New York Judge Shira A. Scheindlin yesterday ordered Immigration and Customs Enforcement (ICE), the Department of Homeland Security, the FBI and the Executive Office of Immigration Review to produce further information about whether and how localities may opt out of or limit participation participation in Secure Communities.

Secure Communities is a federal immigration-enforcement program that allows local law enforcement agencies to compare the fingerprints of every person arrested and booked with FBI criminal history records and Department of Homeland Security immigration data.

In her written opinion, Scheindlin granted only part of what the National Day Laborer Organizing Network, the Center for Constitutional Rights and the Cardozo Law School Immigration Justice Clinic requested in their Freedom of Information Act lawsuit against the federal agencies responsible for Secure Communities.

Scheindlin’s document explains that “initially, federal government officials suggested that the program was voluntary, in
that states or localities could choose not to participate.”

But it adds that in October 2010 Janet Napolitano, secretary of the Department of Homeland Security, stated that the department does not view Secure Communities as an optional program and that it will be mandatory by 2013.

In December 201o, following a court order, the federal agencies produced more than 14,000 pages of opt-out records, but “withheld all or part of certain records pursuant to [the Freedom of Information Act’s] statutory exemptions.”

Scheindlin continues:

It is apparent that many of the documents that defendants seek to withhold under the deliberative process privilege do not contain agency deliberations about what Secure Communities policies should be, but rather about what message should be delivered to the public about what Secure Communities policies are. Such “messaging” is no more than an explanation of an existing policy, which is not protected by the deliberative process privilege.

She adds:

There is ample evidence that ICE and [Homeland Security] have gone out of their way to mislead the public about Secure Communities. In particular, these agencies have failed to acknowledge a shift in policy when it is patently obvious – from public documents and statements – that there has been one. [Emphasis added.]

Scheindlin writes that any discussions of the voluntary nature of the program after Jan. 27, 2010 — when the agency publicly stated that it was voluntary — and any documents discussing the mandatory nature of the program after March 2010 — when there is evidence that ICE and the FBI discussed its mandatory nature with Washington, D.C. law enforcement — are not protected by the deliberative process privilege and must be released, unless covered by another Freedom of Information Act exemption.

Secure Communities has been under intense scrutiny by elected officials; several states have announced they will not participate in the fingerprint-sharing program.

Las week, the National Day Laborer Organizing Network claimed that Secure Communities is “a key component of a little-known FBI project to accumulate a massive store of personal biometric information on citizens and non-citizens alike.”

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