Privacy SOS

Communities push back against SCOMM: join them!

By the end of May 2012, almost the entire United States had been blanketed by an ICE storm. 

The remaining “Secure Communities”-free zones had dwindled to two states (Alabama, which was only 55 percent activated) and Illinois (25 percent activated) as well as the District of Columbia.

ICE’s sledgehammer strategy of imposing the FBI-ICE data sharing deportation dragnet while dispensing with Memoranda of Understanding or anything else suggesting state and local buy-in was paying off: 3,070 jurisdictions activated; just 111 to go. And the target total activation year was still seven months away. 

As we have described in an earlier posting, S-Comm will destroy families and wreck the lives of people who don’t happen to be US citizens — or who are naturalized US citizens but the flawed ICE database doesn’t reflect that fact. In the words of Boston Mayor Thomas Menino, “It’s dangerous to target immigrants when you are trying to build a community. The information gets put into a computer and sent to Washington and the wrong person gets deported.”

S-Comm is not just a way of advancing ICE’s Operation Endgame goal of deporting everyone who is “removable.” It is also a key building block and test of biometric interoperability for the FBI’s Next Generation Identification System in which your facial recognition data and iris scans may one day reside.

So we all have a stake in pushing back against the S-Comm system. With the score 3,070 to 111, it might seem the game is entirely lost. But communities are finding ways to blunt the impact of S-Comm and to continue to express their distrust of the deeply undemocratic program.

Most of these local strategies center on the use of what is called a “detainer” – a form used by ICE to notify a law enforcement agency that it intends to take custody of a person who is the subject of a database “hit.” The detainer (also called an “ICE hold”) requests that the person be held for up to 48 hours beyond the time when her or she would normally be released to give ICE time take the person into its custody.

The interesting thing about detainers is that they really are just requests. They are not mandatory, as ICE itself has testified in Congress. 

What this means is that they do not have to be honored by the localities that receive them. And increasingly, communities are instructing their police departments and jails to limit how they honor ICE detainer requests.

Across the country, a dozen cities, towns and counties have taken this step either by passing ordinances, resolutions or administrative directives, and some jails have adopted regulations on which requests to honor. The number is expected to grow rapidly as localities register their disapproval that a program promoted as a way of ridding the country of “serious criminals” is in fact deporting more noncriminals and minor offenders.

Here are some examples of what is being done. A week after S-Comm was activated in Massachusetts, the Town of Amherst on May 21, 2012 staked out a “no to detainers” position when it resolved that “immigration detainer requests will not be honored by the Amherst Police Department.” 

Other communities have crafted more nuanced positions, many of them enforceable as law. Cook County (Illinois) got the ball rolling back in September 2011, when it passed an ordinance stating that detainers would be honored only if there is a written agreement that ICE would reimburse costs and ICE agents have a criminal warrant or a legitimate law enforcement purpose not related to immigration law. 

Santa Clara County (California) added more ingredients to the mix when, in October 2011, it passed an ordinance limiting detainer holds to 24 hours (instead of 48) and applying them only in cases of individuals convicted of serious felonies. No detainers would be honored on individuals younger than 18 years of age. 

A month later, Mayor Bloomberg signed into law a bill limiting the authority of the NYC Department of Correction to honor detainers for inmates who have no criminal convictions or pending criminal cases and no record of being a threat to public safety. Exceptions were made for known gang members, people on terrorist watch lists and people with a final order of removal from the US.

It will be interesting to see what happens when ICE finally moves to activate S-Comm in Washington DC, where the Council on the Judiciary last month endorsed the “Immigration Detainer Compliance Amendments Act.” It restricts ICE detainers to a 24-hour hold (rather than a 48 hour period) and states that as long as there is a written agreement that ICE will reimburse expenses, the DC Department of Corrections can hold an adult convicted of a “dangerous crime” within 10 years of the request (homicides are not time-barred) or a convicted felon who is currently serving his or her sentence. The full Council will vote on the bill later this summer.

As S-Comm horror stories continue to multiply, the menu of possible ways communities can push back is bound to expand. Around the country, individuals and groups are organizing meetings with their police chiefs and sheriffs to let them know there should be a bright line between law enforcement and immigration enforcement.  Some are urging jails to ignore detainers for arrestees picked up on traffic infractions, or for anyone caught up in a domestic violence incident.

Are you a Massachusetts resident? If so, please push back against the Age of Ice by sending this letter to your police chief. If you are not a resident, it can be adapted for use in your state. (The letter will download as a Word file. Email us if you can't access it.)

© 2021 ACLU of Massachusetts.