When did the rule of law become optional? When the left wants it so.

Calif may let locals opt out of immigration checks

California lawmakers are the latest to weigh joining efforts in other states to gain control over a controversial national program that automatically checks the immigration status of arrestees.

The Golden State accounts for more than a third of the deportations under the Immigration and Customs Enforcement program, and some local officials are saying they were misled by the federal government about the program's extent.

Illinois lawmakers are also considering a measure to let communities retreat from the program. Washington state has deferred to local governments on whether they want to join the so-called "Secure Communities" program, which links up the FBI's criminal database and the Department of Homeland Security's records so that every time someone is arrested their immigration status is automatically, electronically checked.

But their efforts could be thwarted as federal officials argue that states have no control over what information is shared among federal agencies.

The tug-of-war over the ICE program highlights the tension between states and the federal government in the absence of a legislative fix on immigration. In the last four years, states have passed a flurry of bills and resolutions on issues ranging from employer verification to access to driver's licenses, most notably Arizona's tough local immigration enforcement law.

Immigrant advocates have lambasted ICE's fingerprint sharing program for sweeping up crime victims and witnesses who are arrested during an investigation in addition to those accused of committing a crime. About 29 percent of the 102,000 immigrants deported under the program since it began in 2008 have no criminal conviction, according to federal government statistics.

On Tuesday, the California Assembly's public safety committee voted to advance the bill that would only let local communities participate in the program if they choose to do so through resolution.

The measure is being met with applause from immigrant advocates, and from some in law enforcement, including San Francisco Sheriff Michael Hennessey, who has long pushed to withdraw from a program he fears will make immigrants afraid to report crime and erode their trust in law enforcement.

"It clearly is not the worst of the worst (being caught) and we're simply using it as a de facto immigration policy," said Quintin Mecke, a spokesman for Democratic Assemblyman Tom Ammiano, the bill's sponsor.

However, the bill faces criticism from the California State Sheriffs' Association, which says the electronic checks overseen by Immigration and Customs Enforcement are cost effective and eliminating them would place a burden on their agencies.

Republican Assemblyman Curt Hagman, who opposes the bill, also said the country can't have a state-by-state immigration policy and that California has to play by the federal government's rules on a federal issue.

"They shouldn't be able to pick and choose what laws are valid and what ones aren't," Hagman said, adding that the bill's extensive reporting requirements for communities that want to remain in Secure Communities make it too onerous to do so.

The debate over the ICE program is playing out across the country as federal authorities aim to achieve nationwide coverage in 2013. It currently is in effect in more than 1,200 jurisdictions in 42 states. The controversy heightened after The Associated Press reported in February that the program initially billed as voluntary by federal officials is now mandatory and that cities must turn over the fingerprint data to ICE.

Democratic Rep. Zoe Lofgren has said she believes some of the statements made by Homeland Security and ICE officials about the program were intentionally false and misleading and has asked the department's inspector general to investigate.

Fingerprints of criminal suspects collected by local law enforcement officers have always been sent to the FBI to check against its criminal histories and fingerprint database. Under the ICE program, the fingerprints also are run through the Department of Homeland Security's database, and federal authorities can determine the suspect's immigration status and begin deportation proceedings if necessary.

Immigration officials say the goal is to ensure illegal immigrants who commit crimes are flagged and deported. Nationwide, about 26 percent of those deported under program have been convicted of major drug offenses or violent crimes.

Some communities have welcomed the program as a cost savings measure and a way to ensure illegal immigrants who commit crimes are not released back into their neighborhoods. In Colorado, for example, lawmakers were considering a measure to withhold funding from localities that refused to participate, but it failed.

But officials in jurisdictions including Providence, R.I., Chicago and San Francisco have challenged the program, which they say undermines trust that it has taken local law enforcement years to build in immigrant communities.

Between October 2008 and March 2011, more than 7 million people who have been arrested have had their fingerprints run through the ICE program. Roughly 197,000 were identified as suspected illegal immigrants, and nearly 40 percent of those were in California, according to statistics provided by ICE.

Even if legislation were to pass, it is not clear a California law would take precedence over the program.

ICE officials declined to comment on the pending legislation but said the program is not voluntary.

Rather, it is ultimately about sharing information between federal agencies and "as a result, state and local jurisdictions cannot prohibit the information sharing between the Departments of Justice and Homeland Security upon which the Secure Communities program rests," ICE director John Morton wrote in a letter to Lofgren dated Thursday.

Immigrant advocates, however, believe states do have a say, noting that federal immigration officials have crisscrossed the country to sign agreements with different states.

In California, a memorandum of agreement was signed with ICE in 2009.

"That's the crux of this debate: can you force local law enforcement to conduct civil immigration enforcement? I think the answer is no," said Angela Chan, staff attorney at the Asian Law Caucus, adding that she does not believe federal immigration officials legally have the right to access fingerprint data taken by local agencies.

The California bill now heads to the appropriation committee for a price tag. Proponents don't expect there to be major costs and hope to see the measure debated by the Assembly in June.

Under the measure, local governments that want to continue with the ICE program would need to maintain data on arrests and the number of immigrants referred to federal authorities. The program could only be applied to immigrants convicted of crimes, not those who are merely arrested.

Communities that want to opt out, like San Francisco, would be free of the program entirely, should the law pass and then be sustainable.

"We were told initially by ICE we could opt out, then ... it has gone back and forth like a ping pong ball," Hennessey said during the Assembly committee hearing in Sacramento. "I think that ICE has not been particularly cooperative with us in San Francisco in law enforcement, and it has been a very frustrating experience."