June 8, 2011, New York and Washington – Today, advocates and attorneys critical of the controversial immigration program Secure Communities (S-Comm) decried the agency’s placing of anonymous sources in articles in the New York Times and Boston Globe to bolster its contention that the program is mandatory even as more and more localities and states choose to opt out. With New York and Massachusetts following Illinois, the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement Agency (ICE) is waging a campaign of coercion to force states and localities to adopt a program that faces wide calls for its termination due to its dishonest and indiscriminate implementation. Started in 2008, S-Comm runs the names and fingerprints of everyone arrested in participating localities through federal immigration and criminal databases. Law enforcement professionals have said the program results in a deterioration of community-police relations as local officers are commandeered to assist with the work of the feds. The agency’s story about the ability to opt out of the program has shifted constantly, and many localities and members of Congress feel that ICE lied to them in the process. (More Background Information available at http://ndlon.org/pdf/scommbrief.pdf)

Said Bridget Kessler, Clinical Teaching Fellow at the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, "Through Freedom of Information Act litigation we have sought disclosure of the opt-out policy and the legal basis for the DHS’ most recent position that states and localities cannot opt-out. So far, ICE has stonewalled and refused to turn over an unredacted version of a legal memorandum about the authority to make the program mandatory. The lack of transparency on this issue is stunning. The public has a right to straightforward information from the federal government about the purported legal basis for programs that cost taxpayers millions of dollars--particularly when the government appears to be forcing these programs on unwilling states and cities."

A recent statement by an assistant director at the FBI called into question whether they can force information sharing: “[W]e don't own those records. They're owned by the states, by the 18,000 law enforcement agencies across this country. They submit them to us and allow us to use them, we hold them and distribute them per their agreements with each of the states. And every state has a different law governing what records can be distributed and what they can be used for. The challenge is walking that line and making sure we're not violating any of the states' rights in addition the federal laws that we have." 

Said Pablo Alvarado, NDLON Executive Director, “DHS is more a rogue agency than a reliable source at this point. The agency’s use of anonymous sources signals a lack of transparency and secrecy that has no place in a democracy. ICE continues misrepresenting the program.  DHS can't be taken on its word to write its own legal authority. There’s never been a mandate to make end run around 10th amendment nor a mandate to enlist police as frontline deportation officers.”

Said Center for Constitutional Rights Attorney Sunita Patel, “Regardless of the legal authority to do so, one thing is clear: Making S-Comm mandatory is bad policy. New York, Illinois and Massachusetts agree that the program is harms all of us. We are concerned with potential constitutional violations and privacy violations if the federal government compels information sharing. DHS should halt the program for an immediate review and, at minimum, allow states and localities to opt-out or limit their participation in the program.”


Visit CCR’s NDLON v. ICE case page or the joint website, UncovertheTruth.org, for the text of the FOIA request,  the lawsuit filed in the Southern District of New York and all other relevant documents.