Noncriminals swept up in federal deportation program


More than once, Norma recalls, she yearned to dial 911 when her partner hit her. But the undocumented mother of a U.S.-born toddler was too fearful of police and too broken of spirit to do so.

In October, she finally worked up the courage to call police — and paid a steep price.

Officers who responded found her sobbing, with a swollen lower lip. But a red mark on her alleged abuser’s cheek prompted police to book them both into the San Francisco County Jail while investigators sorted out the details.

With that, Norma was swept into the wide net of Secure Communities, a federal program launched in 2008 with the stated goal of identifying and deporting more illegal immigrants “convicted of serious crimes.”


But Norma was never convicted of a crime. She was not charged in the abuse case, though the jail honored a request to turn her over to immigration authorities for possible deportation.

“I had called the police to help me,” said Norma, 31, who asked that her last name not be used because she fears that speaking out may jeopardize her case. “I think it’s unjust…. Even with a traffic ticket we can now be deported.”

Under the program, fingerprints of all inmates booked into local jails and cross-checked with the FBI’s criminal database are now forwarded by that agency to Immigration and Customs Enforcement to be screened for immigration status. Officials said the new system would focus enforcement efforts on violent felons such as those convicted of murder, rape and kidnapping.

But Secure Communities is now mired in controversy. Recently released ICE data show that nearly half of those ensnared by the program have been noncriminals, like Norma, or those who committed misdemeanors.

In addition, hundreds of ICE emails released in response to litigation by immigrant and civil rights groups show the agency knowingly misled local and state officials to believe that participation in the program was voluntary while internally acknowledging that this was not the case.

U.S. Rep. Zoe Lofgren (D-San Jose) on Friday accused ICE officials of lying to local governments and to Congress and called for a probe into whether ICE Director John Morton and Homeland Security Secretary Janet Napolitano, who oversees the agency, were aware of the deception.


San Francisco and Santa Clara counties are among those jurisdictions that sought to prevent fingerprint data from being automatically routed to ICE. Although that data will still be forwarded to immigration authorities, both counties are now crafting policies that would deny ICE hold requests for inmates booked on minor infractions.

There is still much confusion over what legal authority states have to change their participation agreements with ICE, which now says they are unnecessary.

A bill sponsored by Assemblyman Tom Ammiano (D-San Francisco) to be heard in committee Tuesday would require California to modify its agreement with ICE so that only fingerprints of convicted felons are run through the immigration database. The bill also contains protections for domestic violence victims and juveniles and would make the program optional for counties.

“With punitive methods that sweep them all up, there’s no trust,” said Ammiano, adding that with 11 million illegal immigrants in the country, the policy should be specifically tailored to dangerous criminals. “We have had children come home from school and their parents are not there. That is not an enlightened policy.”

A similar bill is pending in Illinois, while Colorado managed to negotiate a modified agreement that includes some protections for domestic violence victims. Washington recently became the first state to refuse to join the federal program, and Washington, D.C., withdrew altogether.

Federal officials now contend that all states and counties must participate in Secure Communities by 2013. They said Washington, D.C., was allowed to temporarily terminate its agreement only as a courtesy.


But the program’s legality remains an open question. Homeland Security officials say they need no approval from counties or states because Secure Communities is merely “an information-sharing program between federal partners.” Lofgren and other critics, however, question the federal government’s right to impose the program on local jails. Backers of Ammiano’s bill say that ICE has exceeded its authority and plan to move forward with proposed changes to California’s agreement.

ICE spokeswoman Nicole Navas said that the Secure Communities program resulted in the deportation of 72,000 convicted criminals last year, more than at any time in agency history. Of those, 26,000 had committed major violent offenses.

“By removing criminal aliens more efficiently and effectively, ICE is reducing the possibility that these individuals will commit additional crimes in U.S. communities,” she said.

Some who appear in the data to be noncriminals or low-level offenders have gang affiliations, were arrested for drunk driving or were previously deported and returned, she said. Of California’s fingerprint matches, 22% to date are fugitives who had ignored deportation orders or were expelled and returned illegally, data shows.

Norma, for example, had left the country voluntarily after an immigration arrest in 2002 but returned the same year, ICE officials said.

In 2009, California signed one of the earliest agreements with ICE to participate in Secure Communities. The program is now in 41 states and 1,211 local jurisdictions, including all California counties.


Critics say the program discourages immigrants from reporting crimes and encourages racial profiling because officers might book individuals on minor infractions knowing that their fingerprints will be screened by ICE. They point out that the program does not screen out those arrested but never charged with a crime.

A Homeland Security official said the department has hired a criminologist to examine arrest statistics for signs of racial profiling and is looking to “enhance the decision-making process” to reduce the number of noncriminals being deported. The department also will soon unveil a policy for domestic violence victims.

Supporters applaud Secure Communities for replacing ad hoc immigration enforcement with a nationwide effort that targets criminals.

“Before what was happening was the local officers had no way of knowing or had to take special steps to find out if the people they arrested were potentially removable from the community,” said Jessica Vaughan, director of policy studies for the Washington, D.C.-based Center for Immigration Studies, which advocates for tougher immigration enforcement. Los Angeles County Sheriff Lee Baca also supports the program.

But Lofgren and others are upset over what they see as the deception with which the Secure Communities program was implemented.

The congresswoman was most angered by the hundreds of ICE internal documents recently released by order of a federal judge. A review of the correspondence reveals an agency that misled local and state officials as it struggled to defuse what one email called “a domino effect” of political opposition.


As early as November 2009, Secure Communities Acting Director Marc Rapp declared in an email that “voluntary” meant “the ability to receive the immigration response” about fingerprint matches, not the ability to decline to provide the data in the first place.

But for nearly a year that was not made clear to local agencies. “They said, ‘You set up a meeting and you opt out.’ That’s why we’re pretty unhappy,” said Santa Clara County Counsel Miguel Marquez.

San Francisco County Sheriff Michael Hennessey also unsuccessfully sought to opt out of the program last summer. Hennessey is developing a policy that would honor ICE detainer requests only for felons and misdemeanants whose crimes involve “violence, guns, and certain sex offenses.” Santa Clara County is exploring a similar policy.

In July, Lofgren wrote Napolitano and U.S. Atty. Gen. Eric Holder seeking “a clear explanation of how local law enforcement agencies may opt out of Secure Communities by having the fingerprints they collect … checked against criminal, but not immigration databases.” In September, she received letters back stating that locals need only submit the request in writing to state and federal officials.

ICE officials knew the language was misleading. “I like the thought. But reading the response alone would lead one to believe that a site can elect to never participate should they wish,” an FBI staffer wrote to ICE colleagues in an August email exchange about the draft. In October, Napolitano and Morton finally held a news conference to clarify that opting out of Secure Communities is not possible.

A Homeland Security official said Friday that “Secure Communities is not voluntary and never has been. Unfortunately, this was not communicated as clearly as it should have been to state and local jurisdictions.”


Meanwhile, Norma is preparing to testify on behalf of Ammiano’s bill. She attends a domestic violence support group and cares for her 3-year-old son, Brandon, in a rented room while wearing a bulky ankle monitor.

“Now that I know my rights, I want to fight,” said Norma, who recently graduated from a leadership program to help other abuse victims.

Immigration visas are available for domestic violence victims who meet specific criteria. If she loses her case, Norma said, she will return to Mexico.

“This strength they’ve given me, this sense of security, this I will carry with me anywhere I go.”