Remarks of Jessica M. Vaughan before the Homeland Security Advisory Council’s Task Force on Secure Communities

By Jessica M. Vaughan on August 9, 2011

Homeland Security Advisory Council’s
Task Force on Secure Communities

Remarks of Jessica M. Vaughan
Director of Policy Studies
Center for Immigration Studies
August 4, 2011


Thank you for the opportunity to present observations on the Secure Communities Program (SC) and its effects on public safety and community policing, with specific attention to the issue of how to deal with foreign nationals identified as a result of traffic offenses.

My comments are based on many months of following the implementation of SC, from years of research and interaction with ICE and local law enforcement personnel, from studying the voluminous statistics and reports both on SC and immigrant community policing, and from participation in numerous public meetings and forums highlighting concerns about SC and immigration law enforcement in general. In my analysis, much of the criticism of SC relies on a superficial reading of statistics or on speculation, and does not yet justify any major reforms or changes in procedures. I respectfully urge the task force to keep its deliberations and recommendations grounded in the facts and realities of immigration law enforcement, and also to balance consideration of the interests of those who are subject to immigration law enforcement through SC with the interests of those who are the victims of the unlawful activity that led to the alien’s arrest in the first place. In my observation, the voices of the latter group have received far too little attention.

Rationale for Secure Communities. The mandate for the integration of federal law enforcement databases, or the interoperability aspect of SC, dates back more than ten years, to several cases of missed opportunities in apprehending criminal aliens who committed horrific crimes and drew the attention of lawmakers.1 It is part of a larger federal upgrade of information and identification systems being coordinated by the FBI, known as Next Generation Identification. With respect to immigration law enforcement in particular, SC is an upgrade to the Institutional Removal and Criminal Alien Programs, and a response to longstanding Congressional interest in facilitating the identification and removal of aliens who are a threat to public safety and well-being.

ICE estimates that there are roughly two million criminal aliens residing in the United States; more than half of them are not incarcerated but are at large in U.S. communities. SC was designed to help ICE find those foreign nationals, mainly illegal aliens, who are involved in crime so that they are removed and not allowed to continue living here in defiance of immigration laws. ICE does not patrol our streets; like other federal agencies, it depends on referrals from other law enforcement agencies to do its job. To replicate the benefits of SC, which relies on automated systems interoperability to detect aliens who have been arrested for crimes, ICE would have to station thousands of agents in every jail in the United States, 24/7/365 to screen all those arrested. SC benefits local agencies by greatly reducing the time spent questioning inmates and querying ICE. Because it is based on biometrics, it also prevents criminals from evading detection with aliases and false identification.

From October 2008 to the end of June 2011, ICE identified nearly 600,000 foreign nationals through SC, charged more than 275,000 with immigration violations, and removed about 120,000. So far in FY2011, nearly 57,000 have been removed, representing about 23 percent of ICE’s total removals for the year.2 It is impossible to know how many of these offenders would have escaped ICE attention without SC, but it is safe to say that the removal of these 120,000 offenders, who according to government statistics have an average of seven arrests and 12 offenses on their record,3 can only have a positive impact on crime rates and public safety in the communities where SC has been activated.

The Issue of “Non-Criminals.” ICE has been criticized for removing immigration violators who were identified through SC after arrest but who were not ultimately convicted for a non-immigration crime. So far, about 28 percent of the total number of removals through SC are in this category, described by ICE as “non-criminal immigration violators.” A number of observers have suggested that this significant number of removed “non-criminals” indicates that ICE is over-reaching the stated goals of the program, and illustrates the need for changes in how SC operates.

I disagree. First of all, while convicted criminals should be one of the highest priorities for immigration law enforcement, they are not the only legitimate target. Anyone who is here unlawfully is potentially subject to, and should reasonably expect the possibility of, immigration law enforcement in one form or another.

Even if one is uncomfortable with that basic principle, a closer look at the statistics on “non-criminals” does not support the allegation that ICE is over-reaching the SC goals. As it turns out, more than two-thirds of the removed “non-criminals” are people who have been removed from the country more than once and illegally reentered, thus committing a federal felony. Another eleven percent are ICE fugitives, meaning that they failed to abide by a previous deportation order or failed to appear at their immigration hearing – a serious action in contempt of our laws that ICE is appropriately required to deal with. That leaves only a small share of the “non-criminals” (22 %, or 7,410 cases since the inception of the program) who are “merely” immigration violators – illegal border crossers, visa overstayers or status violators. 4 This is six percent of the total number of SC removals, and does not strike me as an obviously egregious number.

It is also important to keep in mind that “non-criminal”, which ICE defines as “not convicted”, does not necessarily equal “harmless” or “innocent”. It is widely understood by both ICE and local authorities that many of these individuals escape conviction, not because they are innocent, but because prosecutors drop charges. This can occur if there is not enough evidence to support a conviction, such as when a key witness declines to testify, as in the case of a sexual assault case, or is intimidated, as in the case of a gang or extortion case. Local authorities all too commonly will drop charges upon learning that ICE has issued a detainer on a suspect it believes is removable. Thus ICE becomes an unwilling pressure valve used by prosecutors and police to mitigate the effects of burgeoning state and local criminal court dockets, although they are often ignorant of the adverse impact this has on ICE’s ability to timely and effectively remove aliens charged with crimes.

Consider these true and typical cases out of Massachusetts:

  • The patrol officer pulls over a car for a traffic violation. The driver is using an expired license and admits to being an illegal alien. It turns out that the license bears a false name, and the driver was previously issued another license under another name, which was revoked for multiple serious traffic offenses. The car is registered to a different person, and the license plate has been reported stolen. The officer makes the arrest, impounds the vehicle, and makes an electronic query to ICE’s LESC, as is the standard procedure with an unidentified alien. ICE responds with a detainer. The officer makes the calculation, why should I go to the trouble to complete the investigation, bring further charges, and wait out the disposition of this case (as would be the case if the offender were a U.S. citizen or legal resident), when ICE is going to remove him?
  • In September 2009, four-year visa overstayer, Maria Tavares Leite ran a stop sign in Milford, Massachusetts, plowing into another vehicle and killing the driver, Richard V. Grossi. Nearly a year later, she was sentenced to two years in jail for motor vehicle homicide, but that sentence was never actually imposed, because Leite immediately withdrew her guilty plea, and instead accepted prompt deportation to Portugal (as a “non-criminal”) before a new hearing could take place.

In both of these cases, the obligation for ICE to remove the unlawful residents remains, with or without a conviction. This is even more obvious in cases of a sexual assault or gang violence case; the offenders are no less dangerous to the community just because they were not convicted; in fact they may be more dangerous if they view the lack of prosecution or immigration consequences as a license to re-offend.

In my analysis, the public safety and rule of law benefits of SC far outweigh the very small risk that illegal aliens with sympathetic stories or whose crimes are minor or unproven might be removed. Although news media accounts routinely give the false impression that identification as an illegal alien results in automatic removal, in practice the typical scenario for aliens arrested for traffic offenses or misdemeanors is that they will be released on their own recognizance and later have the chance to plead their case before an immigration judge or seek relief directly from ICE. Tens of thousands of illegal residents succeed each year in avoiding removal in this manner (although unfortunately a large percentage abscond too). For example, unlawfully-resident domestic violence victims are usually better off after having contact with authorities, because then they can apply for a special visa available to victims who assist in the prosecution of their abuser, and ultimately receive a green card.

Traffic Offenders and Post-Conviction Immigration Charges. One of the stated objectives of the task force is to find ways to prevent ICE from removing illegal aliens who are identified as a result of a minor traffic violation arrest, are not convicted, and have no other criminal history or egregious immigration violations. In my view such steps are unnecessary and virtually impossible to accomplish without imposing unmanageable conditions on ICE field officers.

The first step should be to establish how significant a share of ICE’s SC caseload is truly comprised of such traffic offenders. The records I cited above indicate that these cases would be a small sub-set of the 7,400 basic non-criminal immigration violators that have been removed since 2008, and ICE should be able to provide further details.

But this objective seems to be based on a highly controversial assumption, namely that the 80 to 90 percent of illegal aliens who have not been charged with other crimes should be exempt from immigration law enforcement if they are discovered as a result of a traffic stop. As discussed above, it is very problematic to condition the exercise of federal immigration authority on the successful completion of a prosecution by local authorities – this basically subverts constitutional federal authority to the whims of local traffic courts, and could produce wildly inconsistent results. Who will decide what is a “minor” traffic offense? Most people consider impaired driving to be a serious traffic offense, but what about running a stop sign, or allowing children to ride without a seatbelt, or driving an unregistered or unsafe vehicle? How many repeated minor violations add up to a seriously unsafe driver?

Even if all this could be settled, the reality is that there is no practical way to implement a post-conviction procedure for issuing ICE detainers. No single records system exists that would enable ICE to monitor traffic convictions (or any other convictions) among the hugely disparate state, county and municipal systems that exist throughout the nation. ICE either would have to station personnel in traffic courts to monitor convictions, rely on local criminal justice personnel to notify them of illegal aliens who are convicted, or simply forego issuing detainers on all those charged with traffic violations. All of these defeat the purpose of the automated SC interoperability – and, worse, would permits those unsafe, unlicensed, and, often, intoxicated drivers who also happen to be in our country illegally to continue plying their vehicles on the highways and byways of America.

The likely result would be that all foreign nationals who commit traffic offenses would be inaccessible to ICE through SC. Yet traffic offenders are some of the most dangerous people in our communities:

  • In May of this year, 10-year old Anthony Moore was walking to his bus stop in Minneola, Florida when he was mowed down and killed by unlicensed illegal alien Mario Alberto Saucedo. Saucedo had at least two prior charges for DUI and a probation violation, but prosecutors had declined to pursue convictions, or charge Saucedo with the criminal offense of unlicensed driving in the prior offenses, enabling him to escape the ICE attention that could have saved the little boy’s life if he had been removed promptly when first brought to the attention of police and prosecuting authorities.
  • Dennis McCann, age 66, was crossing the street in Chicago’s Logan Square in June of this year when an unlicensed illegal alien drunk driver hit him and then stepped on the gas, rolling over his body and dragging him several blocks up the street until he was stopped by two witnesses. The driver, Saul Chavez, had recently completed a sentence of two years of probation for a prior aggravated drunk driving offense.

Secure Communities and Community Policing. In my analysis, the Secure Communities program does not in any way conflict with community policing in immigrant communities. While I recognize that there are unique challenges in this arena, experience shows that they can be addressed in ways that do not compromise immigration law enforcement goals. There simply is no empirical basis for the claim that immigration law enforcement or SC in particular has any significant “chilling” effect on immigrants’ willingness to seek help from police. Much of the research indicates that illegal immigrants are often fearful of police and can be less likely to seek out police if they are victims of a crime, but this distrust is largely due to their experience in their home countries. In addition, they naturally hope to avoid having their lack of status detected by authorities here, even though ICE makes every effort to communicate that their agents do not arrest crime victims and witnesses. But academic surveys have shown that the main reason illegal immigrants sometimes refrain from reporting crimes is not fear, but language barriers and a lack of understanding about how the American system of justice works. These results suggest that law enforcement agencies should focus on those problems – access and education -- not on obstructing programs like SC.

Crime reporting statistics also fail to support the existence of the “chilling effect.” The city of Boston was one of the first two jurisdictions to use SC, beginning in 2007. I have examined the last several years of crime reporting data from all precincts in Boston, and found that the rates generally have risen in all precincts but one, with no noticeable effect from participation in SC. The only precinct where calls for service declined slightly was one that has a smaller non-citizen population than the others, suggesting that SC was not a factor in that decline. Other studies also have cast doubt on the chilling effect theory, including a comprehensive study of Prince William County, Virginia, by the University of Virginia, and another conducted by Sheriff’s Department in Collier County, Florida. Nationwide, DOJ data reveal no significant difference in crime reporting rates between major ethnic groups. 5

Recommendations

  1. Obtain More Complete Data. Before settling on recommendations, the task force should obtain more detailed statistics and/or case histories from ICE on at least a random sample of the “non-criminals” removed through SC, in order to evaluate allegations that ICE is over-reaching or straying from its stated SC priorities. This should include an effort to estimate the number of unconvicted and otherwise law-abiding traffic offenders removed as a result of SC. This information should be released to the public as well.
  2. Create a Victim’s Advocacy Unit. One of the most important reasons we have Secure Communities is to prevent criminal aliens from repeatedly preying on people in this country. DHS should establish a Victim’s Advocacy Unit to address the concerns of those who are victims of crimes and other damaging actions committed by removable aliens. Currently these victims and their families have no voice within the DHS bureaucracy, no avenue to get their questions answered, and no way to help ensure that immigration law enforcement failures that have tragic consequences are not repeated. The Victims Advocacy Unit would provide a point of contact for those directly affected by alien crime and be empowered to investigate incidents and trends with the goal of identifying system breakdowns and correcting policy or procedural gaps. In addition, the unit staff would work with established local and national victims organizations, such as Mothers Against Drunk Driving, on issues of common concern.

 


 

End Notes

1 IDENT/IAFIS: The Batres Case and the Status of the Integration Project, Department of Justice Office of the Inspector General, March, 2004, http://www.globalsecurity.org/security/library/report/2004/ident-iafis_…, and others.

2 Secure Communities IDENT/IAFIS Interoperability Statistics: Monthly Statistics Through June, 2011, Immigration and Customs Enforcement, prepared July 25, 2011, http://www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_sta….

3 Criminal Alien Statistics: Information on Incarcerations, Arrests and Costs, U.S. Government Accountability Office, GAO-11-187, March 24, 2011, http://gao.gov/products/GAO-11-187.

4 Secure Communities Interoperability Statistics, op cit.

5 For more discussion, see The 287(g) Program: Protecting Home Town and Homeland, by Jessica M. Vaughan and James R. Edwards, Center for Immigration Studies, October, 2009, http://www.cis.org/287greport.