Opposing the DHS-ICE Secure Communities Program

Date: Oct 30 2012
Policy Number: 20128

Key Words: Immigrant Health, Immigration, Affordable Care Act

Related APHA Policy Statements

APHA Policy Statement 9501 – Opposition to Anti-Immigrant Statutes

APHA Policy Statement 9401 – Ensuring Access to Health Services for Undocumented Immigrants

APHA Policy Statement 8223 – Avoiding the Public Health Consequences of Anti-Immigrant Racism

APHA Policy Statement 20092 – Border Crossing Deaths: A Public Health Crisis Along the US-Mexico Border

Abstract

Since its inception in 2008, the federal Secure Communities program (S-COMM) has disrupted public health and safety in immigrant communities. Under S-COMM, fingerprints of all arrestees are forwarded to the Department of Homeland Security for matching against its databases. This has led to large numbers of race-based police stops, pretext-based arrests of both documented and undocumented immigrants, and massive detention and deportation of undocumented immigrants with minimal responsibility or accountability. Immigrant communities have suffered increased stress related to racial profiling, deportation, and family separation, and they have become more fearful of accessing health services and public safety services. Originally, S-COMM was voluntary for state and local jurisdictions: terms were negotiated and binding contracts were made between the federal government and individual state and local agencies. Recently, however, as states and cities have tried to exercise the option to not join or to opt out of S-COMM, the federal government has changed the program’s legal basis, stating that it was mandatory, that local jurisdictions could not opt out or negotiate its terms, and that previous contracts were void. A task force was recently created to improve S-COMM, but its processes and findings were inadequate, as attested by some task force members themselves. The arbitrary, secret, and duplicitous nature of S-COMM proceedings has convinced advocates for immigrant rights, immigrant health, and civil liberties that S-COMM cannot be fixed and must be dismantled for the good of public health and safety. The current policy statement adds APHA’s support to this position.

Problem Statement
Federal cooperation with state and local authorities to enforce federal immigration policies has opened the door for state and local police using federal authority to racially profile Latinos, Asians, and other people who appear to be foreigners and to deport large numbers of ordinary working people rather than the violent or dangerous criminals the programs supposedly target.

The 287(g) program, part of the Immigration and Nationality Act (INA), allows the Department of Homeland Security to make formal agreements with state and local law enforcement, giving selected federally trained officers authority to stop and interrogate any “person believed to be an alien” during their regular, daily law-enforcement activity and to detain immigration offenders they encounter.¹It is the federal predecessor to the most controversial part of Arizona’s SB 1070 legislation. Although 287(g) was promoted as a way to remove dangerous aliens, under its authority, police have used minor traffic offenses as a pretext for stops and investigation of immigration status. In Gaston, NC, for example, 95% of 287(g)-related cases involved misdemeanor charges, and 83% of those were for traffic violations.² The US Government Accountability Office (GAO) has criticized the 287(g) program for lacking adequate oversight to ensure that the program is operating as intended.³

The Criminal Alien Program (CAP) works at the point of incarceration. CAP allows local jail officials to hold arrestees in jail until US Immigration and Customs Enforcement (ICE) can screen them and issue detainers against immigrants without documents. The program has expanded from ICE agents visiting detention facilities to identify undocumented immigrants to remote identification through teleconferencing with an ICE hub. The number of arrestees charged with immigration violations rose from 67,000 in 2006 to 220,000 in 2008. Although ICE describes CAP as “targeting illegal aliens with criminal records who pose a threat to public safety,”⁴ a University of California, Berkeley, Law School study of Irving, TX, a small city in Dallas County whose population is 41% Hispanic, showed that 98% of ICE detainers were issued to arrestees charged with misdemeanors.⁵

The reach of ICE into jails has been greatly expanded by Secure Communities, a program wherein the fingerprints of all arrestees, no matter how trivial the charge, are automatically shared, via the Federal Bureau of Investigation (FBI), with the Department of Homeland Security and Immigration and Customs Enforcement for matching against their databases.⁶ Undocumented arrestees are then detained and deported even if the original charge is dropped.⁷ Between October 2008 and October 2011, S-COMM was responsible for 142,000 deportations.⁸S-COMM describes itself as targeting violent felons,⁶ but as of August 2011, 29% of people deported by S-COMM had committed no crime at all, and 59% had committed either no crime or minor, nonviolent crimes.^9,10

S-COMM transforms local police into de facto immigration police,¹¹ allows deportation without any trial or conviction,¹² and incentivizes racial profiling by local police.² The health and safety of immigrant communities have suffered as a result.⁷ Advocates for immigrant rights and welfare, as well as advocates for civil rights, strongly maintain that the program is too flawed to fix and should be eliminated completely.¹³ As noted by a law professor at the University of California, Los Angeles: “As a practical matter, [the] decisions [of local police] to arrest some residents but not others, to get tough with some neighborhoods but not others, will drive and direct federal immigration policy.”¹¹

Specifically, in the first 3 years of the Obama administration, undocumented immigrants were deported in record numbers, nearly 400,000 every year.^14,15Whereas 77% of undocumented immigrants are Latinos, 93% of those arrested under S-COMM are Latinos.^16,17 S-COMM arrestees have had less legal protection than detained undocumented immigrants in general: half as many S-COMM arrestees have lawyers in immigration hearings, one seventh as many S-COMM arrestees are spared deportation at immigration hearings, and a 34% higher percentage of S-COMM arrestees are put in ICE detention. S-COMM even ensnares US citizens. When sample data from this extensive research are extrapolated to all S-COMM arrests, some 3,600 US citizens were arrested in the first 16 months of the program, probably because ICE databases were not updated as immigrants became naturalized US citizens.¹⁷

Scientific issues: S-COMM and other measures for large-scale deportation of undocumented immigrants undermine the health of all immigrants through both direct and indirect means. Immigrants’ health is directly undermined by greatly increased stress and psychological trauma resulting from fear of deportation or family separation.^7,18,19Among those arrested under S-COMM, 39% have spouses or children who are US citizens.¹⁷Three million US citizen children are at risk of being separated from their noncitizen parents, and a study conducted in Greeley, CO, Grand Island, NE, and New Bedford, MA, showed that many of these individuals suffer from depression, posttraumatic stress, anxiety, feelings of abandonment, and suicidal thoughts.¹⁸

Immigrants’ health is indirectly undermined by fear of seeking medical care^7,19 or relief from domestic abuse,²⁰ sexual assault²¹ stress, and trauma.^22,23 Anti-immigrant measures also lead to reduced earning ability, with concomitant increases in hunger and homelessness.²⁴ Women and children have been particularly affected.^25,26 In the first 6 months of 2011, the government deported more than 46,000 parents of US-citizen children, and at least 5,100 children are living in foster care whose parents have either been detained or deported. Domestic violence victims often remain with their abuser rather than report to police and risk detention and loss of their children.^26,27

Specifically, in focus groups with 52 immigrants of widely distributed nationalities in Everett, MA, both documented and undocumented immigrants frequently reported anxiety and hopelessness due to fear of deportation, sometimes leading to avoidance of care through missed appointments or lack of insurance resulting from refusal to complete state documents to obtain health coverage.¹⁹ Surveys of undocumented Latinos in Houston, El Paso, Fresno, and Los Angeles showed that 39% expressed fear about receiving medical services because of their undocumented status.²³Undocumented immigrant women in Hyattsville, MD,²⁰California,²⁸ and San Francisco²⁹ were arrested or deported after seeking protection from domestic abuse. Such women are also at risk of having their children put into foster care.²⁶

In another study in Everett, MA, an online survey was made of primary and emergency care providers about the effects of highly publicized ICE activity in the region on their patients. Of the responding providers (roughly half of those surveyed), 48% reported negative effects on either health or health access. Respondents offering additional information cited deportation fears leading to decreased emotional health, interrupted care, family disruption from deportations, and reduced health access. Examples included anxiety, insomnia, missed appointments (even among documented immigrants), fear of using health services available to undocumented immigrants, and even forgoing emergency room treatment for serious injuries.³⁰

Other studies have shown that fear of immigration authorities leads to delays in tuberculosis treatment,³¹ reduced use of mental health services,³² and increased depression, anxiety, and anger.³³

Political issues: S-COMM was intended to be a voluntary program allowing local jurisdictions to negotiate terms or opt out,³⁴ but on August 5, 2011, DHS announced that it was scrapping 40 agreements with local jurisdictions, stating that local consent was not necessary and that S-COMM was now mandatory.^35–37DHS-ICE documents from Freedom of Information Act actions show the agency being deliberately deceitful in stating that participation in S-COMM was voluntary in order to reduce resistance to expanding the program,¹³ leading California representative Zoe Lofgren to call for an inspector general investigation into false and misleading statements by ICE, as well as S-COMM’s lack of focus on dangerous criminals.³⁸ It now appears that S-COMM is part of the much larger FBI Next Generation Identification Program, a billion-dollar initiative to create the world’s largest biometric database on immigrants and citizens alike.³⁹

The states of Illinois, Massachusetts, and New York^40–42 and many local communities, including Springfield, MA,⁴³ Los Angeles,⁴⁴ Philadelphia,⁴⁵ Baltimore,^46,47 San Francisco,⁴⁸ and now Washington, DC,⁴⁹ and Cook County, Illinois,⁵⁰made a decision to opt out of their S-COMM programs on a public health and public safety basis.

A coalition of 19 major immigrant rights and civil liberties groups wrote a national community advisory report calling the S-COMM program “a devolution of authority to local police that constitutes a civil and human rights crisis” so deeply flawed that they have demanded complete dismantling of S-COMM rather than modifications.^13,25

Ethical issues: Health care for undocumented immigrants is already at risk because undocumented immigrants are categorically excluded from coverage by the Patient Protection and Affordable Care Act and are even forbidden to use their own money to buy health insurance at discounted prices through the exchanges.⁵¹Moreover, undocumented immigrants are generally excluded from Medicaid and the State Children’s Health Insurance Program (SCHIP) by federal law, and state-funded exceptions to this pattern will become rarer as state budgets languish. Finally, most newly documented immigrants must wait 5 years to apply for Medicaid and SCHIP.⁵²

Reducing undocumented immigrants’ already poor access to health care is particularly dangerous and morally indefensible in light of their increased rates of injury,⁵³ illness,⁵⁴and death⁵⁵ resulting from hazardous occupations^53–56 and housing conditions,⁵⁷ compounded by their vulnerability to deportation if they report dangerous conditions or seek treatment.

Proposed Recommendations Statement
This policy recommends that the S-COMM program be abolished. Abolishing S-COMM would not only eliminate the program’s negative effects on the health and health care access of immigrant communities cited above; it would also remove a persistent and growing friction among federal, state, and local authorities, as elaborated below.5^8,59

Opposing Arguments and Alternative Strategies
In response to calls to abolish S-COMM from advocates for immigrant rights, labor, and churches, as well as state officials and local police chiefs, the government has taken measures purportedly to improve the program. To adequately address S-COMM’s faults, the task force would have had to deal with issues related to (1) S-COMM lacking oversight at the state and local levels to prevent it from becoming an incentive for racial profiling and arrests based on pretext, (2) S-COMM lacking oversight at the national level to prevent it from secretly and arbitrarily changing to a compulsory nationwide program, (3) S-COMM’s indiscriminate sweeping up of those committing minor or even no crimes, (4) S-COMM’s disruption of state and local programs engaging immigrants to promote public health and safety, and (5) S-COMM’s effects on the documented immigrant population. These issues have not been addressed.

A fundamental flaw in all of the federal immigration programs, 287(g), CAP, and Secure Communities, is that deportations are meted out by the immigration courts, which are not part of the federal judiciary but part of the Justice Department under executive control.⁶⁰ Their response to S-COMM’s problems has been extremely inadequate. Instead of fundamentally altering the program to concentrate on dangerous criminals, the Obama administration has said that it would encourage immigration enforcement to use “prosecutorial discretion”; however, the union representing ICE officers refused to allow its members to attend the necessary training sessions,⁶¹ and ICE still maintains it has the right to deport any undocumented immigrant it chooses.⁶² In response to the task force recommendation that traffic violators not be deported, ICE announced that it would place immigration holds on jailed traffic offenders only after they are convicted rather than arrested, but pretrial release is still subject to local law enforcement.⁶³ In November 2011, the government announced that 300,000 pending deportation cases would be reviewed to speed deportation of serious criminals and scale back on deportation of noncriminals, young people who were brought to this country as small children and know no other home, military veterans, and the spouses of active-duty military personnel; 5 months later, however, only 3,000 of 228,000 review cases had been dismissed.⁶⁴

Although the Office of the Inspector General issued reports in late March and early April in response to Rep. Lofgren’s demand for an inquiry into false and misleading statements about S-COMM’s deployment, its lack of focus on dangerous criminals, and its racial profiling, these reports also did not address concerns. The March report concluded that ICE did not intentionally mislead states and local jurisdictions; rather, there had been a failure to communicate.⁶⁵ According to the April report on S-COMM’s operations themselves, the program was effective in identifying criminal aliens, and in most cases ICE officers took enforcement actions in compliance with agency enforcement policies.⁶⁶

Finally, an S-COMM task force was convened to hear input from these groups in selected cities and to issue a report on how to improve the program.⁵⁸Of the 4 task force hearings, 3 were met with demonstrations and walkouts demanding complete dismantling of S-COMM, and more than 160 immigrant rights organizations signed a letter calling on the task force members to resign rather than let the hearings be an excuse to perpetuate S-COMM.^58,59

The task force was highly critical of S-COMM, but its recommendations were vague and written from the perspective of improving the program: clarifying its objectives, improving its transparency, prioritizing actions against dangerous criminals, exercising prosecutorial discretion, and strengthening accountability.⁶⁷However, 5 of the 19 task force members resigned, saying that its report was not critical enough, that its recommendation to restructure the program could not ensure that immigrants detained for minor offenses would not be deported, and that “some Task Force members believe that the credibility of Secure Communities has been so severely damaged that it cannot be repaired and therefore should be terminated.”⁶⁷ Those who resigned included a former police chief of Sacramento, CA, and representatives of 2 unions of immigration officers.⁶⁸

Three changes have been made to S-COMM that ICE argues will reduce deportation of noncriminal undocumented immigrants, as follows.⁶³

Jailed ICE-identified traffic or driver’s license violators will not be put on immigration holds until they are convicted, presumably allowing some arrestees pretrial release from custody and from ICE’s reach.⁶³ This argument ignores the possibility of jailers’ anti-immigrant bias preventing pretrial release of arrestees.
ICE immigration holds are now limited to 48 hours, again presumably giving undocumented immigrants greater opportunity to escape ICE’s reach. But there is no way of knowing whether information on this change is circulated to jailers or whether jailers are circumventing the 48-hour limit. Evidence from one Illinois county where an astounding 77% of arrestees under S-COMM had no criminal record at all suggests poor compliance.⁶⁹
ICE is implementing a new training program for police in S-COMM jurisdictions, but there is no control or oversight over how rapidly the program is being deployed, how many police would be trained, or how intensive the training is.

All 3 of these reforms replicate the intrinsic faults of S-COMM itself: they are federal mandates whose life-changing effects on immigrants are subject to the vagaries of local law enforcement.

On the basis of these factors, it is reasonable to conclude that S-COMM is intrinsically flawed, is incapable of being improved to address immigrants’ human rights and public health and safety concerns of the community, and should therefore be abolished.

Action Steps
Therefore—
The president and Congress should end and dismantle S-COMM.

References

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