Secure Communities in Washington, D.C.

1. Secure Communities in Washington, D.C. Prepared by the National Immigration Project of the NLG Contact: Paromita Shah, paromita@nationalimmigrationproject.org Prepared by NIPNLG

2. What is Secure Communities? • Secure Communities is an Immigration and Customs Enforcement (ICE) program that operates in our criminal justice system • Allows state/local law enforcement and ICE to automatically and immediately search for a person’s criminal and immigration history in DHS and FBI databases. Prepared by NIPNLG

3. Who else has Secure Communities • By November 2009 S-Comm was operational in 106 jurisdictions in 9 states: • Goal is to have S-Comm operational in each of 3,100 state & local jails by 2013 • Chief Lanier signed an agreement with ICE in November 2009 to launch S-Comm Prepared by NIPNLG

4. Overview of the Criminal Justice System Arrestee in Jail (Pre/Post Bail Hearing) Criminal Charges & Disposition (plea/trial/dismissal/ sentence) Booking Into Jail After Arrest Bail/Custody Hearing START: Police Stop/Arrest Post-Conviction (appeal, completion of sentence, release from criminal custody, probation) Prepared by NIPNLG

5. Immigration Detainers • What are the goals of the Secure Communities program? • (1) identify noncitizens • (2) lodge detainers • (3) then, usually, ICE custody or deportation • Detainer is primary tool used by ICE to facilitate transfer of person from criminal to ICE custody and deportation • But ICE practices and policies about detainers are confusing and arbitrary INA § 287; 8 CFR 287.7 Prepared by NIPNLG 5

6. What is an Immigration Detainer? • A notice to the jail or police that ICE is interested in this person; used to track a noncitizen throughout the criminal process • Usually, turns up as a Form I-247 (next slide) • In practice, detainer prevents the person’s release from criminal custody Prepared by NIPNLG 6

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8. How SC works: Step 1 DC MPD takes fingerprints at booking after arrest. Hands placed on a fingerprint pad and electronically scanned. DC MPD will take fingerprints of everyone who is arrested (except where MPD DC doesn’t take fingerprints) Prepared by NIPNLG

9. How SC works: Step 2 • MPD forwards fingerprints of arrestee to DHS and ICE databases • MPD will automatically forward all fingerprints EXCEPT: 1. Arrestees’ fingerprints who are charged with one of 21 offenses (see next slide) 2. Juveniles’ fingerprints, UNLESS they are transferred to adult court • MPD will not notify the arrestee that their fingerprints are going to ICE Prepared by NIPNLG

10. DC Offenses not sent to ICE Prepared by NIPNLG

11. Step 2 cont’d offenses • EVERY OFFENSE but the 21 offenses • Examples of offenses that will lead to fingerprinting Prepared by NIPNLG

12. What happens to DV victims? • If the batterer is arrested for any of the above exempted charges the fingerprints will not be forwarded to ICE. However, if the batterer is arrested for any other domestic violence related charge (for example: simple assault, destruction of property, trespassing, sexual abuse, threats), the fingerprints will be forwarded to ICE. Prepared by NIPNLG

13. How SC works: Step 3 • Program automatically searches DHS and FBI databases for immigration and criminal history, looking for a “hit”: • FBI: Integrated Automatic Fingerprint Identification System • Automated Biometric Identification System (IDENT) • Immigrant Status Indicator Technology (US-VISIT) Program Prepared by NIPNLG

14. How SC works: Step 4 • If the arrested person is matched to a database record indicating an immigration violation, the system will automatically notify ICE & local law enforcement that there is a “hit”. • ICE may want to interview arrestee to determine if the person is a noncitizen (phone, video, telephone); • Undocumented persons w/no immigration history are not likely to generate a hit in the database • If the search results are unclear, ICE may attempt to interview arrestee to see if the person is a noncitizen Prepared by NIPNLG

15. How it works: Step 5 • ICE evaluates each “hit” to determine what, if any, enforcement action will be taken • In most cases, ICE will issue a “detainer”: A detainer is not an order; it is a mechanism that lets MPD or DC Jails know that ICE is interested in a person and requests them to hold the person for 48 hours after • (1) the criminal matter has ended (dismissal, conviction, or charges dropped) OR • (2) you have posted bail • ICE usually issues a detainer within 4 hours of receiving fingerprints Prepared by NIPNLG

16. Step 5 cont’d • What other “enforcement actions” can ICE take? • ICE arrest and detained in ICE facility • Get information from DC jail or DCMPD about the criminal case so they can pick you up during the criminal case (even if has posted bail) • A detainer could also result in ICE contacting or picking up the arrestee Prepared by NIPNLG

17. How SC works: Step 6 • What will DC MPD do if ICE asks for assistance? • Although DC MPD is not required to grant these requests, DC MPD has not stated how it will respond • ICE can ask DC MPD to: • Forward information about the arrestee (booking, arrest records, police reports) • Facilitate ICE interviews of arrestee • Inform ICE about any release decisions Prepared by NIPNLG

18. Who is the target of SC? • ICE says it prioritizes enforcement strategy against “criminal aliens”; uses Level strategy • Enforcement actions are pre-conviction • Level 1: major drug offenses & violent offenses such as murder, manslaughter, rape, robbery, and kidnapping • Includes resisting a police officer • Level 2 :minor drug offenses & mainly property offenses such as burglary, larceny, fraud, and money laundering • Includes traffic offenses • Level 3 –: other offenses. ICE website and Standard Operating Protocol Prepared by NIPNLG

19. Other Level I offenses • ICE states it lodges detainers and will pick up individuals charged with Level 1 offenses: Homicide, Rape, Kidnapping, Sexual Assault, Robbery, Ag Assault, Threats, Extortion, Sex Offenses, Cruelty towards Children, Resisting an Officer, Weapon, Hit and Run, and Drugs (>1yr– even if all suspended) • Problem: Not all offenses here are felonies ICE Standard Operating Protocol- available at ICE Electronic Reading Room www.ice.gov Prepared by NIPNLG

20. S-Comm: ICE Statistics • In first year of S-Comm (Oct. 08-09): • Over 825,000 fingerprint submissions • Approx. 111,000 “hits” for persons with both immigration history and record of prior conviction or charge. • 9% of hits were level 1 • 86% of hits were level 2 or 3 • 5% of hits were U.S. citizens Prepared by NIPNLG

21. What’s happening in DC jail? • DC DOC allows ICE to interview inmates (pre-trial and post) • We don’t know much about ICE’s access to the jail • 5% of the inmates are noncitizens • A small percentage have detainers • But we expect detainers to increase Prepared by NIPNLG

22. How Secure Communities Interact with the DC Criminal Justice System In DC jail, ICE conducts initial/additional interview of noncitizen. DC jail holds noncitizens on detainers until ICE picks them up. At police station, MPD DC can give ICE place of birth and other booking bio info, which they use to ID noncitizens to interview During or shortly subsequent to interview, ICE initiates paperwork for removal process (e.g., stipulated removal, NTA, expedited removal, referral for illegal reentry prosecution). Prosecutor uses detainer to call ICE. Using info from Secure Communities database check or jail interview, ICE issues detainer Criminal Charges & Disposition (plea/trial/dismissal/ sentence) Arrestee in Jail (Pre/Post Bail Hearing) Booking Into Jail After Arrest Bail/Custody Hearing Checks in FBI & Secure Communities databases to ID noncitizens in system EXCEPT for 21 offenses and juveniles (except for juv treated as adults) Detainer triggers judge to deny bail, OR Judge grants bail. If bail is posted, detainer is triggered and noncitizen is not released for at least 48 hours. Referral to US attorney for illegal reentry prosecution START: Police Stop/Arrest Post-Conviction (appeal, completion of sentence, release from criminal custody, probation) DC MPD may informally question detained people re immigration status, report to ICE MPD DC can check National Crime Information Center (NCIC) database for immigration law violators In DC jail, ICE interviews noncitizens. Completion of sentence and release triggers immigration detainer; noncitizen goes into ICE custody/detention (transferred to Virginia ICE IGSA facilities) Modified from ICE ACCESS presentation on on 3/4/2010 from DWN, IDP, NIPNLG, RWG, NILC, WSDIP Prepared by NIPNLG

23. What’s wrong with S-Comm? • ICE’s willful blindness to racial profiling and pretextual arrests. • Lack of complaint mechanisms. • No training required • Lack of oversight and transparency. • DHS has not issued any regulations for any aspect of S-Comm. • Cannot track whether it is doing it’s job • Lack of data. • None of ICE’s public information regarding S-Comm has included any requirements for data collection, audits or oversight. • Arrestee doesn’t know the immigration consequences of the arrest and doesn’t know that DCMPD is forwarding his fingerprints to ICE Prepared by NIPNLG

24. DCMPD’s policy on ICE-police collaboration Stated policy: • Limited to “enforcement of criminal laws related to immigration” • Will provide “crowd and traffic control support” for ICE operations • “Not in the business of enforcing civil immigration laws” Prepared by NIPNLG

25. DCMPD on SC • SC is part of their community policing initiatives (see DCMPD SC flyer) • Rejects characterization of SC as police-immigration collaboration • Part of a national strategy to stop terrorist attacks • Says it targets serious criminals • Rejected request to include auditing procedures to see if it was targeting serious criminals or hurting community policing Prepared by NIPNLG

26. Why is SC bad for DC? • Results in ICE-police collaboration bc MPD will allow ICE access to arrestees (before they have been convicted) • Not limited to “immigration related offenses” • Undermines community policing and breaks trust of communities in the police • No oversight mechanisms are in place to ensure that SC is doing its job Prepared by NIPNLG

27. Why is SC bad for DC? • More liability for DC (includes arrests of US citizens) • Reports of ICE programs that focus on arrestees have resulted in more racial profiling • TX study shows that arrestees with detainers spend more time in jail that citizens on the same charge Prepared by NIPNLG

28. Know Your Rights • Who is High Risk? • Noncitizens with prior deport orders • Noncitizens who violated their visa • Noncitizens (including green card holders) with criminal conviction • Why? Because they all have had contact with immigration before Prepared by NIPNLG

29. Magic Words • Am I free to leave? • I am going to remain silent. • I do not consent to a search. • I want to talk to a lawyer. Prepared by NIPNLG

30. If you are stopped on the street • Be cool and calm. • You have the right to an interpreter under DC Language Access Laws • Don’t speak or answer any questions, unless you have an attorney present. DC MPD cannot ask questions about your immigration status • Ask: “Am I free to go?” Prepared by NIPNLG

31. On the street cont’d • If you are not free to go, then you are being detained for an offense. • You have the right to remain silent. Remember the magic words • You have the right to an interpreter Prepared by NIPNLG

32. In the jail • Don’t talk to ICE (esp at booking) • Don’t sign anything • If you do not understand questions, ask for an interpreter (DC Language Access) • You have the right to speak with your lawyer • You have a right to call your consulate Prepared by NIPNLG

33. In Jail cont’d • If you have an ICE detainer placed in your case file, • Ask for a copy of your detainer and alert your public defender or attorney to an immig issues • ICE should pick you up within 48 hrs (excluding wknds and fed holidays) as soon as your criminal case has been completed (e.g. dismissed, dropped, convicted) OR you have posted bond • If they don’t, they are holding you illegally. (This means you can sue. Ask for a habeas) Prepared by NIPNLG

34. Filing complaints • If you feel like your rights have been abused, call the Equal Rights Center at 202-370-3226. • Examples: • Asking for your immigration status • Officer stopped or detained me using racial or ethnic profiling. • Officer questioned passengers in my car about their immigration status. • Police arrested me and then dropped criminal charges, leaving only immigration charges against me. Prepared by NIPNLG

35. Need a KYR presentation? Call the Equal Rights Center at 202-370-3226. Prepared by NIPNLG