New York Can't Opt Out of Fingerprint Sharing With Feds, Officials Say

Fingerprints taken at the local level will continue to be shared with the Department of Homeland Security as part of a controversial federal immigration program despite Governor Andrew Cuomo's calls to end the practice, according to federal agencies.

Cuomo withdrew New York from the so-called Secure Communities program on June 1 after "mounting evidence" that it failed its stated goal of deporting serious felons, he said in a statement. By then 31 counties had become a part of the program.

But Gillian Christensen, a spokeswoman for ICE, an investigative arm of DHS, said that counties that activated Secure Communities remain a part of it, even if a state, like New York, suspends the program.

"Secure Communities is fundamentally an information sharing partnership between federal agencies," she said, referring to the FBI and DHS, and therefore "state and local jurisdictions cannot opt out from the program."

"The United States government has determined that a jurisdiction cannot choose to have the fingerprints it submits to the federal government processed only for criminal history checks," Christensen added.

That means the fingerprints, after local law enforcement agencies submit them to the FBI, will also be shared with DHS and checked against immigration database.

Assistant director of the FBI, Dan Roberts, told WNYC that the agency will be "continuing on with the previous mode of sharing" fingerprints until told otherwise. Ultimately, he said, whether the program changes is not up to his agency.

"There are discussions at the highest levels of the U.S. government about that right now, including the Secretary of DHS and the Attorney General of the United States, the Department of Justice," Roberts said. "In both of those policy discussions, no matter which way it goes on this, will be decided at that level and certainly not at my level and certainly not even at the FBI itself."

Arrest as a trigger for deportation

Forty-five undocumented immigrants have been removed from the state since 31 counties in New York began participating in the program in January, according to the Immigration and Customs Enforcement. Of those removed, 80 percent had not been convicted of a crime, according to ICE's data.

Nationwide, from October 2008 to April 2011, 29 percent of those deported were non-criminals, and 30 percent committed low-level offenses.

"Secure Communities, I think, is really dangerous because it just continues to amplify this dragnet that ICE is really selling," said Michelle Fei, co-director of the Immigrant Defense Project. "It makes every arrest the trigger site for deportation."

Crotocs like Feiargue a large number of people who are not serious felons, such as Isaura Garcia, get caught up in the program. Garcia, 20, was arrested in Los Angeles on domestic violence charges after a fight with her boyfriend in February. A few days later she said she was placed in deportation proceedings.

"When they told me they were going to arrest me, I fainted," Garcia said in a recent phone interview.

Her lawyer, Jennie Pasquarella, said cases like Garcia's are not uncommon and include people with traffic violations and street vendors without proper licenses.

"We have seen a lot of people in L.A., similar to nationwide, fall into this same category that Isaura falls into," said Pasquarella. "People who have no criminal record, who are arrested by mistake, or arrested for some reason and then charges were dropped."

In response to complaints, ICE director John Morton announced this month that changes to the program would be made, such as ensuring the program is focused on dangerous criminals and that victims and witnesses of crimes are not put into deportation proceedings.

The DHS will also perform formal review of Secure Communities in August to determine the extent to which ICE has used the program to identify and remove dangerous illegal immigrants.

State v. federal power

Congresswoman Zoe Lofgren, top Democrat on the House immigration subcommittee, said she thinks push-back from states like New York sends a clear message to the federal government that it needs to revise the program.

"I would urge the Obama administration to show some common sense here," Lofgren said. "To have this kind of confrontation [between states and the federal government] serves no one's interests."

Opposing positions could lead to disputes between the federal government and states. Lucas Guttentag, professor at Yale Law School, and several other experts said in interviews they believed states would find stronger backing in the Constitution.  

"The federal government cannot compel the states against their will and over their objection to engage in immigration enforcement," said Guttentag.