A tweak to the Immigration and Customs Enforcement (ICE) Secure Communities program, also known as S-Comm, would allow the agency to withhold placing undocumented immigrants stopped by local law enforcement for traffic violations into deportation proceedings until "conviction for the minor criminal traffic offense."
But the change, introduced following a task force report that recommended changes to S-Comm, still means that undocumented immigrants are at risk for being deported for missing a traffic light or speeding. So what has really changed in the policy? Disappointingly little, say advocates.
"The ICE announcement was a real disappointment," said Fred Tsao, policy director with the Illinois Coalition for Immigration and Refugee Rights (ICIRR). "This is a program is in dire need of being fixed and what we ended up getting was a very, very minor change that may affect some cases but falls far short of the real reforms that the program needs."
ICIRR was part of the current task force that put together the report with recommended changes to S-Comm.
Currently, anyone stopped by local police for a traffic violation has their fingerprints sent to the Department of Homeland Security (DHS), where they are scanned by ICE who then puts orders in for their deportation. This happens regardless of whether they are eventually charged for the crime. In one Illinois county jail alone, McHenry County Jail, 74 percent of inmates with immigration detainers were stopped for minor traffic violations.
The task force recommended that the agency: "withhold ICE enforcement action based solely on minor traffic offenses, and consider alterations, including conditional detainers, for other minor offenses."
In response, the agency wrote: "ICE agrees enforcement action based solely on a charge for a minor traffic offense is generally not an efficient use of government resources. For individuals arrested solely for minor traffic offenses, who have not previously been convicted of other crimes and do not fall within any other ICE priority category, ICE will only consider making a detainer operative upon conviction for the minor criminal traffic offense. "
Under the change, said Tsao, "what they're doing is if someone gets picked up on a traffic offense, they'll let them go to traffic court first and if in fact they did make a wrong turn or speed a little, or miss a stop sign, then and only then will they get turned over," to immigration authorities.
Other advocates agree:
"All [ICE has] done is affirmed: We're not taking a comprehensive approach to fixing S-Comm," Kate Desormeau, a staff attorney with the ACLU's Immigrant Rights Project, told Colorlines.com. "It really strikes me as a non-announcement."
Prosecutorial discretion, or the decision not to spend resources deporting immigrants who have no criminal record, is already part of ICE's immigration policy. Most recently, DHS rolled out the latest part of its pilot program of case-by-case reviews that it is conducting around the country to lessen the load on immigration courts.
The agency has also said it is conducting a wide-scale national review of people in deportation proceedings and would not deport undocumented youth, but critics remain skeptical as deportations hit 1 million people under President Obama.
Jorge Mena, an undocumented activist with the Immigrant Youth Justice League who was arrested in a civil disobedience against S-Comm last spring, said that the ICE response to his arrest was indicative of what prosecutorial discretion really looks like.
Along with five other undocumented youth, Mena stopped traffic on a major street in downtown Chicago.
"At no point during the whole time did ICE get involved," said Mena. "We kind of realized that when there is a lot of media attention, when there is a lot of community behind you, ICE is going to stay away."
Mena, who was declared not guilty in March with five others arrested in the civil disobedience, said that he sees the tweak to S-Comm as something only done for show.
"They have said this before, that criminals are the top priority," said Mena, "to appease people, but in reality people are still being deported for minor offenses."
Other recommendations made in the task force report that ICE was agreeable to include proposals for the agency to clarify the goals, objectives and parameters of the S-Comm program, improve the transparency of the program, ensure it prioritizes the deportation of serious criminals and avoids deporting those with misdemeanors or minor offenses. ICE agreed with most of these directives.
But on the recommendation that "ICE should consider establishing, as a pilot initiative in a selected jurisdiction, an independent, multi-disciplinary panel to review specific cases," the agency's response was, "ICE does not agree with this recommendation."
"Secure Communities is a simple and common sense way to carry out ICE's priorities," the agency concluded in response to the recommendations of the task force.
This conclusion, said Tsao, shows that "it's kind of unfortunate that the Department of Homeland Security and ICE have been deaf to some of the concerns of the community... despite protests and three governors trying to pull out of the program."
"They seem determined to actually put this thing into place across the board," said Tsao.