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Local jurisdictions find they can't opt out of federal immigration enforcement program

Fairfax County marks its first year among 116 jurisdictions nationwide to pilot Secure Communities, which uses a database to flag criminal illegal immigrants.

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Washington Post Staff Writer
Thursday, September 30, 2010; 10:59 PM

The Obama administration is making it virtually impossible for Arlington County, the District and other jurisdictions to refuse to participate in a controversial immigration enforcement program that uses fingerprints gathered by local law enforcement agencies to identify illegal immigrants.

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Participation in the program, called Secure Communities, was widely believed to be voluntary - a perception reinforced by a Sept 7 letter sent to Congress by Homeland Security Secretary Janet Napolitano. This week, Arlington joined the District, San Francisco and Santa Clara County, Calif., in voting to opt out of the program.

But the Immigration and Customs Enforcement agency now says that opting out of the program is not a realistic possibility - and never was.

Secure Communities, which operates in 32 states and will soon be running nationwide, relies on the fingerprints collected by local authorities when a person is charged with anything from a traffic violation to murder. The fingerprints are sent to state police, and then to the FBI, for criminal background checks.

Under the two-year-old program, ICE is able to access the information sent to the FBI. If the fingerprint matches that of someone known to be in the country illegally, ICE orders the immigrant detained as a first step toward deportation.

Tens of thousands of undocumented immigrants have been removed from the United States under the program, which the administration has made a centerpiece of its effort to focus immigration enforcement on criminals. But those deportees include many thousands who have committed minor offenses or no crimes at all, which has made the program a source of increasing concern to immigrant rights groups.

A senior ICE official, speaking on the condition of anonymity because he was not authorized to talk about the involuntary nature of the program, said: "Secure Communities is not based on state or local cooperation in federal law enforcement. The program's foundation is information sharing between FBI and ICE. State and local law enforcement agencies are going to continue to fingerprint people and those fingerprints are forwarded to FBI for criminal checks. ICE will take immigration action appropriately."

The only way a local jurisdiction could opt out of the program is if a state refused to send fingerprints to the FBI. Since police and prosecutors need to know the criminal histories of people they arrest, it is not realistic for states to withhold fingerprints from the FBI - which means it is impossible to withhold them from ICE.

The revelation that the program is not really optional stunned Arlington County Board member J. Walter Tejada (D), who spearheaded a months-long effort to evaluate Secure Communities with residents, lawyers and county officials. "It is most frustrating," he said. "Communities were researching this. Attorneys looked at it pro bono. All of that could have been avoided. People spent all summer thinking about this."

Tejada pointed to Napolitano's recent letter to Congress, in which she wrote, "A local law enforcement agency that does not wish to participate in the Secure Communities deployment plan must formally notify the Assistant Director for the Secure Communities program, David Venturella." In a briefing paper, ICE also said that if a city or county did not want to participate, the agency was amenable to "removing the jurisdiction from the deployment plan."

The senior ICE official said local authorities could opt out of learning the specific reason why immigration authorities wanted someone detained. But they would still have to detain the individual.

"If what you say is true, it is extremely disappointing because it means the District of Columbia now has a blurred rather than a bright line between what the Metropolitan Police Department is doing and what immigration officers are doing," said D.C. Council member Jim Graham (D-Ward 1), who recently voted with the rest of the council to opt out of the program. "We had a bright line, and that has increased trust and confidence in our police among immigrant communities. That will now vanish."


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