PEP-Comm: A Wolf in Sheep's Clothing?

PEP-Comm: A Wolf in Sheep's Clothing?

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Editor’s Note: Obama announced last week that he is ending Secure Communities, the controversial program of cooperation between ICE and state and local police that claimed to focus on serious criminals but actually ended up deporting many people who had no criminal record. But the program the Obama administration wants to replace it with sounds suspiciously similar. In fact, many of the flaws that made Secure Communities so problematic are deeply embedded in the new program, writes California Immigrant Policy Center (CIPC) Executive Director Reshma Shamasunder.

When the fight against the now-discredited "Secure" Communities or S-Comm deportations began, perhaps no word characterized the dismissive response from Washington, DC, better than:

"Impossible!"

According to the conventional wisdom inside the Beltway, it was "impossible" to challenge a program designed to deport immigrants who had come into contact with law enforcement.

Fast-forward almost five years, and the courage of undocumented leaders has now turned that conventional wisdom on its head.

Last week, as part of the Obama administration's executive actions on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson acknowledged in a memo that the program's "very name has become a symbol for general hostility toward" deportation policy, and that "governors, mayors, and state and local law enforcement officials across the country" had signed laws or orders to prohibit collaboration with the program.

This is the fruit of the bravery of immigrants facing deportation who stood up and spoke out: domestic violence survivors like Norma and Isaura, tamale vendors like Juana Reyes, and youth leaders like Dean whose determination not to be defined by one mistake in the past brought even hardened skeptics to tears. (You can watch Dean's testimony here at 1:42.41.)

These leaders illustrated up close and personal the harm the program caused to already sensitive relationships with local law enforcement, the waste of resources it entailed, and the families it threatened to split up. Their work made possible milestones like California's TRUST Act, local policies which expanded TRUST's protections, and now, DHS's announcement that it will end S-Comm and replace it with a new program.

But what is the impact on the ground? Does the new "Prioritized Enforcement Program" (PEP) mark any true shift, or is it just more of the same?

The fact is, while there are interesting differences on paper, most of its predecessor's fundamental flaws are embedded deeply in PEP's DNA. So much so, that some activists have already dubbed the new deportation program "PEP-Comm."

Just like S-Comm, "PEP-Comm" risks hurting community policing, civil rights, and family unity. We urge local elected officials and law enforcement to approach this program with extreme caution.

Especially in places that have passed TRUST Acts and Due Process ordinances, a measure of community trust has started to take root - but new entanglement with the nation's deportation policies could trample that.

To understand our analysis, it's useful to look at how the previous program, S-Comm, worked. It grabbed the fingerprints of every person arrested by police or sheriffs for any reason, without a shred of due process, and ran them against immigration databases. Then, whenever Immigration and Customs Enforcement (ICE) had even the slightest suspicion to believe they could deport someone, they would send a "hold" request to the local jail, asking the person be held for extra time, at local expense, just so that ICE could pick the person up for deportation. That alone led to hundreds of thousands of deportations over the last several years, with immigration holds (now deemed unconstitutional after several lawsuits) having an even broader reach.

PEP-Comm keeps the first step of this process exactly the same. ICE will still immediately get fingerprints of every human being arrested in the U.S., without a shred of due process.

However, according to what's on paper, what happens next should be different.

But we're profoundly skeptical because over the last several years, ICE issued a stream of memos claiming to "improve" S-Comm and strengthen its "priorities" - which agents in the field utterly ignored. That led to absurd results like the near-deportation of Bakersfield mom Ruth Montaño over her barking dogs, less than two weeks after a new memo.

But under PEP-Comm, instead of unconstitutional holds, ICE will now mostly ask local police and sheriffs to notify them when people who meet a (somewhat more limited, at least on paper) list of priorities are about to be released.

This still means that community members sentenced to as little as three months of jail time will be priorities for deportation. And if our local law enforcement agents call ICE, the feds are still essentially forcing them to act as immigration agents. That puts community confidence in law enforcement at risk.

Moreover, people who've been unjustly deported before and come back to be with their families after January 1 of this year, are still at risk of being detained for extra time and deported. And people who've just arrived in the U.S. (often fleeing unspeakable violence) are also vulnerable to deportation.

What to do? First of all, we have to keep fighting. We need to embrace the full humanity of people with convictions, and embrace our values of redemption and second-chances, rather than fall into hurtful dichotomies of "felons, not families." And we also need to keep pushing so that the President's relief covers more people, including those fleeing violence and LGBTQ community members who were disproportionately excluded and now are at increased risk of deportation from programs like PEP-Comm.

Some might say that sounds "impossible." But we've heard that before.

The fight for justice and inclusion continues.