Several counties around the nation have voted to opt out of the program, called Secure Communities, because of concerns that it could ensnare immigrants who have committed low-level offenses or chill crime-fighting cooperation between immigrants and the police.
As recently as last week, the spokesman for New York State's criminal justice agency maintained that the program was optional for local governments. But federal officials now say that participation was never voluntary. The program, they say, will be up and running nationwide by 2013.
The confusion appears to be largely the fault of federal immigration officials, who in recent months have issued vaguely worded or seemingly contradictory statements about the program.
“The Department of Homeland Security has done a horrible job of, one, explaining the policy; two, explaining the implementation process; and three, explaining the local jurisdictional role,” said Chung-Wha Hong, executive director of the New York Immigration Coalition, who has urged the state not to join the program. “It doesn't inspire confidence.”
Under Secure Communities, the fingerprints of everyone booked into a local or county jail will automatically be sent to the Department of Homeland Security and compared with prints in the agency's databases. If officials discover that a suspect is in the country illegally, or is a noncitizen immigrant with a criminal record, they might seek to deport him or her.
More than 750 jurisdictions in 34 states have already joined the program, which has contributed to a surge in deportations over the last year. But resistance has arisen among some elected officials and immigrant advocates who contend that the program has caught up a disproportionate number of immigrants charged with low-level offenses, rather than the dangerous criminals it was primarily intended to snag.
Federal officials require states' permission to start the program, and states can refuse. In New York, where opposition surfaced early in immigrant-friendly cities, Gov. David A. Paterson signed an agreement in May to cooperate.
New York officials said that numerous written and spoken conversations with Homeland Security in the past several months left them with the understanding that participation at the local level was voluntary, as well.
On July 23, for instance, Dan Cadman, a regional coordinator for the Secure Communities program, sent an e-mail to the State Division of Criminal Justice Services. “No jurisdiction will be activated if they oppose it,” Mr. Cadman wrote. “There is no ambiguity on that point. We get it.”
He added, “We will do everything we can to work with a N.Y. law enforcement agency to satisfy its concerns but at the end of the day, if they are opposed, we won't go forward.”
In recent weeks, Janet Napolitano, the Homeland Security secretary, has declared repeatedly that the program will be mandatory for the entire country by 2013.
Yet last Wednesday, officials in Albany said they had been assured by federal authorities that local jurisdictions could choose not to join the data-sharing network. “We have written and oral assurances that it is an opt-in, opt-out situation,” said John M. Caher, spokesman for the state's Division of Criminal Justice Services. “No local community would automatically be in.”
Two days later, however, after further discussion among state officials who continued to wrestle with the federal government's seemingly conflicting messages, Mr. Caher refined his message. “Apparently,” he said, “it is the position of the federal government that it can require participation.”
Homeland Security officials said that they never intended to imply that the program was optional. Rather, the only wiggle room available to local authorities is deciding when — not if — they will be added to the network.
“The deployment can be delayed and rescheduled, and we'll work to iron out issues related to the deployment,” a Homeland Security official said, asking that he not be identified because he did not want to “talk over” Ms. Napolitano's recent comments.
To participate in Secure Communities, police departments must install new fingerprinting equipment or make minor changes to existing technology, to allow fingerprint data to flow automatically to the Justice Department and Homeland Security.
No locality in New York State has signed up yet, but the entire state is scheduled to join in the next three years, according to Immigration and Customs Enforcement, the arm of Homeland Security that is managing the program.
In New York City, where city leaders have energetically tried to keep local police out of immigration enforcement, Councilman Ydanis Rodriguez said he planned to introduce a resolution asking Governor Paterson to pull out of Secure Communities, saying that the new system might discourage immigrants from reporting crime or testifying in cases. The City Council plans a hearing Wednesday to discuss the relationship between the immigration agency and the city's Department of Correction.
A spokesman for Mayor Michael R. Bloomberg said the city would join the federal program. “Our reading of the laws are that we have to comply, and we are,” said the spokesman, Jason Post. Elected leaders in several places — including Santa Clara County, Calif. and Arlington County, Va. — have voted not to share fingerprint information with immigration authorities, though they have since been told by federal authorities that they must do so as long as their states participate in Secure Communities.
Though states can refuse to cooperate, there is a cost: Any state that declines to share fingerprints with the Justice Department will in turn lose access to the criminal databases of other states and the federal government, seriously hampering crime-fighting efforts.
The only latitude local authorities have under the program, officials said, is to decide whether to look at the immigration information that Homeland Security sends back in response to the fingerprint data. But regardless of the local jurisdiction's posture, officials said, immigration authorities can still act on the information — and move to deport the suspects.
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