Instead, U.S. Immigration and Customs Enforcement contends it does not need states' permission to operate the Secure Communities program nationwide.
The move comes after three states – Massachusetts, Illinois and New York – withdrew from the program, which checks arrestees' residency status using fingerprint data. California could join that list should AB 1081 pass the state Senate this month and receive the governor's signature.
However, if ICE's legal reasoning holds up, the legislation is irrelevant as written.
The bill's central provision would void California's pact with the federal agency; meanwhile, ICE already has taken care of that.
"This change will have no effect on the operation of Secure Communities in your state," John Morton, director of the immigration enforcement agency, wrote in a letter to state governors last week. "ICE will continue to operate Secure Communities for jurisdictions where it is already deployed and will continue to activate the program for new jurisdictions."
Jails in all 58 of California's counties already send biometric data to federal agents.
The program ostensibly targets illegal immigrants who have been convicted of serious offenses.
But in several states, Secure Communities has led to the deportation of more non-convicts than violent felons. Twenty-eight percent of those booked through the fingerprint checks in California had no criminal record, ICE data from February showed.
California Attorney General Kamala Harris began a review of the fingerprint checks in April to determine whether the effort was targeting dangerous criminals, as intended.
Harris, in a written statement yesterday, said that examination is ongoing. Her statement continued:
"The stated goal of the Secure Communities program is to get serious criminals off our streets, but I am very concerned by reports that the program's implementation has strayed far beyond that goal. Victims and witnesses to crime must feel free to interact with law enforcement and report crime, without fear of reprisal. I will continue to closely review implementation of the new guidelines proposed for Secure Communities to evaluate whether it is accomplishing its stated mission."
Assemblyman Tom Ammiano, D-San Francisco, author of AB 1081, said he is working with a legal team to figure out if the legislation can be amended to address ICE's latest move or whether to challenge the fingerprint checks in court.
"This is an extremely bad-faith type of gesture," Ammiano said.
Regardless of its intentions, ICE has greatly complicated critics' efforts to block Secure Communities from their police stations.
The agency's argument moves the fight outside the jurisdiction of local officials and into the logistics of criminal justice data-sharing [PDF]. (See Page 3.)
Secure Communities relies on fingerprints from city and county lockups. But ICE does not obtain that data directly.
Police departments automatically provide this information to the FBI, which checks the prints against its criminal history database. From there, the FBI hands the information to ICE agents, who then search for matches in the immigration biometric database.
"Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another pare," Morton wrote to state governors.
Story courtesy of our media partners at STORYLINK" TARGET="_blank">California Watch (A Project of the Center for Investigative Reporting)