MANHATTAN (CN) – U.S. Immigration and Customs Enforcement must turn over an internal memo that could reveal the agency’s legal justification for mandating the so-called Secure Communities deportation program, a federal judge ruled.
In April 2010, the National Day Laborer Organizing Network and others sued five federal agencies – including the FBI, the Executive Office for Immigration Review and the Office of Legal Counsel – seeking information about Secure Communities, or S-Comm, under the Freedom of Information Act.
The plaintiffs, which include the Center for Constitutional Rights and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, said the system is “error-prone” and was planned to be instituted nationwide “without sufficient transparency, oversight, or public engagement.” Though advertised as targeted at criminals, opponents said immigrants were entered into the system after being fingerprinted for minor traffic offenses.
When the first complaint was filed, Secure Communities was in its pilot phase in 145 jurisdictions; plans had been laid to expand it into every jail in the country by 2013, the plaintiffs said.
In August, the Obama administration announced that the program would be mandatory nationwide, apparently vindicating the plaintiffs’ view that the government misled states early by saying they could “opt out” of the program.
“A portion of the requested records relates to the issue of whether and how state and local law enforcement agencies may ‘opt-out’ of participation in Secure Communities,” U.S. District Judge Shira Scheindlin summarized in a new order. “On January 17, 2011, defendants produced over fourteen thousand pages of ‘opt-out’ records, withholding all or part of certain records.”
In addition to those 14,000 pages, the plaintiffs sought a “critical document referred to as the ‘October 2 Memorandum,'” which “contains legal analysis and … was written by the Office of the Principal Legal Advisor of ICE and addressed to Beth Gibson, the Assistant Deputy Director of ICE,” the order states.
Scheindlin ordered the memo’s release on Monday night. To “adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA,” the 38-page ruling states, citing the 2nd Circuit’s holding.
The plaintiffs defended their position in a joint statement.
“Our organizations, along with a chorus of advocates and elected officials across the country, have been seeking to uncover the truth behind ICE’s decision to compel states and localities to participate in its dangerous Secure Communities program,” according to the statement. “The memorandum ordered disclosed is the only document to date that comprehensively describes the legal authority claimed by ICE in support of its position mandating state and local participation in the controversial program – a deportation dragnet that has raised concerns about racial profiling, due process, the ensnarement of U.S. citizens, community policing, privacy, and other issues.”
ICE must produce the memo by Nov. 1.