The Obama administration has ripped up its contracts with all 39 states that had standing agreements to participate in the federal immigration enforcement program Secure Communities.
The program, however, is not going anywhere.
On Friday, Immigration and Customs Enforcement responded to complaints of inconsistency and deception regarding the program's design and implementation by canceling every memoranda of understanding, or MOU, with participating states, saying the contract was unnecessary anyway for immigration officials to continue to enforce and expand the program.
"ICE has determined that an MOU is not required to activate or operate Secure Communities for any jurisdiction," ICE director John Morton wrote in his letter to states' governors.
"Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part."
The decree comes after three states, Illinois, Massachusetts and New York, attempted to exercise termination clauses written into their MOUs this summer that gave them the option of terminating their involvement in the program. The immigrant rights community responded with a swift and unified condemnation of the policy change.
"It was not a surprise to us," said Patricia Montes, the executive director of Centro Presente, an immigrant rights advocacy group in Massachusetts that helped organize the state's immigrant community to urge Gov. Deval Patrick to resist S-Comm this summer. "It's the result of a very undemocratic decision, it was not the result of a democratic process. They didn't want to hear the input of the immigrant community."
The cancellation of the MOUs will not affect at all the operation of the program and its day-to-day enforcement, the federal government said.
Secure Communities is a federal information-sharing program that allows immigration officials access to information on every person who's booked in local or county jail, even if they're wrongly arrested or never charged with a crime, which they then run through immigration databases to determine if a person is deportable. It's also been the primary driver of the Obama administration's immigration enforcement agenda, and the program that's allowed for Obama's record-setting rate of deportations. While the stated intent of S-Comm, as the program's called for short, is to identify and deport those convicted of serious crimes, an increasing majority(pdf) of those who are deported who either convicted of minor infractions like drug offenses, or had no criminal record whatsoever. In fact, immigrants with no criminal history whatsoever make up the fastest growing segment of those who are swept up, and deported, by Secure Communities.
Immigrant and civil rights advocates criticize the program's design, and also its basic management and implementation. Friday's announcement is another in a line of constant changes that the Department of Homeland Security has made to the program in its short three-year existence.
"Contracts are contracts, not courtesies," said B. Loewe, a spokesperson with the National Day Laborer Organizing Network. Loewe called the federal government's justification for their changes "legally dubious."
"The world of Secure Communities is a beast you cannot tame because it's ever evolving in its form, in large part because DHS continually reconfigures it," said Joanne Lin, legislative counsel for the ACLU.
"This latest move is just another manifestation of how this administration, by hook or by crook, is going to foist S-Comm on every single jurisdiction irrespective of what that jurisdiction's local and state leaders agree to and negotiated in good faith and signed," Lin said.
Up until last fall, DHS had left open the option for localities and states which wanted to leave the program to do so. But once counties like San Francisco County and Arlington, Virginia attempted to do so, DHS responded by reinterpreting the program and telling counties that in fact, the federal government's MOUs were with their states, and so DHS could not allow them to leave the program. Once states started to attempt to leave, DHS changed course again, and said the program was not optional after all.
"It's a response to political pushback that they hadn't planned for," said Kate Desormeau, a staff attorney with the ACLU's Immigrant Rights Project.
"[Secure Communities] is not a statutory program and it has no regulations, so the rules are really whatever DHS says they are at any given time, and so there's been a real problem with government accountability," said Desormeau.
Immigrant rights advocates question the federal government's legal authority to make such unilateral changes to the program and say DHS has deliberately deceived states in order to expand the program. A judge has ordered the release of a set of documents by this Thursday, said Loewe, that is likely to confirm these criticisms.