On June 17, Immigration and Customs Enforcement (ICE) announced a slate of reforms to its Secure Communities program that director John Morton said are about prioritizing its limited resources and “making sure we focus on those people it makes the most sense to remove.” In reality they amount to a political attempt to salvage Obama’s flagship immigration program, which despite a multimillion-dollar mandate to target “dangerous criminal aliens,” has been undermined by ICE’s own data, which show that the majority of those it deports have no criminal record or were charged with minor offenses like traffic tickets. Critics argue that the program has re-established racial profiling as a legitimate policing practice. If the 1990s catchphrase was “Driving While Black,” now it could be “Driving While Immigrant.”
Take the example of Salvador Licea. Last August he was returning to his construction job in McGregor, Texas, after a lunch break when a routine traffic stop turned into a check of his immigration status. A local police officer noticed Licea’s expired inspection sticker and pulled him over, then checked to see whether his driver’s license was also expired. It was. Recent changes in Texas law make it impossible for undocumented immigrants to renew their once valid licenses. So instead of getting a ticket, Licea was arrested and booked into a McLennan County jail that participates in Secure Communities. His fingerprints were automatically shared with federal immigration agents and he was marked eligible for deportation.
“What crime did I commit?” Licea asks. “I was just doing my thing, just trying to get to work.” He says he often felt nervous when he saw a police officer while driving, even when he had a valid license. “Is he going to stop me for breaking the law?” Licea says he would ask himself. “Or is he just going to stop me for the color of my skin?”
Mr. Licea’s charge was driving with an invalid license. He was among 80 percent of the 118 immigrants McLennan County has transferred into ICE custody since January 2010 who were noncriminals or accused of low-level traffic or misdemeanor offenses. This scenario has played out across the 1,417 jurisdictions that have enrolled in Secure Communities since it started in 2008 and report similar statistics. It has been cited by the three Democratic governors who backed out of the program this year—Pat Quinn of Illinois, Andrew Cuomo of New York and Deval Patrick of Massachusetts.
These governors wanted to opt out of Secure Communities—just like Arlington County, Virginia, which voted 5-0 to opt out last September—but have found themselves similarly powerless to block the controversial program. Instead, in an attempt to address state and local concerns, Morton says he will grant more discretionary powers to federal attorneys handling deportation cases. Special consideration will now be given to veterans, victims of domestic abuse, women who are pregnant or nursing and single parents like Licea, who is the sole provider for his two US-born daughters.
“It gives the ICE trial attorney the ability to do the right thing,” says David Leopold, president of the American Immigration Lawyers Association. “They can look at the person on the other side of the courtroom table, and evaluate them as a human being with individual circumstances.” This sounds good in theory, but other advocates say that such discretion could be exercised unevenly. And it comes long after an immigrant may have been unfairly singled out by police. “This reform happens five steps down the road,” notes Sunita Patel, a staff attorney with the Center for Constitutional Rights, “once the person is already detained, once they may have already waived their rights, once the harm has already been done.”
Even though Secure Communities doesn’t empower local police officers to check the immigration status of people they stop, it is clear it will be checked if he or she is arrested. With a nod to this increasingly common practice, Morton says ICE chose a group of “stakeholders” and gave it forty-five days to come up with improvements to the program. But he limited their scope to considering whether immigrants who are charged with minor traffic offenses should be deportable only upon conviction. Patel says this fails to address racial profiling complaints.
Morton’s new reform package does include a training video produced for local law enforcement agencies enrolled in Secure Communities that explain what racial profiling is and remind officers that it is illegal. The problem? These officers already know racial profiling is against the law. “Putting into a video information that law enforcement should not be racially profiling—that is not likely to have a whole lot of impact,” says Margaret Huang, executive director of Rights Working Group, a DC-based organization founded after the bipartisan End Racial Profiling Act died on the floor of Congress in the aftermath of 9/11.
“Part of the reason it’s become acceptable to use racial profiling in immigration enforcement is because it has been deliberately tied into the national security context,” says Huang. But while many Americans may feel comfortable with airport screeners pulling aside someone wearing a turban, it is still worth asking if local police go too far by stopping people based on the color of their skin. If the answer is yes, then the Secure Communities program remains fatally flawed. Says Huang, “The theory and reality of Secure Communities are so far apart, they’re hard to reconcile.”