nat ional
IMMIGRATION
p r o j e c t
of the National Lawyers Guild
July 15, 2009
OMB Desk Officer, for United States
Immigration and Customs Enforcement
Department of Homeland Security,
Sent via electronic mail to oira_submission@omb.eop.gov
Re: Comments on Secure Communities Stakeholder ID Questionnaire
ACTION: 30-Day notice of information collection under review; Form 70008, ICE Secure Communities Stakeholder ID Assessment Questionnaire,
OMB No. 1653-NEW.
The Center for Constitutional Rights and the National Immigration Project of the National
Lawyers Guild submit the following comments in response to the Department of notice of
information collection for the ICE Secure Communities Stakeholder ID Assessment Questionnaire,
Form 70-008, 74 Fed. Reg. 28712 (June 17, 2009).
The Center for Constitutional Rights is dedicated to advancing and protecting the rights
guaranteed by the United States Constitution and the Universal Declaration of Human Rights.
Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a nonprofit legal and educational organization committed to the creative use of law as a positive force for
social change. CCR uses litigation proactively to advance the law in a positive direction, to
empower poor communities and communities of color, to guarantee the rights of those with the
fewest protections and least access to legal resources, to train the next generation of constitutional
and human rights attorneys, and to strengthen the broader movement for constitutional and human
rights. Our work began on behalf of civil rights activists, and over the last four decades CCR has
lent its expertise and support to popular movements for social justice.
The National Immigration Project trains private and nonprofit immigration practitioners, the
federal and state criminal defense bars, and judges on specialized issues of immigration law,
produces multiple immigration legal treatises published by Thomson West, and provides technical
assistance each year to thousands of immigration practitioners, state judges, local governments,
immigrants detained by the Department of Homeland Security, and nonprofit legal assistance
organizations across the country regarding immigrants’ rights and laws. One of the few national
organizations specializing in deportation defense and strategies, the National Immigration Project is
a membership-based organization, many of whom work in the area of constitutional violations’ of
immigrants rights during immigration enforcement actions and detention.
1
Because of our experience responding to queries, requests for assistance on custody issues in
immigration and criminal detention, the National Immigration Project strongly opposes the release
of the current version of the ICE Secure Communities Stakeholder ID Assessment Questionnaire.
Based on our experience with immigration detention, human rights and litigation for changes in the
criminal justice system, the Center for Constitutional Rights strongly objects to the questionnaire as
well.
The questionnaire, as designed, will fail in its stated goal of assessing baseline attitudes
towards Secure Communities, its procedures and approach, a stated goal in the Federal Register
announcement. In several instances, the survey questions are confusing and redundant. Moreover,
several questions are crafted to elicit support of the program, instead of the unbiased opinions of the
stakeholder. As a whole, the survey neglected to include critical questions of cost, infrastructure
support, monitoring, training and oversight that undeniably affect attitudes and opinions about
Secure Communities. Overall, we recommend that DHS re-design the survey. We believe a redesign will mitigate against the possibility of additional corrective data collection and will relieve
the agency of the burden of collecting additional data.
Recommendation 1: Clarify whether questionnaire is directed to ICE employees only or to the
groups identified on Page 2.
On page 1, the “Begin” page of the Assessment Questionnaire indicates it is directed to “ICE
employees,” but on page 2, the survey seeks to include information from ICE employees, other
Department of Homeland Security (“DHS”) employees, other federal agencies and “contractors.”
Additionally, the federal register publication seeks information primarily from individuals in state
and local correctional facilities. Because employees at state and local correctional facilities
participating in the Secure Communities (“SC”) initiative are not necessarily ICE employees, ICE
should clarify who is the focus of the survey group.
Recommendation 2: Clarify who is designated as an ICE stakeholder, and include nongovernmental organizations, community groups, churches, direct service organizations,
judges and prosecutors working with detained immigrants in areas of Secure Communities
implementation as stakeholders.
On page 2, the questions on the individual’s workplace or primary job function contain an “other”
field. It is not clear whether non-governmental organizations (“NGOs”), some of which frequently
and closely provide services to immigrants detained in state and local correctional facilities, are
stakeholders. DHS should seek the opinions of all stakeholders in the Secure Communities initiative
including NGOs, community groups, churches, direct service organizations, judges and prosecutors.
Including these groups will ensure that the program meets its stated goals, complies with state and
federal laws, includes mechanisms to ensure that the program does not apprehend US citizens,
protects vulnerable groups such as victims of crime and the mentally ill, and safeguards against
racial profiling. Collecting information about and assessing the baseline attitudes of all stakeholders
working with noncitizens impacted by SC is useful and will provide a more nuanced and complete
assessment of support for the SC initiative.
Recommendation 3: The survey should clearly articulate the present goals of Secure
Communities, its deployment schedule, procedures, and responsibilities now borne by local
2
and state law enforcement and incarceration facilities who participate in the Secure
Communities initiative.
The survey mistakenly presumes common awareness of Secure Communities’ goals, strategies, and
deployment schedules even though the program has changed over the last several months. Because
stakeholders are likely not aware of the most current version of Secure Communities, collecting
information without a common framework utilizes a flawed methodology that will not yield
accurate, useful, or practical information.
Since the announcement of SC in July 2008, Immigration and Customs Enforcement (“ICE”)
changed the goals, implementation practices, deployment schedule and announced targets of Secure
Communities on several occasions. In many cases, the responder would not be able to identify new
programs or differentiate between current and former goals. For example, previous versions of
Secure Communities used a tiered system to apprehend citizens, ranging from Level 1 to Level 3.
The current webpage, updated on June 24, 2009, shows that ICE removed the tier system and has
focused on a “risk-based approach” in which Level 1 offenses are charged. Similarly SC’s
procedures are not clear since recent anecdotal evidence and empirical data from at least Harris
County, Texas jails suggest that SC target low-level offenders. 1
The questions use terms that presume a common understanding even though the program has
changed. For example, the second question on page 6, “[t]he new ICE program’s objective to
improve partnerships between ICE and state/local law enforcement is” presents several problems in
this regard:
 What does “improve” mean? Neither the survey nor the information on ICE’s website
defines what ICE means by “improve.” Stakeholders may have different opinions about
what factors drive improvement.
 The question does not include a field where stakeholders can assess whether the goal of
improved partnership is being met.
ICE should clarify its policy, procedures, and goals with regard to SC at the outset of the survey and
define all pertinent terms to ensure that all respondents work from a common understanding of both
the initiative and the meaning of the questions. This will ensure that the survey collects accurate,
reliable and practical information.
Recommendation 4: The survey uses several terms that are loosely defined and possibly at
odds with the questions’ purpose. Because they are not necessarily commonly understood
terms, DHS should define what constitutes “community safety,” to ensure consistency with the
program’s stated goals.
On pages 6 and 8, the survey polls the responder on “community safety” without defining or
stating what factors contribute to “community safety.” Stakeholders may have different opinions as
to what factors contribute to “community safety.” For example, if immigrant victims of domestic
violence who are eligible for immigration relief are not being screened through SC, then responders
may believe this factor contributes to a decline in “community safety.” Community groups and
Carroll, Susan “ICE program is casting a wide net: Database is helping to identify dangerous illegal immigrants in jail,
but critics see a troubling trend,” July 13, 2009, Houston Chronicle.
www.chron.com/disp/story.mpl/hotstories/6526211.html
1
3
social scientists agree that community safety not only requires that law enforcement fight crime, but
that they also prohibit racial profiling and police harassment or intimidation.2 Likewise, perceptions
of bias within the criminal justice system against noncitizens, an increase jail personnel harassment
or intimidation, erroneous identifications, and detentions of US citizens contribute to a decline in
“community safety.”
ICE should consider inquiring into changes in police response time, local crime rates, change in
crime rates over time, rates of arrest, and rates of crime reporting. Such measurements will provide
a method to evaluate the concerns raised by law enforcement agencies and an avenue to create
standards by which to evaluate the risks to the stakeholders associated with the program.
ICE benefits from including questions that incorporate “lessons learned” from other established
ICE-police partnerships, like 287(g). Arizona’s Maricopa County has received attention for its
implementation of 287(g) and its increased efforts to detain and deport immigration violators.
Despite these efforts in Maricopa County, police have largely failed in arresting claimed targets
other than minor participants in human smuggling.3 By contrast, the Federal Bureau of Investigation
(“FBI”) statistics show that violent crimes have increased in the county nearly 70% and homicide
increased 166% from 2004 to 2007.4 The potential for a rise in crime is not restricted to Arizona.
Nationwide, the focus on immigration enforcement has led to sharp decreases in the prosecution of
non-immigration related crimes. In 2008 for example, immigration related crimes accounted for
57% of all federal prosecutions.5 By contrast, data-analysts have noted that the prosecution of drug
offenses and federal white collar crime are down by 20% and 15%, respectively.6 A Justice
Strategies report recently found that 287(g) authorized police departments routinely spent their time
and resources chiefly targeting day laborers and traffic violators.7 Similarly, the Government and
Accountability Office, in a survey on 287(g) found that of the 29 participants interviewed, four
admitted that they used the program to process individuals for minor crimes like speeding, contrary
to the objectives of the program.8
Other jurisdictions have questioned whether 287(g) agreements are an effective method of crime
prevention. Chatham County Commissioner George Lucier of North Carolina, in refusing to adopt a
287(g) agreement, noted that the agreements dangerously undermine law enforcement relationships
with the immigrant community.9 The Major Cities Chiefs Association has similarly rejected
adopting information sharing and partnership mechanisms like 287(g) by saying:
2
See e.g., Weatherspoon, Floyd D., Racial Profiling of African-American Males: Stopped, Searched and Stripped of
Constitutional Protection, 38 JOHN MARSHALL LAW REV. 449 (2004); Harris, David A., The Stories, the Statistics and
the Law: Why “Driving While Black” Matters, 84 MINN. LAW REV. 274 (1999)
3
Multiple Authors, Reasonable Doubt, EAST VALLEY TRIBUNE, July 2008, available at:
http://www.eastvalleytribune.com/page/reasonable_doubt
4
See Immigration Policy Institute, “The High Price of Being ‘America’s Toughest Sherriff’: Crime and Spending Soar
in Maricopa County,” Dec. 17, 2008, 2. (Data unavailable for 2005 due to non-reporting from the county).
5
Julia Preston. More Illegal Crossings Are Criminal Cases, Group Says, THE NEW YORK TIMES, June 18, 2008 at A14.
6
Dianne Solis, Immigration Prosecutions Surge Under Bush’s Watch: Filings on Other Federal Crimes Decrease,
Report Says, THE DALLAS MORNING NEWS, Jan. 13, 2009 at 1A.
7
JUSTICE STRATEGIES, LOCAL DEMOCRACY ON ICE: WHY STATE AND LOCAL GOVERNMENTS HAVE NO BUSINESS IN
FEDERAL IMMIGRATION LAW ENFORCEMENT, (Feb. 2009), 2.
8
GOVERNMENT ACCOUNTABILITY OFFICE, IMMIGRATION ENFORCEMENT: BETTER CONTROLS NEEDED OVER PROGRAM
AUTHORIZING STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS, (Jan. 2009), 11.
9
Commissioner George Lucier, Statement to Chatham Conservative Voice, Feb. 26, 2009, available at:
http://www.chathamjournal.com/weekly/news/government/lucier-backs-out-of-public-citizen-forum-90226.shtml
4
“Without assurances that contact with the police would not result in purely civil
immigration enforcement action, the hard won trust, communication and cooperation
from the immigrant community would disappear. Such a divide between the local
police and immigrant groups would result in increased crime against immigrants and
in the broader community, create a class of silent victims and eliminate the potential
for assistance from immigrants in solving crimes or preventing future terroristic
acts.”10
With these lessons learned in mind, the agency should modify the survey tool to reflect Secure
Communities policies and procedures and capture whether those policies are working. For example,
on page 5, the first question asks “[h]ow familiar are you with the goal of the new ICE program to
improve community safety by preventing dangerous criminals from being released back in the
community after serving their sentence?” This question raises some of the following concerns:
 The question presumes familiarity with the prioritization scheme – a scheme that has
changed frequently over the last several months. For example, in Harris County, TX, the
goal of targeting Level 1 offenders has not been met. 11
 The question does not define “community safety.” Does it refer to local and state crime
statistics? If it does, how does the agency track a rise or decrease in crime in relation to
Secure Communities?
 The question does not include a field on whether the goal has resulted in additional or
unanticipated costs to the stakeholder. For example, has the stakeholder expended litigation
costs related to SC? Has participation diverted resources from traditional crime control
programs?
 This question misstates the Secure Communities procedures since the initiative targets
individuals at arrest, booking and through their trial, not just at the post-sentencing stage.
 The question mistakenly presumes that individuals will not have relief from removal and
will be subject to automatic deportation.
 The question casts all noncitizens ensnared within the criminal justice system as criminal,
even though the Secure Communities initiative is applied during arrest, booking and any
arraignment or custody hearing. In other words, Secure Communities applies to noncitizens
who have not been convicted of a crime.
Similarly, the question on page 7 that asks about the prioritization of removal of noncitizens based
on their “danger level” should be amended. The question assumes the use of the three-tier
prioritization system, when it is not clear that the ICE follows this scheme. Second, given the
known failures of 287(g) in accomplishing a similar goal detailed above, the question should aim to
assess not whether the prioritization is a good or bad idea, but whether it is working.
Recommendation 5: Because several questions appear to elicit political responses in support
of the program instead of assessing the needs and concerns of ICE stakeholders, the agency
10
M.C.C. IMMIGRATION COMMITTEE MEMBERS, M.C.C. IMMIGRATION COMMITTEE RECOMMENDATIONS adopted by
Major Cities Chiefs, (June 2006), 6 [hereinafter M.C.C. Recommendations].
11
Carroll, Susan “ICE program is casting a wide net: Database is helping to identify dangerous illegal immigrants in
jail, but critics see a troubling trend,” July 13, 2009, Houston Chronicle.
5
should eliminate these questions in favor of questions that target the implementation and
procedures of SC.
We recommend that the agency amend the following questions to remove an appearance of bias:

On page 6, the question: “I think the goal of removing the most dangerous criminal aliens
is:”
Because the stated goal of all ICE and INS removal operations is the removal of criminal aliens, it is
disingenuous to suggest that Secure Communities is the only ICE initiative solely focused on this
goal.12 This goal is not new or unique to Secure Communities. Because ICE must possess
abundant data about stakeholders’ attitudes towards this long established priority, it serves no
purpose to ask the same question. Indeed, phrasing the question in this manner invokes political
support, and fails to assess support for the overall program.
Additionally, the question includes fields that are redundant and fail to yield clear, useful or
practical information. For example, it is not clear what the qualitative differences are among “a poor
use of resources,” “not effective,” and “not prudent.” Lastly, this question confuses support of goals
with support for procedures. For example, the question asks stakeholder to assess whether the goal
of removing the most dangerous criminal aliens is decreasing or increasing the number of criminal
aliens removed. The question is confusing because goals do not create effects. The survey would
yield more specific and practical responses if it separated out questions about the scope and purpose
of the initiative from questions evaluating the actual results of the SC initiative.
 On page 6, the question: “The new ICE program’s objective to improve partnerships
between ICE and state/local law enforcement is:”
The question fails to enhance the quality, utility, and clarity of the information to be collected
because it is difficult to see how one could objectively respond to this question. The instrument will
more effectively collect useful information by inquiring into the practicalities of forging new
relationships between ICE and state and local law enforcement.
Recommendation 6: The survey should collect information about stakeholders’ familiarity
and support of existing internal oversight and monitoring mechanisms for ICE to properly
develop monitoring and evaluation systems for the implementation of SC.
To create effective oversight at the federal level and develop important internal evaluation
mechanisms, the survey instrument will have greater utility if it inquires into stakeholders’ existing
oversight and the understanding of DHS oversight systems (i.e. Office of Professional
Responsibility, DHS Office of Civil Rights and Civil Liberties). The questions should request
information relating to stakeholders’ existing civilian review processes, independent auditors,
county or state-level oversight, and current public reporting requirements. Additionally, asking
about the stakeholders’ understanding of the purpose and importance of oversight permits ICE to
determine the institutional and cultural barriers to instituting effective monitoring and training
policies. For the supervision of 287(g) agreements, OSLC and the Office of Professional
12
Mission Statement, ICE Office of Detention and Removal, available at: http://www.ice.gov/pi/dro/
6
Responsibility have developed an inspection program to audit the agreements.13 A similar process
should be developed for SC. This survey provides a mechanism to obtain feedback for how the
audits and other oversight mechanisms can best integrate existing processes.
For example, questions related to the initiative’s purpose of locating removable individuals would
yield information about stakeholders’ attitudes towards erroneous referrals to the SC initiative, i.e.
US citizens or non-removable legal permanent residents. Similar questions should be designed
around non-citizens reporting crimes, ICE oversight of Secure Communities, and vulnerable
populations such as the mentally ill.
Recommendation 7: The questionnaire should include questions about whether the
stakeholder knows or tracks abuses by law enforcement or immigration authorities acting
under the authority of Secure Communities. The questionnaire should also assess
stakeholders’ knowledge of federal, state, or local laws or policies related to racial profiling.
The survey should include questions regarding local or state anti-racial profiling policies to properly
assess the performance of the stakeholders in implementing SC. Local law enforcement partnerships
with immigration authorities result in significant concerns regarding racial profiling. Community
experiences with inequitable practices in the implementation of immigration initiatives like 287(g)
are increasingly well-documented. In 2008, the infamous discriminatory practices of Sheriff Joe
Arpaio of Maricopa County, Arizona prompted Phoenix’s mayor to call for a Department of Justice
investigation into the Sheriff’s practices.14 A series of articles in a Phoenix-based paper reported
that deputies regularly make traffic stops based only on a suspicion that vehicles have illegal
immigrants inside.15 The American Civil Liberties Union of North Carolina reports that 287(g) has
been used in the state not as a law enforcement tool but merely as a method of isolating foreign
nationals and Hispanic residents and citizens.16 According to their study, 83 percent of immigrants
arrested by one county’s 287(g)-authorized officers were charged with traffic violations, suggesting
that stops were made based on race and not on probable cause.17 Even in cities with police
department anti-racial profiling policies, communities remain concerned that policing efforts
disproportionately affect minorities, including non-citizens. For example, a study of New York
Police Department (“NYPD”) stop, question, and frisk practices released in early 2009 suggests that
a disproportionate number of stops of Latino residents never lead to arrest, despite the
implementation of an anti-racial profiling policy in 2003.18
Racial profiling practices inevitably lead to significant burdens on the community that should be
assessed through the survey questionnaire to improve its utility. Discriminatory targeting of ethnic
minorities results in a breakdown of trust in government and leaves community members, including
crime victims, feeling isolated and unprotected. The consequences of this are far-reaching and
13
Testimony of William F. Riley, Acting Executive Director, Office of State and Local Coordination before the House
Homeland Security Committee regarding "Examining 287(g): The Role of State and Local Law Enforcement in
Immigration Law," March 4, 2009.
14
See Letter from Mayor Phil Gordon, supra note 19.
15
Reasonable Doubt, supra note 4.
16
Policies and Practices, supra note 18, at 27.
17
Id. at 29.
18
CENTER FOR CONSTITUTIONAL RIGHTS, RACIAL DISPARITY IN NYPD STOPS-AND-FRISKS: THE CENTER FOR
CONSTITUTIONAL RIGHTS PRELIMINARY REPORT ON UF-250 DATA FROM 2005 THROUGH JUNE 2008, (Jan. 15, 2009), 4.
7
include a lack of community participation, a drop in crime reporting and even an increase in
violence.19
According to an ICE factsheet, 287(g) partners are required to undergo Use of Force and racial
profiling trainings in order to receive their certificate of authority.20 Nowhere else on ICE’s website
is it clear what their anti-racial profiling policy is or how it is implemented. Similar requirements
should be addressed in the implementation of SC. ICE has already indicated that it is important for
NGOs and other stakeholders to help them develop appropriate responses to alleged or actual
abuses.21 Due to the growing concerns related to racial profiling and immigration enforcement
programs, the survey should capture stakeholders’ knowledge of Constitutional rights associated
with police practices and state and local anti-racial profiling policies.
As a way of remedying some of these concerns, the survey could inquire for example, whether the
stakeholder is familiar with:
 The possibility of incorrect referrals of US citizens and legal permanent residents who are
not deportable.
 The stakeholders’ compliance with state and federal laws and policies governing racial
profiling. 22
 The local and state anti-racial profiling policies in the stakeholder’s jurisdiction.
 The stakeholder agency’s implementation, training, monitoring, and evaluation of its own
policies.
Recommendation 8: Because cost concerns are critical to gauge baseline attitudes towards SC
the survey instrument should capture information regarding capacity, resources, costs, and
stakeholders’ needs regarding implementation. Questions should identify what resources
currently exist and what is needed to meet existing law enforcement priorities.
Costs incurred by participating in SC and added responsibilities borne by ICE stakeholders who
participate in Secure Communities are not explored in the survey. Because localities face
challenging funding constraints, cost concerns are critical to gauging support of the SC program.
Omitting these factors from the survey will result in an inaccurate capture of baseline attitudes.
To meet the goals of Secure Communities, ICE has acknowledged the need to enhance its capacity
through the training of personnel, increasing detention bed space, adding to transportation
resources, and augmenting the agency’s use of technology.23 To help both the agency and the
stakeholders prepare for efficient implementation of SC, the survey should gather information about
stakeholders’ existing financial and physical capacity to support ICE. To properly assess the costs
associated with the additional measures, the survey should ask about experiences budgeting and
planning for implementation of SC rather than familiarity with these objectives (questions found on
page 5). For example, implemenation of SC will likely require additional monies from state and
19
See M.C.C. Recommendations, supra note 9.
Immigration and Customs Enforcement, Factsheet: Delegation of Immigration Authority Section 287(g) Immigration
and Nationality Act.
21
ICE briefing on Secure Communities, (Apr. 29, 2009), (notes on file with Center for Constitutional Rights).
22
The Guidance Regarding the Use of Race by Federal Law Enforcement
Agencies can be found at: http://www.usdoj.gov/crt/split/documents/guidance_on_race.php.
23
Immigration and Customs Enforcement, Factsheet: Secure Communities (May 1, 2009), available at:
http://www.ice.gov/pi/news/factsheets/secure_communities.htm
20
8
county funds as incarceration costs are not fully re-imbursed through the State Criminal Alien
Assistance Program (SCAAP) or ICE reimbursement. Similarly, questions regarding knowledge of
the costs associated with implementing and participating in SC will assist ICE in evaluating the
needs of its stakeholders and community responses.
The survey should specifically ask questions about costs or resource allocation related to:
Technology management or troubleshooting: Presumably, there are costs associated with both
the purchase and installation of new technology and the training of law enforcement officials
responsible for using the technology. It is unclear from public information on Secure Communities
who bears the cost of implementing new technology linking IAFIS and IDENT. Similarly, there is
little information about cost sharing for the increase in detention centers, transportation, and
personnel resources. It would be useful as a general point to have more information about which
parties are responsible for these costs and inquire into the law enforcement and contractor
stakeholders’ understanding of cost sharing for improved technology.
Incorrect referrals into the SC program: To fully gauge stakeholders’ knowledge of the cost
associated with the program, the survey should assess the understanding of costs associated with the
incorrect identification and referral into SC. The social costs to individuals wrongly swept up in SC
and the cost as a result of litigation should be assessed within the survey instrument to create
appropriate training, oversight, and evaluation mechanisms. SC has already been criticized for the
likelihood of the arrest, detention, and possible deportation of US Citizens or Lawful Permanent
Residents that are not removable.24 There is evidence that local participation in immigration
enforcement increases the risk of racial profiling; some jurisdictions have already faced costly
litigation for their participation in immigration raids.25
Impact of SC on resources allocated to other public safety initiatives: ICE should include
questions of local priorities in education, health, and public safety to meaningfully assess costs to
stakeholders. The Major Cities Chiefs Association in 2006 noted that the costs associated with
involving local police in federal immigration would be prohibitively high. As a result, the program
strains law enforcement agencies and existing security and crime investigation duties become
difficult to meet.26 Commissioner Lucier, in refusing to adopt a 287(g) agreement, noted that
implementation would have required $30 million dollars to build a new jail – resources that his
county needed to repair schools.27 Sheriff Arpaio’s immigration efforts have resulted in huge budget
deficits for the county despite its rapidly rising budget.28 In a series of articles about Sheriff
Arpaio’s work, Phoenix’s East Valley Tribune found that even with the increasing budget, top
24
Susan Carroll, ICE Program is Casting a Wide Net: Database is Helping to Identify Dangerous Illegal Immigrants in
Jail, but Critics See a Troubling Trend, THE HOUSTON CHRONICLE, July 13, 2009, available at:
http://www.chron.com/disp/story.mpl/hotstories/6526211.html
25
See Letter from Mayor Phil Gordon of Phoenix, Arizona to Attorney General Michael B. Mukasey (April 4, 2008)
(calling on the Department of Justice to investigate Sherriff Arpaio’s pattern and practice of discriminatory harassment,
improper stops, searches and arrests); Commissioner George Lucien statement, supra note 5 (noting that 287(g)
programs increase the risk of racial profiling); M.C.C. Recommendations, supra note 7, at 8 (noting that the Katy, TX
police department faced lawsuits from individuals who were the targets of immigration raids).
26
M.C.C. Recommendations, supra note 9, at 6.
27
Commissioner George Lucier, Statement, supra note 11.
28
See Goldwater Institute, “Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sherriff’s
Office,” Dec. 2, 2008, available at: http://www.goldwaterinstitute.org/Common/Img/Mission%20Unaccomplished.pdf
(reporting that since FY 2001, the county’s budget had nearly doubled from $37 million to $72.5 million).
9
criminals had not been arrested.29 Arrest rates for non-immigration crimes decreased and many
crimes went un-investigated completely.30 To increase the utility and quality of the information
gathered, the survey instrument should capture law enforcement stakeholders’ concerns related to
significant costs to city and state governments as well as the costs to the public.
Crime victims’ organizations and law enforcement agencies have expressed concern regarding the
effect of Secure Communities on crime reporting, crisis intervention, and emergency response.31
The survey should assess stakeholders’ concerns regarding the effect of Secure Communities on
emergency response or crime reporting to effectively measure the cost to public safety.
Underreporting of crime medical emergencies increases the burden on law enforcement and medical
service providers and places improvements in public safety at risk. Furthermore, the removal of
adults with children places a considerable burden on state and county resources to care for the
children they leave behind.32
Expanding capacity of law enforcement in dealing with individuals with special needs: Since
Secure Communities foresees an expansion of detention capacity, apprehension, and transportation
of noncitizens, the questionnaire should assess stakeholders’ familiarity and opinion on the costs of
expanding detention facilities and their capacity and ability to assess special considerations of
vulnerable groups, such as those with mental illnesses, survivors of trauma, and trafficking
victims.33 Generally, law enforcement agencies design special protocols and procedures when
arresting and detaining individuals with special needs, such as severe mental illnesses, HIVinfections, or trauma survivors.34 ICE has acknowledged the need for special attention to detainees
with mental and medical health needs by laying out specific requirements for their detention.35
Since the Department of Homeland Security and the Executive Office for Immigration Review have
acknowledged the need for reforms for the apprehension and detention of mentally disabled noncitizens,36 the questionnaire should poll stakeholder support of policies and procedures to protect
the rights of vulnerable groups. The survey instrument should gather this information to implement
29
Reasonable Doubt, supra note 4.
Id.
31
See e.g., National Immigration Law Center, “More Questions than Answers about the Secure Communities Program,”
(March 2009), available at: http://www.nilc.org/immlawpolicy/LocalLaw/secure-communities-2009-03-23.pdf.
32
Commissioner George Lucier, Statement, supra note 8; see also, AMERICAN CIVIL LIBERTIES UNION OF NORTH
CAROLINA LEGAL FOUNDATION& IMMIGRATION & HUMAN RIGHTS POLICY CLINIC, UNIVERSITY OF NORTH CAROLINA
AT CHAPEL HILL, THE POLICIES AND POLITICS OF LOCAL IMMIGRATION ENFORCEMENT LAWS, (Feb. 2009), 96
[hereinafter Policies and Politics]; Women’s Refugee Commission, Press Release: “U.S. Immigration Policy Harms
Women, Families” June 24, 2009 (noting that women taken into immigration custody are often separated permanently
from their children).
33
See BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT, DEP’T OF HOMELAND SEC., DETENTION OPERATIONS
MANUAL, Medical Care available at: http://www.ice.gov/doclib/PBNDS/pdf/medical_care.pdf [hereinafter Detention
Operations Manual]
34
The Constitution requires mental health evaluation, specialized care and the keeping of accurate records. Ruiz v.
Estelle, 503 F.Supp. 1265, 1339 (S.D. Tex. 1980) aff’d in part, 679 F.2d 115 (5th Cir. 1982) cert. denied, 460 U.S.1042
(1983).
35
Detention Operations Manual, Medical Care, supra note 32.
36
A spokesman for ICE told journalists, “We are continuing to work…to improve the services and availability of health
care to those in our custody.” Emily Ramshaw, Mentally Ill Immigrants Have Little Hope for Care When Detained, THE
DALLAS MORNING NEWS , July 13, 2009 available at: Nina Bernstein, Mentally Ill and in Immigration Limbo, THE NEW
YORK TIMES, May 3, 2009 at A17 available at:
http://www.nytimes.com/2009/05/04/nyregion/04immigrant.html?_r=2&pagewan (reporting that Richard Rocha, a
spokesman for ICE, spoke recently of the need for immigration reform saying, “ICE recognizes the need to address
mental health issues among its detainees.”
30
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effective quality control mechanisms and evaluate the costs for local law enforcement agencies to
execute Secure Communities.
Secure Communities training programs: The survey should assess stakeholders’ attitudes
towards various Secure Communities training programs, including those designed to mitigate
abuses, such as racial profiling. Experience with 287(g) demonstrates the critical need for thorough
and frequent training of law enforcement partners and ICE officials. In investigating the
implementation of 287(g), the Government Accountability Office found that gaps in police and law
enforcement’s understanding of the goals and authority of the agreements placed unforeseen
burdens on the community and local governments.37 The survey should assess whether the
stakeholder believes there are gaps in training, or deficiencies in ICE technical assistance. The
survey fails to assess whether stakeholders are committed to training and oversight.
Compliance with federal, state and local laws and policies: The questionnaire should include
questions aimed at assessing the whether the stakeholder created used funds to ensure that their
participation is in compliance with state and local laws, such as racial profiling trainings.
The current survey tool does little to elicit clear, practical, and reliable information from
stakeholders of the Secure Communities initiative. We hope that the above suggestions will
contribute to creating a survey tool that improves ICE and other stakeholders’ understanding of the
implementation of Secure Communities.
Respectfully submitted this 15th day of July, 2009.
Paromita Shah
National Immigration Project of the National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
paromita@nationalimmigrationproject.org
(617)227-9727 (phone)
(617)227-5495 (fax)
Sunita Patel
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
spatel@ccrjustice.org
(212)614-6439 (phone)
(212)614-6499 (fax)
37
GOVERNMENT ACCOUNTABILITY OFFICE at 13, 23.
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