On August 10th, Cardozo’s Immigration Justice Clinic (IJC) released government documents that indicate that the Immigration and Customs Enforcement Agency’s “Secure Communities” program, which aims to target and deport high-level criminal offenders, for the most part deports low-level offenders or people without prior criminal records. The documents were obtained through a Freedom of Information Act lawsuit filed in a New York federal court in April by the IJC along with the National Day Laborer Organization Network, and the Center for Constitutional Rights.
The Secure Communities program requires local law-enforcement agencies to take fingerprints then submit them to a database where the fingerprints are compared against FBI and Department of Homeland Security records. Secure Communities currently operates in 168 jurisdictions across 20 states, but the Obama administration intends to expand the program — originally enacted by President George W. Bush in 2008 — to cover the entire country by 2013. Peter Markowitz, director of the IJC, said Secure Communities represents the most aggressive and widespread role of local police in civil immigration. “Too often when local cops become immigration agents it exacerbates unconstitutional abuses such as racial profiling.”
“The program has been billed as a way to target the worst of the worst,” Markowitz said. “It was also sold to local law enforcement as a technical change in the tracking of fingerprints that won’t have any impact on their work.” These notions have turned out to be incorrect. 79 percent of people deported through the Secure Communities program were either picked up for low-level offenses or had no criminal records. Additionally, the program has made immigrant communities reluctant to cooperate with local law enforcement.
The case was filed by 3Ls Brooke Menschel and Morgan Russel, members of Cardozo’s IJC. Menschel said the lack of information available about the program made it necessary to file the case, “We needed information, but there was nothing out there.” Once made public, the information quickly drew national attention, including the eye of the editorial page of the New York Times.“It’s gratifying to think that our work on the project may have played some part in bringing greater national scrutiny to this secretive and poorly-understood program,” Russel said.
At this point the case remains open. The documents were released as part of a preliminary disclosure agreement. “This is just the tip of the iceberg,” Markowitz said. Should the case proceed, students again will act as lead counsel, appearing in the Southern District of NY to argue motions. The next step would be the filing of summary judgment motions.
Markowitz believes the failures of the Secure Communities program represent the weaknesses of the “enforcement only” immigration solution, which focuses on deportation and detention without addressing means for the more than 12 million undocumented immigrants living and working in the United States to have a path to legalization. The United States deported nearly 400,000 people last year, and for the first time ever nearly half of those people were detained during their immigration hearings. The fastest growing segment of Federal detention is immigration.
Markowitz says the problem with the Obama administration’s immigration policy is the same that plagued Bush: they have become trapped in the enforcement only scheme not because it’s a good policy but because it is misperceived as good politics. The Obama administration must approach this issue cautiously, as immigration could potentially be a game-changer at the midterm elections in November.