The County Board in Arlington, Virginia and the Santa Clara Board of Supervisors both voted unanimously September 28 to opt out of S-Comm, a controversial Immigration and Customs Enforcement (ICE) data-sharing program also known as Secure Communities.
This means San Francisco is no longer the only municipality requesting to opt out of ICE’s S-Comm program. (Washington, D.C’s metropolitan Police Department is the only jurisdiction to date to successfully terminate its S-Comm Memorandum of Agreement with ICE.) The program automatically shares fingerprints with ICE that are taken by local law enforcement immediately after individuals are arrested, even if criminal charges are eventually dismissed or were the result of an unlawful arrest.
The opt-out resolutions in Santa Clara and Arlington came a day before 578 national and local organizations delivered a letter to President Barack Obama condemning the merger of criminal justice and immigration systems and demanding an end to practices that harm diverse communities throughout the country.
S-Comm has already met with opposition from civil rights organizations, law enforcement, and city officials from Washington, D.C. to San Francisco, over concerns it is being forced on hundreds of counties without oversight or accountability.
As a result of this opposition, ICE issued a statement in August that confirmed that local jurisdictions have a right to opt out by sending a written request.
And recently, Homeland Security Secretary Janet Napolitano and U.S. Attorney General Eric Holder also confirmed in writing that local jurisdictions can opt of S-Comm by requesting to do so in writing.
San Francisco Sheriff Mike Hennessey has already submitted this request in writing on at least two occasions, most recently on August 31st. And on May 18, San Francisco’s Board of Supervisors passed a resolution to opt out of S-Comm.
And Angela Chan, staff attorney at the Asian Law Caucus in San Francisco, repeated her request that ICE comply with its own opt-out procedure for all requesting counties.
“SF has done everything required of us to opt out,” Chan said in a press release. “Sheriff Hennessey and our Board of Supervisors have voiced our request to opt out of S-Comm loud and clear. It’s now ICE’s turn to follow through on their word and allow counties to do what has been within our right all along. Only then will we be able to focus our local resources back on local law enforcement. S-Comm has no place in our counties because it makes immigrant victims and witnesses afraid to come forward and cooperate with local law enforcement.”
In response to Santa Clara’s opt-out request, ICE’s Assistant Director David Venturella sent a letter to Santa Clara’s legal counsel Miguel Marquez in which he sought to clarify how S-Comm works:
“Secure Communities is ICE’s comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States,” Venturella wrote. “As part of this strategy, ICE uses a federal biometric information sharing capability to more quickly and accurately identify aliens when they are booked into local law enforcement custody.”
“ICE uses a risk-based approach that prioritizes immigration enforcement actions against criminal aliens based on the severity of their crimes, focusing first on criminal aliens convicted of serious crimes like murder, rape, drug trafficking, national security crimes, and other “aggravated felonies,” Venturella continued.
But critics of S-Comm have noted that the majority of folks identified by this program are not criminal aliens at all. These critics argue that the program is undermining community policing efforts, since a person who has not committed a serious crime can now be referred to ICE simply because they were arrested (perhaps falsely) of a crime—and ICE can initiative deportation proceedings before that person can prove that they aren’t a felon.
And as Venturella acknowledges in his letter to Santa Clara, “Under this strategy, ICE maintains the authority to enforce immigration law.”
But Venturella confirmed that local municipalities have the right to request that their jurisdictions S-Comm program not be activated. And he clarified that ICE won’t be requiring local jurisdictions to sign statements of intent, or any other document to participate in S-Comm.
He also explained that ICE defers to the California State Attorney General on how state, county and local law enforcement agencies within California will share biometric data.
Venturella clarified that the purpose of local law enforcement receiving a fingerprint “match message” is to provide any additional identity information about the subject, including aliases, from the Department of Homeland Security’s biometric database. This database stores over 100 million records that, according to Venturella’s letter, “may not have been available based only on a criminal history check.”
But he noted that “receiving a ‘match message’ does not authorize or require any action by local law enforcement.”
“ICE views an immigration detainer as a request that a local law enforcement agency maintain custody of an alien, who may otherwise be released, for up to 48 hours (excluding Saturdays, Sundays and holidays),” Venturella explained. “This provides ICE time to assume custody of the alien.”
Venturella noted that ICE is not responsible for the incarceration costs of such individuals and does not reimburse localities for detaining any individual until ICE assumes custody.
But he points out that there is no statutory requirement that localities notify ICE if a subject is to be released 30 days in advance of any release or transfer.
‘The notification of ICE of inmate transfer or release within 30 days is pursuant to ICE’s request for such information,” Venturella stated.
Venturella clarifies that there is a legal basis for requiring ICE officers to conduct inmate interviews “to determine alienage and any possibilities for relief or protection from removal.”
But he also points out that local officials are not required to assist the feds in acquiring information about detainees.
“Assisting ICE in acquiring detainee information is not a legal requirement,” Venturella states.