to the FBI, but not DHS. These newly-released documents indicate that it is, in fact, technically possible to opt out of the program: “There is currently no technical limitation that would prevent ICE from filtering out records from a particular jurisdiction.” But there is no evidence to suggest ICE will filter them out.

So jurisdictions “can” opt out, but they can’t.

One email from an unnamed ICE staffer reads, “I’m totally confused now. I’ve got so many versions of the opt-out language I don’t know what’s current and what’s not. It seems like we have different language for different purposes and it’s confusing.”

Welcome to our world.

Photo by U.S. Army Corps of Engineers Los Angeles District.