By Anthony Kimery
Rep. Candice Miller (R-Mich.), chairwoman of the House subcommittee on border and maritime security, recently sent a letter to Attorney General Eric Holder and Immigration and Customs Enforcement (ICE) Director John Morton in which she expressed her concern over jurisdictions that refuse to cooperate with ICE while still receiving State Criminal Alien Assistance Program (SCAAP) grant funding. SCAAP provides federal payments to states and localities that incur costs for incarcerating undocumented criminal aliens.
During a subcommittee hearing July 10 on the status of the Secure Communities program, during which Morton defended his agency's immigration enforcement tactics in the wake of the Supreme Court's ruling on a controversial Arizona law that encroached on federal authority regarding illegal aliens, Miller said she "questioned why several communities were actively impeding federal law enforcement from removing criminal aliens from the country in violation of federal law, yet are rewarded federal grant funding to reimburse these communities for those unlawfully present in their jails," according to a statement from Miller's office.
In her letter, Miller stated it "is beyond comprehension why certain communities have chosen to willfully impede legitimate immigration enforcement, yet are rewarded by receiving SCAAP grants to reimburse these communities for those unlawfully present in their jails."
"Perhaps the worst offender," Miller told Holder and Morton, "is Cook County, Ill., which passed an ordinance that instructs the county sheriff to decline ICE detainer requests, yet nonetheless received $2,290,019 of federal funding through the SCAAP program last year."
Morton told Miller's subcommittee he found "that position to be completely inconsistent with them not allowing us access to and removing those very same individuals, and we'll be taking a very hard look at their SCAAP request."
In response, Miller said, "I agree with Director Morton's assessment and believe that is time to end any federal funding to any jurisdiction that does not fully cooperate with ICE, or any other federal immigration enforcement program."
Miller pointed out that, "The grant application deadline for fiscal year 2012 SCAAP funds ended last week, so I respectfully request that you deny any funding request for cities that do not fully cooperate with ICE, and if a determination to provide funding is made, I ask that you provide a rationale."
Miller said she expected a response no later than Aug.1.
"As a strong supporter of the Secure Communities program whose goal is to remove dangerous criminal aliens from our streets," Miller told Holder and Morton in her letter July 12, "it is deeply troubling that some communities refuse to honor ICE detainers on criminal aliens."
"I believe that such action is unwise, impedes legitimate federal immigration law enforcement and puts the citizens of those communities and the nation at risk," Miller said, noting that "the high recidivism rate of convicted criminals would suggest that many crimes committed by criminal aliens could be prevented if federal authorities were permitted to deport such aliens, consistent with current law."
Congress created the Secure Communities program in 2008 as a pilot program to establish the capability to identify all criminal aliens or potential criminal aliens at the time of arrest. In jurisdictions where the controversial program is in effect, "all those arrested have their fingerprints run against databases to determine if they are in the country legally," Miller said.
The program is operational in 97 percent of jurisdictions nationwide with only a few communities yet to be activated. Yet, "despite the persistent, and often unfounded, criticism of the Secure Communities program, it has led to the prompt removal of more than 140,000 criminal aliens unlawfully present in this country from our streets and more than 94 percent of the aliens deported by this valuable program are either convicted criminals, recent border crossers or have overstayed their visa," Miller said. "This begs a simple question: How can you oppose a program with those results unless you are not really vested in securing our borders and enforcing the nation's immigration laws?"
"At the end of fiscal year (FY) 2009, Secure Communities' use of this federal biometric information sharing capability was deployed to 88 jurisdictions across the nation," resulting in 35 percent of ICE's removals having been criminal aliens, Morton testified.
"At the end of FY11, Secure Communities deployed this capability to 1,595 jurisdictions," during which time "55 percent of all of ICE's removals were of criminal aliens -- the highest percentage of criminal aliens removed in decades," Morton said. "These successes are a direct result of Secure Communities' expansion of this federal biometric information sharing capability and highlight the effectiveness ICE's overall effort to establish clear priorities and focus agency resources."
The Secure Communities program utilizes the interoperability between the Department of Homeland Security's (DHS) Automated Biometric Identification System (IDENT) and the FBI's Integrated Automated Fingerprint Identification System (IAFIS) as a tool to focus ICE's resources on identifying and apprehending convicted criminals and other high priority aliens -- the group of illegal aliens DHS has prioritized for apprehension and deportation or prosecution in line with Morton's June 17, 2011, policy memorandum "providing guidance for ICE law enforcement personnel and attorneys regarding their authority to exercise discretion when appropriate. This long-standing authority is designed to help ICE better focus on meeting the priorities of the agency and to use ICE's enforcement resources to target criminals and those that put public safety at risk."
Morton told lawmakers, "The memorandum applies fully to any enforcement action taken with respect to individuals identified through Secure Communities' use of IDENT/IAFIS interoperability," and "makes clear that the favorable exercise of discretion is not appropriate in cases involving threats to public safety, national security and other agency priorities. Moreover, to ensure that this agency guidance is implemented consistently, ICE developed an intensive practical training module for its attorneys and field leadership on the proper exercise of prosecutorial discretion. I have also personally visited many of our field offices to speak with both ICE officers and attorneys about the guidance memo and its proper implementation. These proactive measures reflect our firm commitment to effectively prioritizing our immigration cases."
"While the fundamentals of Secure Communities remain sound," Morton told Miller's subcommittee, he said "ICE is mindful of the concerns raised by some, including state and local law enforcement officials, and is committed to continuing to make operational adjustments to ensure that Secure Communities aligns with our operational priorities."
"Unfortunately," Morton said, "ICE's initial public statements often caused confusion about how Secure Communities works and who is required to participate. Given that there may remain some confusion surrounding Secure Communities, I want to take a moment to clarify what it is, and more importantly what it is not."
"Secure Communities," Morton explained, "focuses on improving and modernizing the identification and removal of criminal aliens and other high priority aliens from the United States. The cornerstone of Secure Communities relies on the sharing, between the US Department of Justice and DHS, of fingerprints submitted to the FBI by state and local law enforcement agencies for criminal justice purposes. The federal biometric information sharing that Secure Communities uses typically begins when an individual is arrested and booked on a state or local criminal charges and his or her fingerprints are digitally scanned and transmitted to a State Identification Bureau (SIB)."
In turn, the SIB submits the fingerprints to the FBI Criminal Justice Information Services Division (CJIS) to check against IAFIS for criminal data.
"When fingerprints are submitted to the FBI, they are shared with DHS," Morton continued. "If submitted fingerprints match a record in the DHS US-VISIT database, which contains biometrics on individuals who have had prior encounters with immigration officials, ICE Law Enforcement Support Center (LESC) personnel will then query additional DHS databases to determine if the person may be present in violation of US immigration law. LESC personnel also query criminal history databases to compile a more complete criminal history record of current and prior criminal offenses for ICE enforcement personnel to review."
The findings are sent electronically to the local ICE field office or a Secure Communities Interoperability Response Center "where a determination is made whether to initiate an immigration enforcement action in line with ICE's enforcement priorities," Morton said. "This determination is based on the subject's criminal and immigration history, available ICE resources in the location, and other mitigating circumstances that ICE agents and officers consider when determining whether the individual is an appropriate candidate for prosecutorial discretion."
"If feasible, based upon the arresting agency's technical capabilities and upon the request of the state," Morton continued, "the findings are also made available to the SIB and the law enforcement agency that submitted the fingerprint to aid in clarifying the identity of the subject."
"Neither the state nor the arresting law enforcement agency, in the absence of formal 287(g) delegated authority from an agreement with DHS, is authorized to take immigration enforcement action against the person arrested. This authority remains solely with DHS," Morton made clear.
Follow me on Twitter at https://twitter.com/anthonykimery