October 25, 2011, New York: "Last night, Judge Shira
Scheindlin ordered the Immigration and Customs Enforcement (ICE) agency
to publicly disclose by November 1 a previously withheld internal
memorandum that advocates believe will shed light on the agency’s legal
justification for turning Secure Communities into a mandatory
immigration enforcement program.
The decision follows motions for summary judgment filed by all parties in
NDLON v. ICE about
the memorandum. The government claimed the memorandum was exempt from
disclosure under the attorney-client and deliberative process
privileges. Plaintiffs the National Day Laborers Organizing Network,
Center for Constitutional Rights, and Cardozo School of Law Kathryn O.
Greenberg Immigration Justice Clinic argued the memo was improperly kept
secret from the public in the midst of important policy decisions
related to Secure Communities. Indeed, this summer, opposition to Secure
Communities reached new levels with the Governors of Illinois,
Massachusetts, and New York formally rejecting the program. In response,
ICE announced that all of its Memorandum of Agreements with States were
dissolved and that the program would be imposed unilaterally. Despite
serious questions from States, local jurisdictions, and advocates about
ICE’s legal authority to make the program mandatory, the agency
continued to withhold information about its legal reasoning and sought
to keep the legal authority memorandum secret.
The court ruled in favor of plaintiffs and determined the
memorandum had been drafted to justify an already existing policy to
make Secure Communities mandatory; that the government failed to prove
it had kept the memo confidential; and that the agency had adopted the
memorandum’s conclusions and analysis as its internal working law.
The National Day Laborer Organizing Network, Center for
Constitutional Rights and Cardozo Immigrant Justice Clinic released the
following statement in response to the court’s decision:
Our organizations, along with a chorus of advocates and elected
officials across the country, have been seeking to uncover the truth
behind ICE’s decision to compel states and localities to participate in
its dangerous Secure Communities program. The memorandum ordered
disclosed is the only document to date that comprehensively describes
the legal authority claimed by ICE in support of its position mandating
state and local participation in the controversial program – a
deportation dragnet that has raised concerns about racial profiling, due
process, the ensnarement of U.S. citizens, community policing, privacy,
and other issues.
The judge’s order shines a light on a program that has been plagued
with secrecy and lies from its start. We agree with the court’s
conclusion that, “an agency’s view ‘that it may adopt a legal position
while shielding from public view the analysis that yielded that position
is offensive to FOIA.’” We believe it’s also offensive to our
democracy.
With this decision, the court has rejected efforts by ICE to
“radically expand the government’s ability to resist FOIA requests” and
has affirmed that FOIA exists “to promote honest and open government and
to assure the existence of an informed citizenry in order to hold the
governors accountable to the governed.” We urge the Obama administration
to hold federal agencies accountable for their deception and
mismanagement, to recognize the complete failure of the Secure
Communities program, and to terminate it immediately. It’s time to
restore trust and communities."
CCR, Oct. 25, 2011.
The Center for Constitutional Rights is
dedicated to advancing and protecting the rights guaranteed by the
United States Constitution and the Universal Declaration of Human
Rights. Founded in 1966 by attorneys who represented civil rights
movements in the South, CCR is a non-profit legal and educational
organization committed to the creative use of law as a positive force
for social change.