The Obama Administration’s Secure Communities program can be a good way to deport those arrested by law enforcement who turn out to be in the U.S. illegally.
When local police make an arrest, fingerprints are sent to an FBI data base to check for prior criminal conduct, warrants for arrest, and so forth. Under Secure Communities, the FBI will forward those fingerprints to the Department of Homeland Security for an immigration check as well. If immigration ICE enforcement spots an immigration violator, ICE has discretion to detain the foreigner on an immigration hold and start removal proceedings.
The fear among local communities is that Secure Communities opens the door for local police to profile based on race or ethnicity. A cop can stop and detain a person on suspicion of being illegal. This should not happen because police are supposed to stop only for suspicion of criminal activities and not simply because someone “looks illegal.” Looking illegal is not a good reason to stop someone on the street. Many people immigrate to the U.S. lawfully. For some, it is can be their first day in the U.S. and they do not at all look local. They look and act like a foreigner. We should welcome all to our communities since we are a nation of immigrants. Any misbehavior by police is harassment of folks who look foreign.
Secure Communities can encourage police to abuse of our criminal justice system by making a “bad stop” simply to detain and run fingerprints to determine whether or not someone is illegal, despite that no crime has in fact been committed or that there is no valid basis for the initial stop or detention. As a criminal prosecutor, I saw many instances where police violated law by detaining an individual without good reason (good cause). The idea is that the government should leave people alone and not detain or interfere with our lives unless there is good reason to believe we have done something wrong. Suspicion that someone might be illegal is not a good reason to stop.
I like the idea of having Secure Communities because someone who is lawfully detained and is in the U.S. illegally can be found out and deported. However, I hesitate to support it because this will encourage a bad cop to target an individual simply because “he looks illegal.” It can encourage individuals to harass minority groups by calling the cops based on pretense.
On the whole, it seems obvious to me that government will and perhaps should use the technological advances to help enforce immigration rules. Why not? We have good tools so let’s use them. It is then up to immigration attorneys to argue for release of the foreigner based on a bad stop.
The problem is that individuals who have an immigration hold are not entitled to attorney representation. They have to either guess what to do on their own, or very likely the family must hire and pay for a private immigration attorney like myself to try and cancel removal proceedings for good cause or find another solution. The result is that an individual in detention will not receive proper legal representation in cases where a bad cop made a bad stop. Moreover, we cannot rely on ICE to exercise its own discretion and release foreigners who are not a threat and who have committed no crime. In these cases, families in the U.S. can be pulled apart because of an abuse of discretion by a cop who made a bad stop and by ICE enforcement who decides to look the other way and not release.
A solution would be to allow those in immigration detention the same right to an attorney as those who are accused of crimes, but that simply will not happen anytime soon. Under current law, immigrants are not entitled to attorney representation in immigration matters and so they just sit in detention until deported. The bad cop wins.