Memorandum of Agreement between ICE and MD on "Secure Communities"

MEMORANDUM OF AGREEMENT

BETWEEN

U.S. DEPARTMENT OF HOMELAND SECURITY
IMMIGRATION AND CUSTOMS ENFORCEMENT
And


MARYLAND DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES


I. PURPOSE
The purpose ofthis Memorandum of Agreement (MOA) is to set forth the responsibilities
of the Department of Romeland Security (DRS) Immigration and Customs Enforcement
(ICE) and the State Identification Bureau (SIB) regarding implementation of the Secure
Communities (SC) initiative related to biometric interoperability. SC is a comprehensive
ICE initiative that focuses on the identification and removal ofaliens who are convicted
of a serious criminal offense and are subject to removal, including the utilization of
advanced biometric and communications technology to share information among law
enforcement agencies (LEAs) to identify, detain and remove from the United States
aliens who have been convicted ofa serious criminal offense and are subject to removal.

II. AUTHORITY
Immigration and Nationality Act (INA) provisions regarding identification, detention,
arrest and removal of aliens (8 USC §1226(c); 8 USC §1226(d); 8 USC §1226(e); 8 USC
§ 1227(a) (2); and 8 USC § 1228); the INA provision regarding liaison activities with
internal security officers and data exchange (8 USC § 11 05); and FY 2008 DRS
Appropriations Act (Pub. 1. No. 110-161, 121 Stat. 1844,2365 (2007)).

III. THE GOALS OF SECURE COMMUNITIES
ICE is committed to improving community safety by transforming the manner in which
the federal government cooperates with state and local LEAs to identify, detain and
remove aliens convicted ofa serious criminal offense. ICE utilizes advanced technology
to improve information sharing among LEAs and will apply a risk-based methodology to
focus resources.

To accomplish this goal, ICE leverages business and technical agreements between the
DRS United States Visitor and Immigrant Status Indicator Technology (US-VISIT)
Program's Automated Biometric Identification System (IDENT) and the Federal Bureau
ofInvestigation's (FBI) Criminal Justice Information Services (CnS) Division Integrated


Automated Fingerprint Identification System (IAFIS). The combined biometric and
communications technology is known as IDENT/IAFIS Interoperability.

For the purpose of SC, the SIB and the state and local LEAs will continue to operate
pursuant to the FBI cns Division's established policies and agreements. This MOA does
not affect a state's existing relationship with the FBI cns Division. Rather, the MOA
builds on and enhances that relationship. Neither the SIB nor any state or local LEA that
is subject to this MOA will be responsible for determining an individual's immigration
status or whether a particular conviction renders an individual removable pursuant to the
INA.

A. The SC initiative focuses on three objectives:
1.
Identify aliens in federal, state and local custody charged with or
convicted of a serious criminal offense who are subject to removal
and those aliens who have prior convictions for serious criminal
offenses and are subject to removal who are currently at large;
11.
Prioritize enforcement actions to ensure apprehension and removal
ofaliens convicted of serious criminal offenses; and,
111.
Transform criminal alien enforcement processes and systems to
achieve lasting results.
B.
ICE will employ a risk-based approach to identify aliens charged with or
convicted of a serious criminal offense and incarcerated injails and
prisons throughout the United States who are eligible for removal based
on the severity oftheir offenses. The risk basis for determining the threat
to community safety relies on a three-level hierarchy ofaggravated
felonies and other serious offenses. Appendix A contains a description of
the state and federal criminal offenses that comprise Levels 1, 2 and 3.
i.
This approach will build on the ICE Criminal Alien Program
(CAP), which is currently in use in all federal and state prisons.
11.
The SC risk-based approach classifies aliens convicted ofa
criminal offense into three levels, starting with those who present
the greatest threat:
Levell: Individuals who have been convicted of major
drug offenses, national security crimes, and violent crimes
such as murder, manslaughter, rape, robbery and
kidnapping;

Level 2: Individuals who have been convicted of minor
drug and property offenses such as burglary, larceny, fraud
and money laundering; and

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Level 3: Individuals who have been convicted of other
offenses.

Ill.
ICE is committed to identifying aliens convicted of serious
criminal offenses who are subject to removal in all three category
levels, with a priority assigned on the basis of risk to individuals
convicted of Levell offenses. ICE continues to exercise
discretion through its field offices in taking enforcement action
in cases ofaliens convicted of Level 2 and 3 offenses as each
situation demands. At no time shall this MOA be construed to
limit the discretion of ICE in managing detention resources.

C.
To facilitate the goals of SC, ICE is partnering with DHS components,
including U.S. Citizenship and Immigration Services (USCIS), Customs
and Border Protection (CBP) and the US-VISIT Program. ICE federal
interagency partners include the Department of State, Department of
Justice (DOJ), Bureau of Prisons, Executive Office for Immigration
Review, Executive Office ofUnited States Attorneys, U.S. Marshals
Service and FBI cns Division. Appendix B contains acronyms and
abbreviations frequently used in the SC initiative.
IV. STATE IDENTIFICATION BUREAU (SIB) RESPONSIBILITIES
A.
The SIB responsibility under this MOA begins when the LEA submits a
Criminal Answer Required (CAR) request, as appropriate according to
CJIS procedure, to SIB of the state in which the individual is being
booked. SIB will then electronically send the fingerprints to the FBI cns
Division. Receipt of the CAR will initiate a search ofboth IAFIS and USVISIT
IDENT. However, National Fingerprint File (NFF) states send
fingerprints to the FBI cns Division only at the time of the initial arrest.
Second or subsequent criminal bookings in the NFF states result in a
Criminal Print Ident (CPI) file maintenance message to the FBI cns
Division. In the case of a subsequent arrest for a National Fingerprint File
(NFF) state, SIB will forward a CPI file maintenance message instead of a
CAR to FBI cns Division. There is no change in IAFIS processing.
B.
If there is a match in IDENT, cns transmits the search results in ajoint
IDENT Data Response (IDR) and Immigration Alien Response (IAR) to
the SIB. The SIB will in turn relay that response to the local LEA unless
the SIB does not have the technical capability to do so. A "no match IDR"
will be generated when a match is not found in IDENT.
V. ICE RESPONSIBILITIES
ICE will prioritize the processing of aliens convicted of Levell offenses. ICE will
detain and seek to remove Levell offenders after the completion of the

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individual's sentence. For those aliens who have prior Level I convictions that are
discovered during the booking process, ICE will initiate steps to take such
individuals into custody for removal based on their prior Levell conviction(s) as
well as current charges, once the charges have been adjndicated.

A.
Once fingerprint information is received by IAFIS, it will be crosschecked
against the DHS US-VISIT IDENT system.
B.
Upon receipt of an Immigration Alien Query (IAQ) from the FBI cns
Division that there has been a match with the subject's fingerprint in
IDENT, ICE Law Enforcement Support Center (LESC) will conduct an
immigration status determination.
C.
When an alien is identified as having prior Levell convictions and is
subject to removal or is currently charged with a Level I offense and is
subject to removal, ICE will take the alien into custody after completion of
the individual's sentence or when released from local custody and will
institute removal proceedings, as necessary.
D.
ICE will rely on establishing in the field a "24/7" IDENT/IAFIS
Interoperability response capability and may utilize video teleconferencing
(VTC) to streamline the process of identifying and removing aliens
convicted of a serious criminal offense.
VI. PERIOD OF AGREEMENT
This MOA shall be effective upon signing by both parties and will remain in effect until
terminated by either party in accordance with the Section (below): MODIFICATIONS
AND TERMINATION.

VII. DISPUTE RESOLUTION
The parties agree that, should any disagreements arise as a result of this MOA, the first
attempt at resolution shall occur at the program office level with the area(s) of
disagreement reduced to writing and submitted to the appropriate program office point of
contact (POC). If a resolution caunot be reached at this level, the disagreement will be
raised to the agency level in accordance with component procedures.

VIII. MODIFICATIONS AND TERMINATION
This MOA may be modified at any time by mutual written consent of both parties.

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This MOA will remain in effect from the date of signing until it is terminated by either
party. Either party, upon 30 days written notice to the other party, may terminate the
MOA at any time. A termination notice shall be delivered personally or by certified or
registered mail and termination shall take effect 30 days after receipt of such notice.

Either party, upon written or oral notice to the other party, may temporarily suspend
activities under this MOA when resource constraints or competing priorities necessitate.
Notice oftermination or suspension by ICE shall be given to the. SIB POC. Notice of
termination or suspension by the SIB shall be given to the ICE POC. The temporary
suspension of activities will take effect immediately upon receipt ofsuch notice.

Use ofIDENT/IAFIS for the purposes ofracial andlor ethnic profiling or other activity in
violation of the Fourth Amendment ofthe United States Constitution is not permitted and
may result in the suspension ofthe local jurisdiction engaged in the improper activity.
ICE reserves the right to take appropriate remedial action if necessary.

IX. COSTS AND EXPENDITURES
Parties to this MOA are responsible for their own costs associated with carrying out
activities under this MOA. Nothing in this MOA is intended to imply that either Congress
or state or local legislatures will appropriate funding for activities under this MOA.

X. RELEASE OF INFORMATION TO THE MEDIA AND OTHER THIRD
PARTIES
SIB may, at its discretion, communicate the substance ofthis MOA to law enforcement
professional organizations expressing an interest in the law enforcement activities to be
engaged in under this MOA. It is ICE practice to provide a copy ofthis MOA to
requesting media outlets only after both parties have signed the MOA. Local LEAs are
authorized to do the same. However, the release ofstatistical information regarding the
SC initiative will be coordinated with the ICE Public Affairs Office POC identified in
Appendix D.

SIB hereby agrees, to the extent authorized by law, to coordinate with ICE regarding
information to be released to the media regarding actions taken under this MOA. The
POCs for ICE and the SIB for this purpose are identified in Appendix C.

XI. SUMMARY OF ICE AND STATE LAW ENFORCEMENT AGENCY
RESPONSIBILITIES
This MOA does not, nor is it intended to, nor shall be construed to create any rights,
substantive or procedural, enforceable at law by any person in any matter, civil or
criminal.

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By signing this MOA, each party represents it is fully authorized to enter into this MOA
and accepts the terms, responsibilities, obligations and limitations ofthis MOA.





Marc A. Rapp 11/4/2009
Acting Director, Secure Communities
Immigration and Customs Enforcement


Gary D. Maynard 10/27/2009
Secretary, Maryland Department of Public
Safety and Correctional Services





APPENDIX

Public Information Points ofContact

Pursuant to Section X. of this MOA, RELEASE OF INFORMATION TO THE MEDIA
AND OTHER THIRD PARTIES, the signatories will coordinate with the ICE Public
Affairs Office regarding release of any information about Secure Communities and/or
IDENT/IAFIS Interoperability and agree to coordinate appropriate release of subsequent
information to the media regarding actions taken under this MOA. The points of contact
for coordinating such activities are:

For the SIB:

Ms. Carole Shelton
Director
Central Repository
Department ofPublic Safety and Correctional Services
6776 Reisterstown Rd
Baltimore, MD 21215-2346


(410) 585-3633
(410) 653-5690 Fax
cshelton@dpscs.state.md.us
For ICE:

Gillian M. Brigham
500 12th Street, SW
Washington, DC 20024


(202) 732-4217
gmbrigha@fins3.dhs.gov
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FACT SHEET on Currrent Practices and "Secure Communities"

FACT SHEET:
HOW DOES “SECURE COMMUNITIES” FIT IN WITH CURRENT PRACTICE IN MoCo?

Current Practice:

There are four partially overlapping procedures.

1. The MoCo Dept of Corrections and Rehabilitation fingerprints arrested persons (except for minor violations like traffic offenses) and sends the fingerprints to the FBI.

2. Once a week, the Central Processing Unit of the Dept of Corrections and
Rehabilitation sends a list of all persons born outside the United States to ICE.
This is called the CAP (Criminal Alien Program) and participation is voluntary.

3. When police stop persons (traffic stops and other stops), they send the person’s name and date of birth to the FBI (NCIC). The NCIC now has in it civil ICE detainers*, to hold people for deportation. If there is a “hit” for one of these civil detainers, MoCo holds the person for 48 hours for ICE to pick them up. Holding for civil detainers (as opposed to criminal warrants) is voluntary.

4. When the police arrest anyone for a serious crime (one that is on a written list of serious crimes), the police call ICE and tell them. This is a Montgomery County program put in effect by County Executive Leggett.

If “Secure Communities” goes into effect:
In addition to the above, in item 1, the FBI will forward the fingerprints to ICE.

* Civil ICE detainers were put in the NCIC, a criminal information database) by former Atty General Ashcroft. The International Association of Chiefs of Police has asked current Atty General Holder to remove the civil detainers, because they damage the police-community cooperation necessary to fight crime. Chief Manger has testified before congress in favor of removing the civil detainers, comparing this to getting the local police involved in Federal Income Tax Enforcement. He could tell his police today to only honor Criminal detainers, but neither he nor Ike Leggett is willing to take this useful anticrime step

Notes on "Secure Communities" in MoCo

Notes on problems with “Secure Communities” (SC) in Maryland
May 29, 2011
1. ICE officials have said the program is mandatory. But the MD MOA (signed by ICE) explicitly says "Either party, upon 30 days written notice to the other party, may terminate the MOA at any time.". (Doesn't sound very mandatory to me.)
2. The program is deceptive, bordering on fraudulent. It says it is concerned with "serious criminal offenses". It uses this phrase 9 times in the document. Nowhere does it say its purpose or focus is on those who have not been convicted of any crime. But as we have seen in Prince Georges county, approximately 2/3 of those detained under SC are in this group.
3. SC damages community policing and community cooperation with local police. When persons not convicted of anything are handed over to ICE, it has a chilling effect on those who hear about these incidents, and on their friends, families, and community.
4. It encourages racial profiling. Local police officers who are so inclined will be tempted to arrest people for trivial offenses (or no offense at all), or to temporarily detain in order to query the NCIC.
We have three recommendations for local law enforcement agencies who value the importance of community cooperation in fighting crime and protecting residents of our communities.
1. Notify ICE and honor their "holds" when a person is convicted of a serious criminal offense, and only when a person is so convicted.
2. Do not participate in SC or CAP or any other Federal program that can result in ICE detention of persons who have not been convicted of serious criminal offenses.
3. Hold for criminal ICE detainers, not for civil ones, when these are found by NCIC queries.