By Martin J. Mayer, General Counsel, California Police Chiefs Association
ongress created the Secure Communities (SC) program in 2003 to identify all those in the criminal justice system who are eligible for removal as illegal aliens. The law does not require the removal of all such persons; instead, it requires the identification of them, so a decision can be reached regarding deportation.
According to John Morton, director of U.S. Immigration and Customs Enforcement (ICE), the agency has resources to remove approximately 400,000 persons a year. The issue is identifying which ones should be targeted for removal. Morton stated that those with criminal convictions, outstanding court orders for removal, repeat offenses, or a combination of these are priorities; he said that of those removed in 2011, more than 55 percent had one or more criminal convictions.
According to its website, ICE is the principal investigative arm of the U.S. Department of Homeland Security (DHS) and the second largest investigative agency in the federal government. It was created through a merger of the investigative and interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization Service. ICE now has more than 20,000 employees in offices in all 50 states and in 47 foreign countries.
Secure Communities Process
The SC uses existing federal information sharing procedures between ICE and the Federal Bureau of Investigation (FBI). For decades, local jurisdictions have shared the fingerprints of individuals who are arrested or booked into custody with the FBI to see if they have criminal records. Under the SC, the FBI automatically sends the fingerprints to DHS to check against its immigration databases.
If those checks reveal that an individual is unlawfully present in the United States or is otherwise removable because of a criminal conviction, ICE takes enforcement action. Its agents prioritize the removal of individuals who present the most significant threats to public safety by the severity of their crimes, their criminal histories, and other factors—including those who have repeatedly violated immigration laws.
ICE issues detainers only after a person has been arrested and it does not issue detainers for minor misdemeanors. Additionally, no one is arrested based on just an ICE hold; instead, they must already have been arrested for a state or local violation of law.
As stated, the SC makes the removal of aliens convicted of serious criminal offenses from the United States a priority. According to the DHS, the SC’s three main objectives are
- to identify aliens in federal, state, and local custody charged with or convicted of serious criminal offenses who are subject to removal and at-large aliens convicted of a serious criminal offense who are subject to removal;
- to prioritize enforcement actions to ensure apprehension and removal of aliens convicted of serious criminal offenses; and
- to transform criminal alien enforcement processes and systems to achieve lasting results.
For SC purposes, there are three categories of offenses.
Level 1 offenses include the following state or federal crimes: national security violations, homicide, kidnapping, sexual assault, robbery, aggravated assault, threats of bodily harm, extortion or threat to injure a person, sex offenses, cruelty toward child or spouse, resisting an officer, weapons violations, hit-and-run involving injury or death, and drug offenses involving sentencing to a term of imprisonment greater than one year.
Level 2 offenses are primarily property crimes.
Level 3 offenses are all other crimes, primarily misdemeanors.
When ICE determines an alien has been charged or convicted of a Level 1 offense that could result in removal, or when an alien who is already subject to removal is charged with a Level 1 offense, ICE will file an Immigration Detainer (Form I-247) at the time of booking with the local law enforcement agency (LEA) that has custody of the alien.
Interaction with Local Law Enforcement
According to ICE, the cooperation of local law enforcement agencies is crucial to completing the processes of identifying, detaining, and removing aliens arrested for or convicted of serious criminal offenses. As such, ICE requests, in part, that the LEAs abide by immigration detainer conditions, place the detainer in a subject’s file/record, inform ICE if the subject is transferred or released, allow access to detainees, and assist ICE in acquiring information about detainees.
Once ICE determines the subject has previous serious criminal convictions or is currently charged with a serious criminal offense considered to be a Level 1 offense and is removable, ICE will lodge an Immigration Detainer (Form I-247) with the LEA.
The form contains several parts that inform the LEA of what action has been taken by DHS regarding the inmate being held. For example, DHS could have checked off sections identifying that an investigation has been initiated or a warrant for removal has already been secured. It is then “requested” that the LEA “accept this notice as a detainer” and to notify ICE “at least 30 days prior to release or as far in advance as possible.”
Mandatory or Optional Detainer?
There are other “requests,” as well, but there is one paragraph that is informational and not a request. It states that “[F]ederal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays, and federal holidays) to provide adequate time for DHS to assume custody of the alien.” (emphasis added) Therein lies the quandary.
In a letter dated August 5, 2011, Director Morton informed all the state governors who were terminating existing SC memoranda of agreements that “[a memorandum of agreement (MOA)] between ICE and a state is not required to operate [the] SC in that state.”1 Several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.
He stated that participation in the program is not optional: “Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.”2
The letter basically reiterated that immigration enforcement is the sole purview of the federal government and not the states. “[SC] imposes no new or additional requirements on state and local law enforcement” and, furthermore, “the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.”
On June 25, 2012, the U.S. Supreme Court ruled on the immigration enforcement law implemented by the state of Arizona, in the case of Arizona et al. v. United States. The court held that most of the Arizona law was contrary to federal law, however, the court made it clear that it is federal law that controls immigration issues.
The court held that “[t]he [f]ederal [g]overnment’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to ’establish a uniform Rule of Naturalization,’ Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the [f]ederal [g]overnment and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227” (emphasis added).3
The court also addressed the issue of Arizona’s authority to hold a detainee in order to verify immigration status, based on its own law. “It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision” (emphasis added).4 The distinction with the SC program is that federal direction does exist; it is based on the issuance of a detainer authorized by federal law.
An example of a position contrary to the court’s ruling, however, was recently taken by California Attorney General Kamala Harris. On December 4, 2012, the California Department of Justice issued an information bulletin that stated that “[l]ocal law enforcement agencies in California can make their own decisions about whether to fulfill an individual ICE immigration detainer.” Furthermore, “immigration detainers are not compulsory. Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee” (emphasis in original).5
California’s position, which is opposite to that of Arizona, proves that confusion reigns supreme when it comes to interpretation of the SC initiative. Who governs—the state or the federal government? Is honoring the detainer issued by ICE up to the individual law enforcement agency or is it mandatory?
To complicate matters further in California, its state law mandates cooperation with ICE with identifying illegal aliens and notifying ICE of that fact. California Penal Code 834b states that “(a) [e]very law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.”6
Furthermore, section (c) states that “[a]ny legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.”7
As stated above, confusion reigns supreme when it comes not only to enforcement of the SC law but also to issues of immigration generally. It appears that the federal government does in fact have the ultimate authority over immigration issues, but it is obvious that individual states are challenging that authority.
The U.S. Supreme Court, in the Arizona decision, has not provided definitive guidance for local agencies, and it would seem that further litigation is inevitable. Until the confusion has been put to rest, it is incumbent on all local law enforcement agencies to seek out and secure legal advice and guidance in deciding how they will proceed. ♦
|Martin J. Mayer is a name partner with the public sector law firm Jones & Mayer, has served as general counsel to the California Police Chiefs Association for 25 years, and is an active member of IACP’s Legal Officers’ Section.|
1See for example, John Morton to Jack Markell, August 5, 2011, http://www.nilc.org/document.html?id=681 (accessed December 11, 2012).
3Arizona et al. v. United States, 132 S. Ct. 2492, 2494–2495 (2012).
4Arizona et al., 132 S. Ct. at 2497.
5Kamala D. Harris to Executives of State and Local Law Enforcement Agencies, December 4, 2012, https://www.aclunc.org/docs/immigration/ag_info_bulletin.pdf (accessed December 11, 2012).
6California Penal Code §834b(a).
7California Penal Code §834b(c).
Please cite as:
Martin J. Mayer, "Secure Communities Program: Mandatory or Optional?" Chief’s Counsel, The Police Chief 80 (January 2013): 10–11.