But the White House has its own suspect illegal immigration enforcement policies, which could benefit a little from such outrage.
In particular, a little-noticed federal enforcement program known as “Secure Communities” deserves greater national attention.
As with Arizona’s recent law, it is susceptible to racial profiling and a lack of due process in the jailing and deportation of illegal aliens. It’s a program that has potentially far-reaching consequences if not properly managed. In the rush to tackle immigration, and in the wrong hands, it could turn into a mass deportation program.
The program is intended to target “criminal aliens” – undocumented immigrants who have been convicted of serious felonies like rape, murder, or even immigrant smuggling, and who are already serving time in jail. It’s not meant to be used in routine law enforcement against persons stopped for traffic violations or accused of lesser crimes who later turn out to be illegal aliens.
But the federal government’s own data suggests that this is exactly what’s occurring. Cooperating jurisdictions simply run the names and fingerprints of all persons being booked after arrest through a federal database of illegal aliens. If there’s a “hit,” the suspect is detained and referred to Immigration and Customs Enforcement (ICE) for possible deportation.
It doesn’t matter what type of crime the suspect may have committed – even if the suspect turns out to be innocent. ICE statistics compiled last November indicate that just 10 percent of the 110,000 persons identified through Secure Communities were potential felons, but only a small percentage of these turned out to be guilty. In other words, this is not a “criminal alien” program at all. It’s a way of weeding out any illegal alien who is even suspected of a crime.
And what crimes will get a person flagged in the program? Loitering, for example, or “nuisance” crimes like public urination. The “criminal” net is potentially so wide, in fact, that in a worst case scenario thousands of illegal aliens who merely congregate on street corners in search of day jobs could one day be hauled in.
Sounds a lot like racial profiling. The agreements signed between ICE and local authorities under Secure Communities do not include antiprofiling training or even operational guidance – just a one-line statement that federal antidiscrimination laws should be upheld. That’s not enough.
And it’s not just illegal aliens who may suffer. Like other federal databases, the one being used by Secure Communities still has a fairly high error rate – in fact, according to the ICE’s own statistics, 5 percent of the positive “hits” turn out to legal immigrants or US citizens, not illegal aliens. Which means thousands of people could be wrongly detained, and even deported, under this program.
But that’s not all. Secure Communities lacks procedural safeguards to ensure that persons who are arrested and detained can appeal their detention. In the past, such suspects were often released, at the discretion of local authorities, if ICE failed to claim them. But under Secure Communities, once a formal “detainer” is established, it cannot be undone.
Which means many illegal aliens who are otherwise innocent of a crime might be subject to indefinite detention – a violation of due process.
Finally, and perhaps most ominously, state and local jails are not being given the option to participate in Secure Communities. The Department of Homeland Security considers their involvement mandatory. San Francisco, in fact, recently tried to “opt out” of the program, citing civil rights concerns. But California attorney general Jerry Brown, facing a climate of anti-immigrant sentiment, rebuffed that effort.
In fact, largely out of public view, the White House has been fast-tracking Secure Communities. The program is currently operational in 169 jurisdictions, in 20 states, including Arizona. That makes the Obama administration’s criticism of Arizona’s new enforcement law seem all the more ironic.
Given the stakes and the potential implications, the Obama administration should agree to make public all available details on the proposed plan and scope of Secure Communities, as well as data on how the program’s been implemented to date. Last month the Center for Constitutional Rights filed a lawsuit against the Justice Department demanding that it do so.
Obama should direct the Justice Department to comply. Even better, Homeland Security director Janet Napolitano should appear before the Senate and House Judiciary Committees to answer questions about this program.
With the credibility of immigration reform on the line, stricter accountability and oversight is needed before the Secure Communities program proceeds any further.
Stewart J. Lawrence is a longtime immigration policy consultant based in Washington, D.C.