With his civil rights legacy in jeopardy, New York Gov. David Paterson has released a new Secure Communities Memorandum of Agreement (MOA).
On his second to last day in office, Paterson said in a press release that "advocates have raised valid concerns, which is why I instructed my staff to renegotiate the agreement with the Federal government."
"There are really no improvements," said Michelle Fei, an attorney for the Immigrant Defense Project, one of 75 groups that asked the Governor to take action.
Secure Communities allows arrest data from local jails to be shared with agents from Immigration and Customs Enforcement (ICE). Agents can ask law enforcement agencies to hold long-time legal residents and undocumented immigrants, and then transfer them into ICE custody to face deportation.
The program is active in 34 states and more than 700 counties, and ICE wants to expand it nationwide by 2013. It has met strong resistance from civil rights and immigrant advocates who say the controversial program fails to meet its mandate of targeting "dangerous offenders," and encourages racial profiling by police who know immigrants will have their status checked when booked into jail.
The main change in the new agreement between New York and ICE is the addition of language that emphasizes ICE will be solely responsible for enforcing immigration laws, and will use a "risk-based approach" to determine which immigrants it will target for deportation. Advocates say this could mislead the public.
"Usually in the criminal justice context that language comes up when you're thinking about relief from custody," said Sunita Patel, an attorney with the Center for Constitutional Rights. "Here they are using it in a way to talk about people who are not even convicted of crimes but people who are just arrested and booked."
Patel also said the description of "Level 1" offenders in the new agreement is too broad and "creates a very wide range of non-citizens that are going to be swept up and labeled as 'dangerous.'"
A description of "Level 1" immigrant offenders in the new agreement refers specifically to "aliens convicted of 'aggravated felonies,' or two or more crimes each punishable by more than one year, commonly referred to as 'felonies.'"
The old agreement defined "Level 1" offenders as those who have been convicted of major drug offenses, national security crimes, and violent crimes such as murder, manslaughter, rape, robbery and kidnapping."
Patel says immigration attorneys practicing in New York have told her ICE has started to include "endangering the welfare of a child" in the category of aggravated felony even though in some cases these charges are considered a misdemeanor. This means immigrants can face deportation if they are arrested for getting into a domestic dispute in front of a child, or convicted of a DUI with a child in the car.
No counties in New York currently participate Secure Communities, but Paterson's office says "more than 200 [law enforcement] agencies are ready for activation." Rockland and Putnam counties are slated to opt-in on January 11, 2011.
Fei told Deportation Nation that she spoke with an official from the New York Division of Criminal Justice Services who said the only reason the state signed the MOA in May is because ICE assured it that local jurisdictions would only have to participate if they opted-in. He did not seem to be concerned that ICE has since said the program is not optional.
There is still no written provision in the MOA for how local jurisdictions can decline participation.
Fei says she is encouraged by Governor-Elect Andrew Cuomo's past comments that New York should stay out of the deportation business, and hopes he will rescind or further modify the Secure Communities agreement.
"We would like to make sure the entire state is free from Secure Communities because I think it will be very difficult to do on a county by county basis," said Fei.
This story is by Deportation Nation co-producers Stokely Baksh and Renée Feltz. Watch DeportationNation.org for ongoing coverage of Secure Communities.