The federal government is expanding a troubled deportation program despite it’s well documented flaws. Now, with news that it’s impossible to opt out of the program, immigrant rights activists are going back to the drawing board.

Last week Janet Napolitano, the Secretary of Homeland Security, said that municipalities have no power to choose whether to participate in Secure Communities, a controversial program that checks the legal status of anyone booked into a local jail. The program has been criticized for indiscriminately shoving even lawful residents into deportation for petty offenses at best. Napolitano’s announcement comes as a shock to local advocates across the country who were previously informed that the program is optional and have mounted campaigns to convince localities to opt out.

Four counties have already voted to opt out of the program: Santa Clara, Calif.; Washington, D.C.; Arlington, Va.; and San Francisco. It appears they may have done so in vain. "What we have here is another set of conflicting statements from ICE as well as from DHS on Secure Communities," says Arlington County Board Member J. Walter Tejada.

In September, Secretary Napolitano wrote a letter responding to a request for clarification from Rep. Zoe Lofgren, a Democrat from California. Napolitano’s letter confirmed that local governments have the power to opt out of Secure Communities. The announcement appeared to open new space for advocates and municipalities to halt the program’s expansion. But two weeks ago, the Washington Post quoted an anonymous government source who said the program was actually not optional. Why? Because Secure Communities relies on fingerprint data that all local law enforcement already send to the FBI, that the FBI then shares with ICE, there appears to be no way around the program.

Finally, Napolitano confirmed late last week that the program is not, in fact, voluntary. "We do not see this as an opt-in, opt-out program," Napolitano told the Washington Post.

On the same day that Napolitano made her announcement, she proudly proclaimed that the immigration agency once again deported close to 400,000 people in fiscal year 2010. The department claims that a record number of those deported are immigrants convicted of crimes. But the government’s own data complicates the the picture. Those lumped into the category of "criminal alien," the term used by ICE to refer to deportees with convictions, are often guilty only of not being a U.S. citizen.

Indeed, close to 80 percent of all those deported as a result of Secure Communities had no criminal convictions at all, or were charged with some small infractions like traffic violations. Rather than focusing on immigrants with serious violent crime convictions, as the government says it intends to, the program is rounding up undocumented immigrants en masse, along with lawful residents who may only have minor convictions, often for drug possession. Many local advocates say that the program, which is now operational in over 600 municipalities in 32 states, is one of a set of untargeted tools leading to the indiscriminate deportations of non-citizens.

The program is just one part of a set of immigration programs that’s led to another consecutive year of record levels of deportations.

In a recent ColorLines investigation, I told the story of Shahed Hossain. Shahed lived in Fort Worth, Texas, with his family from the age of 10, but was deported to Bangladesh after a slip of tongue at the border–he told a border guard he was a citizen rather than a permanent resident. The case reveals how far off the rails our rapidly expanding deportation system has gone. But rather than acting to bring the immigration system under control, the Obama administration is further expanding its reach.

Advocates in the four counties where governments already voted not to participate in Secure Communities are now bewildered.

Jazmin Segura from Services, Immigrants Rights and Education Network (SIREN) in Santa Clara, says, "ICE is lacking transparency and there’s a lack of trust. They have been back peddling with a lot of things they’ve said. It’s another lie from ICE and it’s very frustrating."

Segura says local advocates are exploring whether there are legal avenues to get out of the program, especially in light of the fact there is no legislated requirement for municipalities to participate. "There is no federal mandate for Secure Communities to be enforced. It’s something ICE is going on it’s own. So a lot of groups are looking into the legalities."

Arlington’s Tejada says "at the very least, we want clarification on the part of ICE to specifically and unambiguously specify if there is an opt out. If so, how’s it works? And if not, why not?"

Tejada also suggests there may be other ways around the program. Secure Communities requires that local jails hold inmates identified by ICE until the agency can transfer that person to an immigration detention center. There remains some question as to whether local governments that vote to opt out of the program can simply go on functioning as if no ICE hold, or "detainer" were issued.

Tejada nods in that direction. "There needs to be a clarification of the weight that a detainer carries. What is the local obligation to and weight of that detainer?"

Colorlines emailed the Department of Homeland Security asking for clarification but did not receive an immediate response.

Meanwhile, Secure Communities is rapidly expanding. At the end of September, the entire state of Texas activated the program. Today, the LA Times reports that Los Angeles is also moving forward with plans to bring county criminal jails into partnership with ICE.

Sarahi Uribe, of the National Day Laborers Organizing Network, which is part of a national campaign against Secure Communities, says groups "will continue to push for local governments to opt out of the program. These local governments went through democratic processes and held public hearings," she says. "And now there being denied the right to opt out of something they never opted into."