In early June 2011, when Massachusetts Gov. Deval Patrick announced his state would no longer participate in the Secure Communities Program, a deportation program established in 2008 by U.S. Immigration and Customs Enforcement (ICE), Massachusetts became the third state to officially reject the program. The District of Columbia has also refused to implement the program, and on the heels of Patrick’s announcement, Colorado Gov. John Hickenlooper seemed to back off his state’s commitment. “We’re going to do a full evaluation,” Hickenlooper said, “of whether it’s working.”

Secure Communities was launched during the George W. Bush administration and expanded under President Barack Obama as a means to help local law enforcement personnel determine whether arrestees are wanted for immigration violations. Under the program, local authorities run the fingerprints of every person booked into jail against ICE’s federal database, IDENT, which keeps biometric records of immigration applicants, criminals, and suspected or known terrorists.

The goal of Secure Communities is to facilitate the deportation of the most dangerous criminals among America’s illegal immigrants. What could be controversial about that? Plenty, it turns out.

Secure Communities has now expanded to more than 1,400 jurisdictions nationwide. By spring of 2011 140,396 convicted criminal aliens had been booked into ICE custody, resulting in the deportation of more than 72,000 criminal aliens.

If the fingerprint of an arrestee is matched to a record indicating an immigration violation, ICE and local law enforcement agencies are automatically notified, and ICE then evaluates each case to determine the appropriate action. According to the agency, its determinations about whether to take action on individual cases are prioritized in the following order:

•Level 1 offenders: aliens convicted of “aggravated felonies,” or more than one felony.

•Level 2 offenders: aliens convicted of any felony or three or more misdemeanors.

•Level 3 offenders: aliens convicted of a misdemeanor.

It’s a simple premise – but in practice, it’s proven complicated, and the program has been plagued by confusion, much of which can be laid squarely at the feet of ICE’s parent agency, the Department of Homeland Security. Nearly three years into the program, it’s still not clear whether a state governor can, in fact, decide not to participate in Secure Communities. According to Jessica Vaughan, Director of Policy Studies at the Center for Immigration Studies, a nonprofit that advocates for immigrant reduction in the United States, the linkage from fingerprint screenings at local jails to federal databases is automatic, and a governor’s announcement to decline participation in Secure Communities, as has been announced in New York, Illinois, and Massachusetts, isn’t much more than political theater.

“[Secure Communities] is in place already in every one of those states,” Vaughan said. “It’s in Boston. It’s in twenty-six counties in Illinois, and it’s in a bunch of counties in New York too. ICE is not stopping it there. They haven’t turned it off. So I think it’s a little bit misleading for these governors to say we’re backing out of Secure Communities, because they’re not, really. They’re just stopping ICE from going forward with it and putting it in more places.”

The hitch in ICE’s declaration that the program is mandatory is the “detainer” – ICE’s request (or order, depending on whom you ask) to law enforcement personnel to hold an arrestee for up to 48 hours past the scheduled release date, so that ICE can take custody of the immigrant and begin deportation proceedings. Some local officials – such as San Francisco County Sheriff Mike Hennessy, who decided in May 2011 that he would no longer hold illegal immigrants charged with misdemeanors while ICE checks their status – are establishing their own conditions for the detainer.

ICE’s legal authority to compel participation, however, is still not a decided matter, said Lena Graber, an attorney on policy for the National Immigration Forum, a leading immigrant advocacy organization. “It is Homeland Security’s position that it is not voluntary,” she said. “However, not everyone is participating in it yet and a lot of the states we’ve seen decide they don’t want to participate are not necessarily taking no for an answer from Homeland Security. It’s not clear yet who has the authority to decide that.”

For a while, Janet Napolitano, Secretary of Homeland Security, seemed unsure herself. In September of 2010, she responding in writing to a query by California congresswoman Zoe Lofgren, with a letter (http://crocodoc.com/yzmmKP) stating explicitly that local agencies could opt out: “If a local law enforcement agency chooses not to be activated in the Secure Communities deployment plan, it will be the responsibility of that agency to notify its local ICE field office of suspected criminal activities,” Napolitano wrote. Within a month, she had backtracked, telling the Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2010/10/06/AR2010100603301.html?wpisrc=nl_wonk) that participation was mandatory.

Whether the program is ultimately determined to be mandatory or not, resistance – from both the immigrant advocate and law enforcement communities – is clearly increasing. Advocates of the program, however, are quick to point out that most of the officials to publicly question it are Democrats from states or jurisdictions with large immigrant populations. But most of the criticisms of Secure Communities are not leveled against the stated goals of the program – they’re aimed at how ICE is conducting it.

Part Two – Secure Communities Program: The Concerns

Part Three – Secure Communities Program: Course Corrections