Immigration Rights Groups Sue Federal Agencies Over Deportation Policies by Nicole Zanardi
Several immigrant-rights groups filed a lawsuit on January 19 against ten federal agencies, including the U.S. Immigration and Customs Enforcement (ICE) agency. The groups allege that ICE and the nine other agencies, among them the Department of Homeland Security (DHS), United States Citizenship and Immigration Service (USCIS), and the Department of Justice (DOJ), practice unlawfully secretive policies within the administration’s current deportation program, the Priority Enforcement Program (“PEP”).
PEP was announced by President Obama on November 20, 2014 as the replacement of the highly criticized Secure Communities program (“S-Comm”). Plaintiffs contend in their complaint that PEP does not meet the minimum statutory requirements of transparency and accountability. Plaintiffs filed a FOIA request with defendants in March 2015 and, after getting no response, filed another one in August 2015. Plaintiffs finally received only a few documents, all either already public or old data, and ICE has yet to disclose a single document. Plaintiffs argue that the public’s right to agency documents and program policies is vital to millions of families. Transparency of PEP is the only way that people will be able to assert their rights and protect themselves from removal, as well as participate in significant conversations about immigration reform. Further, public access to information about PEP will allow state and local jurisdictions to make an informed decision about opting in or out of the PEP program.
PEP embodies many of the same policies that plagued S-Comm, which began in Texas in 2008 under the guide of George W. Bush, and ultimately led to its replacement. Plaintiffs seek to expose PEP as a mere continuation of the failed S-Comm. Like S-Comm, PEP dictates that local police send to DHS fingerprints taken from someone booked or jailed so that the agency can check the prints against its immigration databases. Theoretically under PEP, if the fingerprints match a record in a DHS database ICE will issue a request for notification of pending release. This is different from the detainer that was sought under S-Comm in such a situation. However, under PEP ICE can still easily request that a person be detained in the local jail under “special circumstances.” Such circumstances include: “the person has a final removal order” and “there is other sufficient probable cause to find that the person is a removable alien.” So, practically speaking, all immigrants who are most at risk for being deported will likely be detained and removed if picked up by local law enforcement. Further, the November 2014 memo indicates that ICE may seek to transfer into its custody anyone who is “otherwise determined to be a priority.” This includes anyone who entered the U.S. without inspection after January 1, 2014, and anyone who has been convicted of a “significant misdemeanor.” Thus, even though PEP outwardly claims to prioritize only those who are a threat to national security or have been convicted of certain aggravated felonies, in reality law enforcement agencies can transfer to ICE any immigrant who fits into the broad category of “priority,” including those who haven’t been convicted of a crime.
Clearly, S-Comm and PEP operate in much the same way, and the grave risk of removal posed to millions of undocumented immigrants continues under the new program due to the effective ICE presence at every local jail. Plaintiffs also raise the concern that, as with S-Comm, the detention requests by ICE under PEP do not comply with the 4th Amendment. The plaintiffs go on to point out incentivized racial profiling and a break down of trust between communities and law enforcement as serious issues with PEP that originated with S-Comm.
Emi MacLean, a staff attorney at National Day Laborer Organizing Network (one of the plaintiffs in the lawsuit) argues that the increase in deportations facilitated by PEP cannot be justified by a partial grant of relief through the pending Deferred Action for Parents of Americans (“DAPA”), just as S-Comm used the Deferred Action for Childhood Arrivals (“DACA”) program to justify its level of deportations. MacLean contends that the Obama administration should not tangle PEP and DAPA. Limited, partial relief to a select group of undocumented immigrants cannot justify the trend of mass deportation carried out by PEP, and DAPA should not rely on the existence of PEP to prevail as a program of relief. MacLean states: “It’s not the case that some immigrants must suffer so that others can get relief. This logic is immoral and unnecessary for Obama to prevail in Texas v US.”
On January 21 more than 50 organizations, including those that filed the complaint on January 19, sent a letter to President Obama, asking him to “come clean” about PEP. The complaint, filed with the U.S. District Court for the Southern District of New York, can be found here.
Nicole Zanardi is a law student at UC Davis School of Law.
KJ