June 28, 2013, New York – The day after the Senate passed a disappointing immigration reform bill, the U.S. government agreed to pay over $1.2 million in attorneys’ fees in the historic Freedom of Information (FOIA) lawsuit NDLON v. ICE.  Rights groups brought the case in 2010 to force the government to turn over documents about the so-called Secure Communities (SCOMM) program. Since its rollout in 2008, SCOMM has spread nationwide, over the protests of local and state leaders, and contributed to the Obama administration’s widely criticized, record-setting deportation numbers.  Through SCOMM, the federal government targets all people booked into local jails, regardless of how minor the charges, even if charges are dropped, which has resulted in widespread condemnation for centering local law enforcement in the government’s dragnet deportation scheme.

The lawsuit was filed in order to uncover the truth about the SCOMM program, its scope, its legality, and whether the Obama administration misled and misrepresented the program to state and local government officials. The substantial attorneys’ fee settlement reflects the importance of the information sought, the government’s refusal to turn over documents that plaintiffs and the public were entitled to under FOIA, and the extent of the litigation necessary to bring the information to light.

Documents uncovered over the course of the litigation galvanized local community organizations and prompted the governors of New York, Illinois, and Massachusetts to publicly seek to opt their states out of the program. In response, the Department of Homeland Security announced that SCOMM was mandatory and the cooperation of states was not necessary. 

The FOIA litigation also played a major role in exposing the FBI's plans for massive new data collection via NGI (Next Generation Identification), a multiagency database collecting DNA, a person’s gait and iris scans. 

Another major achievement of the case were a series of important decisions handed down by the court that changed the way the government is required to identify, collect and produce data for all FOIA requests. 

On March 15, 2013, a federal judge approved a settlement agreement requiring the government to provide new data about ICE’s use of immigration detainers.  Also known as ICE holds, detainers are the agency’s key tool in apprehending those identified through SCOMM and other programs. Under that agreement, the government must also provide records on the contemplated expansion of links between local law enforcement and federal immigration databases through mobile devices.

Said Pablo Alvarado, Executive Director of the National Day Laborer Organizing Network (NDLON). “This FOIA litigation uncovered the truth that the Obama administration’s Secure Communities program was built to be a deportation dragnet, not to make us safer.  In fact, SCOMM’s forced expansion has made us all less safe and resulted in the Arizonification of the country. It’s an outrage that the deportation program designed to ‘revolutionize’ enforcement was implemented with such secrecy. Anyone who reads the documents released through this lawsuit and sees the impact of the program would agree that it should be ended immediately.”

Said Center for Constitutional Rights attorney Sunita Patel, “Good government requires an open government. This large award is a warning to government agencies. When asked for records the public is entitled to, agencies should opt for transparency rather than secrecy. In the three years of litigation, the agencies repeatedly stymied negotiations, lied about the availability of data and records, and failed to produce records in a timely manner, which ultimately only cost the government more in attorneys’ fees.” 

Said Sonia Lin of the Immigration Justice Clinic of the Cardozo School of Law, “Through this litigation, we have uncovered valuable information about how the Secure Communities program has made our neighborhoods and communities less safe and less secure.  This information has spurred states and localities throughout the U.S. to take action against the rampant misuse of SCOMM’s immigration detainers. One of the most populous states in the country, California, is pushing to take similar action with the TRUST Act.”

Said Anthony Diana of Mayer Brown, LLP,  “This case put the federal government on notice that it will be held to the same standards as those applied to the people and entities it governs when it comes to the identification, collection and production of electronic data.   It is no longer acceptable for the government to use the complexity of the search, a lack of knowledge about electronic data, or ignorance of its own information systems to obstruct the disclosure of information to which the public is entitled.  The unprecedented size of this settlement should send a strong message to the government that the failure to cooperate with its own citizens and facilitate open government has real consequences.” 

The suit was brought by the National Day Laborer Organizing Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, with pro bono representation by Mayer Brown LLP.  Mayer Brown will be donating its portion of the fee settlement, approximately $600,000, to NDLON and CCR.

For more information on NDLON v. ICE and a copy of the settlement stipulation, visit www.ccrjustice.org/secure-communities.

For more information on Secure Communities, visit http://uncoverthetruth.org/