Secure Communities Lacks Effective Prioritization

Secure Communities executive director David Venturella has assured Congress that the program will follow a “risk-based” approach. “We have enhanced ICE’s risk-based strategy that prioritizes the identification and removal of the criminal aliens who pose the greatest threat to our communities by developing classification levels for all criminal aliens based on the seriousness of their crimes and the totality of their criminal history,” Venturella told the House Homeland Security subcommittee on April 2.

The classification system developed by ICE consists of three levels of criminal aliens. Level 1 encompasses “individuals who have been convicted of major drug offenses and violent offenses such as murder, manslaughter, rape, robbery, and kidnapping.” Level 2 includes “individuals who have been convicted of minor drug offenses and mainly property offenses such as burglary, larceny, fraud, and money laundering.” Level 3 extends to “individuals who have been convicted of other offenses.”

ICE says it is using these three levels to prioritize Secure Communities resources. Although listing the three levels of criminal aliens it will use in the prioritization process, ICE has not explained how it will ensure that this prioritization process will be honored in practice. Given that Secure Communities includes immigrants who have been convicted of any offense – albeit as its third priority -- ICE is signaling that it will not limit immigration arrests to dangerous criminals.

Whereas in other ICE enforcement programs, nonpriority arrests are termed “collateral” cases, in this new program all immigrants, legal or illegal, who enter the criminal justice system, guilty or innocent, are included from the start as possible priorities.

“By prioritizing immigration enforcement actions on the most dangerous criminals, from apprehension through removal from the United States,” ICE says that it using “its resources judiciously.” Clearly, ICE operates within limitations. It doesn’t now have the resources (agents, prison beds, removal budget) to detain and deport the 300,000 to 450,000 criminal aliens that ICE estimates are held in federal, state, and local lockups. In other programs, such as Operation Streamline, ICE has limited criminal prosecutions of illegal border crossers according to the number of detention beds available in different sectors.

As the administration and Congress annually increase funding to Secure Communities and other criminal alien programs, there are unanswered questions about relationship between increased resources and ICE prioritization. Less obligated to use limit the number of detentions and removals as its resources increase, will ICE be less judicious in its prioritization? If there are unoccupied detention beds and available ICE agents in the vicinity, will ICE actually evaluate the threat to community security when deciding whether to detain an immigrant identified by a computer match?

Doubt about the integrity of ICE’s declaration that it will prioritize dangerous criminal aliens in the Secure Communities program also arises from the lack of prioritization in other ICE enforcement programs, including Operation Community Shield, Operation Return to Sender, National Fugitive Operations, and the 287(g) program. The absence of any demonstrable prioritization has led to widespread complaints that many of those arrested were simple violators of immigration law rather than criminals or fugitives.

A January 2009 Government Accountability Office report, “Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws,” concluded that ICE was violating its own risk-based standards in the implementation of the 287 (g) program.

Although the main objective of the program is “to enhance the safety and security of communities by addressing serious criminal activity committed by removable aliens,” concluded the GAO, participating agencies had used their 287(g) authority “to process for removal aliens who have committed minor offenses, such as speeding, carrying an open container of alcohol, and urinating in public.” Among the GAO recommendations was that ICE “should establish a plan, including a time frame, for the development of performance measures for the 287(g) program.”

Although there is generally broad public support for the program’s priority targeting of the most dangerous criminal aliens, there is rising concern that in practice ICE does not prioritize. Without internal regulations that enforce the stated prioritization of those immigrants who represent a real threat to community security, the program will involve local law enforcement in a dragnet that picks up all levels of criminal immigrants, illegal and legal. Irving, Texas, one of the first communities involved in the new ICE criminal alien program, is now beset with intra-community tensions and rising Latino distrust of local police because of its increased cooperation with ICE, including being one of the first communities to adopt Secure Communities. ICE says that during the first three months of 2009 5,707 biometric submissions resulted in an IDENT match – of which 124 were “violent or narcotic offenders.” It does not define the character of these violent crimes nor indicate whether the narcotic offenders were large traffickers or solely users of illegal drugs. While elsewhere on its website ICE does offer descriptions of a dozen “success stories” of criminal aliens identified and detained as a result of Secure Communities, it has not yet presented figures to demonstrate that it is indeed prioritizing Level One offenders or that it is not instead detaining mostly Level Three offenders, as it has in other federal/local programs.

Policy Recommendations:

Before the administration and Congress give ICE a free reign with the Secure Communities program, they should stipulate that only when ICE has internal regulations in place that ensure that only immigrants who are threats to community security be found be subject to this intrusion of federal immigration enforcement into community law enforcement.

Similarly, prospective participating local law enforcement agencies should insist that ICE not use the identification capabilities of Secure Communities to shift vast numbers of immigrants from the criminal justice system into its detention and removal system. Many immigrants arrested by local authorities may later be found innocent. Many others, even if guilty as charged, may be legal or illegal immigrants who do not represent any serious threat to community security. Without clear and enforced prioritization, Secure Communities could devolve into an unfocused dragnet that harms communities than it protects them.

Photo/Tom Barry: The Immigrants, Luis Sanguino sculpture in Battery Park, NYC