Let’s Have A ‘PEP’ Talk: Is this S-Comm 2.0?

Guest blogger: Gabriela Mendez, second-year law student, University of San Francisco

The “Secure Communities” program (S-Comm) was piloted in 2008 with 14 jurisdictions under the Bush administration and by 2013 was rapidly expanded to include all 3,181 jurisdictions of the U.S. under the Obama administration. The supposed goal of this Immigration and Customs Enforcement program was to deport noncitizen felons and high level criminal immigrants, including long time legal permanent residents. This was to be accomplished by sharing fingerprints between the FBI and DHS at the time of booking at local jails. Instead of the fingerprints only getting sent to the FBI, this program would share them with ICE agents who would put a detainer, or immigration hold for up to 48 hours at the time of release (although sometimes the hold was extended for weeks or months at a time), on individuals ICE agents thought might be deportable immigrants. ICE agents would then make rounds to jails to pick up detainees for deportation proceedings.

There were many problematic issues with S-Comm. Instead of the deportation of level 1 and 2 offenders such as those convicted of serious or violent crimes like robbery, homicide and all other felonies, S-Comm resulted in the deportation of those who Committed misdemeanors or lesser crimes. S-Comm was even netting a large number of non-criminal undocumented immigrants including targets of racial profiling, or victims of domestic violence who were being put in removal proceedings after reporting abuse. It even resulted in the detainment of citizens who perhaps had never had their fingerprints taken. S-Comm resulted in having the greatest impact on level 3 offenders, or minor criminal offenders, which was not the original goal of the program.

The way in which S-Comm was enforced made the name and mission of the program very deceptive in that the opposite of “secure” and “Community” became the reality. Instead, the outcome was that S-Comm was forced upon local jurisdictions, discouraged immigrant Communities from reporting criminal activities, and destroyed Communities and families.

Due to these devastating outcomes, many jurisdictions began trying to opt-out of S-Comm. I first learned about S-Comm through my work at a remarkable Community organization in Santa Barbara County, named Pueblo. Pueblo created a Commission called Keeping Families Together to support immigrant families through the hardships S-Comm produced. S-Comm in Santa Barbara was being used to target parents driving their kids to school, undocumented young people who had resided in Santa Barbara their whole lives, and others who were not level 1 and 2 offenders.  Individuals within our own organization became victims of S-Comm. Thus began our long fight to try to pass the Trust Act in California which would put limitations on the cruel immigration hold allowed under S-Comm. In the meantime, many jurisdictions tried to follow in the footsteps of San Francisco Bay Area cities, counties, and local labor councils which had passed resolutions to opt out of S-Comm in 2011.

Finally a version of the Trust Act passed and went into effect January 1, 2014 in California. Many other states had already passed a similar law. Under the Trust Act, immigrants with serious criminal charges can still be held for immigration purposes, but those charged with lesser crimes are released at the time U.S. citizens would be released. The Trust Act has decreased unjustified deportations, rebuilt confidence in local law enforcement, and enabled witnesses and victims to cooperate without fear of deportation.

 Increasing numbers of governors, mayors, and state and local law enforcement officials around the country have refused to cooperate with the S-Comm, and many have issued executive orders or signed laws, such as the Trust Act, prohibiting such cooperation. Due to this widespread lack of support, DHS decided in November 2014 to discontinue S-Comm and instead replace it with a newer “refined” program called Priority Enforcement Program (PEP). The underlying question is are we being deceived again and is PEP simply another name for Secure Communities 2.0?

PEP is supposed to reflect DHS’s “new” top enforcement priorities, however the program will continue to rely on the fingerprint data taken at the time of booking just like S-Comm did. The memo issued by DHS about PEP indicates that the driving force behind PEP is because our country has turned its back on S-Comm and is no longer enforcing it. S-Comm needs a new name and fresher look, hence the creation of PEP, so is PEP simply a replacement name for S-Comm?

PEP appears to slightly narrow the scope of people who will be affected, however there is still discretion and ambiguities left about the implementation. Under PEP, ICE should only seek the transfer of an immigrant in the custody of state or local law enforcement through PEP when the immigrant has been convicted of an offense listed in Priority 1 (a), (c), (d), and (e) and Priority 2 (a) and (b) of the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum, or when, in the judgment of an ICE Field Office Director, the immigrant otherwise poses a danger to national security.  

Under PEP, most people who have not been convicted of crimes should not be issued a detainer--although undocumented immigrants who are suspected of terrorism or “special circumstances” may be targeted. The “special circumstances” language should be clarified because right now it indicates much discretion as to what circumstances warrant the detainers used in S-Comm.

Under the priorities listed in 1 and 2, PEP will ensnare people found crossing the border illegally, gang members, those convicted of felonies, people who have been convicted of three misdemeanors, and those who have one "significant misdemeanor" on their record. Significant misdemeanors include domestic violence, burglary and drug-selling. Some of these offenses listed could raise issues in practice such as gang involvement where local enforcement agencies in some counties have pressured minors into signing off as gang members for crimes such as shoplifting even if they were not actually gang members. Also listing DUIs in priority 2 is controversial.

Instead of issuing a detainer for the less serious crimes, the DHS memo instructs local and state agencies to notify ICE that the person in question will soon be released instead of holding them like in S-Comm. This notification form could pose a problem if it remains the same as the detainer form used under S-Comm; it could confuse local enforcement agencies into using the same S-Comm practice of detaining.

Another ambiguity that arises is if ICE is truly moving to a post-conviction model of detainer enforcement, such as the DHS memo contends, it should be extremely clear that ICE agents must not issue a notification request unless and until the person has been convicted of a qualifying criminal offense. Right now the language in the memo states that ICE agents may issue notification requests only for people who fall within the elevated subset of priorities enumerated in the memo (and in general when looking at the priorities, these are people who have been convicted). But if ICE starts issuing notification requests for people who have only been charged with the offenses listed in the priorities, then PEP would definitely be reverting back to the past practices of S-Comm.

Although PEP seems to be moving in the right direction by limiting ICE holds, I remain worried. Obama’s executive action on immigration in November 2014 prompted the end of S-Comm and the creation of PEP. Obama stressed “new” targets for DHS: "Felons, not families. Criminals, not children. Gang members, not a mom who's working hard to provide for her kids." We must remember however, that these targets—felons and criminals—were the original targets of S-Comm. S-Comm was supposed to deport only the worst of the worst, however it did not function that way in its implementation. What is stopping PEP from functioning in the same manner? It seems that PEP too could end up unjustly targeting a much broader group in its enforcement. Perhaps if some of the ambiguities in the language of the memo were clarified, I would feel more at ease.

S-Comm was forced upon local jurisdictions and has been responsible for the mass deportation of innocent people from this country while destroying families and violating their basic human rights. PEP seems to have similar goals with a narrower approach, however not much is new in the line of enforcement. Is it time to rally our troops and start getting ready to battle again for the Trust Act 2.0?

bh