DHS OIG, OIG-12-66, Communication Regarding Participation in Secure Communities (Revised) (2014)

Department of Homeland Security 2IÀFHRI,QVSHFWRU*HQHUDO Communication Regarding Participation in Secure Communities OIG-12-66 (Revised) June 2014 Office of Inspector General U.S. Department of Homeland Security Washington, DC 20528 JUN 23 2014 Preface The Department of Homeland Security (DHS) Office of Inspector General (OIG) was established by the Homeland Security Act of 2002 (Public Law 107-296) by amendment to the Inspector General Act of 1978. This is one of a series of audit, inspection, and special reports prepared as part of our oversight responsibilities to promote economy, efficiency, and effectiveness within the Department. This report addresses how the United States Immigration and Customs Enforcement communicated the intent and requirements for participation in Secure Communities to States and local jurisdictions. It is based on interviews with employees and officials of relevant agencies and institutions, direct observations, and a review of applicable documents.

The recommendations herein have been developed to the best knowledge available to our office, and have been discussed in draft with those responsible for implementation. We trust this report will result in more effective, efficient, and economical operations. We express our appreciation to all of those who contributed to the preparation of this report. Anne L. Richards Assistant Inspector General for Audits Errata page for OIG-12-66 Communication Regarding Participation in Secure Communities Page 9: The words “at least” were added to the first sentence of paragraph one in the Responses to Inquiries section (see below): Changed from: In answering inquiries during the implementation of Secure Communities in 2009 and 2010, ICE, and in one instance DHS, provided unclear and inconsistent responses.

Changed to: In answering inquiries during the implementation of Secure Communities in 2009 and 2010, ICE, and in at least one instance DHS, provided unclear and inconsistent responses. Page 11: The words “at least” were added to the second sentence of paragraph two in the Senior Leadership Direction, Support, and Guidance section (see below): Changed from: This lack of direction and guidance from senior leadership led ICE, and in one instance DHS, to provide unclear and inconsistent information to stakeholders. Changed to: This lack of direction and guidance from senior leadership led ICE, and in at least one instance DHS, to provide unclear and inconsistent information to stakeholders. Page 13: The words “at least” were added to the fourth sentence in the conclusion section (see below): Changed from: However, once questions and concerns arose, senior leadership within ICE and in one instance the Department continued to exacerbate the problem by providing unclear and conflicting responses to inquiries and concerns.

Changed to: However, once questions and concerns arose, senior leadership within ICE and in at least one instance the Department continued to exacerbate the problem by providing unclear and conflicting responses to inquiries and concerns. Table of Contents/Abbreviations Executive Summary .............................................................................................................1 Background ..........................................................................................................................2 Results of Review ................................................................................................................4 Communication and Guidance Regarding Participation in Secure Communities .........4 Recommendations........................................................................................................13 Management Comments and OIG Analysis ................................................................14 Appendices Appendix A: Purpose, Scope, and Methodology.......................................................17 Appendix B: Management Comments to the Draft Report .......................................19 Appendix C: Representative Lofgren Request Letter ...............................................24 Appendix D: ICE Enforcement and Removal Programs ...........................................27 Appendix E: Timeline of Events and Communication Related to Secure Communities ............................................................................28 Appendix F: Major Contributors to this Report........................................................31 Appendix G: Report Distribution ..............................................................................32 Abbreviations DHS DOJ FBI FY IAFIS ICE IDENT MOA OIG Department of Homeland Security Department of Justice Federal Bureau of Investigation fiscal year Integrated Automated Fingerprint Identification System United States Immigration and Customs Enforcement Automated Biometric Identification System memorandum of agreement Office of Inspector General OIG Department of Homeland Security Office of Inspector General Executive Summary The Department of Homeland Security (DHS), United States Immigration and Customs Enforcement (ICE), is responsible for identifying, detaining, and removing deportable aliens from the United States. In 2008, it implemented Secure Communities to enhance its ability to identify criminal aliens nationwide. The key component of Secure Communities is interoperability, or automated information sharing, between DHS and the Federal Bureau of Investigation within the Department of Justice.

In April 2011, Representative Zoe Lofgren (California) requested that the DHS Office of Inspector General (OIG) conduct an investigation to determine whether false and misleading statements may have been made intentionally, while others were made recklessly during the Secure Communities implementation. This report covers one of two OIG reviews initiated in response to this request. The objective of our evaluation was to assess whether ICE clearly communicated to States and local jurisdictions the intent of Secure Communities and their expected participation. We did not find evidence that ICE intentionally misled the public or States and local jurisdictions during implementation of Secure Communities.

However, ICE did not clearly communicate to stakeholders the intent of Secure Communities and their expected participation. This lack of clarity was evident in its strategic plan, its outreach efforts, memorandums of agreement signed by States, and its responses to inquiries regarding participation. ICE senior leadership also missed opportunities to provide clear direction to its officials implementing Secure Communities. As a result, 3 years after implementation began; Secure Communities continues to face opposition, criticism, and resistance in some locations.

We made three recommendations intended to ensure that participation is clearly communicated for Secure Communities and future ICE programs. ICE concurred with the recommendations. Communication Regarding Participation in Secure Communities Background United States Immigration and Customs Enforcement (ICE) is responsible for identifying, detaining, and removing deportable aliens from the United States. ICE’s Enforcement and Removal Operations Programs enforce United States immigration laws by identifying and apprehending removable aliens.

In addition to Secure Communities, ICE has three programs to identify and apprehend criminal aliens: the Criminal Alien Program, 287(g) Program, and National Fugitive Operations Program. Appendix D contains a description of these programs. In the fiscal year (FY) 2008 Consolidated Appropriations Act, 2008 (Public Law 110-161), Congress appropriated $200 million1 for ICE to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States once they are judged deportable.” Within 90 days of enactment, Congress required DHS to submit a plan describing ICE’s intended use of the appropriated funds, including a strategy to identify every incarcerated criminal alien, and a methodology to identify and prioritize for the removal of criminal aliens convicted of violent crimes. In April 2008, ICE submitted to Congress Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.

According to the strategic plan, Secure Communities would initially focus on removing high-risk removable criminal aliens from the United States, including those convicted of major drug offenses and violent offenses such as murder, manslaughter, rape, robbery, child molestation, and kidnapping, as well those who posed a risk to national security. This plan was updated in 2009 and 2010 to revise and add some information on Secure Communities. ICE’s strategic plan proposed leveraging the existing information- sharing network between State and local law enforcement agencies and the Federal Bureau of Investigation (FBI). This network was already used to notify the FBI about new arrests and detentions and match identities through fingerprints.

Under Secure Communities, ICE planned to automatically share information between the FBI’s 1 From FY 2008 to FY 2011, Congress appropriated $750 million to ICE for Secure Communities. Communication Regarding Participation in Secure Communities Integrated Automated Fingerprint Identification System (IAFIS)2 and the DHS Automated Biometric Identification System (IDENT).3 Information-sharing initiatives to integrate IAFIS and IDENT began in 1998 and were later mandated by Congress. The USA PATRIOT Act of 2001 (Public Law 107-56) required federal agencies to create a fully interoperable cross-agency electronic system to share law enforcement and intelligence information to confirm the identity of persons applying for a United States visa. It further required that the system be readily and easily accessible to federal law enforcement and intelligence officers responsible for investigating aliens.

The Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173), which amended The USA PATRIOT Act of 2001, required that immigration authorities have access to relevant information in federal law enforcement agencies’ databases to determine whether to issue a visa or to determine the admissibility or deportability of an alien. Under Secure Communities, when a local law enforcement agency arrests and books an individual into a local police station or jail, the agency sends the arrestee’s fingerprints and booking information to the FBI to determine whether the arrestee is wanted by other law enforcement agencies or has a criminal history. The FBI, through IAFIS, can automatically share the fingerprints with DHS, which then checks them against IDENT. Interoperability allows ICE, if necessary, to request that the criminal alien be detained rather than released from the custody of the local law enforcement agency.

Secure Communities’ use of interoperability first began in Harris County, Texas, in October 2008. According to one ICE official, the agency continued implementation in jurisdictions it determined had the greatest density of criminal aliens. As of December 28, 2011, ICE reported interoperability had been implemented in 2,027 jurisdictions in 44 States, or 64% of the Nation’s 3,181 jurisdictions. ICE anticipates automated information sharing between IAFIS and IDENT throughout the United States by the end of 2013.

2 IAFIS is a national fingerprint and criminal history system that provides automated fingerprint search capabilities, latent search capability, electronic image storage, and electronic exchange of fingerprints and responses. This national system is designed to provide automated criminal history record information and is run by the FBI within the Department of Justice. 3 IDENT is the primary DHS-wide system to collect and process biometric and limited biographic information for DHS’ mission-related functions such as national security, law enforcement, immigration, and intelligence. Communication Regarding Participation in Secure Communities In April 2011, Representative Zoe Lofgren (California) requested that the OIG conduct an investigation into “any misconduct, including possible violations of criminal law” connected with the implementation of Secure Communities.

Specifically, the congresswoman was interested in DHS’ responses to inquiries regarding whether participation in Secure Communities was mandatory or local jurisdictions could opt out. She asserted that some of DHS and ICE personnel’s “false and misleading statements may have been made intentionally, while others were made recklessly, knowing that the statements were ambiguous and likely to create confusion.” Appendix C contains the text of Representative Lofgren’s letter. In response to the congresswoman’s request, OIG initiated two reviews of Secure Communities. The first review is to determine whether Secure Communities was effective in identifying criminal aliens and prioritizing cases for action.

The second review is to determine whether ICE clearly communicated to stakeholders the intent of Secure Communities and the expectation of States’ and local jurisdictions’ participation. This report addresses the second part of the request. A separate report will address the effectiveness of Secure Communities. Results of Review Communication and Guidance Regarding Participation in Secure Communities We did not find evidence that ICE intentionally misled the public or States and local jurisdictions during implementation of Secure Communities.

However, our review revealed that ICE failed to clearly communicate the intent and expectation of participation. As required by Congress, ICE’s strategic plan included goals, but did not specify whether participation would be mandatory and did not communicate statutory or other legal support for nationwide implementation. ICE’s outreach presentations to stakeholders included conflicting information, and memorandums of agreement (MOA) signed by participating States were also inconsistent and confusing. ICE’s responses to stakeholders’ inquiries regarding participation in Secure Communities were unclear.

Finally, ICE senior leadership missed opportunities to clarify the expectation of stakeholder participation and did not provide support, direction, and guidance to ICE officials who were implementing Secure Communities. Communication Regarding Participation in Secure Communities Secure Communities Strategic Plan ICE did not include any information related to participation by States and local jurisdictions in its strategic plan for Secure Communities. Additionally, ICE’s plan did not provide the statutory or other legal authority to support its intent to implement Secure Communities’ use of interoperability throughout the United States. According to ICE officials, the 90-day timeframe set by Congress to submit a plan made it difficult to develop a comprehensive and detailed strategy.

Through the Consolidated Appropriations Act, 2008 (Public Law 110-161), enacted on December 26, 2007, Congress provided ICE with $200 million to improve and modernize efforts to identify incarcerated criminal aliens. According to the Act, no funds would be obligated until Congress received a plan for expenditures prepared and submitted by the Secretary for DHS within 90 days. The plan was to include the following: 1) A strategy for ICE to identify every criminal alien, at the prison, jail, or correctional institution in which they are held; 2) The process ICE, in conjunction with the Department of Justice (DOJ), will use to make every reasonable effort to remove, upon their release from custody, all criminal aliens judged deportable; 3) A methodology ICE will use to identify and prioritize for removal criminal aliens convicted of violent crimes; 4) Activities, milestones, and resources for implementing the strategy and process described in items (1) and (2); and 5) Program measurements for progress in implementing the strategy and process described in items (1) and (2). To meet the congressional requirement, ICE developed Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens.

The April 2008 plan listed strategic goals such as identifying and processing all criminal aliens amenable for removal while in federal, State, and local custody; enhancing current detention strategies to ensure no removable criminal alien is released into the community due to a lack of detention space or an appropriate alternative to detention; implementing removal initiatives that shorten the time that criminal aliens remain in ICE custody prior to removal; and maximizing cost-effectiveness and long-term success through deterrence and reduced recidivism of Communication Regarding Participation in Secure Communities Page 5 criminal aliens returning to the United States. The plan focused on the availability of resources and described the proposed approach for implementing interoperability. The strategic plan submitted to Congress did not address whether ICE’s use of interoperability would be mandatory for all States or local jurisdictions. Further, it did not include any statutory or other legal requirements for participation in Secure Communities at the State and local levels.

Although the plan described ICE’s intent to roll out interoperability nationwide to participating jails and prisons, it did not indicate whether participation was required. The lack of information addressing these aspects of Secure Communities left ICE unready to respond to the growing number of questions regarding both intent and participation requirements from States and local law enforcement agencies as Secure Communities’ use of interoperability was implemented in more jurisdictions. Outreach and Communication Outreach Presentations ICE’s outreach presentations during implementation did not identify whether participation in Secure Communities was mandatory or voluntary. ICE personnel from the Secure Communities program office briefed ICE field offices, State identification boards, and local law enforcement agencies.

These presentations and scripted messages were used to train and inform stakeholders about the technical aspects of interoperability. According to a member of the program office, ICE had two goals for initial briefings: to provide information on Secure Communities to State and local law enforcement agencies and to identify volunteer State governments or law enforcement agencies to participate. These presentations focused on the technical aspects of setting up interoperability, such as an explanation of how fingerprints would be routed and shared; as well as program statistics, including the number of people who had been identified because of Secure Communities. The presentation material discussed the “need for information sharing,” but the mandates behind sharing of information were not mentioned.

The Secure Communities program office also acknowledged that the term “volunteer” caused confusion among stakeholders. Communication Regarding Participation in Secure Communities Word choices ICE used in the outreach presentations could lead localities to believe they had a choice to participate. For example, charts used in 2009 required law enforcement agencies to read a set of standard operating procedures and, if in agreement, send a response to ICE affirming that they would adhere to the principles in the procedures on use of biometric (fingerprint) identification. Because agencies appeared to be able to decide whether to adhere to the standard operating procedures principles, they might have been led to believe that they could choose to participate.

The Secure Communities program office explained that, although it planned to implement interoperability nationwide by 2013, it sought out jurisdictions interested in participating and activated those first. Jurisdictions that did not wish to be activated at that time would be moved toward the end of the activation list, with the intent to have all jurisdictions activated by 2013. Memorandums of Agreement The use of MOAs generated questions as to whether participation in Secure Communities was voluntary or mandatory. According to current and former ICE personnel, the agency chose to use MOAs because they had been used in past enforcement 287(g) Program, to establish th or local jurisdictions.

However voluntary program. Under the 287(g) Program, a State or local law enforcement entity may enter into a partnership with ICE under an MOA and be delegated authority for immigration enforcement within their jurisdiction. Source: ICE and removal programs, such as the e responsibilities of ICE and States , the 287(g) Program was a The 2008 Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens defines three levels of crimes: Level 1 – Individuals who have been convicted of major drug and violent offenses such as murder, manslaughter, and rape. Level 2 – Individuals who have been convicted of minor drug offenses and property offenses such as burglary, larceny, fraud, and money laundering.

Level 3 – Individuals who have been convicted of other offenses. Source: ICE ICE used MOAs to set forth its responsibilities and those of the States in the automated sharing of information on criminal aliens under Secure Communities. The MOAs were based on a template used in prior programs and, according to ICE officials, were modified for each State. In general, they included Communication Regarding Participation in Secure Communities ICE’s goals for Secure Communities and described the risk-based approach to sharing information.

The risk-based approach uses a three-level hierarchy of crimes to determine how criminal aliens are prioritized for detention and removal. The MOAs further noted that States were responsible for electronically submitting fingerprints of arrested individuals during book-in to the FBI to search through IAFIS. The fingerprints would then be automatically crosschecked by DHS in the IDENT system. In the 42 MOAs we reviewed, we noted changes related to ICE’s goals for Secure Communities.

For example, the first MOA with California, signed in April 2009, stated that the goal was “to identify, detain, and remove aliens who have been convicted of and incarcerated for a priority Level 1 offense and who are therefore amenable to removal.” An MOA with Rhode Island signed in January 2011 did not have a section with goals, but instead noted that as part of its responsibilities, “ICE will process an alien for removal proceedings, and take the alien into custody after completion of the alien’s criminal sentence or when the alien is released from local custody.” All 42 MOAs we reviewed included a modification and termination clause that may have added to the confusion regarding participation in Secure Communities. The clause stated that “either party, upon 30 days’ written notice to the other party, may terminate the MOA at any time. A termination notice shall be delivered personally or by certified or registered mail and termination shall take effect 30 days after receipt of such notice.” Because it allows for unilateral termination, a State could interpret the language of this clause to mean it could choose not to submit fingerprints to DHS and to end its participation in Secure Communities. In August 2011, ICE recognized that its MOAs had caused confusion among local jurisdictions that wanted to opt out.

Therefore, the ICE Director issued letters to Governors in States with Secure Communities MOAs, terminating all existing MOAs. In the letter, the Director explained that ICE had determined that MOAs were not required to activate or operate Secure Communities’ use of interoperability in any jurisdiction. The letter further explained that once a State or local law enforcement agency voluntarily submitted fingerprints to the federal government, no agreement with the State was legally necessary for one part of the federal government to share the information with another part. For this reason, ICE officials stated that MOAs were simply used to Communication Regarding Participation in Secure Communities Page 8 communicate with partners outside DHS and were intended only as a vehicle to pass information and were never binding.

Responses to Inquiries In answering inquiries during the implementation of Secure Communities in 2009 and 2010, ICE, and at least in one instance DHS, provided unclear and inconsistent responses. Inquiries from congressional leaders, States, local governments, nongovernmental organizations, and the media focused on whether participation in Secure Communities was mandatory or voluntary. They also asked whether DHS had misled States and local jurisdictions by changing which aspects of Secure Communities were mandatory. Internal and external correspondence prepared in response to such inquiries showed that ICE had not clearly defined or agreed on participation in Secure Communities.

In general, stakeholders identified four main concerns regarding implementation of Secure Communities. They indicated that it was not focused on serious criminals. Further, they explained it could strain community-police relations, inadvertently lead to racial profiling, and result in wrongful detention of those not convicted of a criminal offense. Internal and External Correspondence Our review of internal and external correspondence showed that ICE had not clearly defined or agreed on whether the participation in Secure Communities was mandatory or voluntary.

We reviewed correspondence that included definitions of participation, such as letters to stakeholders, as well as ICE interoffice emails, presentations, talking points, and public affairs guidance. These documents revealed that, from August 2009 through August 2010, the definition of participation changed five times. Two other definitions were included in a letter from the Secretary in September 2010 and in analysis completed by ICE’s Office of the Principal Legal Advisor in October 2010. Appendix E presents a timeline that includes a summary of these changes.

An August 2009 Frequently Asked Questions document explained that ICE was not requiring any entity to participate in information- sharing technology at the State or local levels. The document further noted that ICE would enter into an agreement with each Communication Regarding Participation in Secure Communities State identification bureau4 to oversee the sharing of information between ICE and the State. Each agreement would include a clause allowing either side to suspend or terminate the use of information-sharing technology with 30 days’ written notice. In March 2010, ICE public affairs guidance stated that all jurisdictions were expected to be part of Secure Communities by 2013 to comply with a congressional mandate.

However, ICE did not specify which mandate. Further, the guidance noted that if a jurisdiction did not want fingerprints checked against IDENT, it would have to coordinate with the State to ensure that fingerprints were not submitted to DOJ. An April 2010 Frequently Asked Questions document again stated that all jurisdictions were expected to be part of Secure Communities by 2013 to comply with a congressional mandate. A jurisdiction could choose not to receive immigration-related information on a fingerprinted individual, but that information would still be provided to ICE.

In July 2010, an email from ICE to a congressman’s office explained that jurisdictions had three options for participating in Secure Communities. The Secure Communities program office defined these options as follows: x Full participation – Law enforcement agencies would send fingerprints of every individual taken into custody to the FBI, which would forward them to DHS. DHS would then send ICE and the law enforcement agency results of the immigration check. x Limited participation – Law enforcement agencies would send fingerprints of every individual taken into custody to the FBI, which would forward them to DHS, but the law enforcement agency could choose not to receive the results of the DHS immigration check. x Postpone participation until 2013 – Law enforcement agencies would send fingerprints to the FBI, but the fingerprints would not be shared with DHS until nationwide implementation in 2013. 4 Each State has a State identification bureau that is the repository of State biometric and criminal history data and acts as the intermediary between local law enforcement agencies and IAFIS.

Communication Regarding Participation in Secure Communities In August 2010, the program office again attempted to clarify participation in Secure Communities by releasing Setting the Record Straight. This document contained information on Secure Communities, including an explanation as to how jurisdictions could choose not to participate. It explained that if a local jurisdiction did not wish to activate information sharing on its scheduled date, it would have to formally notify the State identification bureau and ICE in writing. ICE would then discuss the jurisdiction’s concerns and reach a resolution, which could include adjusting the activation date or removing the jurisdiction from the implementation plan.

Although the document was intended to clarify participation in Secure Communities, it was confusing since it implied that local jurisdictions could choose not to participate. Senior Leadership Direction, Support, and Guidance Although it had opportunities to do so, ICE senior leadership did not provide direction, support, or guidance to ICE officials to address concerns about Secure Communities, especially whether participation was mandatory. This lack of direction and guidance from senior leadership led ICE, and at least in one instance DHS, to provide unclear and inconsistent information to stakeholders. The 2009 Secure Communities: A Comprehensive Plan to Identify and Remove Criminal Aliens stated that ICE intended to form an Executive Steering Committee, consisting of senior ICE leaders, to discuss, review, and approve Secure Communities initiatives and performance.

However, the Executive Steering Committee was dissolved in 2010, terminating its oversight mission. An ICE program official explained that the new ICE Director chose not to use this method of oversight. In November 2009, the Secure Communities program office drafted a memorandum for signature by the ICE Director. Its intent was to reach consensus in ICE on whether participation in Secure Communities was voluntary.

The memorandum, “Clarification of Voluntary Interoperability,” acknowledged that Secure Communities had stated in various forums, including Congress, that State and local participation in IAFIS/IDENT information sharing was voluntary. Further, it noted that by electing not to participate, jurisdictions could infer that IAFIS/IDENT interoperability would not be activated. Jurisdictions might then assume that fingerprints sent by nonparticipants to the FBI would not be submitted to DHS’ IDENT Communication Regarding Participation in Secure Communities Page 11 system. The memo stated that the FBI had indicated to the Secure Communities program office that interoperability would be fully in place by 2013.

For these reasons, the program office sought to clarify the definition of voluntary participation by States and local jurisdictions. This memorandum was never provided to the ICE Director for review and approval. According to senior ICE officials, they did not fully understand its intent or what the program office was trying to clarify, but they did not contact the program office for clarification. One senior official explained that since ICE senior leadership did not fully understand the intent of the memo, they did not submit it to the Director for review.

Instead, the memorandum was marked for information only and was never signed by the ICE Director. Consequently, ICE senior leadership lost an opportunity to provide clear direction to the Secure Communities program office. In September 2010, DHS attempted to address participation in Secure Communities. A member of Congress wrote to the Secretary of DHS, requesting a clear explanation of how local law enforcement agencies might opt out of Secure Communities by having fingerprints checked against criminal, but not immigration, databases.

The Secretary responded in writing that a local law enforcement agency that did not wish to participate in Secure Communities implementation had to notify the Secure Communities program office and the State. The letter also explained that if a law enforcement agency chose not to be activated during Secure Communities implementation, the agency would be responsible for notifying its local ICE field office of suspected criminal aliens. This response conflicted with other ICE statements regarding participation. In September 2010, the ICE Director and senior officials recognized that the agency had not prepared a thorough analysis to support the agency’s position that participation in Secure Communities would be mandatory by 2013.

They requested that ICE’s Office of the Principal Legal Advisor prepare an analysis of opting out. The draft analysis, completed in October 2010, provided arguments supporting a position that participation in Secure Communities would be mandatory by 2013. However, ICE officials acknowledged that, to date, this information has not been incorporated into recent communications or a single comprehensive Secure Communities document, Communication Regarding Participation in Secure Communities Page 12 including the August 2011 letter from the ICE Director canceling the MOAs. Conclusion We did not find evidence that ICE intentionally misled the public during Secure Communities implementation.

However, confusion within the agency regarding intent and participation led ICE to misinform and confuse stakeholders and the media. Initial confusion may have stemmed from the short timeframe to implement Secure Communities’ use of interoperability, coupled with the assumption that prior congressional mandates for interoperability supported the current effort. However, once questions and concerns arose, senior leadership within ICE and at least in one instance the Department continued to exacerbate the problem by providing unclear and conflicting responses to inquiries and concerns. As a result, Secure Communities continues to face opposition, criticism, and resistance in some locations.

Recommendations We recommend the Director, United States Immigration and Customs Enforcement: Recommendation #1: Immediately compose and release thorough guidance and criteria that specifically outline the intent and expectations of Secure Communities. The guidance should specify which aspects of Secure Communities are optional for States and local law enforcement agencies. Recommendation #2: Coordinate with the Department of Homeland Security to establish protocols to ensure that the Department and United States Immigration and Customs Enforcement senior leadership provide the necessary direction, guidance, oversight, and support for the intent and implementation of new immigration enforcement programs. Recommendation #3: Generate a lessons learned document and plan for the Department of Homeland Security to use when guiding future immigration and enforcement program development and implementation.

Communication Regarding Participation in Secure Communities Management Comments and OIG Analysis ICE concurred with the recommendations. A copy of the comments in their entirety is in appendix B. We summarize and address these comments below. Response to Recommendation #1 ICE Concurred: ICE explained that the agency has taken steps to clarify confusion surrounding whether an MOA is required for Secure Communities to operate in a State or local jurisdiction. In August 2011, ICE sent letters to the States with existing MOAs to explain that MOAs were not necessary for one part of the federal government to share fingerprint data with another.

As Secure Communities activations continue, ICE is providing briefings to law enforcement agencies in States that are capable of receiving information about identifications resulting from fingerprints processed through DHS’ databases. However, in States that are not capable of receiving this information, briefings are conducted on an as-needed basis. Additionally, ICE continues to provide briefings upon request in States that have already been activated. ICE also explained that the agency updated its website page to increase information sharing.

Updates include information on how Secure Communities works, frequently asked questions, new ICE policies, the Secure Communities complaint protocol, and training materials for State and local law enforcement agencies. ICE announced the creation of a Public Advocate. This position will serve as the agency’s point of contact for individuals in immigration proceedings, non-governmental organizations, and advocacy groups that have concerns, questions, recommendations, or other issues they would like to raise. OIG Analysis: ICE’s response to the recommendation included efforts to help clarify the intent and expectations of Secure Communities.

However, during fieldwork, the ICE Director explained that the agency was composing a single document that outlines participation requirements for Secure Communities, such as statutory or other legal support for nationwide implementation. The agency did not fully address the intent of the recommendation. This recommendation is open and unresolved until ICE provides a Communication Regarding Participation in Secure Communities Page 14 formal, publicly available document that outlines participation requirements for Secure Communities. Response to Recommendation #2 ICE Concurred: In June 2011, ICE issued two prosecutorial discretion memorandums to provide direction and guidance on Secure Communities and ICE’s Civil Immigration Enforcement Priorities.

The first memorandum, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” provided guidance to ICE law enforcement personnel and attorneys on their authority to exercise discretion when appropriate. The second memorandum, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” directed the exercise of prosecutorial discretion to ensure that victims and witnesses of crimes are properly protected. In addition to issuing the prosecutorial discretion memorandums, ICE launched a comprehensive training program on the appropriate use of both memorandums. As of January 2012, all Enforcement and Removal Operations management and ICE attorneys nationwide have completed scenario-based prosecutorial discretion training.

OIG Analysis: ICE’s response to this recommendation did not fully address the issue of establishing protocols to ensure that DHS and ICE senior leadership provide the necessary direction, guidance, oversight, and support for the intent and implementation of new immigration enforcement programs. The two memorandums that ICE cited provide guidance to ICE field personnel on applying existing immigration programs. They do not address how the Department and agency can improve internal communication to minimize the issuance of unclear or inconsistent information to stakeholders. This recommendation will remain unresolved until ICE provides its plans for developing protocols outlining procedures, roles, and responsibilities and the names of the responsible officials.

The recommendation will remain open until ICE provides a copy of the final approved protocols. Communication Regarding Participation in Secure Communities Response to Recommendation #3 ICE Concurred: The ICE Office of Policy will work with agency program offices and DHS to develop a lessons learned document to use to plan future enforcement programs, priorities, and implementation. OIG Analysis: This recommendation is unresolved until ICE provides milestone dates for the completion of the lessons learned document and names of the responsible officials. The recommendation will remain open until ICE provides a copy of the final lessons learned document.

Communication Regarding Participation in Secure Communities Appendix A Purpose, Scope, and Methodology Our objective was to determine whether ICE clearly communicated the intent of Secure Communities and the expectation of stakeholder participation to States and local jurisdictions. We interviewed officials from various ICE headquarters offices, including the Office of the Director; Office of the Principal Legal Advisor; Enforcement and Removal Operations; Office of Public Affairs; Office of State, Local, and Tribal Coordination; and Office of Congressional Relations. We also interviewed field office officials in Phoenix, Arizona; San Francisco, California; and Washington, DC. We reviewed prior audit and evaluation reports, relevant laws, regulations, strategic plans, standard operating procedures, policies, and ICE’s organizational charts.

We reviewed memorandums of agreement, public release statements, media reports, outreach documents, legal analyses, talking points, opt-out requests, and other documents released to the public through the Freedom of Information Act. We also reviewed ICE interoffice communications, which consisted of emails, presentations, talking points, and public affairs guidance. The correspondence included discussions within ICE and outside of the agency to stakeholders dating from February 2009 through June 2011. Communication Regarding Participation in Secure Communities Appendix A Purpose, Scope, and Methodology We selected nine locations to visit, including three State identification bureaus and seven local law enforcement agencies.5 We chose to visit States and local law enforcement agencies that are participating through Secure Communities, as well as those that have requested to opt out of Secure Communities.

We visited the following: Arizona California District of Columbia Virginia Maricopa County Sheriff’s Office x Tucson Police Department x California Department of Justice x San Francisco Sheriff’s Department x San Mateo County Sheriff’s Office x Santa Clara County Sheriff’s Office x x Metropolitan Police Department of the District of Columbia Arlington County Police Department Virginia State Police x x We conducted this review under the authority of the Inspector General Act of 1978, as amended, and according to the Quality Standards for Inspections, January 2011, issued by the Council of the Inspectors General on Integrity and Efficiency. 5 The Metropolitan Police Department of the District of Columbia is both the State identification bureau and the local law enforcement agency. Communication Regarding Participation in Secure Communities Appendix B Management Comments to the Draft Report Communication Regarding Participation in Secure Communities Appendix B Management Comments to the Draft Report Communication Regarding Participation in Secure Communities Appendix B Management Comments to the Draft Report Communication Regarding Participation in Secure Communities Appendix B Management Comments to the Draft Report Communication Regarding Participation in Secure Communities Appendix B Management Comments to the Draft Report Communication Regarding Participation in Secure Communities Appendix C Representative Lofgren Request Letter Communication Regarding Participation in Secure Communities Appendix C Representative Lofgren Request Letter Communication Regarding Participation in Secure Communities Appendix C Representative Lofgren Request Letter Communication Regarding Participation in Secure Communities Appendix D ICE Enforcement and Removal Programs ICE’s Enforcement and Removal Operations Programs enforce United States immigration laws by identifying and apprehending removable aliens. In addition to Secure Communities, ICE has three programs to identify criminal aliens.

The Criminal Alien Program The Criminal Alien Program identifies, processes, and removes criminal aliens incarcerated in federal, State, and local prisons and jails throughout the United States, preventing their release into the general public by securing a final order of removal prior to the termination of their sentences. Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act (The 287(g) Program) The 287(g) Program allows States and local law enforcement agencies to enter into partnerships with ICE through bilateral memorandums of agreement under which they are delegated authority for immigration enforcement in their jurisdictions. National Fugitive Operations Program The National Fugitive Operations Program identifies, locates, and arrests fugitive aliens who have been previously removed from the United States; removable aliens who have been convicted of crimes; and aliens who enter the United States illegally or otherwise defy the integrity of United States immigration laws and border control efforts. Communication Regarding Participation in Secure Communities Appendix E Timeline of Events and Communication Related to Secure Communities October 2001 May 2002 December 2007 April 2008 October 2008 August 2009 November 2009 March 2010 The USA PATRIOT Act of 2001 requires federal agencies to create a cross-agency electronic system to share law enforcement and intelligence information necessary to confirm the identities of persons applying for a United States visa and to be accessible to all officers responsible for investigating aliens.

The Enhanced Border Security and Visa Entry Reform Act of 2002 requires, upon implementation of the plan required by 8 USC §1721(c), that the President develop and implement an interoperable electronic data system that provides current and immediate access to information in databases of federal law enforcement agencies and the intelligence community that is relevant to determine the admissibility or removability of an alien. Congress appropriates $200 million to ICE to improve and modernize the identification and removal of aliens convicted of a crime, sentenced to imprisonment, and subject to removal. ICE submits to Congress a strategic plan to leverage existing technology that shares law enforcement data among federal, State, and local law enforcement agencies. Secure Communities is first implemented in Harris County, Texas.

ICE receives a media inquiry related to Philadelphia, Pennsylvania, asking whether a municipality can opt out of Secure Communities. The Secure Communities program office discusses whether participation is voluntary and whether Secure Communities is focusing on the most serious criminals sentenced to imprisonment and subject to removal. First participation definition – Secure Communities Frequently Asked Questions document explains that DHS does not require any entity to participate in information-sharing technology at the State or local level. The document further explains that MOAs between ICE and the States include a clause allowing either side to suspend the use of information-sharing technology with 30 days’ written notice.

In these cases, ICE would still receive immigration status information on criminal aliens sentenced to imprisonment and subject to removal. A decision memo is sent from the Secure Communities program office to the ICE Director in an attempt to clarify the agency’s position on voluntary participation. The ICE Director does not sign the memo. Second participation definition – Public affairs guidance states that all jurisdictions are expected to be part of Secure Communities by 2013 to comply with a congressional mandate.

It also states that if a jurisdiction does not want fingerprints checked against DHS’ database, it needs to coordinate with the State so that fingerprints are not submitted to the DOJ criminal history database. ICE does not specify the source of the mandate. Communication Regarding Participation in Secure Communities Appendix E Timeline of Events and Communication Related to Secure Communities April 2010 July 2010 August 2010 September 2010 October 2010 June 2011 Third participation definition – ICE Frequently Asked Questions document states that all jurisdictions are expected to be part of Secure Communities by 2013 to comply with a congressional mandate. A jurisdiction can choose not to receive immigration-related information on a fingerprinted individual, but that information will still be provided to ICE.

ICE does not announce the source of the mandate in its outreach documents. Fourth participation definition – ICE provides information to a congressman’s office explaining that participation in Secure Communities can be full, partial, or postponed until 2013. Representative Lofgren writes to Secretary Napolitano for clarification on whether participation in Secure Communities is voluntary. Fifth participation definition – ICE issues Setting the Record Straight, which indicates that if a jurisdiction does not wish to activate on its scheduled date in the Secure Communities implementation plan, it must formally notify its State identification bureau and ICE in writing.

ICE would request a meeting with federal partners, the jurisdiction, and the State to discuss any issues and come to a resolution, which could include adjusting the jurisdiction’s activation date or removing the jurisdiction from the implementation plan. Sixth participation definition – Secretary Napolitano issues a response to Representative Lofgren explaining that a local law enforcement agency that does not wish to participate in Secure Communities must formally notify the Assistant Director for Secure Communities and the appropriate State identification bureau. If a local law enforcement agency is not activated, it will be that agency’s responsibility to contact a local ICE field office of suspected criminal aliens. Seventh participation definition – The ICE Office of the Principal Legal Advisor prepares a draft legal analysis that supports a position that Secure Communities will be mandatory by 2013.

The ICE Director issues two memos reiterating actions that can be taken to ensure that ICE immigration enforcement resources are focused on its enforcement priorities for detention and removal of criminal aliens. These memos note that ICE has prosecutorial discretion to decide whether to detain and initiate removal proceedings against an individual known to be the immediate victim or witness to a crime. August 2011 The ICE Director cancels MOAs, citing that they are not necessary to activate Secure Communities. Communication Regarding Participation in Secure Communities Appendix E Timeline of Events and Communication Related to Secure Communities September 2011 November 2011 The Homeland Security Advisory Council’s Task Force on Secure Communities, created in June 2011, issues its report on Secure Communities.

The report recommends that ICE clarify the goals and objectives of Secure Communities and accurately relay this information to participating jurisdictions, future participating jurisdictions, and the communities they serve. The ICE website explains that when State and local authorities arrest and book an individual into prison or jail, they routinely submit fingerprints to the FBI. The FBI then automatically shares these fingerprints with ICE to check against immigration databases. Communication Regarding Participation in Secure Communities Appendix F Major Contributors to this Report Patrick O’Malley, Director Richard Johnson, Director Christine Haynes, Audit Manager Apostolos Exarchos, Auditor in Charge Ralleisha Dean, Auditor Callece Gresham, Program Analyst John Kohler, Program Analyst Kevin Donahue, Independent Referencer Kelly Herberger, Communications Analyst Communication Regarding Participation in Secure Communities Appendix G Report Distribution Department of Homeland Security Secretary Deputy Secretary Chief of Staff Deputy Chief of Staff General Counsel Executive Secretariat Director, GAO/OIG Liaison Office Assistant Secretary for Office of Policy Assistant Secretary for Office of Public Affairs Assistant Secretary for Office of Legislative Affairs Director, U.S. Immigration and Customs Enforcement ICE Audit Liaison Office of Management and Budget Chief, Homeland Security Branch DHS OIG Budget Examiner Congress Congressional Oversight and Appropriations Committees, as appropriate Communication Regarding Participation in Secure Communities ADDITIONAL INFORMATION To view this and any of our other reports, please visit our website at: www.oig.dhs.gov.

For further information or questions, please contact Office of Inspector General (OIG) Office of Public Affairs at: [email protected], or follow us on Twitter at: @dhsoig.

OIG HOTLINE

To expedite the reporting of alleged fraud, waste, abuse or mismanagement, or any other kinds of criminal or noncriminal misconduct relative to Department of Homeland Security (DHS) programs and operations, please visit our website at www.oig.dhs.gov and click on the red tab titled "Hotline" to report. You will be directed to complete and submit an automated DHS OIG Investigative Referral Submission Form. Submission through our website ensures that your complaint will be promptly received and reviewed by DHS OIG. Should you be unable to access our website, you may submit your complaint in writing to: Department of Homeland Security Office of Inspector General, Mail Stop 0305 Attention: Office of Investigations Hotline 245 Murray Drive, SW Washington, DC 20528-0305 You may also call 1(800) 323-8603 or fax the complaint directly to us at (202) 254-4297.

The OIG seeks to protect the identity of each writer and caller.