ICE Detainers and the Death of the Secure Communities Program
What non-citizens should know if they are criminally detained.
Part 1 – The Downfall of Secure Communities
This month, the Department of Homeland Security’s Office of Enforcement and Removal Operations released an informational “brochure” outlining the differences between the now-defunct “Secure Communities” program and its replacement, the “Priority Enforcement Program,” or “PEP.” PEP was first announced in a DHS memo signed by Jeh Johnson in November of 2014, but there has been a great deal of confusion about its implementation since that time. The fact that ICE has released this brochure illustrates the need for clarity, and it will serve as a much-needed addition to the toolbox immigration practitioners can use when negotiating for a speedy release of a detained client.
To summarize, Secure Communities was a program first launched in 2008 under the Bush administration, but aggressively expanded in 2011 under Obama. It was designed to create a multi-tiered mechanism to alert ICE about undocumented individuals who had encountered state or law enforcement agencies for criminal infractions. The program relied on the participation of ICE, the FBI, and state and local law enforcement agencies to build partnerships to share biometric data. The stated purpose, according to Julie Myers, former ICE Secretary, was to “create a virtual ICE presence at every local jail.
In effect, Secure Communities allowed law enforcement detention facilities to hold criminal detainees for 48 additional hours after they had been released from criminal custody in order for ICE officials to do a search on their legal status in the U.S. If an individual was undocumented, ICE would be prompted to transfer them straight from criminal detention to ICE custody, where removal proceedings could be initiated. If the individual was a Lawful Permanent Resident or otherwise legally present in the U.S., ICE would evaluate their criminal history to see if they were potentially deportable based on their existing criminal record. If they were, they’d be transferred to ICE custody.
The Secure Communities program was riddled with problems. First, the “48 hour rule” was not strictly enforced and holidays and weekends did not count. This resulted in thousands of individuals who were lawfully present in the U.S. and who had paid their criminal bond or served their time to be detained for days at a time while they waited for ICE officials to cross-check their records, confirming their lawful immigration status or lack thereof. In fact, ICE officials even admitted to the NY Times in 2011 that the program had resulted in the unlawful detention of about 5,880 U.S. Citizens during its first few years of existence.
Aside from the obvious humanitarian concerns that came with the extended and often unjustified detention of people through Secure Communities, there was a huge financial cost that was passed along to the communities in which the program operated. Because the program was inadequately funded by the U.S. government, the detention facilities themselves were responsible for absorbing the costs of participating in the program, placing a heavy burden on local taxpayers.
After increasingly vocal opposition from immigrants-rights groups and the Latino community as a whole, Secure Communities was quietly discontinued in November of 2014, when President Obama announced his plan for executive action for immigration reform. In its place, Jeh Johnson issued a memo announcing the “Priority Enforcement Program,” which took its place. The memo, however, was short both in length and in detail, and provided little guidance either to local law enforcement agencies or to ICE officials themselves on what the substantive changes between the two programs should be. At long last, ICE has issued a training brochure that clearly outlines PEP and how it differs from Secure Communities. We’ll discuss this recent clarification and how immigration practitioners can use it to ensure their clients’ rights are respected during the immigration detention process in Part 2 of this blog.