The Police Chief Magazine Article – Secure Communities Program – Mandatory or Optional


By: Martin J. Mayer, General Counsel

California Police Chiefs’ Association

The Secure Communities (SC) program was created by Congress in 2003 to identify all those in the criminal justice system who are eligible for removal as illegal aliens. The law does not require the removal of all such persons, merely the identification of them, so a decision can be reached regarding deportation.

According to John Morton, the Director of the Immigration and Customs Enforcement (ICE), they have resources to remove approximately 400,000 persons a year.  The issue is which ones should be targeted for removal?  Morton stated that those with a criminal conviction, outstanding court orders for removal, and/or repeat offenders are priorities; he said that of those removed in 2011, over 55% had one or more criminal convictions.

According to its website, ICE is the principal investigative arm of the U.S. Department of Homeland Security (DHS), and the second largest investigative agency in the federal government. It was created through a merger of the investigative and interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization Service.  ICE now has more than 20,000 employees in offices in all 50 states and 47 foreign countries.

Secure Communities Process

Secure Communities uses already existing federal information sharing procedures between ICE and the Federal Bureau of Investigation (FBI).  For decades, local jurisdictions have shared the fingerprints of individuals who are arrested or booked into custody with the FBI to see if they have a criminal record. Under SC, the FBI automatically sends the fingerprints to DHS to check against its immigration databases.

If those checks reveal that an individual is unlawfully present in the United States, or otherwise removable due to a criminal conviction, ICE takes enforcement action.  They prioritize the removal of individuals who present the most significant threats to public safety by the severity of their crime, their criminal history, and other factors – including those who have repeatedly violated immigration laws.

Morton emphasized that ICE only issues detainers after a person has been arrested and, he said, it does not issue detainers for minor misdemeanors.  Additionally, no one is arrested based on an ICE hold – they have already been arrested for a state or local violation of law.

As stated, the Secure Communities makes the removal of aliens convicted of serious criminal offenses from the United States a priority. According to the DHS, the SC’s three main objectives are: (1) to identify aliens in federal, state, and local custody charged with or convicted of serious criminal offenses who are subject to removal and at large aliens convicted of a serious criminal offense who are subject to removal; (2) to prioritize enforcement actions to ensure apprehension and removal of aliens convicted of serious criminal offenses; and (3) to transform criminal alien enforcement processes and systems to achieve lasting results.

For SC purposes there are three categories of offenses: Level 1 offenses include the following state or federal crimes: national security violations, homicide, kidnapping, sexual assault, robbery, aggravated assault, threats of bodily harm, extortion or threat to injure a person, sex offenses, cruelty toward child or spouse, resisting an officer, weapons violations, hit and run involving injury or death, and drug offenses involving a sentencing to a term of imprisonment greater than one year.

Level 2 offenses are primarily property crimes, and Level 3 offenses are all other crimes, primarily misdemeanors.

When ICE determines an alien has been charged or convicted of a Level 1 offense that could result in removal, or when an alien who is already subject to removal is charged with a Level 1 offense, ICE will file an Immigration Detainer (Form I-247) at the time of booking with the local law enforcement agency (LEA) that has custody of the alien.

Interaction with Local Law Enforcement

According to ICE, the cooperation of local law enforcement agencies is crucial to completing the processes of identifying, detaining and removing aliens arrested for, or convicted of, serious criminal offenses.  As such, ICE requests, in part, that the LEA’s abide by immigration detainer conditions; place the detainer in a subject’s file/record; inform ICE if the subject is transferred or released; allow access to detainees; and assist ICE in acquiring information about detainees.

Once ICE determines the subject has previous serious criminal convictions, or is currently charged with a serious criminal offense considered to be a Level 1 offense, and is removable, ICE will lodge an Immigration Detainer (Form I-247) with the LEA.

The form contains several parts which inform the LEA what action has been taken by DHS regarding the inmate being held.  For example, DHS could have checked off sections identifying that an investigation has been initiated, or a warrant for removal has already been secured.  It is then “requested” that the LEA “accept this notice as a detainer” and to notify ICE “at least 30 days prior to release or as far in advance as possible.”

Mandatory or Optional Detainer?

There are other “requests,” as well, but there is one paragraph which is informational, not a request.  It states: “Federal regulations (8 CFR 287.7) require that you detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays) to provide adequate time for DHS to assume custody of the alien.”  (Emphasis added.)  Therein lies the quandary.

In a letter, dated August 5, 2011, ICE Director John Morton informed all the state governors who were terminating existing Secure Communities memoranda of agreements, that “[a memorandum of agreement (MOA)] between ICE and a state is not required to operate” Secure Communities in that state.” Several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.

He stated that participation in the program is not optional. “Once a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.”

The letter, basically, reiterated that immigration enforcement is the sole purview of the federal government and not the states. “Secure Communities imposes no new or additional requirements on state and local law enforcement” and, furthermore, “the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.”

On June 25, 2012, the United States Supreme Court ruled on the immigration enforcement law implemented by the state of Arizona, in the case of Arizona et al v. United States.  The Court held that most of the Arizona law was contrary to federal law, however, the Court made it clear that it is federal law which controls immigration issues.

The Court held that “(t)he Federal Government’s broad, undoubted power over immi­gration and alien status rests, in part, on its constitutional power to “establish a uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, [Citation]. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Govern­ment and to carry proof of status, §§1304(e), 1306(a); imposes sanc­tions on employers who hire unauthorized workers, §1324a; and spec­ifies which aliens may be removed and the procedures for doing so, see §1227.” (Emphasis added.)

The Court also addressed the issue of Arizona’s authority to hold a detainee in order to verify immigration status, based on its own law.   “It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.”  (Emphasis added.)  The distinction with the Secure Communities program is that federal direction does exist – it is based on the issuance of a detainer authorized by federal law.

An example of a contrary position to the Court’s ruling, however, was recently taken by the California Attorney General, Kamala Harris.  On December 4, 2012, the California Department of Justice issued an Information Bulletin which stated that “(l)ocal law enforcement agencies in California can make their own decisions about whether to fulfill an individual ICE immigration detainer.”  Furthermore, “immigration detainers are not compulsory.  Instead, they are merely requests enforceable at the discretion of the agencyholding the individual arrestee.”  (Emphasis in original.)

California’s position, which is opposite to that of Arizona, proves that “confusion reigns supreme” when it comes to interpretation of the Secure Communities initiative.  Who governs – the state or the federal government?  Is honoring the detainer issued by ICE up to the individual law enforcement agency or is it an mandatory?

To complicate matters further in California, its state law mandates cooperation with ICE with identifying illegal aliens and notifying ICE of that fact.  CA Penal Code 834b states that “(a) Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.”


Furthermore, section (c) states that, “Any legislative, administrative, or other action by a city,

county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.”


As stated above, “confusion reigns supreme” when it comes, not only to enforcement of the Secure Communities law, but to issues of immigration generally.  It appears that the federal government does, in fact, have the ultimate authority over immigration issues but it is obvious that individual states are challenging that authority.

The U.S. Supreme Court, in the Arizona decision, has not provided definitive guidance for local agencies and, it would seem that further litigation is inevitable.  Until the confusion has been put to rest, it is incumbent on all local law enforcement agencies to seek out and secure legal advice and guidance in deciding how they will proceed.

Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer, has served as General Counsel to the California Police Chiefs’ Association for the past 25 years, and is an active member of IACP’s Legal Officers’ Section.

[Originally published in The Police Chief, February 2013]