Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability:

Recommendations for Effective Reform

Robert D. Goodis
JD/MPP Candidate
American University, Washington College of Law
Class of 2015
Submitted to Professor Bo Cooper
in fulfillment of the Spring 2014 term paper requirements for
Law 700I-001: Advanced Issues in Immigration Enforcement
and of the Upper Level Writing Requirement
April 27, 2015

Goodis 1
Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability:
Recommendations for Effective Reform
In March 2008, the Department of Homeland Security (DHS), Immigration and Customs
Enforcement (ICE) launched a program called Secure Communities 1 to improve community
safety by identifying, detaining, and removing all aliens convicted of serious crimes who [were]
held in state or local correctional facilities. 2 Secure Communities was designed to enhance
interoperability of state and federal biometric databases by automating a check against ICE and
U.S. Citizenship and Immigration Services (USCIS) records when state identification bureaus
(SIB) submitted fingerprints to the Federal Bureau of Investigation (FBI). The program quickly
became embroiled in controversy, and after reform efforts failed to mend public perception, the
Department of Homeland Security announced an end to Secure Communities as we know it in
November 2014. 3 Noting that the overarching goal of Secure Communities remains a valid
and important law enforcement objective, the same DHS memorandum that announced the end
of Secure Communities also introduced a new program in its place: the Priority Enforcement
Program (PEP). 4 This paper explores the debate and challenges surrounding Secure
Communities and the Priority Enforcement Program and addresses the effectiveness of reforms
thus-far. Additionally, this paper introduces recommendations for the future of immigration
enforcement programs that rely on similar database interoperability technology.

Secure Communities is also known as IDENT/IAFIS Interoperability. The ICE biometric database is known as
Automated Biometric Identification System (IDENT), and the FBI biometric database is known as Integrated
Automated Fingerprint Identification System (IAFIS). The interoperability program also taps into the broader DHS
and USCIS biometric database, now known as Office of Biometric Identity Management (OBIM) and previously
(before 2013) known as United States Visitor and Immigration Status Indicator Technology (US-VISIT).
2
Letter from David J. Venturella, Exec. Dir., U.S. Immigration and Customs Enforcement, Office of Secure
Communities, to Linda Denly, Bureau of Criminal Identification and Information, California Department of Justice,
Re: ICE Secure Communities Memorandum of Agreement (MOA) (January 23, 2009).
3
Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting
Director of U.S. Immigration and Customs Enforcement, et. al., Subject: Secure Communities (November 20, 2014).
4
Id.

Goodis 2
Background on Secure Communities
Secure Communities was one of thirteen programs operated under an umbrella scheme
known as ICE Agreements of Cooperation in Communities to Enhance Safety and Security
(ICE ACCESS). 5 Two of the better-known programs under ICE ACCESS are the Criminal
Alien Program (CAP) and the 287(g) Delegation of Immigration Authority program, which both
predate Secure Communities and rely on cooperation between local, state, and federal
authorities. When ICE introduced Secure Communities under the George W. Bush
administration in March 2008, the official Secure Communities Fact Sheet stated that, Although
ICE has made considerable progress over the past several years in identifying and removing
criminal aliens through its Criminal Alien Program (CAP), a fundamental change in ICEs
current approach is required to reach the goal of identifying and removing all aliens convicted of
a crime. 6 The Fact Sheet went on to note that ICE was already screening all inmates at federal
and state prisons before the implementation of Secure Communities, but was only screening
about 10 percent of the approximately 3,100 local jails throughout the United States. 7 CAP
and other ICE ACCESS programs remained in place, and Secure Communities was added to
ICEs arsenal to prevent removable aliens from slipping through the cracks.
An important distinction, though perhaps without a difference, came with the limits of the
Secure Communities program. By design, Secure Communities was only an information
technology protocol whereby IDENT and IAFIS biometric databases became interoperable and
were automatically queried when local jurisdictions submitted fingerprints to their respective
state identification bureaus. Before Secure Communities, a local jurisdiction would send
5

ICE ACCESS Programs: 287(g), the Criminal Alien Program, and Secure Communities, National Immigration
Law Center (Nov. 5, 2009), http://www.nilc.org/ice-access-2009-11-05.html.
6
Fact Sheet: Secure Communities, Office of Public Affairs, U.S. Department of Homeland Security, U.S.
Immigration and Customs Enforcement 1 (Mar. 28, 2008).
7
Id.

Goodis 3
fingerprints to the state identification bureau for comparison to the state database and for
submission to the FBI for comparison to IAFIS. With the advent of Secure Communities, a new
query was added to the chain, and the FBI would copy the fingerprints to ICE and USCIS to
check against US-VISIT/OBIM and IDENT. This new query and the resulting answer was the
result of Secure Communities. There remains much public confusion over what Secure
Communities was, how and when the program was triggered in an individual case, and with
what effect. These concerns are further addressed in the section regarding challenges for the
Secure Communities program below.
The above-referenced Secure Communities Fact Sheet identified the four initial Strategic
Goals of the program:
Strategic Goal 1 Identify and process all criminal aliens amenable for removal
while in federal, state, and local custody;
Strategic Goal 2 Enhance current detention strategies to ensure no removable alien
is released into the community due to a lack of detention space or an appropriate
alternative to detention;
Strategic Goal 3 Implement removal initiatives that shorten the time aliens remain
in ICE custody prior to removal, thereby maximizing the use of detention
resources and reducing cost; and
Strategic Goal 4 Maximize cost effectiveness and long term success through
deterrence and reduced recidivism. 8
The Fact Sheet went on further to explain the risk-based approach of classifying and
prioritizing individuals based on the severity of the crimes for which they were convicted and to
say that The cornerstone of the Secure Communities plan is to increase state and local
partnerships to ensure time-sensitive screening of all foreign-born detainees and identification of
criminal aliens. 9 The rest of the March 2008 fact sheet provides an overview of the Criminal
Alien Program, key enhancements in the Secure Communities plan, and historical context of
earlier programs run by the Immigration and Naturalization Service (INS), such as the
8
9

Id., 1-2.
Id., 2.

Goodis 4
Institutional Removal Program (IRP), Alien Criminal Apprehension Program (ACAP), and
287(g) agreements.
Upon its inception in 2008, the Secure Communities program operated in just 14
jurisdictions. 10 The program initially operated on an opt-in basis, where states could elect to
participate by signing a Memorandum of Agreement (MOA) with ICE, and local jurisdictions
could then opt in or opt out through their SIBs to allow interoperability of local databases with
USCIS and ICE databases via the local jurisdictions respective SIB and the FBI. In response to
growing scandalsdescribed in more detail belowsome participating jurisdictions started
efforts to opt out of Secure Communities in at least 2010. 11 Many jurisdictions reported great
difficulty in ending their participation in Secure Communities, but ICE explained in August 2010
that participation was voluntary:
If a jurisdiction does not wish to activate on its scheduled date in the Secure
Communities deployment plan, it must formally notify its state identification bureau and
ICE in writing (email, letter or facsimile). Upon receipt of that information, ICE will
request a meeting with federal partners, the jurisdiction, and the state to discuss any
issues and come to a resolution, which may include adjusting the jurisdictions activation
date in or removing the jurisdiction from the deployment plan. 12
One year later, in August 2011, DHS unilaterally terminated all previously signed Secure
Communities MOAs, explaining that IDENT/IAFIS Interoperability is primarily an informationsharing program between two federal agencies, and that the MOAs were not required in order for
the program to keep functioning. 13 An October 2010 memo made public in 2012 through a
FOIA request revealed ICE plans to dismiss opt-out requests, mandate participation, and expand

10

Secure Communities, U.S. Immigration and Customs Enforcement, http://www.ice.gov/secure-communities (last

visited Apr. 21, 2015).
11
M. Alex Johnson, Cities, Counties Cant Stop Federal Immigration Checks, NBC News (Oct. 15, 2010),
http://www.nbcnews.com/id/39576754/ns/us_news-security/#.VTYDQiFVjBE.
12
Secure Communities: Setting the Record Straight, U.S. Immigration and Customs Enforcement (Aug. 17, 2010).
13
Task Force on Secure Communities Findings and Recommendations, Homeland Security Advisory Council (Sept.
2011) 13. (Task Force Report)

Goodis 5
the program to all jurisdictions by 2013. 14 Full implementation was completed on January 22,
2013: Secure Communities expanded to all 3,181 jurisdictions within 50 states, the District of
Columbia, and five U.S. Territories. 15
The debate surrounding whether Secure Communities was a voluntary or mandatory
program, and on what legal authority DHS could mandate the program, was the subject of
protracted disagreement. This dispute added to the negative publicity for Secure Communities
when jurisdictions approached major news outlets to explain that their opt-out attempts were
unsuccessful. 16 The Homeland Security Advisory Council (HSAC) formed a Task Force on
Secure Communities (Task Force) in June 2011 to address this voluntary-mandatory dispute,
among other challenges for the Secure Communities program such as the role of local law
enforcement agencies, inconsistencies between the programs stated goals and outcomes, and
more. 17 In addition to the programmatic challenges assessed by the Task Force, Secure
Communities also raised a series of legal questions regarding the relationship between states and
the federal government, the constitutionality of detainers, and implications for the due process
rights of anyone processed through a police booking procedure, among others. 18 The sum of
these problems plagued Secure Communities until DHS announced its discontinuation in favor
of the new Priority Enforcement Program, which was designed to keep the benefits of Secure
Communities while addressing these various problems systemically.
Challenges for the Secure Communities Program
14

Draft memorandum from Riah Ramlogan, Deputy Principal Legal Advisor, Office of the Principal Legal Advisor,
U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, to Beth N. Gibson, Assistant
Deputy Director, Subject: Secure Communities Mandatory in 2013 (Oct. 2, 2013), ICE FOIA 10-2674.0010796.
15
Secure Communities, U.S. Immigration and Customs Enforcement, http://www.ice.gov/secure-communities (last
visited Apr. 21, 2015).
16
See notes 11, 13, supra.
17
See Task Force on Secure Communities Findings and Recommendations, note 13, supra.
18
See Mayorov v. United States, No. 13 C 5249, 2015 WL 1345930 (N.D. Ill. Mar. 23, 2015); Makowski v. United
States, No. 12 C 5265, 2014 WL 1089119 (N.D. Ill. Mar. 18, 2014); Moreno v. Napolitano, No. 11 C 5452, 2012
WL 5995820 (N.D. Ill. Nov. 30, 2012).

Goodis 6
The Task Force made findings and recommendations in four interrelated primary areas of
concern, and addressed whether DHS should suspend the program. The first area of concern
addressed by the Task Force is described as Misunderstandings Regarding the Secure
Communities Program and the Role of Local Law Enforcement Agencies. 19 The Task Forces
findings highlighted confusion about Secure Communities. Noting that Secure Communities
amounts only to IDENT/IAFIS Interoperability, the Task Force explained that the general
perception of Secure Communities deals more with the enforcement activities before and after
the information sharing which defines the process. 20, 21 As a matter of practicality, local police
have to send fingerprints to the FBI in order to check for critical information such as arrest
warrants from other jurisdictions. The Task Force explained that this pass-through function
made some local law enforcement agencies uncomfortable, and lead to some community
perceptions that these local police are the equivalent of immigration agents.
Also under this first area of concern, the Task Force observed that Secure Communities
was presented to the States as a program that would target the worst of the worst convicted
criminal offenders, but that many state and local officials felt that ICE was not staying true to the
official priorities for which they had signed up. Similarly, the Task Force noted that DHS/ ICE
had been presenting inaccurate or incomplete information to states and localities, and had been
responsible for a poorly managed rollout of the program. 22 This botched rollout was
particularly true of information provided by ICE regarding whether the program is mandatory
19

Task Force Report, 10.

Id., 11.
21
In a sense, public perception of Secure Communities is misplaced, and the Secure Communities protests and
campaigns would have been better directed at the Criminal Alien Program that Secure Communities built upon and
the broader array of immigration policies and enforcement programs. See Mark Noferi, New Study Shows
Deportations Dont Reduce Crime, Immigration Impact (September 9, 2014),
http://immigrationimpact.com/2014/09/09/new-study-shows-deportations-dont-reduce-crime/ (Secure Communities
piggybacked on prior DHS initiatives to use local police as force multipliers including the Criminal Alien
Program, which establishes voluntary screening partnerships with local jails).
22
Task Force Report, 12.
20

Goodis 7
or optional, the programs goals and procedures, and the implementation of the program at the
local level. 23
According to the Task Force findings, the Memoranda of Agreement between ICE and
SIBs only added to the confusion. As explained above, Secure Communities originally operated
by MOA, but ICE later determined that the program would be mandatory for all jurisdictions and
unilaterally terminated all MOAs. Language in the MOAs suggested that agencies could opt out
of Secure Communities, which ICE eventually announced would not be possible.
The final point under this category in the Task Force Report is that Secure Communities
is just one of several DHS enforcement programs that may be operating in a jurisdiction, and
that any of these programs may involve the participation of local law enforcement agencies. 24
The pre-existing Criminal Alien Program, which Secure Communities built upon significantly,
operates in many jurisdictions alongside Customs and Border Patrol (CBP) enforcement and
287(g). 25 The growing participation of local law enforcement in federal immigration programs,
tied in with the lack of accurate and consistent public information about Secure Communities,
contributed greatly to public and even state/local official confusion about the program. The Task
Force emphasized:
In many jurisdictions, the Task Forces hearings revealed, any
immigration enforcement action that is seen as disproportionate or unwarranted,
such as steps to remove a young traffic law violator who has lived in this country
since infancy, is likely to be attributed to Secure Communities. From the
standpoint of immigrant communities, the general public, local law enforcement
executives and other local officials, it does not matter which particular DHS
program may have resulted in the deportation of a person who is apparently
innocent of any criminal violations or is a minor offender. 26
23

Id.
Id., 14.
25
The 287(g) program was created by IIRIRA and codified at INA 287(g). This program allows state and local
law enforcement agencies to enter MOAs with ICE and receive delegated authority to enforce federal immigration
laws.
26
Task Force Report, 14.
24

Goodis 8

These problems only increase the tensions in some communities between minorities and the
police, and many advocates and law enforcement officials told the Task Force that this tension
was harming community policing and putting the public at risk: victims and witnesses might be
afraid to report crimes to the police for fear of immigration trouble.
The second overarching area of concern flagged by the Task Force was Perceived
Inconsistencies Between Secure Communities Stated Goals and Outcomes. 27 The Task Force
explained that, though ICE promoted Secure Communities as a program to remove the worst
criminal offenders, reality had shown that many minor offenders and even non-criminals had
been removed through the Secure Communities program. Despite the enforcement priorities
written into Secure Communities documents and MOAs, a March 2, 2011, memo from then-ICE
Director John Morton restructured the programs enforcement priorities to focus on:
Priority 1. Aliens who pose a danger to national security or a risk to public safety
....
Priority 2. Recent illegal entrants
....
Priority 3. Aliens who are fugitives or who have otherwise flouted immigration
controls 28
These enforcement priorities reignited heated debate over the use of prosecutorial discretion in
immigration enforcement, with the Task Force ultimately affirming and recommending
continued use of prosecutorial discretion. 29 In addition to the disparities between the stated [and

27

Id., 16.
Id., 17-18.
29
Sometimes also called enforcement discretion in the immigration context, any discussion of Secure Communities
and Priority Enforcement requires a thorough understanding of prosecutorial discretion. The Task Force discussion
of prosecutorial discretion primarily appears in a November 17, 2011, letter from members of the Task Force to
members of the Senate Judiciary Committee. Additional recommended resources on the issue, many of which
directly relate to Secure Communities and were even cited by the Task Force, include: Wayte v. United States, 470
U.S. 598 (1985); Heckler v. Chaney, 470 U.S. 821 (1985); Memorandum from Janet Napolitano, Secretary of
Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Patrol, et. al., Subject:
Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June
15, 2012); Memorandum from John Morton, Director of Homeland Security, to USCIS Directors, et. al., Subject:
28

Goodis 9
changing] goals and outcomes, the Task Force reported that the program also suffered a systemic
flaw in implementation due to the fact that state and local law enforcement agencies may have
differing procedures for submitting fingerprints to the FBI, and some departments may not
submit prints at all for minor offenses that result in citations or summonses. 30
This point of differing local procedures also related strongly to the Task Forces third
area of concernSecure Communities actions resulting from minor traffic offenses and
misdemeanorswhich the Task Force described as posing the greatest risk of undermining
community relations for local law enforcement. Continuing along these lines, the Task Force
addressed Unintended Consequences of Secure Communities on Community Policing and
Community Impact as its fourth area of concern. 31 The Task Force found that Secure
Communities had unintended local impacts, and noted that recent ICE efforts to ensure
protections for crime victims and witnesses were still not well known in immigrant communities.
Furthermore, the Task Force found that transmission of information to local law enforcement
must be done timely, but that it need not contain all types of information about an individuals
immigration status. 32 Finally, the Task Force Report indicated that existing complaint
procedures were inadequate and not well publicized, and that [i]ndividuals in jurisdictions with

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for
the Apprehension, Detention, and Removal of Aliens (June 17, 2011); Memorandum from John Morton, Director of
Homeland Security, to USCIS Directors, et. al., Subject: Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs (June 17, 2011); Memorandum from John Morton, Director of Homeland Security, to All ICE Employees,
Subject: Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2,
2011); Memorandum from Bo Cooper, INS General Counsel, to The Commissioner of INS, Subject: INS Exercise of
Prosecutorial Discretion (July 11, 2000); Kate M. Manuel and Todd Garvey, Cong. Research Serv., R42924,
Prosecutorial Discretion in Immigration Enforcement: Legal Issues (2013); Shoba Sivaprasad Wadhia, The Role of
Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243 (2010). These same issues are partially
under review in the United States Court of Appeals for the 5th Circuit in the Texas v. United States challenge to
President Obamas DAPA deferred action plan and expansion of DACA.
30
Task Force Report, 18.
31
Id., 24.
32
Id., 25.

Goodis 10
Secure Communities who feel they have been inappropriately profiled or subjected to other civil
rights violations or abuse need to be able to report these complaints to the proper authorities. 33
In addition to the challenges identified by the Task Force Report, Secure Communities
also lead to litigation raising constitutional challenges in the United States District Court for the
Northern District of Illinois, Eastern Division. 34 In response to Defendants motion to dismiss in
Moreno v. Napolitano, the Court issued a memorandum opinion and order on November 30,
2012, denying the motion and allowing the case to continue. The Plaintiffs had brought the
lawsuit for declaratory and injunctive relief after being subject to an ICE detainer, claiming
that ICEs assertion of authority to instruct federal, state, and local law enforcement
agencies to continue the detention of individuals in the LEAs jails so that ICE can
investigate their immigration status is a violation of ICEs statutory authority under the
Administrative Procedure act, 5 U.S.C. 706(2)(A)-(D), and the Immigration and
Naturalization Act, 8 U.S.C. 1226(a), 1357(a)(2), and 1357(d), as well as a violation
of Plaintiffs constitutional rights under the Fourth, Fifth, and Tenth Amendments. 35
The order also addressed and affirmed Plaintiffs motion for class certification, explaining that
the class certification was possible and would permit the claim to proceed despite the individual
Plaintiffs detainers having been cancelled.
The memorandum order and opinion dated March 18, 2014, for Makowski v. United
States also dealt with a motion to dismiss filed by the Government/Defendants. In this case,
Plaintiff James Aziz Makowski was a naturalized citizen and former Marine in possession of a
certificate of citizenship, U.S. passport, and Social Security card. He was arrested on drug
charges and plead guilty under the impression that his seven year sentence would be waived by
participating in a special 120-day boot camp program. During processing at a state prison for

33

Id.
See Mayorov v. United States, No. 13 C 5249, 2015 WL 1345930 (N.D. Ill. Mar. 23, 2015); Makowski v. United
States, No. 12 C 5265, 2014 WL 1089119 (N.D. Ill. Mar. 18, 2014); Moreno v. Napolitano, No. 11 C 5452, 2012
WL 5995820 (N.D. Ill. Nov. 30, 2012).
35
Moreno v. Napolitano, 1.
34

Goodis 11
admission to the boot camp, Makowski met with an ICE officer for Secure Communities
processing, providing the officer with copies of his U.S. passport and Social Security card.
Despite providing this evidence of citizenship, ICE issued a detainer for Makwoski, which
rendered him ineligible for the boot camp. A month and a half later, with the help of an attorney,
Makowskis father had the detainer cancelled, and Makowski was transferred to the boot camp,
where he completed the program and was released after completing the 120-day program. The
Court found that IDENT/IAFIS Interoperability was not prohibited under the Privacy Act 36, but
did not dismiss Makowskis claims of false imprisonment and actual damages caused by the
federal agencies failure to maintain accurate and timely records of his citizenship. 37
On March 23, 2015, a United States District Judge for the same Court entered a
memorandum opinion and order in the case of Mayorov v. United States, granting in part and
denying in part the governments motion for summary judgment, and denying the Plaintiffs
motion for summary judgment. Prior to this case, Plaintiff Sergey Mayorov had filed as a
defendant intervener in the aforementioned Moreno v. Napolitano case and also filed an
administrative tort claim with ICE. He filed the action resulting in this opinion in District Court
in 2013, raising claims of negligence and false imprisonment and seeking damages for loss of
liberty, pain and suffering, and lost wages. 38 Similar to Makowski, Mayorov was a naturalized
citizen who pleaded guilty charges resulting in a four year prison sentence; the sentencing judge

36

In pertinent part, 5 U.S.C. 552a(b) provides that [n]o agency shall disclose any record which is contained in a
system of records by any means of communication to any person, or to another agency, except pursuant to a written
request by, or with the prior written consent of, the individual to whom the record pertains. The Court found that
the FBIs transmission of Makowskis fingerprints and criminal records to IDENT and the ICE Law Enforcement
Support Center (LESC) were exempted from this Privacy Act restriction because the interoperability was separately
mandated and made routine use under the Enhanced Border Security and Visa Entry Reform Act of 2002, 8 U.S.C.
1722(a)(2), and the FBIs Blanket Routine Use 6, 66 Fed. Reg. 33,559 (June 22, 2001).
37
See generally Makowski v. United States.
38
Makowski v. United States, 5-6.

Goodis 12
recommended participation in the same 120-day boot camp program in lieu of the prison
sentence.
During processing at the same corrections center that Makowski had been through,
Mayorov interviewed with two ICE officers, and the officers indicated in notes that Mayorov
was the child of a U.S. citizen, and understood that he had received citizenship pursuant to the
Child Citizenship Act. Mayorov was cleared to participate in the boot camp program. However,
when Mayorov was nearly halfway done with the boot camp program, ICE issued a detainer for
Mayorov due to incomplete immigration records that required further investigation. Rather than
completing the investigation prior to issuing the detainer, ICE notified the Illinois authorities of
the pending investigation and suggested that Mayorov could continue in his program at the
discretion of the State. Under State rules, the detainer disqualified Mayorov from participating
in the boot camp, so he was removed and transferred to prison, where he stayed for over ten
months. When he filed to intervene in Moreno v. Napolitano, ICE agents looked further into his
status and verified his citizenship, canceling the detainer and allowing Mayorov to be reinstated
to the boot camp program. The civil action and judges order in Mayorovs case raised
significant questions about the accuracy and efficiency of ICEs investigations under Secure
Communities, and more importantly, the constitutionality of issuing detainers prior to
completing investigations. 39 Similar cases in other jurisdictions variously held that ICE
detainers did not establish probable cause, and that local jurisdictions had violated the Fourth
Amendment by complying with the detainers. 40
39

See generally Mayorov v. United States.

See, e.g., Miranda-Olivares v. Clackamas County, 2014 WL 1414305, at *11 (D. Ore. Apr. 11, 2014) (holding
that county violated the Fourth Amendment by relying on an ICE detainer that did not provide probable cause
regarding removability); Morales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D.R.I. 2014) (concluding that detention
pursuant to an immigration detainer for purposes of mere investigation is not permitted); Gonzalez v. ICE, Case
No. 2:13-cv-0441-BRO-FFM, at 12-13 (C.D. Cal. July 28, 2014) (granting governments motion to dismiss, but
allowing plaintiffs to file an amended complaint after noting that plaintiffs had sufficiently pleaded that Defendants
40

Goodis 13
Reforming Secure Communities
While earlier DHS/ICE policy changes had resulted in piecemeal reforms to Secure
Communities before the Task Force Report, 41 ICE responded to the Task Force with more
directed reforms than before, issuing a report on April 27, 2012 to highlight steps taken and
planned. 42 The ICE Response starts with a letter from John Morton, thanking the Task Force,
highlighting the successes of Secure Communities, acknowledging the confusion around Secure
Communities, and generally offering optimism about the reforms. The ICE Response then
addresses each recommendation offered by the Task Force Report, to wit: recommendation one
stated that ICE must clarify and publicize goals and objectives, as well as parameters and
logistics, of Secure Communities, and must strive for good working relationships with state and
local governments and with communities. Agreeing with this recommendation, ICE noted recent
updates to the agencys website to relay information about Secure Communities 43 and described
its efforts to expand outreach and public relations. ICE also reiterated its determination that the
program would continue to seek full implementation and would operate without need for state or
local MOAs.

exceed their authorized power by issuing immigration detainers without probable cause resulting in unlawful
detention); Villars v. Kubiatowski, 45 F.Supp.3d 791 at 807, No. 12 CV 4586, 2014 WL 1795631 at *11 (N.D. Ill.
May 5, 2014) reconsideration denied in part, No. 12 CV 4586, 2014 WL 3511483 (N.D. Ill. July 16, 2014)
(rejecting dismissal of Fourth Amendment claims concerning an ICE detainer issued without probable cause that
Villars committed a violation of immigration laws); Galarza v. Szalczyk, Civ. Action No. 10-cv-06815, 2012 WL
1080020, at *14 (E.D. Penn. Mar. 30, 2012) (denying qualified immunity to immigration officials for unlawful
detention on an immigration detainer issued without probable cause), revd and remanded on other grounds, 745
F.3d 634 (reversing district courts finding of no municipal liability); Uroza v. Salt Lake City, No. 2:11CV713DAK,
2013 WL 643968, at *6-7 (D. Utah Feb. 21, 2013) (denying dismissal on qualified immunity grounds where plaintiff
claimed to have been held on an immigration detainer issued without probable cause). These cases are referenced in
note 1 of the Memorandum from Jeh Charles Johnson to Thomas S. Winkowski regarding Secure Communities,
dated Nov. 20, 2014, infra at note 48.
41
See, e.g., note 29, supra.
42
Protecting the Homeland: ICE Response to the Task Force on Secure Communities Findings and
Recommendations, ICE Office of the Director (Apr. 27, 2012). (ICE Response)
43
And now (April 2015), despite the cessation of Secure Communities over five months ago, the ICE website still
shows the same information about Secure Communities without a hint of the programs demise.

Goodis 14
The second recommendation was to improve program transparency, with which the ICE
Response noted agreement and highlighted again the new Secure Communities webpage and
inclusion of Secure Communities statistics in the ICE Freedom of Information Act (FOIA)
library. The ICE Response followed in this pattern for nearly all of the twenty-two
recommendations made by the Task Force in their Report. Perhaps the most significant reforms
noted by the ICE Response were the inclusion of additional information and resources
including complaint procedureson the ICE website, along with the 2012 policy memorandum
regarding prosecutorial discretion for victims and witnesses. 44 The ICE Response only indicated
disagreement with two-and-a-half recommendations made by the Task Force: improving data
collection and transparency, tailoring information provided to local police, and establishingas
a pilot initiative in a selected jurisdictionan independent, multidisciplinary panel to review
specific cases. 45 With respect to the data collection and transparency recommendation, ICE
stated that it had already taken steps to improve data collection; however, the agency disagreed
with the Task Force discussion of enabling states to monitor enforcement outcomes from the
Secure Communities program because [i]mplementing a panel of state officials to monitor
Secure Communities in every state and territory would interfere with the federal governments
prerogative to set immigration enforcement policy and would be unduly burdensome on ICE. 46
As for the recommendation to tailor information provided to local police, ICE took the
position that this would be an inappropriate use of ICE resources, and that the local agencies
could opt out of receiving any information from the DHS databases if states wanted to ensure
that local agencies did not base enforcement decisions on immigration status, for example.
Because ICE had recently implemented and expanded its complaint system and quarterly
44

See note 29, supra, for citation to this policy memorandum.

ICE Response 13, 16-17.
46
Id., 13.
45

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statistical review, the ICE Response addressed the recommendation for an independent review
panel by stating that ICE believes a panel is not necessary at this time. 47
ICE continued developing new policies and procedures around Secure Communities and
expanded the program to full implementationwith all 3,181 jurisdictions activated in the 50
states, D.C., and five U.S. territoriesby January 22, 2013. After completing the rollout of
Secure Communities, Secretary of Homeland Security Jeh Charles Johnson announced the
discontinuation of the Secure Communities program as we know it 48 and introduced the new
Priority Enforcement Program partially in response to the 2011 Task Force Report and more
directly in response to the spate of litigation surrounding Secure Communities. 49
Designing and Launching the Priority Enforcement Program
As President Obama announced immigration reforms by executive order, DHS
announced the discontinuation of Secure Communities and the introduction of the Priority
Enforcement Program by internal memorandum on November 20, 2014. 50 A second DHS
memorandum on the same day issued department-wide guidance for ICE, CBP, and USCIS on
new policies for the apprehension, detention, and removal of immigrants. 51 Together, these
memoranda formed the foundation of the Priority Enforcement Program, leaving critics of the
Secure Communities program with new questions and the same bitter taste. 52
The first page of the Memorandum on Secure Communities is particularly revealing, and
is best presented in full form, rather than summary:

47

Id., 17.
Memorandum from Jeh Charles Johnson, Secretary of Homeland Security, to Thomas S. Winkowski, Acting
Director of ICE, et. al., Subject: Secure Communities (Nov. 20, 2014). (Memorandum on Secure Communities)
49
See note 40, supra.
50
See Memorandum on Secure Communities, note 48, supra.
51
Memorandum from Jeh Charles Johnson, Secretary of Homeland Security to Thomas S. Winkowski, Acting
Director of ICE, et. al., Subject: Policies for the Apprehension, Detention, and Removal of Undocumented
Immigrants (Nov. 20, 2014). (Memorandum on Policies)
52
See notes 62, 64, 65, 66, infra.
48

Goodis 16
The Secure Communities program, as we know it, will be discontinued.
The goal of Secure Communities was to more effectively identify and facilitate the
removal of criminal aliens in the custody of state and local law enforcement agencies.
But the reality is the program has attracted a great deal of criticism, is widely
misunderstood, and is embroiled in litigation; its very name has become a symbol for
general hostility toward the enforcement of our immigration laws. Governors, mayors,
and state and local law enforcement officials around the country have increasingly
refused to cooperate with the program, and many have issued executive orders or signed
laws prohibiting such cooperation. A number of federal courts have rejected the
authority of state and local law enforcement agencies to detain immigrants pursuant to
federal detainers issued under the current Secure Communities program.
The overarching goal of Secure Communities remains in my view a valid and important
law enforcement objective, but a fresh start and a new program are necessary. As
recommended by the Homeland Security Advisory council Task Force, Secure
Communities must be implemented in a way that supports community policing and
sustains the trust of all elements of the community in working with local law
enforcement. 53
The memo then went on to order ICE to discontinue Secure Communities and to put in its place
a program that will continue to rely on fingerprint-based biometric data submitted during
bookings by state and local law enforcement agencies to the Federal Bureau of Investigation for
criminal background checks. 54 After explaining that this new program would follow the new
enforcement priorities disclosed in the same-day Memorandum on Policies, the Memorandum on
Secure Communities addressed the Fourth Amendment concerns by directing ICE to replace
requests for detention (i.e., requests that an agency hold an individual beyond the point at which
they would otherwise be released) with requests for notification (i.e., requests that state or local
law enforcement notify ICE of a pending release during the time that the person is otherwise in
custody under state or local authority). 55 The memo further explains that detainers would be
permitted, notwithstanding the above policy, if ICE specif[ies] that the person is subject to a
final order of removal or there is other sufficient probable cause to find that the person is a
53

Memorandum on Secure Communities, 1.

Id., 2.
55
Id.
54

Goodis 17
removable alien. 56 This explanation of the value of Secure Communities, reference to new
enforcement priorities, and change from detainers to notifications formed the foundation of the
Priority Enforcement Program.
The Memorandum on Policies rescinded and superseded five prior memoranda, with
sparse partial exceptions, and emphasized that [w]hile DHS may exercise prosecutorial
discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such
discretion as early in the case or proceeding as possible in order to preserve government
resources. . . Thus, DHS personnel are expected to exercise discretion and pursue these priorities
at all stages of the enforcement process-from the earliest investigative stage to enforcing final
orders of removal. . . 57 The Memorandum detailed enforcement priorities under a similar
priority level structure as had prior memos: 58 Priority 1 (threats to national security, border
security, and public safety); Priority 2 (misdemeanants and new immigration violators; and
Priority 3 (other immigration violations). 59 The priorities also included room for discretion
within each level, which was then further explained in Section D of the Memorandum on
Policies, Exercising Prosecutorial Discretion. 60 Additionally, the Memo instructed DHS
agencies to use detention resources according to the given enforcement priorities, except in the
case of aliens subject to mandatory detention, and discouraged the use of detention specifically
for aliens who are known to be suffering from serious physical or mental illness, who are
disabled, elderly, pregnant or nursing, who demonstrate that they are primary caretakers of
children or an infirm person, or whose detention is otherwise not in the public interest. 61

56

Id.
Memorandum of Policies, 2.
58
See, e.g., priorities listed in the Task Force Report, 17-18.
59
Memorandum of Policies, 3-4.
60
Id., 5.
61
Id.
57

Goodis 18
Coverage of and reactions to the transition from Secure Communities to the Priority
Enforcement Program have varied significantly in the media and among advocates from any
side. Given the significant concerns of Secure Communities regarding the programs initial
rollout, publicity, clarity, and transparency, media coverage of the new Priority Enforcement
Program offers meaningful insight into some of the same challenges faced by PEPs predecessor.
For example, Frontline PBS reported a day after the memoranda and introduction of President
Obamas executive action immigration reforms that Obamas Immigration Plan Includes End to
Secure Communities. 62 This early coverage addressed the criticisms of Secure Communities
and noted the most significant reforms that would occur with the transition to Priority
Enforcement Programsuch as the departure from reliance on immigration detainers. Perhaps
more revealingly from a clarity and transparency perspective, the coverage indicated that
immigration advocates said its still unclear how PEP will work in practice. . . and that
advocates questioned if the change from Secure Communities to PEP was anything more than a
new name for the same old program. 63
NBC News also covered the end of Secure Communities on November 21, 2014, in an
article entitled Obama Ends Secure Communities Program That Helped Hike Deportations.
The NBC coverage also highlighted recent controversy and attempted opt-outs of Secure
Communities, but included quotes from an advocate of limited immigration who contended
that it is bad policing to go without the program because ICE repeatedly has passed on
immigrants illegally in the country who went on to commit serious offenses. 64 By December,
62

Sarah Childress, Obamas Immigration Plan Includes End to Secure Communities, Frontline PBS (Nov. 21,
2014), http://www.pbs.org/wgbh/pages/frontline/immigration-2/obamas-immigration-plan-includes-end-to-securecommunities/.
63
Id.
64
Suzanne Gamboa, Obama Ends Secure Communities Program that Helped Hike Deportations, NBC News (Nov.
21, 2014), http://www.nbcnews.com/storyline/immigration-reform/obama-ends-secure-communities-programhelped-hike-deportations-n253541.

Goodis 19
groups such as the American Immigration Council (AIC) and the American Civil Liberties
Union (ACLU) began publicly questioning the efficacy of the end of Secure Communities and
start of PEP. The ACLU published a fact sheet along with questions and recommendations for
DHS regarding PEP on December 17, 2014, noting that the changes do not fully resolve the
constitutional problems seen with Secure Communities and highlighting the risk of PEP
becoming more of the same under a different name. 65 Similarly, the AIC published an article
entitled Do the Presidents New Immigration Policies Really Mark the End of Secure
Communities? on December 30, 2014. The AIC article explained that, [i]f the program
functions as promised, the issuance of detainers should significantly decrease, but that [i]n
significant ways, this new program will not function any differently than Secure
Communities. 66
The Immigration Legal Resource Center and National Immigration Project of the
National Lawyers Guild issued a document entitled Advisory on Immigration Enforcement:
Summary of New Priorities and Program Changes Announced by President Obama on
November 24, 2014. This document summarized the November 2014 reforms, including new
enforcement priorities and a new plan for southern border enforcement. It also notes the shift in
detention policy, immigration detainers, and Secure Communities, saying [a]lthough the
administration says they have ended Secure Communities, it has actually just been renamed. 67

65

DHS Secretary Johnson Discontinues Secure Communities As We Know It: Clarification Is Critical to Achieve
Meaningful Change and Not More of the Same Under a Different Name, American Civil Liberties Union (Dec. 17,
2014), https://www.aclu.org/sites/default/files/field_document/2014_12_18__aclu_summary_of_dhs_scomm_and_detainer_reforms_final.pdf. (ACLU Report)
66
Emily Creighton, Do the Presidents New Immigration Policies Really Mark the End of Secure Communities?,
American Immigration Council Immigration Impact (Dec. 30, 2014),
http://immigrationimpact.com/2014/12/30/do-the-presidents-new-immigration-policies-really-mark-the-end-ofsecure-communities/.
67
Advisory on Immigration Enforcement: Summary of New Priorities and Program Changes Announced by
President Obama, Immigrant Legal Resource Center and National Immigration Project of the National Lawyers
Guild (Nov. 24, 2014), http://www.ilrc.org/files/documents/ilrc_enforcement_2_pager-final.pdf.

Goodis 20
Despite five months having passed since DHS announced PEP in November 2014, little if
any information is yet available on the effectiveness and outcomes of the Secure Communities
PEP reforms. The on-the-ground structure of PEP, as disclosed by the memoranda continues to
rely on the infrastructure established under Secure Communities, and has almost identical
logistical operations. IDENT/IAFIS Interoperability is unchanged. Priorities for enforcement
are somewhat more targeted, and detainers areat least according to policynearly abandoned.
The use of detention overall is relatively discouraged under the new PEP policies, and more
emphasis is placed on community relations. In practice, these changes have yet to be seen.
Unresolved Questions with the Priority Enforcement Program
Having just launched in November 2014, the Priority Enforcement Program will likely
require extensive data collection for months to determine whether any of the reforms have been
effective in keeping the enforcement strengths of Secure Communities while minimizing
constitutional violations and misdirected resource allocation. Immediately following the
introduction of PEP, the ACLU raised several questions about the program such as the extent to
which ICE will observe the priorities and, as the ACLU recommends, issue notification requests
only for people who fall within the elevated subset of priorities enumerated in the memowhich
generally means people who have been convicted of a qualifying criminal offense. 68
The ACLU also questioned the use of the terms special circumstances in the context of
when ICE would issue immigration detainers, rather than notifications, under the PEP.
Furthermore, in the event that ICE does issue detainers, the ACLU contends that such detainers
would still violate the Fourth Amendment, even with probable cause of an immigration violation,
because the Fourth Amendment requires probable cause to believe a crime has been committed,
and removability is a civil matter[;] LEAs generally lack the authority to detain people on that
68

ACLU Report, 5.

Goodis 21
basis. 69 Similarly, the ACLU Report raised issue with a concluding clause from the
Memorandum on Secure CommunitiesNothing in this memorandum shall prevent ICE from
seeking the transfer of an alien from a state or local law enforcement agency when ICE has
otherwise determined that the alien is a priority under the [Memorandum on Policies] and the
state or locality agrees to cooperate with such transfer 70suggesting that this statement could
be interpreted too broadly and create an unconstrained exception that swallows the rule. 71
In addition to the initial questions raised in the ACLU Report, existing information on
PEP remains sparse, and countless questions remain regarding the statistical data of operations
since inception, the effect of PEP on deferred action grantees, the long-term removal projections
and permanence of the current priorities, 72 and so forth. For example, the Advisory on
Immigration Enforcement document 73 notes that eligibility for Deferred Action for Parents
(DAPA) depends on NOT being listed in any one of these enforcement priority categories above.
Eligibility for Deferred Action for Childhood Arrivals (DACA) does not depend upon these
enforcement priority categories, but upon the original DACA criteria. 74 Since PEP relies on
local and state agencies to submit fingerprints, some question what will ensure crossjurisdictional uniformity so that, for example, one state does not opt to stop submitting
69

Id., 5.
Memorandum on Secure Communities, 3.
71
ACLU Report, 5.
72
If border security works to slow or stop unlawful entry, and interior enforcement is able to adequately address
problems of overstayed visas, et cetera, then continued high levels of removal would logically reduce the
undocumented immigrant population to an eventual bottom-line. If these programs are effective, the number of high
priority criminal aliens would eventually dissipate, raising the question of how these priorities may change and
evolve going forward. Even assuming efforts to control unlawful immigration keep levels stagnant, DHS/ICE/INS
enforcement priorities and guidance on prosecutorial discretion have historically changed frequently enough to raise
serious concerns over the long-term implications for the Priority Enforcement Program. If it is effective in
removing the worst of the worst as Secure Communities was originally sold, will PEP then elevate the priority of
lesser offenders or non-criminals? If PEP does have an eventual shift in enforcement priorities, what effect will this
have on community relations and local law enforcement that PEP was originally designed in part to correct? On a
similar note, is PEP prepared for data collection and transparency? The list of questions is expansive, and given the
track-record of DHS/ICE on these issues, there may be no clear answers for some time to come.
73
See note 67, supra.
74
Id., 2.
70

Goodis 22
fingerprints to the FBI for all misdemeanors and traffic citations, while another state begins
submitting fingerprints after even a non-criminal civil citationsuch as some jurisdictions issue
for housing code violations. Jurisdictional differences in sending fingerprints to the FBI for
lesser offenses, in this sense, jeopardize the due process rights of anyone processed at a state or
local police station. More than that, jurisdictional differences in criminal laws present a major
obstacle for equitable implementation of PEP. How, for example, will the FBI and ICE address
situations where fingerprints are submitted pursuant to booking and processing for truancy, a
class C misdemeanor in Texas? 75 How will PEP work with juvenileswhether processed
through an adult criminal justice system or through a juvenile justice system?
Pros and Cons of Biometric Database Interoperability
While certain benefits, harms, and risks of IDENT/IAFIS Interoperability have already
been addressed above, these observations form the heart of Secure Communities and the Priority
Enforcement Program, and therefore merit a more focused discussion herein. Before addressing
the pros and cons of interoperability, however, it is first necessary to revisit the central purpose
of these programsand of the agencies and laws under which they operate. Any pros or cons
must be weighed in the context of the agencies and programs purposes.
PEP involves other agencies such as USCIS and CBP, but primarily operates through the
FBI and ICE, under DHS structure. The Department of Homeland Security has a vital mission:
to secure the nation from the many threats we face. 76 ICE exists to enforc[e] federal laws
governing border control, customs, trade and immigration to promote homeland security and

75

Kendall Taggart and Alex Campbell, Texas Sends Poor Teens To Adult Jail For Skipping School, BuzzFeed News
(Apr. 22, 2015), http://www.buzzfeed.com/kendalltaggart/texas-sends-poor-teens-to-adult-jail-for-skippingschool#.wddygRg2d. Cf. Eva-Marie Ayala, Texas Senate approves measure to decriminalize truancy, The Dallas
Morning News (Apr. 15, 2015), http://www.dallasnews.com/news/politics/state-politics/20150415-texas-senateapproves-measure-to-decriminalize-truancy.ece.
76
About DHS, Department of Homeland Security (Feb. 27, 2014), http://www.dhs.gov/about-dhs.

Goodis 23
public safety. 77 The FBI similarly states that its mission is to protect and defend the United
States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws
of the United States, and to provide leadership and criminal justice services to federal, state,
municipal, and international agencies and partners. 78 Any program operated by these agencies
must follow and support their respective missions and purposes. While PEP has strengthened
some aspects of prosecutorial discretion, such discretion may not exceed the bounds of the
agencies legal authority.
Looking strictly at the federal immigration statutes, little room exists for undocumented
or unlawful aliens to remain in the United States. With a few notable exceptions, current federal
law establishes the removability of the vast majority of immigrants in the United States who are
present without lawful documentation or after having overstayed visas or otherwise come out of
compliance with their permission to enter or remainfor example, under immigration reform
introduced in the 1990s, otherwise lawful immigrants can lose status and become removable for
minor drug offenses. Even the Obama Administrations touted deferred action reforms fail to
provide legal status to recipients: DACA and DAPA are designed to operate as a function of
prosecutorial discretion in deferring immigration action, not cancelling or otherwise preventing
such action. Ultimately, unless immigration laws are reformed and/or some form of amnesty
not deferred actionis promulgated, the existing legal schemata will require the eventual
removal of all aliens not in compliance with civil immigration laws.
Prosecutorial discretion has a long-established place in law enforcement, and is critical to
an agency carrying out its mission with limited resources. 79 Given the legal structure and agency

77

Who We Are, U.S. Immigration and Customs Enforcement, http://www.ice.gov/about (last visited Apr. 24, 2015).
About Us: Quick Facts, Federal Bureau of Investigation, http://www.fbi.gov/about-us/quick-facts (last visited
Apr. 24, 2015).
79
See note 29, supra.
78

Goodis 24
missions, effective immigration enforcement would eventually result in the removal of all aliens
not otherwise permitted to remain. If, for example, the federal government passed a new
appropriations bill giving ICE and CBP unlimited resources to fulfill their respective duties, the
number of deportations would likely spike dramatically, and the number of remaining removable
aliens would plummet. In the absence of such funding for immigration enforcement,
prosecutorial discretion will remain the name of the game. From this, it follows that the tiered
foci of the Priority Enforcement Program constitute a necessary function of modern law
enforcement by directing broad prosecutorial discretion while seeking to avoid a level of
arbitrary enforcement that might derail the legality of the entire enforcement structure.
A prosecutorial discretion comparison to draw here might be with local police
enforcement of jaywalking. In most jurisdictions, jaywalking is illegal, but tolerated and
unenforced. Law enforcement agenciesand often communities and political leadersfeel that
enforcement of such minor laws would be a waste of resources when more serious crimes exist.
This, of course, begs the question: why not change the laws, at least until more pressing crimes
are adequately controlled and the use of police resources to combat jaywalking would be
acceptable? Still, in the absence of political will for meaningful reform, prosecutorial discretion
seems the only viable avenue for agencies to follow. As with any issue related to immigration or
criminal justice, though, there are vocal opponents to such exertions of prosecutorial discretion.
Some opponents to President Obamas executive orders have labelled prosecutorial
discretion as a failure to faithfully enforce the laws as required by the office of the presidency, or
even argued that the orders exceed traditional prosecutorial discretion and amount to an
unconstitutional provision of amnesty. 80 This, despite significantthough often misreported and

80

See, e.g., Andrew C. McCarthy, No, Prosecutorial Discretion Does Not Justify Obamas Lawless Amnesty:
Obamas planned action perverts the meaning of the legal doctrine, National Review (Nov. 20, 2014),

Goodis 25
mischaracterizedremoval numbers throughout President Obamas tenure in the Oval Office. 81
As noted above, some advocates have called for an expansion of PEP to do away with the
discretion and tiered priorities altogether and remove all removable aliens processed through the
justice system as they come. 82 ICE has explained that the prioritization is necessary in order to
best utilize limited funding for detention and removal operations, but from a strictly statutory
perspective it is indisputable that ICE should be removing even the lower-priority individuals
brought to their attention through PEP.
The same advocates who called for the expansion of PEP above also went on to justify
the need for reducing discretion and mandating removal, explaining that ICE has failed to
remove some lower priority immigrants who went on to commit more serious crimes. The
argument, which frequently invokes not-so-subtle undertones of xenophobia, classism, and
racism, 83 suggests that crime can be effectively reduced by removing immigrants. However, as
the above discussion of Secure Communities clearly pointed out, the opposite seems to be the
case in many jurisdictions.
By increasing immigration removals, particularly in lower priority cases, many
communities reported increases in crime, which they attributed to victim and witness reluctance
to report crimes to the authorities due to fear of immigration repercussions. Furthermore,
concerns over potential future crimes of immigrants, in the absence of actual factors, should not
be sufficient to prompt any enforcement actions or reclassification in the removal priorities.
While an alien who is removable for unlawful entry would still be removable regardless of

http://www.nationalreview.com/article/393094/no-prosecutorial-discretion-does-not-justify-obamas-lawlessamnesty-andrew-c-mccarthy.
81
Anna O. Law, Lies, damned lies, and Obamas deportation statistics, The Washington Post (Apr. 21, 2014),
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/21/lies-damned-lies-and-obamas-deportationstatistics/.
82
See discussion on page 18 and citation in note 64, supra.
83
For example, review public comments posted in response to the article cited in note 64, supra.

Goodis 26
criminal convictions, the notion that this alien has a potential for future crimes should not be
given any weight in making enforcement discretion decisions.
The PEP program and late reforms in the Secure Communities program have attempted
to mitigate the negative effects of immigration enforcement on community policing by
increasing public information and awareness of the enforcement priorities and of the protections
available for victims and witnesses of crime. While the current design of PEP has effectively
negated the harm of witness reportingmeaning that PEP will not pull witnesses and victims
down the rabbit hole of immigration enforcementsignificant risk remains for harm to
community policing. PEP has worked on public information campaigns to correct this problem,
but some critics say that these reforms come too late: Secure Communities destroyed any chance
of public buy-in.
Since Secure Communities, and presumably throughout the first several months of PEP,
ICE has also worked with the Administration to train state and local law enforcement agencies
on nondiscrimination policies. Again, while these efforts mark progress, the risk of abuse by
local agenciesand local legislatorsremains. The above-cited example of criminalization of
truancy in Texas 84 is just one example of how states could criminalize certain behaviors in order
to target certain classes of residents for processing through the justice system. Similar to the
questions raisedand cons to the PEP program notedabove, the ability of individual
jurisdictions to influence national immigration enforcement in such a manner poses a great risk
of creating an arbitrary enforcement structure in violation of due process standards.
Given the widespread concerns over the effect of PEP on community policing, the
potential for harm to the greater community is increasingly apparent. As recent events across the
nation have revealed, community relations with local law enforcement are strained and tense to
84

See page 22 and note 75, supra.

Goodis 27
degrees not before recognized. The Obama Administration has even taken steps to address the
need for sweeping reforms to local policing nationwide, including diversification of police
forces, utilization of body cameras and other measures for transparency, and significant changes
to training and deployment strategies. Any risk of harm to community policing must be taken
particularly seriously given the current climate across the nation.
Still, the fact is unavoidable that any modern law enforcement agency in the United
States or a territory of the United States would be ill-advised to cease utilizing the FBIs IAFIS
biometric database, at least in the absence of any comparable database 85 that could be used
without subjection to federal data sharing and interoperability. Sending fingerprints to the FBI is
part and parcel to the task of state and local law enforcement agencies, and federal
interoperability is an inescapable side-effect of the necessary exchange of information between
jurisdictions. Even some information contained in IDENT and OBIM (formerly US-VISIT)
databases may contain pertinent criminal histories not otherwise available in state or IAFIS
records. Such data sharing is an essential function for law enforcement agencies, including DHS
and ICE, and to end interoperability would jeopardize national security and public safety
immeasurably. As such, it is clear that the continuation of interoperability is necessary to all law
enforcement agencies, so the goal of any reforms must acknowledge this inevitability 86 and focus
on harm reduction and risk minimization. Although DHS has emphasized that Secure
Communities was nothing more than interoperabilitydownplaying all internal policy guiding
discretion that was attributed to Secure Communitiestrue reform must look past the key
85

For example, the 50 states, D.C., and territories could join together to create a nonprofit agency that retains
biometric data from all state and local jurisdictions for interjurisdictional background checks without sharing such
data with the FBI and ICE. This would allow state and local law enforcement to determine whether an individual
has outstanding local warrants in other jurisdictions without the local agencies participating in an automated federal
interoperability program. Clearly, though, the success of such a program would require universal participation and
immense development and infrastructure that is not likely to ever happen.
86
Interoperability will continue. Resistance is futile. See memo cited in note 14, supra, for evidence of this point.

Goodis 28
function of interoperability, and past the name of the program housing interoperability, to
address the systemic issues that are guaranteed to continue plaguing PEP and any successor
program unless dramatic reforms occur throughout U.S. immigration law, policy, procedures,
and priorities.
Suggestions for Continued Reform of Interoperability Programs
Accepting the importance of law enforcement database interoperability, historic trends
reveal several areas for potential reform to the Priority Enforcement Program or any successor
interoperability program. Many of these reforms have been suggested or hinted above, but some
merit reiteration, clarification, or reconsideration. Before considering any reforms to
PEP/interoperability, it is important to highlight that the most effective avenue for reform would
revolve around more comprehensive immigration reform, restructuring the enforcement
mechanisms and completely rewriting the laws on admissibility, removability, and everything in
between. Given the political atmosphere, however, a more practical approach to address
PEP/interoperability concerns must focus on incremental reforms with a comprehensive goal in
mind.
By way of incremental reforms, several options are worth consideration. To start, the
nature of the interoperability program could be altered to reduce arbitrariness across
jurisdictions. ICE has stated that adjusting IDENT-based responses to queries on a case-by-case
basis is unrealistic given the agencys resources. However, this step could be built into
interoperabilitys automated data sharing system at an earlier stage, essentially filtering
information so that only certain queries to the FBI are copied to ICE. In practice, this could
mean that the FBI only copies fingerprint queries to ICE after a jurisdiction reports a conviction
or guilty plea, rather than upon the initial booking as sometimes happens. This could also mean

Goodis 29
that, when local jurisdictions submit prints to the FBI, the queries could be filtered by offensetype (for example, using the NCIC Code) so that only queries resulting from high priority pleas
and convictions proceed with a query through IDENT/IAFIS Interoperability. By structuring
and implementing the interoperability in such a way, minor traffic offenders and others might be
spared scrutiny from ICE. This could prevent local jurisdictions from receiving key data on
individuals, such as inclusion on a DHS terror watch-list, but such a problem should be
motivation for better integrating criminal records and watch-lists across databases, and
maintaining civil immigration records separately.
Additionally, the current PEP system relies heavily on state and local crimes, which may
vary across jurisdictions. In order to ensure that PEP is sticking to its official enforcement
priorities, new policies and procedures could be issued specifying enumerated crimes that would
constitute each tier of enforcement priority. Thus, rather than saying that the first priority is
threats to national security and public safety, fingerprints could be processed and investigations
and enforcement actions started in order of priority according to the actual crimes of the
individual. Such a policy change should also emphasize reliance on convictions and guilty pleas,
rather than just charges. By enumerating the crimes that constitute threats to public safety,
greater consistency would be guaranteed nationwide, without preventing ICE from stipulating to
the exercise of discretion.
The introduction of PEP accompanied the shift away from detainers to requests for
notification, primarily in response to constitutional challenges lodged in several federal courts.
Initial guidance on PEP 87 suggested that this shift would adequately resolve constitutional
challenges to enforcement actions taken as a result of the interoperability program. However, as
the ACLU noted, ICE allowed vague and ambiguous exceptions to the new policy, claiming that
87

See memoranda cited in notes 48 and 51, supra.

Goodis 30
detainers could still be issued after identifying probable cause in specific cases without raising
any constitutional concerns. In that respect, ICE appears to have taken a misguided position,
equating criminal probable cause for continued detention in a criminal facility to the probable
cause required for civil immigration matters. In reality, this may be a distinction without a
difference, given ICEs heavy reliance on prisons and prison-like facilities to detain
immigrants. 88 Still, the shortcomings of ICEs detention infrastructure should not validate the
continued use of unconstitutional detainers, and ICE should expand its request for notification
program with the goal of eradicating detainers. This point is further underscored by the PEP
guidance to reduce reliance on detention. 89
To ensure the best outcome of the notification request system, ICE should include
language on the request for notification forms and should share this information in training
sessions with all participating jurisdictions and correctional facilities, to the effect that the
request for notification is voluntary, that it does not request or authorize any additional detention,
and that it does not serve to indicate the individuals immigration statusunless ICE has fully
completed its investigation prior to issuing the request for notification, and has made a final
determination of removability. As highlighted in some of the federal court cases described
above, ICE should also make a concerted effort to complete investigations into immigration
status and removability prior to issuing any request for notification. If authorities are concerned
about missing the chance to retain custody of an individual by transferring him or her directly
from a state or local corrections department to ICE, then the agency should work to develop a
88

In other words, if ICE issues a request for notification, and then picks up an individual to transfer him or her
officially into ICE custody, only to deposit him or her back into the same or a comparable prison, the distinction
between criminal and civil constitutional standards of probable cause has no meaningful effect on the end result.
ICE has historically relied heavily on prisons and prison-like facilities to detain immigrantssee Robert D. Goodis,
Contemporary Immigration Detention Practices: A Study in Sociology and Human Rights (Nov. 2010) (unpublished
B.A. thesis, Bard College) (on file with the author and at the Bard College Library, and available at
http://digitalcommons.bard.edu/senproj_f2010/4/).
89
See C of the Memorandum on Policies.

Goodis 31
post-release notification system whereby ICE could coordinate with parole and probation
officials to retake custody of a removable immigrant. Frankly, if ICE is unwilling to expend
resources to locate an individual released from state prison, then the priority of removing that
individual must be questionable at best. Transferring custody directly would certainly maximize
efficiency and further the agencys mission, but this only means that ICE should restructure its
investigation system to keep up with the pace of bookings and releases, rather than delaying
release for continued investigation.
When completing investigations, ICE should also clarify its standards of probable cause,
and should ensure that mismatched records are fully investigated before any action is taken. ICE
should establish internal policies and procedures to ensure that records of foreign birth and the
absence of further immigration records in ICEs databases do not constitute probable cause for
detention, but may only justify further investigation without additional detention. The long-term
viability of any programmatic enforcement discretion such as Secure Communities or PEP will
also require continuous improvement to ICEs public relations and public information.
By renaming an existing program from Secure Communities to Priority Enforcement
Program, changing only portions of the program structure, ICE failed to address many of the
problems of the botched rollout of Secure Communities, including misinformation, local
governmental resistance, community opposition, and a history of systemic failure since 2008.
DHS/ICE should consider implementing broad enforcement priorities, prosecutorial discretion
policies, and restructuring of requests for notification and detainers, to work across the board for
all DHS agencies and programs. Rather than designing these key functions around the
IDENT/IAFIS Interoperability system, DHS and its agencies should address discretion,
detention, and detainers for all programs, doing away with the link specifically between

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IDENT/IAFIS Interoperability and these forms of discretion and detention policies. Despite
what DHS officials may think about the effectiveness of rebranding, a much more dramatic
change is needed in order to restore public faith in local law enforcement, to soften criticism of
ICE programs, and to make IDENT/IAFIS Interoperability sustainable.
Conclusion
No single solution exists to fix immigration enforcement today not even to fix the
problems raised by Secure Communities and the Priority Enforcement Program and how the
implementation of these programs corrupted such a fundamentally simple task as IDENT/IAFIS
Interoperability. In the absence of comprehensive immigration reform and thorough
restructuring of enforcement agenciesincluding all agencies in DHS, as well as potentially the
FBI and state and local law enforcementand even nationwide changes to state and local
criminal laws to create more uniformity and parity, incremental reforms to PEP must be designed
to address the systemic failures obviated by Secure Communities. ICE must take the
constitutional challenges to PEP seriously and not seek ways to skirt around the issues or play
semantics. Changing the name of a program will not fool a nation, and claiming to use probable
cause to justify detainers will not work if the probable cause itself is the farcical result of wordplay. IDENT/IAFIS Interoperability should continue at the federal level and when running
checks for local and state agencies. Nevertheless, any program guiding the discretion in events
before and after IDENT/IAFIS Interoperability database queries, as well as any program guiding
the enforcement tactics employed after completing the initial fingerprint query, should be
redesigned from the ground up with the goals of uniformity, constitutionality, agency efficiency,
public perception, and community policing in mind.