Changes to S-comm reveal the program's flaws, don't go far enough.

On Friday, Immigration and Customs Enforcement (ICE) released its year end deportation numbers alongside a new set of guidelines on the issuance of detainer requests to local law enforcement under the infamous Secure Communities (S-comm) program. The announcement reveals the depths of S-comm’s flaws, while leaving little doubt that real change at the federal level remains elusive.

In 2012, ICE removed 409,849 people, the most deportations in the agency’s history, and 12,943 more than last year’s record of 396,906. It’s no secret that ICE has severely misguided deportation priorities, and that S-comm has worsened them. One frequently repeated statistic from Department of Homeland Security is that 79% of deportees under Secure Communities had no criminal records or had been picked up for low-level offenses such as traffic violations. However, there are other statistics that outline the brutal impact of S-comm in more detail. A report from UC Berkeley researchers showed that:

Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program; more than one-third (39%) of individuals arrested through Secure Communities report that they have a U.S. citizen spouse or child . . . ; Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States; only 52% of individuals arrested through Secure Communities are slated to have a hearing before an immigration judge;  [and] only 24% of individuals arrested through Secure Communities and who had immigration hearings had an attorney compared to 41% of all immigration court respondents who have counsel.

The numbers are clear. S-comm is a broken program that destroys due process, tears families apart, and focuses on Latinos to a degree that can only be called racial profiling. So, what is ICE’s solution?  Minimal reform with maximum fanfare.

The new detainer guidance states that ICE officials should continue to issue detainers where they “have reason to believe” that an individual has three or more misdemeanor convictions; has a conviction for or has been charged with a felony; has a prior misdemeanor conviction or has been charged with a serious misdemeanor offense; has a prior order of deportation; has re-entered the country after a previous removal or return; has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or:

...the individual otherwise poses a significant risk to national security, border security, or public safety.

In effect, the new policy excludes only a tiny number of individuals. Even those exclusions are only theoretical, because the guidance leaves huge discretion to ICE officers to issue detainers.  Asian Law Caucus’ Angela Chan, a leader in the fight against S-comm in California, released a redlined copy of the new policy on Friday, explaining its fatal flaws. She notes that the policy completely excludes Customs and Border Patrol, and that the guidance would continue to:

...allow individuals to be detained and deported under S-Comm for purely civil immigration violations. S-Comm was supposed to focus on serious or violent felony convictions, not immigration violations.

The other flaws with the policy are obvious. It requires only “reason to believe,” not articulable facts. It does not provide an objective list of specific misdemeanor crimes, but rather a subjective list of categories. By citing a national security threat, it implicates similarly problematic counterterrorism standards.  Finally, it focuses on charges, not convictions, leaving in place the “guilty until proven innocent” standards that have defined S-comm since its inception. Unsurprisingly, although the guidance emphasizes the need for transparency and uniformity, it maintains ICE’s prerogative to police itself, even though this has failed at creating an accountable agency.

ICE is depicting its revisions as thoughtful steps towards sane immigration policy in this country, but these changes trail behind the more meaningful policies passed in cities, counties, and states that want truly secure communities. From the complete non-compliance with ICE detainer requests passed by Berkeley City Council in October of this year to the strict limitations on compliance with detainer requests such as those  passed by Santa Clara County, CA, and  Cook County, IL, grassroots advocacy at the local level has made it clear that communities are fighting S-comm. California Attorney General Kamala Harris’ recent memo clarifying that detainer requests are purely voluntary also demonstrates the sea change happening at the state level. These grudging and miniscule changes to a broken system are clearly ICE’s response, but it is not enough. It is time for S-comm to end entirely.

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