Immigration and Customs Enforcement official David Venturella started a meeting with San Francisco law enforcement leaders on Tuesday with an apology. ICE, he admitted, had given conflicting information about Secure Communities, a program that shares fingerprints taken for criminal background checks with federal immigration enforcement, and whether counties like San Francisco could opt-out.

(Pic by frozen)

The meeting was one of three held in the past week — with officials from Arlington, Va., on Nov. 5, and from Santa Clara, Calif., later on, Tuesday — between ICE and communities that had voted to be removed from the program, claiming it could harm public safety and lead to fear of police among immigrants.

In all three, the message was the same: Venturella, the assistant director of Secure Communities, acknowledged there had been reports from ICE that the program was optional and that such meetings were the first step in opting out. But the counties could not withhold information from federal immigration authorities, he informed them.

“They flew all the way here just to basically say, ‘We’re going back on our word,’” says Angela Chan, an attorney with the Asian Law Caucus who was briefed after the meeting Tuesday. “The whole thing is kind of a puppet show.”

The issue of whether counties could abandon Secure Communities has changed multiple times in the last six months, as local officials in Arlington, San Francisco, and Santa Clara sought to determine how they could opt out of sending fingerprints to immigration enforcement. Now, even after ICE held meetings with the three counties confirming that opting out is impossible, a coalition of civil rights groups is fighting to get more information on the program and how communities can avoid joining it.

The key, according to activists, will be a Dec. 6 hearing on an injunction filed against the Department of Homeland Security last month by the National Day Laborer Organization Network, the Center for Constitutional Rights, and the Immigration Justice Clinic of the Cardozo School of Law. A court in New York will decide whether Homeland Security officials have to hand over documents related to opting out, as demanded by the groups in February.

With those documents, critics of the program hope to be able to prove what Venturella alluded to at the beginning of the San Francisco meeting: The agency has been misleading the public — perhaps unintentionally — about how Secure Communities works and what it requires from local police forces that would rather not share fingerprints with immigration officials.

“What their public definition of ‘opting out’ is has changed based on what they think they can get away with,” Chan says.

Officials in 34 states — including Florida — have signed memorandums of understanding (.pdf) to participate in the program, which so far is voluntary at the state level. (Some governors, such as Democrats Deval Patrick in Massachusetts and Bill Ritter in Colorado, have delayed requests to sign into Secure Communities, while other states are slated (.pdf) to join the program in the next few years.) There was an indication from ICE officials this summer that local participation was also optional, even in states where governors had agreed to participate.

“No jurisdiction will be activated if they oppose it,” Dan Cadman, an ICE regional coordinator for the program, wrote in a July 23 email to the New York State Division of Criminal Justice Services. “There is no ambiguity on that point. We get it.”

On Aug. 17, ICE released a report called “Setting the Record Straight” that laid out specific steps for counties that wanted to opt-out of Secure Communities. The steps were later reiterated in letters by Homeland Security Secretary Janet Napolitano and an assistant attorney general.

But a sudden message shift on Secure Communities occurred at the beginning of October. Immigration officials began to say opting out was impossible. “We don’t consider Secure Communities an opt-in/opt-out program,” Napolitano said on Oct. 6. By Oct. 20, the report called “Setting the Record Straight” went missing from ICE’s website.

The options presented to Arlington, San Francisco, and Santa Clara were far from what the counties expected when they voted to opt-out. In a memo (.pdf) to Arlington County board members after her Nov. 5 meeting with ICE, County Manager Barbara Donnellan clarified ICE’s definition of opting out of Secure Communities.

“All jurisdictions have the option of not receiving the results of ICE’s database inquiries. (This option is what ICE officials were referring to as the ‘opt-out,’ for localities, and they acknowledged the confusion these statements have created),” she wrote.

For critics of the program, the new message that Secure Communities is mandatory is a major problem.

“If ICE for some reason decides not to follow through, I think we’re looking at possible massive deception,” Sarahi Uribe, lead organizer of an anti-Secure Communities coalition called the Uncover the Truth Campaign, told The Washington Independent in October.

But there is some hope for counties that don’t want to help immigration officials deport undocumented immigrants who are released without being charged with crimes. (In cases of domestic violence, for example, police sometimes arrest both parties till they can determine which person is the victim, a practice that has led to deportation proceedings for some abuse victims under Secure Communities.)

ICE officials said Tuesday that the holds they place on illegal immigrants detected under Secure Communities are optional for local police — meaning law enforcement agencies could ignore detainer requests from ICE and release immigrants they do not charge with crimes, said Eileen Hirst, a spokeswoman for San Francisco Sheriff Mike Hennessey who was at the meeting Tuesday.

“That’s the silver lining,” Chan says. “At least he didn’t go back on his word on that.”

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