Can San Francisco be forced to participate in Secure Communities?

San Francisco Sheriff Michael Hennessey says he won't comply with the federal Secure Communities program. Photo by Luke Thomas.

For about two years, San Francisco and cities around the country have been in a back and forth with the federal government over a controversial program called Secure Communities. It was set up to coordinate local law enforcement’s fingerprint databases with the office of Immigration and Customs Enforcement, or ICE, so that undocumented immigrants who are booked locally, can be found and deported.

CRAIG MEYER: So our goal is to effectively remove criminal aliens from the community, especially criminals, Level 1 offenders, which are the higher crimes, rapes, murders, robberies, and so forth. Our goal is to take them out of the community and make the community safer. 

That’s Craig Meyer, the Immigration and Customs Enforcement Assistant Field director in San Francisco. In late April, San Francisco Assemblyman Tom Ammiano introduced a bill called the TRUST Act, which would allow counties to opt out of this program. A San Francisco woman names Norma testified at the hearing. She said she had called police in October because her partner had been abusing her physically.

NORMA (translated from Spanish):  I was a victim of domestic violence. And when they arrested my partner he said I hit him as well so they took us both in. and we spent 5 days in jail. They deported him. They sent us both to ICE. All through all of this, I didn’t know what would happen to me, to my son who is 3 years old. So I suffered a lot.

It turned out that Norma had been arrested for an immigration violation before so when her information popped up in the ICE database, they placed a hold on her, meaning they asked police to keep her in custody and then sent in agents to deport her. Norma is still fighting that deportation, but critics of Secure Communities are saying that she’s an example of how this program isn’t doing what it’s supposed to do, which is to find and deport criminals who are in the country illegally. KALW’s criminal justice editor Rina Palta has an update on that debate.

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HOLLY KERNAN: First, let’s get a quick refresher on how this program works. How do immigrants get tagged by federal agents?

RINA PALTA: Right. So any time someone’s arrested and booked in jail, deputies take their fingerprints. Those fingerprints are automatically sent out to various databases, basically to check whether the person is wanted for any reason. So the fingerprints go to the state department of justice, the FBI, and what not. Under this new program, Secure Communities, fingerprints also go to Immigration and Customs Enforcement. And if someone pops up in their database as having had contact with ICE before or for some reason being on their radar – we’re not even sure entirely what they’re looking for – ICE can tell a jail to hold that person so they can come pick them up and deport them. Apparently, that’s what happened to Norma, who we heard from a minute ago. But now, just to be clear on this, jails already do this with people who’ve committed serious crimes, but this program really expands ICE’s power to simply keep someone in jail once they’ve been arrested.

KERNAN: So is the program is aimed at people who are arrested, or people who are committing crimes? I mean, that’s what’s a little confusing in the case of Norma. She was actually the one who called police to protect her.

PALTA:  Right, there’s no difference between people who are arrested and people who have committed crimes.

KERNAN: ...in terms of how Secure Communities treats them.

PALTA: Exactly, it kicks into gear right after arrest. And actually, that really gets to what’s been a central issue in Secure Communities because President Barack Obama’s immigration strategy has really been to crack down on those undocumented folks who are in the country illegally and who are also causing trouble, who are committing crimes. The problem is, we’ve seen the results come in, and things aren’t going as planned. They’re not sticking to that strategy. I spoke with Jon Rodney of the California Immigration Policy Center about these results that are coming in from Secure Communities and here’s what he said:

JON RODNEY: The program is really tremendously flawed. Seven in 10 Californians who were deported under the program were not in that high category of being tagged with very serious offenses.

KERNAN: So Rina, San Francisco and several other counties and cities have voiced disapproval with the Secure Communities program and they’ve basically tried to get out of it. What’s the status with that?

PALTA: There’s are a number of things that happened last week, actually, which are the result of months and months of back and forth between federal officials and local governments. San Francisco, as we’ve talked about before, has been wanting out of the program and asked to get out of the program last year. After a lengthy back and forth with ICE officials, the feds basically said this program isn’t optional … that if California, the state, has an agreement to participate in this program, then San Francisco really doesn’t have a choice. They have to do it. Back in late April, Assemblyman Tom Ammiano, reacting to this new description of the program, introduced legislation in the state that would kind of alter the agreement with the federal government and make it so that counties and cities can choose whether or not to participate. It would also exclude those folks who are not serious offenders from the program, people like Norma, people who are victims of domestic violence or who are picked up on traffic tickets and minor crimes like that.

And there was another huge development last week: the state of Illinois completely pulled out of the program. Governor Pat Quinn there sent a letter to ICE terminating the agreement. Interestingly, right after, right on Friday, Janet Napolitano, the Secretary of Homeland Security, shot back and said that states can’t opt out of the program either and that ICE will continue to use fingerprints from Illinois to place holds on arrestees.

KERNAN: Can they do that even though Illinois opted out of the program?

PALTA: That’s a really good question and that’s one that will probably end up going to court. Secretary Napolitano certainly thinks that the feds have the right to require states to participate. She says that everyone, regardless of whether they’ve signed agreements with the federal government, will be participating in this program by 2013, and there are several states that still haven’t. She spoke with editors from the San Francisco Chronicle and here’s some of what she told them:

SECRETARY JANET NAPOLITANO:  Where immigration is concerned, the federal government fundamentally sets the policy. And just as states can’t, on their own, have a 1070, this is  kind of the flip side of that, nor can they exclude themselves from an enforcement tool that we are using.

KERNAN: 1070 refers to Arizona’s controversial law which uses local police to enforce immigration laws and places penalties on employers who hire undocumented workers.

PALTA: Right, and Napolitano’s point there is that if, as the Justice Department claims, Arizona is not allowed to create its own immigration laws, places like San Francisco aren’t either. Napolitano also said if there are changes to be made to the program, that’s going to happen at her level – it’s not something for the states to kind of nitpick which parts of this program they want to participate in.

SECRETARY NAPOLITANO: Having been involved in the immigration world for a long time, in terms of an enforcement tool, I think it’s one of the more effective ones I’ve seen, so we will continue to use it.

KERNAN: Rina, is this the last word on Secure Communities?

RINA: Never. Already, Congress members are starting to call for investigations into the program. And local officials are resisting. Just last Friday, here in San Francisco, Sheriff Mike Hennessey basically came and said, "I’m not going to do it." He found a loophole in the program and basically said when ICE asks him to detain someone who then turns out to not have a serious criminal record or who is in fact a victim of a crime, he’s just going to ignore that hold and let them go. And as far as we know, that seems to be something he has the authority to do. ICE has said those holds are voluntary because, in fact, they do require San Francisco funds to keep someone in jail. As this continues, we’ll see how ICE reacts to Hennessey’s statement. But this fight is clearly just gaining its footing, and this is going to be an ongoing issue for Napolitano and for Obama as he tries to sell this program as a component of immigration reform.