PEP vs. Secure Communities

Last November, Secretary of Homeland Security Jeh Johnson announced the end of the Secure Communities program. Beloved by the Obama Administration, Secure Communities (often described simply as S-Comm) came under heavy criticism by advocates, state and local lawmakers, and police officials. Whatever victory advocates could celebrate was short lived. In the same memo in which Johnson announced S-Comm’s demise, he added that DHS would replace it with a new initiative called the Priority Enforcement Program (PEP).

Since then advocates and scholars have been trying to figure out how PEP differs from Secure Communities. A set of documents I recently reviewed suggests that PEP is simply a nicer version of Secure Communities.

Both programs are built on the same premise: that civil immigration enforcement ought to tap the investigative and adjudicative resources of state and local criminal police and courts. To make this happen, PEP, like Secure Communities before it, takes fingerprint data obtained by state and local police officers that they send to the FBI for a criminal background check. Pursuant to PEP, the federal government then sifts those fingerprints through DHS immigration records to try to identify potentially removable individuals.

Here the two programs part way meaningfully. Under PEP, DHS documents state, ICE officials won’t ask a local law enforcement agency to continue holding a migrant in detention (via an immigration detainer) unless the migrant has been convicted or is a national security threat. The new immigration detainer form sample that DHS released, form I-247D “Immigration Detainer—Request for Voluntary Action,” requires ICE to specify which conviction- or national security-based enforcement priority the named individual falls into.

In contrast, Secure Communities didn’t limit itself to convicted individuals. People suspected of violating civil immigration law alone frequently ended up in the immigration detention and deportation pipeline. Furthermore, PEP builds off a slightly narrower pool of individuals who fall within DHS’s current immigration enforcement priorities, also announced last November by Secretary Johnson. Moreover, the detainer form asks that state or local officials hold onto the named individual for no more than 48 hours. Unlike in the past, no exception is made for holidays and weekends.

Though PEP doesn’t authorize ICE officers to issue an immigration detainer prior to conviction, that doesn’t mean ICE is sitting idly. Instead, the agency will issue a “Request for Voluntary Notification of Release of Suspected Priority Alien” on form I-247N, a new addition to ICE’s repertoire of forms. This form requires ICE to state the basis for suspecting that a particular individual falls within ICE’s immigration enforcement priorities. Importantly, it only references the priorities related to criminal convictions or national security risks. It doesn’t reference any of the enforcement priorities based on civil immigration violations only (e.g., recent border crossers). Presumably PEP prohibits issuing a request for notification on those bases.

This is progress that advocates ought to commend themselves for having forced onto DHS. Still, there is room for concern. In particular, the new detainer form requires ICE to state why it believes there is probable cause to believe the named individual is removable. There are two potential problems with this.

First, these are merely conclusory claims made by investigative officials. Because a neutral judge isn’t involved in the decision to issue an immigration detainer, there is no independent verification that the facts in ICE’s possession actually support the conclusion that an ICE officer checks on the form. It’s the equivalent of letting police officers investigate possible crime, have them type of an arrest warrant application, and then let them approve it too. The risks of such an approach are obvious—from the risk of ICE officers blatantly lying to mere negligence and everything in between. For good reason, the nation’s founders imposed a magistrate between police officers and the public when they added the Fourth Amendment to the U.S. Constitution. It would be nice if immigration law caught up, even if it is almost 225 years later.

Second, it remains unclear what exactly “probable cause” means in this context. Does it entail the same threshold evidentiary requirement we see in the traditional criminal policing context governed by the Fourth Amendment? Perhaps, but some disagreement exists among the courts. As I explain in my forthcoming book Crimmigration Law:

Despite this reference to the traditional level of suspicion required under the Fourth Amendment, it is unclear whether probable cause means the same thing in the administrative immigration arrest context as it does in the traditional criminal law enforcement context. At least one court—the District of Columbia Circuit—explicitly requires a lower threshold. According to that court in Blackie’s House of Beef, Inc. v. Castillo, searches conducted by immigration officials of commercial premises must be supported by “sufficient specificity and reliability to prevent the exercise of unbridled discretion by law enforcement officials” but do not require individualized suspicion as is traditionally required by the Fourth Amendment. Other courts disagree. One federal district court referred to Blackie’s as “a radical departure from established fourth amendment doctrine.” Another has read the D.C. Circuit’s interpretation to apply, at most, only to searches but not seizures.

If courts were to follow the D.C. Circuit’s approach, they would continue an unfortunate trend of watering down constitutional norms when it comes to immigration policing.

Overall, these documents suggest that, through PEP, ICE has taken a number of important steps toward a less punitive immigration law enforcement approach. This shouldn’t be overlooked. Neither should the work of advocates who tirelessly pushed ICE to do this. It wouldn’t have happened without them.

Nonetheless, PEP isn’t a panacea for the severity of modern immigration law enforcement. Many migrants will still be sanctioned twice—once by the criminal justice system and a second time by the immigration law regime. Hundreds of thousands will continue to find themselves sucked into the immigration detention and removal pipeline annually.

Lastly, let’s not forget that PEP represents a step toward rationality in large part because DHS’s earlier immigration enforcement practices, including under President Obama, have been so grossly irrational. This is a step in the right direction, but ICE is so far off course that it’s still wandering in the wild.

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