By Shankar Vedantam
Washington Post Staff Writer
Wednesday, February 16, 2011; 10:30 PM
Even as federal immigration officials were telling Arlington County, San Francisco and other jurisdictions that they could not opt out of a controversial immigration enforcement program, they were telling other municipalities that they could, according to internal Department of Homeland Security documents.
The documents, released as a result of a lawsuit against DHS by opponents of the program, reveal an agency at odds over how to handle criticism of Secure Communities, the Obama administration's signature immigration enforcement program, without running afoul of constitutional limits on what the federal government can demand of local jurisdictions.
The program sends fingerprints gathered by local law enforcement agencies to the FBI and then through a federal immigration database to identify undocumented immigrants. About 1,049 jurisdictions in 39 states participate, including many in Maryland and Virginia.
About 59,000 undocumented immigrants have been deported via Secure Communities, including 21,000 convicted of murder, rape and other violent crimes, according to Immigration and Customs Enforcement. It has been praised by officials in the vast majority of communities where it is being used.
But the program has come under fire from some officials in Arlington County, the District and other municipalities because of worries that Secure Communities could discourage immigrants from reporting crimes.
When Arlington and Santa Clara, Calif., sought to opt out of the program last year, ICE officials said it was not possible for local jurisdictions to refuse to participate.
In October, DHS Secretary Janet Napolitano declared that Secure Communities was not "an opt-in, opt-out program." But even after her statement, ICE officials did not back away from earlier assurances to New York officials that local communities there would have the last word on whether to join the program. Internal documents show they also created an exception for Chicago.
"No jurisdiction will be activated if they oppose it," read an e-mail to New York officials from Dan Cadman, a Secure Communities regional coordinator. "There is no ambiguity on that point. We get it."
John Caher, a spokesman for the New York State Division of Criminal Justice Services, said federal authorities have continued to allow local jurisdictions in New York to opt in or out.
"In our view, it's a local decision," said Caher, who noted that only 10 of New York's 62 counties had chosen to participate.
The contradictory messages were evident within the federal agency. Five days after Napolitano declared that the program was effectively mandatory, a Secure Communities regional coordinator, whose name was blacked out in one of the internal documents that was made public, sent an e-mail to colleagues disputing Napolitano's claim.
"Witness the fact that Chicago and Cook County IL have in fact opted out; and the fact that in New York State, we are required to ask each and every law enforcement organization in the state whether or not they wish to participate before we will be permitted to activate them," the e-mail stated. "How does any of that square with the 'no opt-out for locals?' Doesn't."
The District has not agreed to be part of Secure Communities, and last year all 13 members of the D.C. Council expressed strong opposition to being part of the program.
In Arlington, county officials concluded in November that that they had no choice but to participate. The Arlington County Board had voted unanimously to opt out of the program - an initiative led by board member J. Walter Tejada (D), who emigrated from El Salvador to the United States 30 years ago.
Tejada said Wednesday that he was puzzled by the flexibility that ICE has granted to some jurisdictions but not others.
In trying to explain why Arlington and other jurisdictions couldn't opt out of the program, immigration officials described Secure Communities as an information-sharing program between the FBI and ICE. The agency reiterated that position in a statement released Wednesday, saying that it expected every jurisdiction in the country to be part of the program by 2013.
In their internal discussions, however, agency officials worried that allowing voluntary participation would slow the program's expansion "to a crawl."
At the same time, officials worried that making the program mandatory might run afoul of the 10th Amendment, which prohibits the federal government from using states to enforce national laws.
"ICE has put so much attention to wordsmithing and crafting this language, perhaps to tiptoe around the fact they do not have the legal authority," said Sarahi Uribe at the National Day Laborer Organizing Network, one of three immigration-advocacy groups that obtained the documents from ICE after a court battle.
The agency wound up sending mixed signals to the House Judiciary Committee, which was then controlled by Democrats. A letter sent to Rep. Zoe Lofgren (D-Calif.), the chairman of the House immigration subcommittee, suggested that local communities that did not want to participate in Secure Communities could get in touch with ICE.
Immigration officials later backpedaled, saying that fingerprints would be run through the ICE database whether local officials wanted to participate in the program or not. Local authorities could choose only not to receive information about potential immigration violations or why ICE had ordered individuals to be detained.
The internal documents chronicle a conversation between ICE officials and three irate immigration subpanel staffers, who told immigration officials that they thought they had been misled.