Hands Off Our Fingerprints: State, Local, andIndividual Defiance of Federal ImmigrationEnforcement

Secure Communities, though little-known outside law-enforcement circles, is one of the most powerful of the federal government’s immigration enforcement programs. Under Secure Communities, fingerprints collected by state and local law enforcement and provided to the Federal Bureau of Investigation for criminal background checks are automatically shared with the Department of Homeland Security, which checks the fingerprints against its immigration database. In the event of a match, an immigration detainer can be issued and an individual held after they would otherwise be entitled to release. Originally designed as a voluntary program in which local governments could choose to participate, the Department of Homeland Security now mandates local participation in Secure Communities. Though admittedly an efficient mechanism to check immigration status, the program and its local implementation create a variety of tensions. Many local police are concerned that community trust, often essential to effective policing, is eroded when the police operate as an arm of immigration enforcement. In some jurisdictions, the program may encourage racial profiling and, in others, jail budgets are stretched as localities absorb the costs of housing those with immigration holds. And, as pointed out by many localities, despite being touted as a program that prioritizes the removal of those who pose a danger to national security or public safety, data shows that approximately two-thirds of the detainers issued targeted individuals with either no record of conviction or conviction for minor offenses. In this Article, I examine Secure Communities from the perspective of state and local governments and individuals seeking to defy mandatory program participation. I explore this local defiance from the stage at which immigration enforcement is set in motion, the sharing of fingerprints information by localities with the federal government. I first analyze the implications for state and local governments by balancing preemption and anti-commandeering concepts in the context of state and local defiance of the federally mandated program. I then analyze the implications for individuals by exploring the tensions between privacy and efficiencies inherent in government information sharing, and address whether the Federal Privacy Act protects individuals from improper fingerprint disclosure. I resolve that a number of legally viable options exist to enable state and local government defiance, as well as individual defiance, but that each option has limitations. I conclude that the Secure Communities mandate overlooks constitutional, statutory, and practical considerations and that the sharing requirement should be voluntary rather than compulsory