Report Back From AILA On Secure Communities and the New Prosecutorial Discretion Memo

Image by openmediaboston via Flickr

At the Annual American Immigration Lawyers Association (AILA) Conference in San Diego, I had the great pleasure of attending some Open Sessions with officials from Immigration and Customs Enforcement, the Department of State, Department of Homeland Security, and Customs and Border Patrol.

Earlier, David Leopard, the outgoing AILA President, had given Assistant ICE Director John Morton a “Stop Secure Shattering Communities” button that Marty Rosenbluth and a few volunteers had passed around the room for the keynote session. Later, I also tried to hand some of the same buttons to other ICE officials at the open sessions, but they would not take it.

“Secure Communities” is a program that allows state and local police to check the fingerprints of an individual they are booking into a jail against Department of Homeland Security (DHS) immigration databases. If there is a “hit” in an immigration database, Immigration and Customs Enforcement (ICE) is automatically notified, even if the person has not been convicted of a crime. In this context, a crime usually means driving without a license or “loitering.” ICE then uses the numbers of people ensnared through the flawed program to show how it has increased the deportation of “criminal aliens.”

The agency should revert to using existing programs that place post-conviction immigration detainers on serious offenders. It would decrease the burden on our backlogged immigration courts, keep most hard-working immigrant families together while allocating limited resources more efficiently to target those who commit real crimes. Instead, ICE announced some cosmetic changes to the program on Friday, heavily centered around making sure that victims of domestic violence don’t end up in removal proceedings. The new directive also creates an advisory commission to study the effects of S-Communities.

Immigration advocates bemoaned the news and I received angry text messages when AILA was quoted as welcoming the new changes in the Washington Post and New York Times. That’s good — it takes attention away from the Prosecutorial Discretion (PD) Memo that Assistant ICE Director John Morton released on the same day, which can be used to get deferred action for long-time residents, veterans and DREAM Act eligible students who end up in removal proceedings. Peter Vincent, the Principle Legal Advisor at ICE, asked lawyers to send requests for deferred action to the Office of the Chief Counsel. While people are free to gripe about the litany of immigration problems that remain unresolved, I would seriously suggest that everyone in deportation and with clients in deportation put the PD memo to good use.

Of course, the USCIS and CBP do not have any defined priorities so those who should be eligible for prosecutorial discretion will continue to be placed in removal. Advocates have to make the case for stopping deportation each time, which is a lot of work but most non-profits working on such campaigns are getting rewarded with foundation money for it. So it should not be so difficult or miraculous to stop deportations if they are done right.

Coming back to Secure Communities, ICE officials were pressed to show the legal basis for why local jurisdictions could not opt-out of the federal program. After all, if Secure Communities is a regulatory program imposed upon local and state jurisdictions, then it is constitutionally suspect. ICE Director John Morton had stated earlier that there is a “fundamental misconception about Secure Communities is that somehow the program involves an agreement by the state for the exercise of federal immigration authority.” Vincent also argued that the program does not even require local cooperation but upon the fingerprinting of a person in custody, the data is shared between two federal branches of government — the FBI and DHS. He also declared that local jurisdictions can choose to opt out of knowing what the linked FBI-DHS database says about the person held in custody, which is probably not advisable.

I suppose San Francisco has the right idea on how to get around S-Comm: release the undocumented immigrants who have only committed petty offenses. Forget about passing laws — that’s how it should be done.

Related articles

• Immigration: Feds agree Secure Communities needs fixing – latimes.com (policyabcs.wordpress.com)