Constitutional challenge to ICE's Secure Communities program possible; DeStefano calls program 'misguided' (document, video)

Published: Tuesday, February 21, 2012

By Mary E. O’Leary, Topics Editor
moleary@nhregister.com / Twitter: @nhrmoleary

NEW HAVEN — A constitutional challenge to the legality of Immigration and Customs Enforcement’s Secure Communities program is possible if the state is not specific as to when it will hold undocumented immigrants after their cases have been adjudicated or ICE fails to revamp the program.

Secure Communities, begun in 2008, requires that the FBI share fingerprints of anyone arrested with ICE for review. ICE in turn may send a 48-hour detainer request to local prisons to hold an undocumented individual.

It has been in effect since 2010 in Fairfield County, but is scheduled to go statewide Wednesday.

States and communities that are fighting the program have limited honoring detainers to serious criminals and are asking that ICE reimburse them for their costs, but Connecticut’s response so far has been less than that.

Michael Lawlor, who is Gov. Dannel P. Malloy’s liaison on criminal justice policies, said in a statement Monday that “decisions on how to respond to each (detainer) request will be made on a case-by-case basis.”

New Haven officials Monday said the program will hurt law enforcement in the city, increase racial profiling and return fear to the immigrant community that was present after raids by ICE took place in June 2007 when children stayed out of school and businesses closed for lack of customers.

A constitutional challenge to ICE agents’ behavior during those raids resulted this month in an unprecedented $350,000 settlement and the end of deportation proceedings for 11 men. There is no trust in the city that ICE will be more transparent and limit its detainer requests, as recommended by a task force set up by the Department of Homeland Security.

Mayor John DeStefano Jr. said the program will make the city less safe if immigrants fail to cooperate with police as witnesses or victims. He called Secure Communities “misguided, prejudicial and unAmerican.”

“We’ve seen this movie before in New Haven,” said Michael Wishnie of the Workers and Immigration Rights Advocacy Clinic at the Yale Law School Monday at a press conference at City Hall. “What we don’t understand is why ICE continues to advertise this program as carefully targeting dangerous offenders. We know it does not.”

He said most immigrants picked up around the country under Secure Communities are non-offenders or low-level offenders “and there is no reason to believe it will be any different in Connecticut.”

ICE statistics for Secure Communities from the time it started in October 2008 through December 2011 shows: 162,949 nationwide were deported, with 70,396, or 43 percent, convicted felons or guilty of three misdemeanors; 49,516, or 30 percent, with misdemeanors; and 43,028, or 26 percent, with no criminal convictions.

Wishnie said the task force reviewing the program told DHS “you must distinguish between serious offenders and all others. The DHS has declined to do that. We very much hope that Gov. Malloy will make that distinction.”

He also wondered if places like East Haven, where four police officers have been indicted for allegedly targeting Latinos, will be excused from Secure Communities. “It would be absurd to think they wouldn’t carve out East Haven,” Wishnie said.

The governors of Illinois, Massachusetts and New York have already stated their opposition to Secure Communities as harming the relationship between local police departments. New Haven Police Chief Dean Esserman said he is among city police chiefs who oppose it.

“We don’t understand why the governor would detain people in jails pursuant to this program when he is not obligated to do so by law,” Wishnie said. He said participation is entirely within Malloy’s jurisdiction as most people will be held in state facilities.

Wishnie said he doesn’t understand how a case-by-case review can work in every jail.

Lawlor said the program remains “murky. The feds are not transparent on how they are doing this” beginning with the manner in which Connecticut was notified of the Wednesday kickoff. He said there was a “rumor” it was starting based on recent testimony by DHS Secretary Janet Napolitano before Congress who incorrectly said it had already rolled out here.

In New Haven, the notice sent to former Police Chief Frank Limon bounced back and an email to the state police on Feb. 14 was overlooked.

Lawlor agrees with Wishnie that the cost of detaining the immigrants, which will be borne by the state, could be an issue. Also problematic is the exposure of the Department of Corrections when it holds immigrants without a warrant or probable cause as a violation of the 4th Amendment prohibition against unreasonable search and seizure.

Lawlor characterized Malloy’s response as a “prudent” one until more specifics emerge. He said they will inquire why ICE wants to detain a particular individual. No one argues that serious felons should be detained. It is also unclear if potential deportations will increase dramatically, he said.

A detainer is not a warrant, but rather an administrative request that is not legally binding.

Lawlor said there is also a question as to the best interest of the U.S. children left behind.

Jessica Vosburgh, a Yale Law School student working in the clinic, said she believes the program is unconstitutional in that it “undermines cities and states power to police themselves” and by encroaching on “state, local and personal liberty.” She said in Connecticut detainers have been issued for traffic violations and in one case, a shoflifting charge, that had been dismissed.

A study by the clinic found that 71 percent of those deported from Fairfield County under the program since June 2010 had no criminal record or were guilty of a misdemeanor.

The clinic has won a number of legal victories in recent years in challenges to ICE policies.

Ross Feinstein, spokesman for ICE, said in a statement that the agency has been asked to use its discretion in pursuing immigrants and has developed a new training program to enhance civil rights monitoring.

He said approximately 94 percent of Secure Community removals fall within its priorities of “convicted criminals, recent illegal border entrants and those who game the immigration system,” which includes “immigration fugitives and repeat immigration law violators.”

DHS’s own critical report on Secure Communities said these priorities, listed by ICE Director John Morton in a March 2011 memo, contradict earlier statements that focused on “violent offenders or the worst of the worst” and is part of ICE’s confusing mission when presented to state and local communities.

Lawlor, in his statement, said Malloy has asked Department of Corrections Commissioner Leo Arnone “to create an ongoing review of how this program is implemented and what the ramifications are, and see what if any corrective action is needed going forward.”

Latrina Kelly, interim director of Junta for Progressive Action, said some 88,000 families with U.S. citizen children have been affected and 3,600 American citizens have been detained because of the program, according to a report by the Warren Institute on Law and Social Policy.

Constitutional challenge to ICE's Secure Communities program possible; DeStefano calls program 'misguided' (document, video)- The New Haven Register - Serving New Haven, Connecticut