THE MODERN AMERICAN20INSECURE COMMUNITIES: HOW INCREASED LOCALIZATION OF IMMIGRATION ENFORCEMENT UNDER PRESIDENT OBAMA THROUGH THE SECURE COMMUNITIES PROGRAM MAKES US LESS SAFE, AND MAY VIOLATE THE CONSTITUTION By: Rachel Zoghlin1An undocumented immigrant who lives in Maryland was recently stopped by the police while walking to the Hyattsville Metro Station to go to work. Short, dark-skinned and Latino, with long, black hair, the police told him that he resembled someone suspected of mugging an old woman a few blocks away. The police questioned him about his whereabouts (home) and what he was doing that morning (getting ready for work). After approximately forty-five minutes, the police officers received a signal that some the real mugger had been apprehended across town, so the officers allowed the man to continue on his commute to work. What would have happened if he lived in Virginia (where Secure Communities is active state-wide) and not Maryland (where Secure Communities is only active in three counties)? What if the police never got the call that other officers had located the actual culprit? A completely innocent Mexican waiter with no criminal record, who takes English classes, pays his taxes, and supports his family, may have been deported.In the wake of fiery controversy surrounding Arizona’s contentious immigration bill, S.B. 1070, the issue of localization of immigration enforcement sprung to the forefront of national political debate. Yet, S.B. 1070 is certainly not the first instance of localities, unhappy with federal immigration enforcement, taking matters into their own hands. De-centralization of immigration enforcement is a growing trend, and has been the subject of much legal debate. Virginia recently adopted one method of localized immigration enforcement, the Secure Communities program, making it “active” in all Virginia jurisdictions.2Similarly, D.C. Police Chief Cathy Lanier has lobbied for the implementation of Secure Communities in the District of Columbia.3 In the D.C., Maryland and Virginia area, advocates on both sides of the debate have been ramping up their efforts to sway legislators and constituents.4Of the three million sets of fingerprints taken at local jails between the onset of the Secure Communities program in October 2008 and June of this year, nearly 47,000 fingerprints belonged to undocumented immigrants, against whom deportation proceedings were initiated.5 Nearly half of the individuals removed from the United States through Secure Communities have never been convicted of a crime.6This article will introduce the Secure Communities program within the context of the increased localization of immigration enforcement. It will also discuss some inherent problems with the program. Part I will explain how the program works and address arguments made for and against the program. Part II will discuss the rights maintained by immigrants, and the rights they are denied by virtue of their non-citizen status. Part III will examine the constitutionality of Secure Communities through an Equal Protection lens. Finally, Part IV will address the future of the Secure Communities program and the future of localized immigration enforcement, by discussing the potential impact of pending litigation, legislation, and advocacy within the immigration law field. Part VI will also propose an alternative to the localized immigration enforcement movement, and will advise interested individuals on ways to advocate against the implementation of the Secure Communities program in our local community.I. The Move Towards Localized Immigration EnforcementIn 1976, the Supreme Court held in De Canas v. Bica that although the “[p]ower to regulate immigration is unquestionably exclusively a federal power . . . [not every state law] which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power.”7 Still, the Supremacy Clause, in Article VI, clause 2 of the Constitution, has been frequently invoked to give the Federal Government exclusive jurisdiction over matters as international in nature as immigration. The Supreme Court has repeatedly held that state attempts to enact legislation governing immigrants and immigration are unlawful because they are preempted by Federal law. 8 Reaffirming the Federal Government’s power over immigration, the Supreme Court remarked that “[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid.”9 More recently, the Federal Government again argued that a state unlawfully preempted Federal power by designing and implementing its own laws dealing with immigration within the state. For primarily that reason, Arizona’s controversial anti-immigration legislation, S.B. 1070, has been enjoined.10Recent studies show that nearly eleven million immigrants may be living in the United States without documentation.11 Immigrations and Customs Enforcement (ICE), a division of the Department of Homeland Security, 74428_text_cxs.indd 20 12/29/10 10:01 AMSPRING 201121faced with an overwhelming task and caseload, has sought alternative means to achieve their objective of “enforce[ing] federal laws governing border control, customs, trade and immigration.”12 Over the past decade, increasing numbers of state and local law enforcement agencies have begun to collaborate with the federal government to enforce federal immigration law.Congress amended the Immigration and Nationality Act (INA) of 1952 through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 199613 to facilitate more rigorous enforcement of immigration laws. In particular, section 287(g) of IIRIRA authorizes the federal government to enter into Memorandums of Agreement (MOAs) with state and local law enforcement agencies, so that local police can help enforce Federal immigration law. In response to the positive reception of 287(g) by state and local law enforcement agencies, ICE created the Office of State and Local Coordination (OSLC) in 2007. OSLC builds and maintains a handful of programs, collectively known as “ACCESS” (Agreements of Cooperation in Communities to Enhance Safety and Security), which equip local law