Will PEP lead to less detention than Secure Communities? Not likely

By Patricia M. Corrales

Secure Communities, Priority Enforcement Program, Potato, Potatoe…What’s the difference? The shortest answer is “none.”

The controversial Secure Communities program together with ICE’s 287(g) program, established under the Bush Administration and directly administered by former Attorney General Alberto Gonzales, came to an end under Obama’s executive action initiative on immigration announced on November 21, 2014. In its place, Secretary of Homeland Security Jeh C. Johnson announced the Department of Homeland Security’s (“DHS”) new Priority Enforcement Program (PEP). But, with some slight differences, PEP really isn’t any different and seems far from being any more compassionate than Secure Communities.

Background

The Immigration and Nationality Act (INA) provisions regarding identification, detention, arrest and removal of aliens (8 USC §1226(c); 8 USC §1226(d); 8 USC §1226(e); 8 USC §1227(a) (2); and 8 USC §1228) and the INA provision regarding liaison activities with internal security officers and data exchange (8 USC §1105) purportedly provided Secure Communities, and now, PEP its basis for legal legitimacy.

ICE’s propaganda behind Secure Communities was its commitment to improving community safety by transforming the approach in which the federal government cooperated with state and local law enforcement agencies (LEAs) to identify, detain and remove aliens convicted of a serious criminal offense. Secure Communities gave birth and was the conduit to ICE’s 287(g) program where ICE entered into Memorandum of Understanding (MOU) agreements with local LEAs to identify and train local officers and “deputize” them with authority under the INA. Under Secure Communities, which essentially is a fingerprint database, working with local fusion centers, ICE flagged those aliens whose prints or identifying information was already in DHS immigration databases. In conjunction with the DHS database information, the 287(g) program gave local LEA officers multiple ways of learning the status of those suspected to be aliens—mostly those committing their first non-immigration crime (typically a DUI) or people admitted on border crossing cards who have exceeded the 25 mile restriction and who were not fingerprinted upon entry like those who come in on a visitor visa.

While Secure Communities intended to prioritize the dangerous immigrants (those with felony convictions), what ended up happening is that the 287(g) program ended up processing practically every person who looked like an alien. And, let’s be honest, while there was a lofty goal at the start of this initiative, the practical effect that I witnessed as a former Senior Attorney with ICE was a surge of local LEAs entering into memoranda of understanding (MOU) with ICE because it brought federal monies to these local jurisdictions hit hard by the dip in the economy in 2008 and 2009. But, this cooperative relationship was really more akin to a child wanting to please their parent as local LEA officers were arresting left and right individuals whom they encountered for non-violent offenses such as failure to pay a no license ticket with the expectation that the federal government would reward such achievement by pouring into their respective local economies money and equipment. In 2009, the surge was so large that I trained several classes of over 100 local LEA officers involved in the 287(g) program on the INA. That summer, there were several attorneys training several classes of local LEAs on their statutory authority to detain, arrest and institute removal proceedings. By the time I left ICE in late 2012, over 120 local jurisdictions were enrolled in the 287(g) program. What is horrifying is that many of these LEA officers “passed” their 287(g) training without truly understanding the differences between what crimes can subject an individual to removal proceedings and which crimes are not a basis for removal. As part of these MOU, ICE had a presence in the local jail and detention centers.

If an individual was arrested for petty theft and detained while waiting arraignment, the LEA 287(g) officer would inform the ICE agent embedded in that local jurisdiction and immediately a detainer was placed so that an individual could not be released even if the individual bonded out in his or her criminal case. Often these detainers were not reviewed by supervising ICE officers or attorneys with ICE’s Office of the Principal Legal Advisor (OPLA) so there were times when United States citizens were detained for immigration violations because a detainer was issued and the local 287(g) officer had no way of ferreting out the citizenship issues. In my opinion, the 287(g) program was instrumental in the overcrowding of our detention centers. LEA officers could not terminate the case or administratively close it without prior approval from OPLA attorneys.

This flawed system of keeping communities safe by locking up aliens for minor non–violent crimes resulted in overcrowding in ICE detention centers and overburdening our already taxed immigration courts. But, recent litigation, Preap v. Lynch, has caused courts coast to coast to find that these ICE detainers are often vague, not based on probable cause, and frequently predicated on inaccurate information. Seeing the writing on the walls, most LEAs, even before the Obama Administration announced the end of Secure Communities, began terminating their MOU with ICE and ending their participation with the 287(g) program. In California, Governor Brown, passed the Trust Act in 2013 to limit ICE unsupported and costly “holds” at the local jails. More recently, the Los Angeles Board of Supervisors in May of 2015 terminated its contract with ICE and ended its 287(g) program with LEAs. There were crowds of pro-immigrant groups at the Los Angeles County Board of Supervisors meeting crying, screaming, and clapping at the decision to end the controversial 287(g) program. No more ICE presence in the local jails. This was a sigh of relief, but only momentarily because in the same meeting the Board of Supervisors approved a new cooperation with ICE’s new Priority Enforcement Program (PEP).

Priority Enforcement Program

So, what is the practical difference between Secure Communities and PEP? None.

We all watched in November of 2014, when President Obama stressed that DHS’ new targets were not going to be the individuals here unlawfully in the United States trying to give their families a better life but who have minor crimes or infractions. No. DHS’ will target felons, not families, the President famously said. Criminals not children. Gang members not a father or mother working to raise their children but who have no legal status. Prioritize—that’s DHS’ new word of the day.

However, PEP is not working out exactly that way. The only practical difference is that ICE agents are no longer in the local jails interviewing inmates slapping detainers on them. Instead, ICE agents are right around the corner from the local jails, lurking, waiting to hear from the local police officer or sheriff that an individual, who the local LEA believes to be in the United States unlawfully, will be soon released. Like Secure Communities, PEP is not prioritizing immigrants who are felons. The reality is that PEP is still sweeping up undocumented immigrants for minor crimes like a one-time DUI. A DUI is generally a misdemeanor offense but under the new Johnson prosecutorial discretion memorandum, it’s a priority level two crime, which translates to detention and possible removal even if it’s an individual’s first offense.

For example, I had a hearing at the Adelanto Detention center last week. My client was detained for being in the United States unlawfully and having a recent conviction for DUI. He was in the county jail, arraigned on the DUI, pleaded guilty and sentenced immediately. My client thought he would be released. He was—not to his home as a United States citizen would have been, but to ICE officials. At his immigration court bond hearing, I argued for a low bond. Instead, the immigration judge found that my client’s one and only DUI conviction was too serious to ignore and granted him a bond that I thought was excessive: a bond for $5,000. Under the new PEP initiative, jails will now be asked to notify federal authorities when someone will be released, so agents can be waiting. In this way, DHS says local officials can trust that only people convicted of serious crimes will be targeted. Not true.

Patricia M. Corrales is a former Senior Attorney with ICE. She worked at ICE for over 17 years. She is now in private practice and has dedicated her practice to criminal defense and immigration defense.