NDLON

Court Orders FBI, DHS and ICE to Lift “Veil of Secrecy” and Comply With Freedom of Information Act

July 13, 2012, New York – Today, in an important victory for open government, Judge Shira A. Scheindlin, of the Southern District of New York, ruled that the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have failed to adequately search for and disclose information pursuant to the Freedom of Information Act (FOIA). The ruling comes in NDLON v. ICE, a FOIA lawsuit brought by the National Day Laborer Organizing Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law, with representation by Mayer Brown LLP.  The suit seeks government records relating to the controversial Secure Communities (SCOMM) program.

Said Center for Constitutional Rights attorney Ghita Schwarz, “Today’s decision rightly holds the government to standards of transparency and accountability, an important step in stopping the harm this program is causing in our communities. Despite claims that SCOMM targets serious criminals, the fact is that SCOMM has done nothing but break families apart and undermine public safety by intimidating victims and witnesses of real crimes from reporting them.”

In a strongly worded opinion, Judge Scheindlin sided largely with plaintiffs, stating that “[t]ransparency is indeed expensive, but it pales in comparison to the cost of a democracy of operating behind a veil of secrecy.” Judge Scheindlin flatly rejected the defendant agencies’ claim that they should be “trusted to run effective searches” for records responsive to plaintiffs’ FOIA request “without providing a detailed description of those searches.”  Particularly harsh in its conclusions about the FBI’s failure to search for documents, Judge Scheindlin characterized as “absurd” their position that ordering an office to conduct a search and receiving no response satisfied government obligations under FOIA.  Pointing out that FOIA requires the government to “use twenty-first century technologies to effectuate congressional intent,” the decision broke new ground by ordering the government to “work cooperatively” with plaintiffs to “design and execute” new searches.

Said co-counsel Anthony Diana from Mayer Brown LLP, “Particularly important is the court’s recognition that the government should work with the FOIA requester to help alleviate some burdens associated with the search of a large volume of electronic data. In an era when government policies are crafted and implemented almost entirely through electronic documents, we hope that applying lessons learned in the civil e-discovery context in FOIA cases will promote transparency and accountability in government across the board.”

Said Jessica Karp of NDLON, “It is fitting that today’s decision comes at the end of a national week of action to ‘Restore Trust’ broken by the Secure Communities deportation program. Transparency and accountability are essential if we are to repair the damage done by this program that is spreading Arizona-style policies around the country. We are especially hopeful that the new searches will bring much-needed transparency to the role of the FBI in forcing this dangerous program on unwilling states and localities.”

Said Sonia Lin of the Immigration Justice Clinic of the Cardozo School of Law, “Today’s decision underscores the importance of transparency about controversial government policies such as SComm.  The court rightly observed that this FOIA litigation has ‘influenced much of the public debate over Secure Communities’ and that through this litigation, FOIA has ‘therefore served its purpose of engendering a more informed public and a more accountable government.’ Indeed, this week, Chicago announced a proposal to reject SCOMM and former Manhattan District Attorney Robert Morgenthau publicly called for state and local ability to opt out of the program, which he described as ‘the worst kind of public policy.’”

SCOMM is an ICE deportation program that checks the immigration status of anyone arrested by local and state police, regardless of the charges and whether those charges are later dismissed.   

For more information on NDLON v. ICE or for a copy of the Judge's ruling, visit www.ccrjustice.org/secure-communities. For more information on Secure Communities visit http://uncoverthetruth.org/

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change. Visit www.ccrjustice.org and follow @theCCR.

The mission of the National Day Laborer Organization Network is to improve the lives of day laborers in the U.S. by unifying and strengthening its member organizations to be more strategic and effective in their efforts to develop leadership, mobilize day laborers in order to protect and expand their civil, labor and human rights. Visit www.ndlon.org

The Kathryn O. Greenberg Immigration Justice Clinic of the Benjamin N. Cardozo School of Law was founded in 2008 to provide quality pro bono legal representation to indigent immigrants facing deportation. Under the supervision of experienced practitioners, law students in the Clinic represent individuals facing deportation and community-based organizations in public advocacy, media and litigation projects. Visit www.cardozo.yu.edu/immigrationjustice

OIG Report on Secure Communities Deportation Program Heightens Controversy over Failed Program. Advocates Decry report as “window dressing,” and renew calls: “End SCOMM. Don’t Mend it.”

04.06.2012. Washington, DC.

 Today, the Department of Homeland Security (DHS) Inspector General issued two reports on the much-maligned “Secure Communities” deportation program. The reports, which come after two years of mounting opposition to Secure Communities from state and local officials, congressional representatives, advocates, and faith groups, were quickly dismissed by advocates as inadequate to address the program’s failings.

Instead, the groups conclude that the reports are proof that ICE cannot reform itself and that there is no suitable solution for the program other than its termination.

“In an attempt to justify the program, the reports inadvertently admit that ICE has mutated S-Comm into an overreaching dragnet. Secure Communities was sold as a public safety program but has since proven the opposite. The OIG reports confirm that when it became clear that over 50% of deportations fell outside the program’s original scope, ICE changed its categories and is now trumping minor offenses as its new priority,” explains Sarahí Uribe of the National Day Laborer Organizing Network. “These reports only strengthen calls for the program's complete termination.  DHS refuses to take responsibility for the program’s failues. DHS cannot continue to stick it's head in the sand while spreading the program’s dangerous consequences."  

Sunita Patel of the Center for Constitutional Rights says “The Inspector General reports are wholly insufficient. The reports ignore the enormous body of evidence that Secure Communities is a failure. Instead, the IG offers window dressing for a program that can’t be dressed up. The only suitable solution is to terminate Secure Communities and shift priorities to repair the harm it has caused.”

Sonia Lin of the Cardozo Immigration Justice Clinic adds, “The fact that DHS expects the public to accept this report as reform is an outrage. It does little to address the real-life impact of Secure Communities on immigrant communities. Not only does Secure Communities undermine community policing efforts in jurisdictions seeking to work with immigrant communities, it also facilitates racial profiling in jurisdictions such as Maricopa County to violate the rights of non-citizens and drive immigrants out.  After so much pain has been caused by Secure Communities, its victims deserve to see the program terminated.”

More than two years ago, CCR, NDLON, and the Cardozo Immigration Justice Clinic began still-on-going FOIA litigation to uncover the truth about the rapidly expanding deportation program.

Since that time, the program has been mired in controversy for deliberately misleading the public and for devastating trust in law enforcement due to its wide-reach that has been known to ensnare even victims of crimes. The program’s implementation created such a chilling effect on law enforcement relations that parents in the sexual abuse tragedy at Miramonte school in Los Angeles cited the Sheriff’s participation in Secure Communities as a primary reason they did not seek law enforcement help to protect their children.   

Last August, in an attempt to quell the growing criticism of the program, including the governors of Illinois, New York and Massachusetts who attempted to opt-out of Secure Communities, DHS established a taskforce whose members eventually resigned in response of recommendations similar to the IG report they found to be completely insufficient. 

Evidence chronicled in two national reports; Restoring Community published by a national coalition and Secure Communities by the Numbers published by the Warren Institute have led to the Congressional Hispanic Caucus calling for a moratorium program and a broader chorus calling for its termination.

Background:

“Restoring Trust” A National Report on Secure Communities

Secure Communities By the Numbers – Warren Institute Report

The DHS Inspector General Report can be found here

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DHS Inspector General Report: Operations of Secure Communities

DHS Inspector General Report: Operations of Secure Communities

DHS Inspector General: Communications Regarding Secure Communities

DHS Inspector General: Communications Regarding Secure Communities