TABLE OF CONTENTS
I. SECURE COMMUNITIES
A. Purported Purpose
B. The Procedure
C. Reality and Controversy
II. THE U VISA
A. Dual Purpose
B. Elements the Victim Must Show
C. The Problem of Law Enforcement Certifications
III. SECURE COMMUNITIES UNDERMINES THE U VISA
A. Secure Communities Creates a Chilling Effect
B. Secure Communities Harms Victims
C. Opt-Out Controversy
IV. SECURE COMMUNITIES MUST BE REFORMED
A. Effective Coexistence Requires That Congress
Modify Secure Communities
The Department of Homeland Security (DHS) claims it is making the community safer by targeting and removing dangerous criminal immigrants. (1) But Isaura Garcia, an immigrant living in Los Angeles, was neither dangerous nor a criminal. In fact, all she did was call 911 in February 2011 out of desperation to report domestic abuse by her boyfriend. (2) As is typically the case in domestic disputes, the police arrested both parties and fingerprinted Isaura according to procedure. (3) Because of the Secure Communities program, immigration officials obtained these fingerprints and flagged Isaura, who was undocumented, for removal. (4) Now the question for Isaura's friends and neighbors--many of whom are likely in a similar situation--is whether it is better to endure violent abuse or call for help and face deportation.
Illegal immigration is one of the most prominent issues plaguing the political and legal spheres. DHS estimates that as of January 2011, approximately 11.5 million undocumented immigrants resided in the United States. (5) Just under 60 percent arrived before January 1, 2000, and 29 percent arrived between 2000 and 2004. (6) Although government officials nationwide are quick to make their opinions known, and to create and institute programs intended to deal with illegal immigration, the wisdom of these programs is unclear.
Secure Communities is one such program. In 2008, DHS created Secure Communities as a tool to focus the limited resources of U.S. Immigration and Customs Enforcement (ICE) on identifying and removing the most dangerous undocumented immigrants. (7) Although the program appears to be a legitimate use of limited resources, its actual implementation has expanded far beyond the program's purported purpose. More importantly, the program has had the indirect effect of undermining the U Nonimmigrant Visa (U Visa) by discouraging immigrant interactions with law enforcement. One of the primary purposes of the U Visa statute is to assist local law enforcement in investigating crimes by encouraging the cooperation of victims. Secure Communities has blurred the line between local law enforcement--whose purpose is to protect the community--and ICE. The ultimate consequence of this blurred distinction is that many undocumented immigrant victims, who had been encouraged by the passage of the U Visa to report crimes and cooperate with investigations, have a renewed fear of interacting with the police. Although Secure Communities has made ICE's job easier, it has made the jobs of local law enforcement agencies, particularly in areas with large immigrant communities, significantly more difficult.
Secure Communities cannot continue in its current form. DHS created the program in a manner that extends its reach well beyond its alleged purpose and severely disadvantages local law enforcement. As implemented, this program undermines the U Visa statute and requires modification. If the goal of Secure Communities is truly to identify and remove serious criminals, then DHS should reform the program to accomplish that specific goal. As it appears DHS has no intention of doing so, this Note takes the position that Congress should act, if for no other reason than to prevent ICE from undermining Congress's own legislation.
Part I will detail the Secure Communities program and discuss the divergence between the program's actual implementation and its purported purpose. …