The Board of Supervisors is urging San Francisco officials not to participate in Secure Communities, a controversial federal-local fingerprinting collaboration set to be activated June 1. But opting out of a program that threatens to make debates over "sanctuary city" protections of immigrants irrelevant may not be easy.
Speaking at a May 18 rally, Sup. Eric Mar warned that the use of Secure Communities by U.S. Immigration and Customs Enforcement (ICE) could cause the deportation of innocent residents and destroy local community policing efforts. "The police-ICE entanglement will hurt our communities and many people accused of minor crimes will see families torn apart," Mar warned, as he urged the city to opt out of the Department of Homeland Security initiative, which identifies immigrants who are sitting in U.S. jails and may be deportable under federal immigration laws.
Cosponsored by Sups. John Avalos, David Campos, David Chiu, Chris Daly, Bevan Dufty, Sophie Maxwell, and Ross Mirkarimi, Mar's resolution was scheduled for a May 25 vote that would make San Francisco the first jurisdiction in the nation to pursue withdrawing from the system.
"The shadow of Arizona is starting to cover other cities," Mar said, referring to Arizona's anti-immigrant legislation, SB 1070. "We can't let Arizona come to San Francisco."
ICE spokesperson Virginia Kice said the program's focus is on criminal aliens. "These are folks who have been charged with or found guilty of felonies and have ignored deportation orders," Kice said.
But ICE statistics show that the program mostly deports those with minor offenses. Between October 2008 and March 2010, Secure Communities submitted 1.9 million sets of digital fingerprints and deported 33,326 people nationwide. Fifteen percent of those deported (4,903 people) had criminal histories that included major drug and violent offenses such as murder, manslaughter, rape, robbery, and kidnapping (Level 1 crimes). The other 85 percent (28,423 people) were deported for less serious drug and property offenses (Level 2 crimes) and other minor charges (Level 3 crimes).
Kice admits that Level 2 and 3 offenders constitute the largest percentage of SC cases. "That's because representatively more people are arrested for Level 2 and 3 offenses than Level 1," she said. "That's probably fortunate, because Level 1 crimes are very serious."
But American Civil Liberties Union legislative counsel Joanne Lin warns that Secure Communities allows the federal government to circumvent local sanctuary policies and fast-track deportation. "It allows the Department of Homeland Security to identifty everyone who is booked, whether they are here lawfully or their charges are subsequently dropped or dismissed," Lin said.
Mayor Gavin Newsom said he has no reservations about the program, which the Bush administration first announced in March 2008. "Sanctuary city policies were never meant to protect criminal behavior," mayoral spokesperson Tony Winnicker said May 7, when San Francisco Sheriff Mike Hennessey blew the whistle on the federal-local fingerprinting collaboration. "At the end of the day, federal officials should enforce immigration laws. We report — we don't deport."
The program links local law enforcement databases to the Department of Homeland Security's biometric system through interoperability agreements with states, allowing instantaneous information-sharing among local jails, ICE, and the FBI.
ICE implemented the program in North Carolina and Texas in October 2008. Under President Obama, the program has been activated in 169 jurisdictions in 20 states. ICE plans to have a Secure Communities presence in each state by 2011, and in each of the 3,100 state and local jails nationwide by 2013, according to its Web site.
Under the program, participating jails submit fingerprints of arrestees to immigration and criminal databases, thereby giving ICE a technological presence in prisons and jails. An overview conducted by the Washington, D.C.-based nonpartisan National Immigration Law Center observes that "the critical element" of the program is that, during booking in jail, arrestees' fingerprints will be checked against DHS databases, rather than just against FBI criminal databases.
"ICE asserts that the purpose of the Secure Communities program is to target violent criminals for removal," NILC observed. "Advocates had criticized the program's operation because it took place at the beginning of the criminal process and therefore indiscriminately targeted persons arrested for crimes of all magnitudes, rather than persons convicted of serious crimes."
"The underlying purpose may be to lay the groundwork for real immigration reform," NILC concludes. "But the mechanisms put in place will be difficult to dismantle, and the civil rights violations they produce cannot be undone."
Scott Lorigan of the California Department of Justice's Bureau of Criminal Identification and Information signed an interoperability agreement with ICE's John P. Torres in April 2009. Since then, the system has been activated in Alameda, Contra Costa, Fresno, Imperial, Los Angeles, Monterey, Orange, Sacramento, San Bernardino, San Diego, San Joaquin, San Luis Obispo, Santa Barbara, Solano, Sonoma, Stanislaus, and Ventura counties. Now it's set to get switched on in San Francisco.
Campos thanks Hennessey for blowing the whistle, and lays the blame at Obama's door. "None of us would have known this was happening," Campos said. "This is the time for all San Francisco's elected officials to stand up in support of the principles that led us to establish a sanctuary city. It's not just the board, but also the mayor who needs to step up and say what just happened is not acceptable. This program eviscerates sanctuary city."
Hennessey has written to California Attorney General Jerry Brown asking for assistance in opting out of the ICE program. Brown's office is reviewing his request. "The California Department of Justice manages the statewide database of fingerprints that are essential to solving crimes, but we have no direct role in enforcing federal immigration laws," Brown's press secretary Christine Gasparac clarified. "We were informed by ICE that they will work with counties to opt out of their program. Because that is a process directly between the county and ICE, we're advising local authorities who want to opt out to contact ICE directly."
But it's not clear what opting out will achieve. ICE's Kice said jurisdictions can choose not to receive the immigration-related information on individuals who are fingerprinted, but that information will still be provided to ICE, which can act on it. Kice said that after an arrestee's biometrics are forwarded to the feds, the information is bounced off FBI and DHS databases, and the information that comes back says if they have a record.
"What comes out is a recap of whatever relevant information is in the database," she said. "For example, whether there has been a prior formal deportation or a prior arrest. It also shows if they have an adjusted status — whether they have legal permanent status. It will indicate if they are naturalized, in which case they are not subject to removal. That's the information the community could cut off."
"ICE always did these checks, but it was only available to local law enforcement agencies if they queried the system themselves, which required them to take a couple of extra steps," Kice continued. "And it was name based. And that could be problematic, given duplicate names in system. That's what fingerprints eliminate. Our concern is that municipalities are dependent to a large extent on information provided by the individual at the moment of arrest. We think the use of biometrics will ensure that folks who provide false information to local law enforcement officials don't escape detection."
Kice acknowledged that not everyone in the database is a violator. "The fact of having a record does not mean that you are a deportable alien," she said. "And we understand that someone may get arrested and may not get convicted on their current charges. But what about a prior history? We know that folks have eluded detection, escaped, or been released from custody. So the individual may be someone who has other prior convictions. It's the totality of their record that we are talking about here."
At present, the San Francisco County Sheriff's Department only reports noncitizens who are booked on felony charges. Hennessey expressed concerns about the unintended consequences of ICE technology interfacing with that of the Department of Justice's fingerprint database.
He also warned that the 2,000 or so ICE referrals his office makes annually could explode. "We'll be fingerprinting 35,000-40,000 persons annually," Hennessey claimed. "And ICE has a record of secrecy. They won't tell me what happened to folks they pick up. They won't say if they are still in custody, been released or deported. The basis of sanctuary city is to protect immigrants who are not doing anything wrong or serious. When ICE grabs someone who failed to pay a traffic ticket and that person is supporting a family, I don't think those crimes should rise to the level of deportation."