Judge Orders Release of Memos Regarding Immigration Deportations
By Ellen Cannon
The Department of Homeland Security’s “Secure Communities Program” continues to cause suspicion and confusion among immigration lawyers, immigration reform advocates, government officials, law enforcement officials, and politicians. Until the beginning of 2010 states and municipalities could “opt out” of participating in the program which identified deportable immigrants after they have been detained. It permitted the FBI to share data and fingerprints of people who were arrested by state or local authorities with federal authorities, who can use the information to check for immigration violations. On October 6, 2011 Department of Homeland Security Secretary Janet Napolitano told a news conference that the Secure Communities program was mandatory terminating an “opt out” capacity by state and local governments. This week U.S. District Court Judge Shira Scheindlin ordered the government to turn over a key memo by November 1 to civil rights groups and immigrant advocates who under the Freedom of Information Act wanted to examine evidence underlying the DHS decision to move from an “opt out” policy to a “mandatory policy” with regard to the Secure Communities Program
According to the Miami Herald, the memo was expected to explain why the Secure Communities Program was optional for states and municipalities through at least the start of 2010 but became mandatory by the end of the year. Critics say the program has made immigrants reluctant to report crime because they fear deportation and went after people who were not convicted of serious crimes. (L. Neumeister, www.miamiherald. Com, 10/25/28)
According to Judge Scheindlin’s ruling, “She ordered the government to turn over at least 18 versions of what became known as the “October 2 Memorandum” with a redaction only of material that does not appear in the final version of the document or is not in any other public document. She said the final version must be released in full, except for one paragraph on the third page and an accompanying footnote that are exempt from her order.” Judge Scheindlin also noted, “That the analysis of the memo seems to be the only rationale that the agency could have relied upon and adopted as the legal basis for the policy.”
Judge Scheindlin was influenced by an earlier decision of the 2nd U.S. Circuit Court of Appeals which stated, “an agency’s view that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to the Freedom of Information Act.”(www.maiamiherlad.com,10/25/11)
Prior to the “mandate” decision by the DHS, the DHS listed instructions for states and localities to “opt out” from enforcing the policy which required state and local law enforcement personnel to share fingerprints with the federal government who could then use the fingerprint information to check for immigration violations. Illinois terminated their enforcement through a memorandum of agreement (MOA) with the DHS. Other states terminating their enforcement relationship and “opted out” of the program included New York, Massachusetts, and California. On August 5, 2011, the DHS altered the policy which had the effect of cancelling MOA’s that were agreed upon as well as terminated future MOA’s on the issue. Thirty nine governors who signed MOA’s with Immigration and Customs Enforcement (ICE) were informed of this policy “clarification” and sudden alteration of policy direction.
Illinois lawmakers and politicians , including Governor Quinn (D-IL), Senator Durbin (D-IL), and Rep. Luis Gutierrez (D-IL), were highly critical of the alteration in policy as well as highly critical of the Secure Communities Program. Echoing the views of many other governors, immigrant groups, and law enforcement personnel, Governor Quinn questioned the large numbers of non-criminal immigrants that were picked up as well as the impact of its enforcement on families. Citing the data that showed about 20 percent of those deported from the state under the program had never been convicted of a crime.Illinois Governor Quinn said this program was not true to the intention of the DHS effort which was to arrest and deport “the worst of the worst” of undocumented residents.”
In her written decision this week, Judge Scheindlin noted that “there was extensive evidence that the government during the last two years had discussed large portions of the memo in defending the policy.” Based on the fact that the memo had been shared with other individuals, the Judge rejected the government’s argument that the memo was protected by attorney-client privilege and ordered it be made public.