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ICE Halfway Solution Not The Answer To Secure Communities Problem

by Alan Lee

On June 17th, John Morton, the Director of U.S.I.C.E. (ICE), in response to the ongoing withering criticism of the Secure Communities program and its seemingly indiscriminate targeting of all undocumented immigrants and not just the criminal element, put forth two memoranda on prosecutorial discretion to dampen the rising anger of the immigrant communities. Although the expansion and clarification of prosecutorial discretion grounds are welcome, they will not erase the fear and anger that this wrongheaded program has created. The memoranda list grounds for which prosecutorial discretion can be exercised, but the problem is that it does not have to be, because discretion is discretion and up to the individual ICE officer, agent, or attorney. Also many of the grounds for prosecutorial discretion can only be fully documented after a period of time. Where is the undocumented immigrant during this period? Probably in an ICE facility since the agency has now acknowledged that local law-enforcement only has the authority to hold aliens for 48 hours after arrest.

In one memorandum, "Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs," Mr. Morton advocates the exercise of prosecutorial discretion involving victims and witnesses of crime, including domestic violence, and individuals involved in "non-frivolous" efforts related to the protection of their civil rights and liberties. However, this exercise is to be limited by special circumstances or aggravating factors which includes "significant immigration fraud." What does this all mean? How does one judge whether an effort to protect civil rights and liberties is frivolous or not? Is a landlord-tenant suit where the landlord reports the tenant frivolous to an ICE official who is himself or herself a landlord? What are the standards for assessing significant immigration fraud, or is that also in the eyes of the beholder? Does that term apply to anyone who has ever entered the United States through any type of misrepresentation? This is actually the clearer memorandum designed to encourage people to report crimes who were not doing so because of fear of arrest under Secure Communities. It also appears geared to protecting the student demonstrators for legislation such as the DREAM Act. The problem is that the memorandum features vague language, is only guidance couched in the language of "should" instead of "must" where individuals fall within the parameters for relief, and is loaded down with the unspoken caveat that the individual must still be extremely wary of the law if he/she has any type of immigration history.

The second memorandum, "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens" spells out a set of factors to be considered by the agency's officers, agents, and attorneys, with Mr. Morton saying that the list is not exhaustive and no one factor is determinative. The list of factors are:

  • the agency's civil immigration enforcement priorities;
  • the person's length of presence in the United States, with particular consideration given to presence while in lawful status;
  • the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  • the person's pursuit of education in the United States, with particular consideration given those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
  • whether the person, or the person's immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • the person's immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  • whether the person poses a national security or public safety concern;
  • the person's ties and contributions to the community, including family relationships;
  • the person's ties to the home country and conditions in the country;
  • the person's age, with particular consideration given to minors and .the elderly;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  • whether the person or the person's spouse is pregnant or nursing;
  • whether the person or the person's spouse suffers from severe mental or physical illness;
  • whether the person's nationality renders removal unlikely;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.
As applied to Secure Communities, these factors are to play a part in the agency's deciding to issue or cancel a notice of detainer. But most of these factors cannot be determined within 48 hours as the favorable situation may be unable to be determined without an extensive look into the undocumented immigrant's equities in the U.S., a process requiring the production of affirmative evidence on the part of the immigrant. So it becomes apparent that the illegal immigrant will likely reside in an ICE facility until the time that an ICE official weighs the equities against the unfavorable factors and decides whether prosecutorial discretion can be favorably exercised. And thus the problem still arises under both memoranda that a person who is stopped by local law-enforcement for any reason including broken tail light or dispute with the neighbor over the dog barking too loud may be detained and deported through Secure Communities.

The purpose of the Secure Communities program when first proposed was to protect communities against violent criminals. It has since devolved into mostly a "catch the illegal immigrant" program. For the program to truly work to its first promise, illegal immigrants caught for minor misdemeanors or even those with extensive civil immigration violations should not be detained. Otherwise it remains a "trap the immigrant" program, and must be scrapped. The outrage of immigration activists and immigrant communities is being directed towards the Obama administration, which has championed the program's nationwide implementation by 2013. At the present time, three states, New York, Massachusetts, and Illinois have opted out of the program, and are attempting to disengage themselves from its tentacles. There are, however, large questions here.

If you are a state or community, can you truly opt out of the Secure Communities if the state has already signed a memorandum of understanding with the agency? Or if you are a state or community and the state has not yet signed a memorandum of understanding with the agency, can you really stay out of Secure Communities? The main feature and goal of the program is a sharing of fingerprints between the FBI and ICE of everyone who has been arrested and booked in the state. Then it is up to ICE officials whether to take further action such as placing an immigration hold on the arrestee.

The short answer is that to ICE, it does not even need the program's sanctioning memorandum of understanding to effect its goals whatever they may ultimately turn out to be since it is able to achieve the same results regardless of whether the state signs on or not. Mr. Morton was quoted previously as saying that a fundamental misconception about Secure Communities was that somehow the program involved an agreement by the state for the exercise of federal immigration authority and obviously that wasn't the case. He further said that, "An individual state can't come to the federal government and say, 'We don't want the Department of Justice and the Department of Homeland Security to share information or seek to prevent that information sharing.' That is between federal departments." The New York Times of June 7, 2011, also quoted an anonymous official that, "We are not going to stop this program because of the governors... It is a program that is mandated by law and has the support of the administration and the Congress."

So what are the options for a state or community given the present attitude of ICE if there is no better ICE solution than the two memoranda of Mr. Morton? There has been only one unpalatable choice given by the agency so far - for the state and its communities to stop sending fingerprints to the FBI. For elected officials to do so would mean that the jurisdiction would not know whether an individual had been convicted of a crime out of the state. ICE appears to be banking on the fact that they would be too fearful of the political repercussions of being accused of being neglectful of public security in favor of protecting the rights of illegal immigrants.

But even more problematic than to the states is a huge headache that the Secure Communities imbroglio is presenting to the Obama administration. The program has made him few friends but many enemies among his former allies. Voting blocs that he has been counting on for his reelection next year are beginning to rethink their positions. So, if you are President Obama, what are YOUR options with Secure Communities? The administration would be correct in guessing that the President's window in keeping the pro-immigration lobby and immigrant communities in his corner is shrinking, and the perception that he is hurting the immigrant communities through the program he champions is making the window close faster. A better solution, Mr. Obama, is quickly needed.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for this publication, Interpreter Releases, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.