Obama's Catch-and-Release Policies Blunt Secure Communities

By Jessica M. Vaughan on May 8, 2012

Desperately seeking to acquire some credibility with the vast majority of American voters who want to see immigration laws enforced, the Obama administration is on a steady pace to complete implementation of the Secure Communities (SC) program in every state, perhaps even ahead of the 2013 target date. With Louisiana and Nevada most recently completed, the map is nearly all colored in. Rumor has it New England, possibly including the sanctuary states of Vermont and Massachusetts, could be finished next.

Will the full activation of Secure Communities nationwide mean the end of sanctuaries for criminal aliens as we know them? Not quite.

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The most diehard sanctuary jurisdictions, like Connecticut, San Francisco, and Santa Clara County in California, are pushing back and finding ways to obstruct ICE's ability to take custody of the arrested aliens identified through Secure Communities information-sharing. Some, like New York City and Chicago, have introduced such measures before SC is even in place. One pro-criminal alien group, the National Immigration Project of the National Lawyers Guild, has published a manual for activists on how to push this policy.

The most popular way to obstruct ICE is for local law enforcement agencies simply to refuse to honor ICE detainers. Detainers are requests from ICE to local agencies asking them to hold alien offenders for no longer than 48 hours until ICE can take custody. These sanctuaries have decided they will just say no to ICE, or will pick and choose which alien offenders they will allow ICE to take. So far, Cook County, Ill. (which includes Chicago), Santa Clara County, Calif. (which includes San Jose), San Francisco, and the state of Connecticut have adopted this stance. Cook County is the only one crazy enough to refuse to honor all ICE detainers; the rest pick and choose.

While it's a great way to pander to the most extreme open-borders advocates, there's really no need for these local governments to play games like this: The Obama administration has already managed to water down enforcement to the point where outrage over having to participate is completely unwarranted.

Take Connecticut, for example. ICE activated Secure Communities on February 22, 2012. Of course, Yale Law School's Worker and Immigration Rights Advocacy Clinic is suing, and Gov. Dannel Malloy (latest approval rating 37 percent) announced immediately that his public safety department would review each and every ICE detainer to make sure the feds didn't overreach with their sweeping and merciless dragnet.

The governor's people have reviewed more than 100 detainers so far. They have found exactly one that they found to be objectionable — a visa overstayer from Poland who served three months in state prison for sexually assaulting his landlady. The state felt that this offender had been rehabilitated and should be allowed to go free. What gets me is that ICE agreed and apparently dropped action on this guy's case. I wonder if the victim and people in his old neighborhood would agree. ICE has not replied to my repeated questions on the status of the case, other than to confirm that they exercised "prosecutorial discretion". Perhaps the victim or the neighbors should contact ICE's new Public Advocate to find out how they are handling the case of this illegal alien convicted sex offender. (But no need to worry, he's been rehabilitated by Connecticut!)

This is not an isolated case. Under the administration's policy of "prosecutorial discretion", ICE officers are instructed to look for reasons to release even many of the criminal aliens dropped in their lap by local law enforcement. Earlier this year, ICE officers in Chicago released a man charged with 42 counts of child molestation, including incestuous rape — because the man has a U.S. citizen child, one of the key criteria for using "prosecutorial discretion". He was being "monitored" via an electronic bracelet, but has disappeared and likely will never face justice.

The administration has asked Congress to allow it to divert funds from its regular detention budget so it can release even more arrested aliens on electronic monitoring as an alternative to detention, since this is obviously working so well.

Another catch-and-release -- I mean prosecutorial discretion program was piloted last summer in Frederick County, Md., under the auspices of their model 287(g) program. Under this pilot, which was imposed on the county sheriff by ICE headquarters, the local officers (who have immigration enforcement authority) were directed not to issue detainers on aliens arrested for non-DUI and non-injurious traffic-related charges or misdemeanors. All those aliens arrested for driving without a license or similar criminal, but non-injurious offenses who posted bond or were released on their own recognizance by the court, were instead issued an appointment notice (Form G-56) to appear at the local ICE office in Baltimore to discuss their immigration status (or lack thereof).

It's noteworthy that these "minor offender" cases are only a tiny fraction of the 287(g) caseload in Frederick County and other 287(g) jurisdictions. Only five aliens qualified to get the appointment letter in lieu of a detainer over the two-month pilot period. This again demonstrates that local law enforcement agencies that actively cooperate with ICE are not using these programs to round up multitudes of harmless suspected illegal immigrants.

But what is most significant is that only one alien out of the five actually showed up for his appointment. The program has a failure rate of 80 percent. And since neither the issuance of the appointment letter nor the failure to appear are entered into the ICE databases, there is no DHS record of this offender — meaning that if he is encountered again (and again) he will be treated as a first-timer. Like Supreme Court Chief Justice Roberts said, it's as if this administration just doesn't want to know where the illegal alien offenders are.

The administration's response is that they lack the resources to deal with every illegal alien encountered, and they want to focus on the most dangerous or egregious. Aside from the fact that they always say "no thank you" when Congress offers to give them more resources, it's important to note that this administration is underutilizing the less costly alternatives to formal removal, such as voluntary return and expedited removal, which are appropriate for handling lesser criminal and non-criminal illegal aliens. Their choice is not formal removal or nothing, as they would like us to believe.

What can we expect the Obama administration to do with an immigration law enforcement pilot program with a failure rate of 80 percent? Adopt it nationwide, of course! Watch for further directives from ICE HQ to be issued soon that will harden the prosecutorial discretion and "alternative to detention" policies so that more illegal alien offenders end up with a free pass to stay.