The federalist structure of the United States has long complicated immigration policy. Since Capitol Hill has failed to contemplate, let alone pass, comprehensive immigration reform since the Clinton era, the involvement of states and localities in immigration control has risen. While the doctrine of federal preemption regarding immigration matters was reaffirmed this past June with the Supreme Court’s decision on Arizona v. United States, one of the ways the federal government has ceded control was through 287(g) agreements. These agreements deputize the local authorities to investigate and enforce federal immigration laws (National Immigration Forum “NIF”). 287(g) agreements are coming to an end in many communities, as they are phased out in favor of the federally-controlled (Bush-piloted, Obama implemented) Secure Communities program. The transition to the latter is in line with the increased federal control seen under the Obama administration, such as the decision to pursue judicial action against Arizona (and copycats) and the executive order for the DREAMers. With the current congressional session poised to actually do something about immigration reform, it looks like immigration control will finally be firmly under federal control.
Federalism and immigration is a double-edged blade for the advocate on either side of the restrictionist vs. immigrant divide. One of the ways this is seen is in the difference between the 287(g) agreements and the Secure Communities program. Taking two counties outside of my hometown of Washington, D.C. for example, one can see opposing approaches to their immigrant communities. The federally controlled Secure Communities program took away the decision of both of these communities. Their combined stories, from opposite ideologies, illustrate what the increased implementation of federal control of immigration policy means on a local level.
Prince William County in Northern Virginia was “one of the first jurisdictions in the country” to sign a 287(g) agreement with the federal government (Washington Post, Oct. 16, 2012). At the end of 2012, the 287(g) agreement for Prince William County, a suburban county of Washington D.C., expired. The ending of this agreement in favor of the “Secure Communities” program, brought about largely negative reactions from the community. Prince William County officials suspected that this disabling of their own program would result in a significant drop in the amount of people arrested in the county that are found to be here illegally (WP, 22 Oct. 2012). Jessica Vaughan of the conservative think tank the Center for Immigration Studies (“CIS”) decried this change, arguing that Immigration Customs Enforcement (ICE) does not have the resources to follow through on Secure Communities. “It stretches [ICE] much more thinly, and I’m pretty confident in saying they’re not going to get more people to do this, they’re going to somehow have to pick up the slack” (WP, 16 Oct. 2012, CIS). Prince William County stands behind its now defunct 287(g) and worries the change endangers or nullifies its largely successful local immigration policy.
The Secure Communities program removes the “deputization” of local law enforcement, leaving city and county level officials with the role of simply submitting fingerprints to the Department of Homeland Security as a part of the standard booking process of arrested individuals (NIF). ICE spokeswoman Danielle Bennett described this program as a “…screening process, coupled with federal officers, [that] is more consistent, efficient and cost effective in identifying and removing criminal and other priority aliens” (WP, 22 Oct. 2012). The Secure Communities program can place a burden on the local government, as they are responsible for holding anyone arrested who was found to be an illegal immigrant until ICE can transfer them (NIF). This is particularly troublesome because at some point in late 2010/early 2011, the Secure Communities program became a mandated federal program, thus removing the state and community level option to opt-out (KQED).
A few counties away from Prince William County, Arlington County faces the implications of not being able to opt out. While Prince William County responded to their rapid demographic shift through local policy implementation and a 287(g) agreement, Arlington County took a more liberal approach. The county formally passed a resolution opting out of the Secure Communities program in late 2010. Shortly after this resolution passed, Arlington County wrote a letter to ICE Director John Morton, asking several questions that boiled down to: do we, as a county, have to participate in this program? The short answer: Yes.
In a letter issued almost six months later in March of 2011 in Assistant Director David J. Venturella stated that:
The only way for a jurisdiction to ‘not participate’ is to choose not to receive the law enforcement and immigration identity information that is available as part of the federal biometric information sharing capability… ICE receives the results, whether or not a jurisdiction opts to receive the results.
This forces Arlington County to participate or have an unacceptable gap in their resources (biometric information) to enforce laws other than immigration. In response, Arlington County has done what it can. The county is very clear on their website that Secure Communities is a federal program, and that they “did not sign any agreement” to participate in it, information that is also available in Spanish. This pro-immigrant stance is reflected in state-level representatives, as both Virginia Delegate Alfonso Lopez (49th district) and Virginia Senator Adam Ebbin (30th district) took part in the panel discussions of this fall’s Third Virginia Immigrant Advocates Summit.
Last month, California Attorney General Kamala Harris determined that local law enforcement is not actually obligated to comply with the Secure Communities program. Many California communities found the program burdensome and Hariss’ analysis was completed after “dozens” of agencies across the state “inquired after their obligation” towards the program. The LA county sheriff “applauds” Harriss’ conclusion “and is grateful for it” (LA Times). This statement in light of the pretty clear letter from ICE to Arlington County is conflicting. The glacial pace of ICE’s response time does not indicate that this will be cleared up anytime soon, but for now at least, Arlington County must continue to participate in the program.
The 287(g) agreements might give power to non-federal agencies in the enforcement of immigration law, but the Secure Communities program takes away the choice of local communities to not participate. This transition endangers “safe haven” communities such as Arlington County that would otherwise have progressive immigration policies. There is no doubt about it: the federal government has tightened its control of immigration. The most important step in this decrease of local involvement is that Congress seems closer to passing comprehensive immigration reform than it has in almost twenty years (Thanks in part to the belated Republican realization of the power of minority demographics in a democracy.)
This national compromise is one that will probably leave grassroots advocates on both sides of the restrictionists vs. advocate divide wanting more. Federalism and immigration has led to awful policies prone to racial profiling. But the flip side of federalism allows localities like Arlington County (and the state of California) to be more progressive in their policies than the national government would otherwise be. For both sides of the immigration debate, it allows the average citizen to impact change: after all, I have met the aforementioned Mr. Lopez and Mr. Ebbin. They are not my own representatives, but when I write to my own state delegate I get thoughtful responses (from staffers, or interns, of course, but I appreciate the citations provided). I have never met my national representatives. I am optimistic about and support the pending immigration reform, and feel that it is long overdue. But as a grassroots pro-immigrant advocate, I mourn the vanishing ability of progressive local and state governments to respond and implement what can be positive change regarding immigration.
Varsanyi, M.W. (ed.), Taking Local Control: Immigration Policy Activism in U.S. Cities and States, Stanford: Stanford University Press, pp. 225-274
Secure Communities, ICE