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13 June 2011

Mayer Brown Exposes Controversy Surrounding Secure Communities Program in FOIA Litigation

Mayer Brown’s pro bono efforts representing the National Day Laborer Organizing Network (NDLON) in an FOIA litigation in the Southern District of New York are directing national attention to the controversial Secure Communities program.

A cornerstone of the Obama administration’s immigration policy, Secure Communities is an immigration enforcement program requiring state and local police to participate with federal agencies in deporting individuals for immigration violations. Under the program, participating local enforcement agencies submit all fingerprints booked by police to the Department of Justice, where they are forwarded to the Immigration and Customs Enforcement agency (ICE) to be checked against immigration databases of the Department of Homeland Security (DHS). At the heart of the Secure Communities controversy are misleading and contradictory statements made by DHS and ICE that led state governments to believe participation in the program was voluntary and that states could “opt out” of the program.

After a successful request by Mayer Brown, together with the Center for Constitutional Rights and the Cardozo Immigration Justice Clinic, the district court ordered several federal agencies to produce documents responsive to NDLON’s February 2010 FOIA request. The documents revealed major inconsistencies between the agency’s internal policies and its public statements concerning the ability of state governments to opt out of the program. These inconsistencies prompted members of Congress, state governors and public advocacy organizations to call for a deeper investigation.

Mayer Brown also successfully negotiated for the agencies to produce data and statistics concerning Secure Communities and the immigrants deported. This data confirmed that, although the stated purpose of the program was to identify and deport illegal immigrants “convicted of serious crimes,” a majority of those deported pursuant to the program were not, in fact, criminals.

As jurisdictions across the country consider whether to participate in Secure Communities, information uncovered during this litigation is having a meaningful impact in deterring new localities from participating in the program, altering current state involvement, and fueling public debate on immigration policy. For example, Illinois, New York and, most recently, Massachusetts have all withdrawn from the program citing, among other things, their concerns about the program’s failure to fulfill its stated purpose of targeting serious criminals, its impact on the law abiding population, as well as a concern that Secure Communities compromises public safety by undermining local trust built between law enforcement and immigrant communities.

In addition to the major policy implications of this litigation, Mayer Brown also succeeded in securing an order that will set a precedent for the manner in which the government must produce documents in e-discovery in the FOIA context. When the government first released its records, the documents were produced in one large electronic file, rendering them unsearchable. The records were also devoid of intrinsic electronic information (metadata) critical to identifying, indexing and searching files in an effective manner. Arguing under FOIA’s directive that documents requested must be produced in “any form or format requested by the person if the record is readily reproducible by the agency,” Mayer Brown obtained an order holding that certain metadata is, indeed, an integral part of an electronic record and “readily reproducible” in the FOIA context.

Mayer Brown’s success in making public the internal agency documents surrounding Secure Communities is driving national debate on the administration’s immigration policy and calling into question whether states should be required to take on the federal role of immigration enforcement going forward. With this momentum, Mayer Brown continues to negotiate for timely and comprehensive dissemination of its client’s remaining FOIA requests from the government.

The Mayer Brown team working on this matter includes partners Anthony Diana, Miriam Nemetz, and Paula Tuffin, associates Hannah Chanoine, Therese Craparo, Chris Houpt, Lisa Plush, Jarman Russell, and Jeremy Schildcrout, Electronic Discovery Specialist Patrick Garbe, summer associate Hilary Deutch, and former associate Norman Cerullo. 


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