California v. S-Comm: State-Led Immigration Reform

By: Rachel Johnson

S-Comm, as it is more commonly known, is the federal program Secure Communities.  S-Comm was created by U.S. Immigration and Customs Enforcement (ICE) in 2008 per the authority granted to it by the Homeland Security Act of 2002 over immigration enforcement.  In its inaugural report to Congress in July 2009, ICE reported the program’s three main goals: (1) identify those criminals who are unlawfully present in the United States with the help of information sharing with the Federal Bureau of Investigation (FBI), (2) prioritize enforcement in order to remove those criminals with unlawful immigration status, and (3) transform enforcement processes and systems surrounding this enforcement to achieve lasting results.  As a result, between 2008 and 2011, the number of “convicted criminal aliens” removed from the United States increased by 89%.

The program relies on assistance from state and local governments by requesting they share the fingerprints of every individual who is arrested or booked by police with the FBI.  The FBI conducts a criminal records check and then, under S-Comm, automatically sends the fingerprints to ICE at the Department of Homeland Security (DHS) to check immigration status.  ICE may then request that the police hold any undocumented persons so deportation may be considered.

Up until recently, state and local authorities have been compliant with this voluntary request by ICE.  In the last two months, however, California’s local and state legislatures have passed a city ordinance and a state law that restricts the power of ICE to deport undocumented immigrants under S-Comm in the state.  Because S-Comm is only a federal program and not a law, it is unclear as to what ramifications, if any, California will have for its actions.

In 2009, Los Angeles County became one of the first counties in the country to partner with ICE.  As a result of the partnership nearly 12,000 people were deported; almost half of those deportees were not convicted or were only convicted of misdemeanors.  On October 5th, Governor Jerry Brown signed the Transparency and Responsibility Using State Tools Act, known as the Trust Act.  The Act narrows S-Comm’s power by limiting those who may remain in police custody only to undocumented persons with prior convictions of murder, sexual assault, trafficking, or assault with a deadly weapon.  Those who supported the passage of the bill reported that their main concern with S-Comm was that the purposes of the program did not align with its practices.  S-Comm was designed to target undocumented persons who had committed serious crimes and remove them from the country.  However, this purpose has not been upheld because in practice the program has primarily targeted traffic violators.

Prior to its passage, California’s law enforcement agencies weighed in on the bill with mixed reactions.  Several agencies, like San Diego’s police department, supported the bill stating that an increase in trust and cooperation between law enforcement and the community would evolve from its passage.  In contrast, the California District Attorneys Association has expressed the concern that the Act will frustrate local cooperation with federal officials.

Prior to the passage of the Trust Act, the city of San Francisco passed an ordinance called Due Process for All on September 27thSan Francisco adopted the S-Comm policies in 2010 and now, three years later, the Board of Supervisors is looking to change those policies.  The ordinance was authored by Supervisor John Avalos and had community members in full support of its passage.  The San Francisco Domestic Violence Consortium was a large supporter of the ordinance citing the benefits it would provide domestic violence survivors.  The Consortium’s executive director, Beverly Upton, wrote that without the ordinance undocumented domestic violence victims would have been hesitant to call the police due to the fear of being fingerprinted by police and possibly deported, despite being a victim.

Recent actions in California by both local and state officials have been the most forceful push‑back against the Secure Communities program thus far.  However, these actions may also reflect the larger issue of immigration reform and its current state in Congress.  With the House of Representatives stalling on the Senate’s approved immigration reform bill, California’s Trust Act is just one more example of a state asserting its own stance on immigration reform.  On October 17th, President Obama, possibly in light of California’s Trust Act, urged a renewed bipartisan commitment to enact comprehensive immigration reform by the end of the year.  If Congress continues to ignore immigration reform, we may see many more states looking to assert their own judgment on immigration laws, policies, and programs and the overall refusal to wait for the federal government to act.

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