COUNTY OF SAN MATEO

Inter-Departmental Correspondence

County Counsel

DATE:

June 2, 2010

BOARD MEETING DATE:

June 8, 2010

SPECIAL NOTICE/HEARING:

None

VOTE REQUIRED:

Majority

TO:

Honorable Board of Supervisors

FROM:

Michael P. Murphy, County Counsel

SUBJECT:

Report on ICE Secure Communities Program

RECOMMENDATION:

Accept this report on the Immigration and Customs Enforcement (ICE) Secure Communities Program.

BACKGROUND:

At the meeting on May 25, 2010, during oral communications, your Board requested my office to investigate and report back concerning the Immigration and Customs Enforcement (ICE) program Secure Communities. Following is information we have gathered in response to the Board’s direction.

Secure Communities is a program implemented by the federal Department of Homeland Security (“DHS”). Beginning in March 2008, the program has been “deployed” by DHS across the country, on a county-by-county basis. According to a recent communication by the California Attorney General, the program is now active in 169 counties in 20 states. Seventeen California counties (including Alameda, Solano, and Santa Barbara among others) implemented Secure Communities before May 25. In June and July, Secure Communities will go on-line in eight more California counties (El Dorado, San Francisco, Humboldt, Lake, Marin, Mendocino, Napa, and Santa Cruz). Secure Communities began operating in San Mateo County on Tuesday, May 25, 2010.

How Does Secure Communities Operate?

Secure Communities is a data sharing program under which states forward digital fingerprints from their central databases to ICE to allow ICE to determine whether the prints match those with whom ICE has had previous immigration-related encounters. Examples of “past encounters” for ICE include persons who were previously deported, or were ordered deported but failed to surrender, or are on a terrorist watch list.

In California, all counties send digital fingerprints of persons booked into jails by local law enforcement to a statewide database, called CLETS. The Secure Communities program has been implemented in California through an agreement entered into between the California Attorney General and the federal government. Under the agreement, in those counties for which Secure Communities is operational, the California Department of Justice (DOJ) forwards the digital prints to an ICE database as well as to the FBI. The state DOJ had previously been sharing prints with the FBI for the purpose of identifying criminal information in the FBI database.

Under Secure Communities, if a person is identified as having had a “past encounter” with ICE, then ICE sends a message to County jail. The message takes one of about 14 forms, including that the person is “legally in the U.S. but subject to arrest if convicted of a serious felony,” a “legal permanent resident, but subject to removal proceedings if convicted for felony offense,” a “U.S. Citizen, not subject to removal,” or a person “not legally in the U.S. and appear[ing] to be subject to removal proceedings.” These messages are sent for information only to local law enforcement, and the Sheriff has informed us that he takes no action in response to these messages (i.e., persons otherwise entitled to and scheduled for release from custody are not further detained by reason of the receipt of such a message). However, ICE may follow up the information-only messages with a detainer order (issued under provisions of the Code of Federal Regulations) which requires the County jail to detain the person for up to a maximum of 48 hours after the local charges have been resolved. The 48-hour period is to allow ICE officers to take custody of the individual. If ICE does not arrive before the 48-hour period has elapsed, or if no detainer order has been served on the jail before the arrestee bails or is released, local law enforcement takes no further action with regard to the person released.

ICE believes its fingerprint match program is more accurate and less susceptible to error than its previous methods of identifying immigration violators, because Secure Communities is based on biometric information (fingerprints) and not on names, which may be similar, or on apparent or self-reported foreign birth.

How, if at all, have jail procedures changed as a result of Secure Communities?

Our jail is doing nothing differently as a result of the implementation of Secure Communities in San Mateo County on May 25, 2010. While, before Secure Communities, the Sheriff forwarded digital prints of all persons booked into the jail to CLETS (which CLETS forwarded to the FBI) and received notices back from CLETS and the FBI about the subject’s criminal activity, now the Sheriff also receives an additional piece of information from ICE regarding the match or lack of match of the prints with ICE’s database. As before, our jail detains persons subject to ICE detainer orders for 48 hours. The Sheriff’s office has stated that prior to May 25, there were an average of about 40 inmates on detainer hold on any given day, and very roughly estimates that this number has increased by about 10%.

Because the County receives federal State Criminal Alien Assistance Program (SCAAP) grant money for housing foreign-born persons, jail personnel have always enquired of all persons booked whether they are foreign-born. As was the case before May 25, ICE officers visit the jail on a daily basis to investigate arrestees who have self-reported foreign birth upon booking. This process has not changed as a result of the program.

Since May 25, our jail is receiving back a “no previous contact” message from ICE for 60%-70% of the persons booked.

Can San Mateo County “opt out” of Secure Communities?

The Sheriff uses the CLETS state-wide criminal database to screen individuals booked into our jails for criminal activity. The CLETS database is owned by and controlled by the State Department of Justice. Once the Sheriff sends prints to the state DOJ, the DOJ forwards them to the FBI, and now to ICE without any further participation or permission from San Mateo County. While the County’s use of the CLETS system appears to be voluntary, the Sheriff is of the view that use of the system is absolutely necessary to his mission to ensure public safety. As an example, by forwarding digital booking prints to CLETS, the Sheriff is able to positively identify persons who come into his system, even for minor offenses, who may be subject to an outstanding warrant for very serious crimes.

In a recent letter to the Attorney General, City and County of San Francisco Sheriff Michael Hennessey asked state Attorney General Jerry Brown to allow San Francisco to “opt out” of Secure Communities. In a response dated May 25, 2010, the Attorney General denied the request. At least one county (Sonoma) takes the position that it is in effect “opting out” of Secure Communities to the extent that it is not acting on the messages from ICE concerning the immigration status of the booked individuals, a practice our Sheriff follows, as noted above. In fact, local ICE spokeswoman Sylvia Arguello has stated that ICE has instructed local agencies not to act on those messages, but only on formal detainer orders. Our view is that it is highly questionable that local enforcement agencies would have the authority to hold on the basis of the messages alone, without evidence of probable cause to detain or a detainer order.

Based on the information we have gathered, and given the Attorney General’s stated position that he will not consider individual county requests not to forward prints to ICE, our conclusion is that the only practical way to “opt out” of Secure Communities would be to cease forwarding digital print information to the State, an option that would severely impact public safety in the County.

What has San Mateo County itself done, if anything, to implement Secure Communities?

Because this program is implemented by agreement between the State of California and the federal government, there is no process for “opting in” to the program by local jurisdictions. Thus, there has been no previous Board action or action by the Sheriff regarding this program, nor was any action or consent of the Board of the Sheriff required. The technology for capturing digital fingerprints and forwarding them to the CLETS database was in place in San Mateo before May 25, and, as previously noted, the Sheriff is of the view that CLETS serves an important and indispensable law enforcement function independent of the Secure Communities program.

Concern re applicability of Secure Communities in situation where prints taken for other than law enforcement purposes.

Speakers at the May 25 Board meeting raised the concern that community volunteers, teachers’ helpers, and youth athletic coaches, who are fingerprinted for the purpose of screening out persons with disqualifying criminal backgrounds, may be unfairly or inappropriately targeted by ICE under this program. ICE spokeswoman Sylvia Arguello has advised that ICE would not process such prints, because they are not criminal records. We have been advised that such prints are recorded on a different “template” than criminal booking fingerprints, and are not processed to ICE.

Concern has also been expressed that persons arrested for minor crimes, such as driving under the influence, would be detained by ICE and potentially deported. Depending on the immigration status of the individual, there is always the possibility that a detention order would be issued with respect to persons arrested for such crimes. If ICE does seize an inmate on an ICE detainer order, the officer must transport the inmate to a federal facility, because San Mateo County’s jails are not immigration facilities. As noted above, when an individual is arrested for minor crimes and released on his or her own recognizance or is released on bail before an ICE detention order is prepared, local law enforcement officers do not pursue the released person after the person has left the Sheriff’s custody.

A concern has been expressed as well that victims of crimes, especially domestic violence, may be arrested by mistake, after the abuser or perpetrator accuses the victim of the crime. Local law enforcement does sometimes book a victim by mistake, and then releases the victim immediately, but not before fingerprints are taken and forwarded to CLETS. The local ICE representative advises that in such situations, ICE actively works with local District Attorneys in victim witness programs and will continue to do so. ICE also has a special visa program aimed at domestic violence victims especially, to encourage them to testify against their abusers. The Sheriff’s office confirms that it is common for ICE to allow the person to be released and even to work with the person to obtain a visa.

Finally, concern has been expressed that Secure Communities would encourage or increase racial or national-origin profiling. Previously, ICE based its detentions on names and self-reported (and perhaps on apparent) foreign birth. Now ICE matches fingerprints with factual data about previous contacts with ICE and criminal activity, thus decreasing the reliance on physical appearance in identifying persons with criminal records.

FISCAL IMPACT:

There is no fiscal impact associated with the preparation of this report. The fiscal impact of the implementation of the Secure Communities program is beyond the scope of this report.