Dec 12, 2012 -- Last week was a rough one for Secure Communities, a controversial federal deportation program that critics charge is counterproductive and unconstitutional. The most significant developments came from California, where the program has essentially lost support at the city and state levels.
The S-Comm program is run by the Department of Homeland Security's Immigration and Customs Enforcement (ICE), which uses fingerprints taken when someone is arrested to automatically check the person's immigration status. If immigration officials have any concerns, they ask local law enforcement to hold that person for an additional 48 hours to give an immigration agent time to pick up the arrestee.
However, critics of the program charge that it casts too broad a net, scooping up non-criminals, lawful immigrants, even victims of crime.
California Attorney General Kamala Harris attempted to clear up longstanding confusion about the program last Tuesday when she issued a directive informing local law enforcement that ICE immigration holds – known as detainers – are indeed voluntary and not mandatory.
Harris said she had received dozens of inquiries from law enforcement officials about what their obligations were regarding the federal immigration hold requests.
Law enforcement had previously been split on the issue.
In Los Angeles, for example, Police Chief Charlie Beck said publicly that he would no longer comply with immigration holds for ICE that were not for serious or violent crimes.
However, Los Angeles County Sheriff Lee Baca has been adamantly against any efforts to undermine the program's reach.
Harris cited the 10th Amendment and legal precedent to show that federal government cannot make states fulfill federal duties.
"Under principles of federalism, neither Congress nor the federal executive branch can require state officials to carry out federal programs at their own expense," said the information bulletin.
ICE records show that more than 82,500 immigrants were removed from California through S-Comm, and about 26,000 of them were for serious or violent crimes.
Harris' rationale for the announcement seemed to be driven more by the problems associated with S-Comm than by what she says are its legal limits.
"When I look at the numbers, [they] aren't holding true to what was the stated intent, which was to prioritize those who are convicted of serious crimes," Harris said.
In a review of S-Comm information from March to June, Harris found that 28 percent of the cases involved non-criminals. She went on to call the program "flawed."
"I want that rape victim to be absolutely secure that if she waves down an officer in a car that she will be protected. And not fear that she's waving down an immigration officer," Harris said.
ICE issued a generic response that did not challenge Harris' statement that ICE detainers are voluntary.
"ICE has been dedicated to implementing smart, effective reforms to the immigration system that allow it to focus its resources on criminals, recent border crossers and repeat immigration law violators," an ICE statement read.
Immigrant rights advocates say there needs to be a statewide standard.
"Whether someone is subject to deportation as the result of a minor infraction ought not depend on what county the person is in; the Attorney General's guidance demonstrates the need for a statewide policy in the form of legislation such as the TRUST Act," said Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund.
The third version of the TRUST Act, or the Transparency and Responsibility Using State Tools Act, was unveiled on the first day of the state legislature last Monday. In essence, the bill would have limited state participation in the S-Comm program.
Two months ago, Governor Jerry Brown, who was attorney general when S-Comm first came to California, vetoed the previous version of the TRUST Act, saying the bill went too far in limiting local law enforcement's discretion. It appeared, though, that he agreed with it in principle.
State Assemblyman Tom Ammiano (D-San Francisco) reintroduced the bill on the first day of the legislative session, emphasizing how urgent it is to act quickly on the legislation.
"I wanted to reintroduce this immediately because these policies have been hurting people every day," Ammiano said. "All of California is hurt every day when we allow families to be broken apart and productive workers to be taken from their jobs in a way that does nothing for safety."
Brown joined ICE Director John Morton on Thursday to discuss the TRUST Act with sheriffs at the California State Sheriffs' Association quarterly board meeting, which was not open to the public.
"The governor had a vigorous discussion with John Morton and the sheriffs," Gareth Lacy, Brown's spokesperson, said. "The TRUST Act was at the center of this discussion and it was detailed, positive and productive."
Neither ICE officials nor the Sheriffs' Association responded to calls for comment.
Reshma Shamasunder, executive director of the California Immigrant Policy Center, was "very concerned" about the closed-door meeting.
"Why was a meeting about a program plagued by a tremendous lack of transparency held in secret?" she asked. "Director Morton has caused tremendous confusion among sheriffs and the governor, and has presided over a heartbreaking spike in deportations. He should not be shaping policy in California."
In response to Harris' directive on the ICE holds, Sheriff Baca, who has been the most outspoken opponent of the TRUST Act, recently said he would no longer honor ICE detainers for low-level offenders.
This announcement was viewed with suspicion from immigrant rights groups.
"Am I the only one skeptical of Baca, who said undocumented immigrants have no rights?" Shamasunder tweeted on Wednesday, referring to previous statements Baca made on a local NPR affiliate.
Finally, in Chicago last week, a federal judge ruled that a lawsuit challenging the legality of detainers could proceed – calling into question the very legitimacy of ICE's power to act.
The lawsuit, which was filed by the National Immigrant Justice Center, "questions the procedure of allowing presumed undocumented immigrants to be held in jail beyond the period established by judges and prosecutors within which their immigration status must be verified," according to EFE.
"This is an important ruling that overcomes a significant obstacle that advocates around the nation have faced as we try to hold the government accountable for its unconstitutional use of immigration detainers," NIJC's Mark Fleming told EFE.