Zoe Lofgren: DHS May Have Misled Public On Immigration Program (UPDATE)

WASHINGTON -- The Department of Homeland Security should conduct an investigation into whether its officials intentionally misled the public and local officials in order to coerce them into participating in an immigration enforcement program, Rep. Zoe Lofgren (D-Calif.) said in a Thursday letter to the agency.

Lofgren, the top Democrat on the House immigration subcommittee, asked top DHS oversight officials to look into conflicting statements made by the agency last year about the Secure Communities program.

Secure Communities shares fingerprint data taken by local police, which is already sent to the FBI, with immigration officials to check whether individuals are in the country illegally. After screening the prints, DHS asks local police to hold undocumented immigrants until they can be picked up by ICE. The program is designed to find and deport criminal undocumented immigrants, but data from the agency shows that about a quarter of those deported because of Secure Communities have never been convicted of a crime.

The Obama administration plans to expand the program nationwide by 2013. Behind that expansion, however, is a series of missteps and false statements by DHS officials, who repeatedly said participation in Secure Communities was voluntary before backtracking last fall. The agency went so far as to list steps for opting out of the program -- all the while discussing behind the scenes how to push the program on as many local jurisdictions as possible. In October, DHS suddenly announced the program was effectively mandatory.

After a review of internal emails and communication about Secure Communities, Lofgren determined there may have been foul play by the agency.

“I believe that some of these false and misleading statements may have been made intentionally, while others were made recklessly, knowing that the statements were ambiguous and likely to cause confusion,” Lofgren wrote in her letter (see below) to DHS and Immigration and Customs Enforcement oversight officials.

DHS has not yet responded to requests for comment, but DHS Secretary Janet Napolitano attempted to defend the now-voluntary nature of the program earlier this week, saying "this whole opt-in, opt-out thing was a misunderstanding from the get-go."

In her letter, Lofgren lists the many conflicting statements about Secure Communities put out by DHS over the past two years, which were obtained through a Freedom of Information Act request by a coalition of groups critical of the program.

As of 2009, the program was considered voluntary for local jurisdictions, seemingly meaning police could choose not to share fingerprints with immigration enforcement. Lofgren made her own inquiry in July 2010, asking DHS to clarify its opt-out process for local jurisdictions that did not want to share fingerprints. In a September 2010 response, Napolitano listed steps for opting out, similar to those listed in a document called “Setting the Record Straight” on ICE’s website.

But in October, Napolitano began to state that opting out was impossible.

“We don’t consider Secure Communities an opt in-opt out program,” she said at an appearance.

The "Setting the Record Straight" document later disappeared from the ICE website. Instead of blocking fingerprints from reaching DHS, local police could “opt out” of Secure Communities by electing not to receive the results of immigration checks. Lofgren called this “a counterintuitive and misleading definition of the term ‘opt out.’”

Internal communications within DHS suggest the decision to swap in a new definition of “opt out” was intentional. The final decision was made orally, rather than in writing, to give officials “plausible deniability,” according to a released email exchange.

To most of the communities that had voted to opt out of the program, this solution was not acceptable. Local governments have continued to push for a method to block the program, most recently in a resolution introduced in Montgomery County, Md., on Tuesday. Illinois and California also have bills at the state level that would allow local jurisdictions to opt out of Secure Communities.

Critics of Secure Communities argue jurisdictions may choose to forgo the program for many reasons. They say it distracts police from other duties, costs local governments money and nets victims of violence, witnesses and people who are never convicted with crimes.

The problem, according to critics, is that Secure Communities passes all fingerprints taken by local police onto immigration authorities, meaning immigrants whose charges are later dropped can still face deportation. This can particularly become a problem in cases of domestic violence, in which police often arrest and fingerprint both parties before determining which party is the victim.

A number of Democrats in Congress have been critical of Secure Communities for targeting non-criminals, including women who went to police to report domestic violence and students who are taken in and then released.

Rep. Luis Gutierrez (D-Ill.), an outspoken proponent of immigration reform, is leading a campaign to ask the Obama administration to stop deporting non-criminals -- and even said he might withhold support for Obama’s reelection if the president stays the course on deportations.

Sen. Robert Menendez (D-N.J.), joined with Lofgren to criticize confusion over Secure Communities, issuing a statement Thursday calling for DHS to limit Secure Communities to immigrants convicted of serious crimes.

“There is a fog of confusion surrounding this program and the recent release of internal DHS emails has shed light on the fact that DHS has tried to coerce states and localities into participating instead of addressing their concerns about the program’s impact on community policing and crime fighting,” Menendez said in a statement.

The National Day Laborers Organizing Network, one of the groups that requested DHS documents on Secure Communities, applauded Lofgren's decision to ask for an investigation.

NDLON Legal Director Chris Newman said Secure Communities is the second iteration of a much-criticized program called 287(g), which allowed local police to take on immigration enforcement. Napolitano’s supported that program as governor of Arizona, and Newman said it's not surprising she has pushed for a similar program on the national scale.

"It's a good thing the former governor of Arizona -- the one who originally procured Sheriff Joe Arpaio's 287(g) contract in the first place -- doesn't get to rule by decree in Washington, D.C.,” Newman said.

Lofgren's letter to the DHS inspector general and ICE assistant director at the Office of Professional Responsibility:

Lofgren's letter to DHS Secretary Janet Napolitano and ICE Director John Morton:

UPDATE, 7:50 p.m.: ICE Director John Morton responded to Lofgren in a letter. Click here to read it in full.