By William Fisher
Alleged abuses of a little-known section of U.S. immigration law is triggering charges of racial and ethnic profiling, diverting local law enforcement from their crime-fighting mission, and failing to determine how many of the thousands of people deported under the program were the violent felons the program was designed to pursue.
Known as 287(g), the 1996 regulation allows the Immigration and Customs Enforcement (ICE) agency, part of the massive Department of Homeland Security (DHS), to deputize local police to enforce federal immigration law.
Critics are charging that some law enforcement agencies have used the program to deport immigrants who have committed minor crimes, such as carrying an open container of alcohol. They say that at least four police agencies have referred minor traffic offenders for deportation.
ICE has described the 287(g) program as a public safety measure to target “criminal illegal aliens,” but, according to a recent report by Justice Strategies, a New York-based immigration reform advocacy group. “its largest impact has been on law-abiding immigrant communities. Rather than focusing on serious crime, police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”
Homeland Security Secretary Janet Napolitano has already ordered a review of the program.
The program has been promoted by immigration officials as an important tool in deporting serious criminals. It has also enjoyed the strong support of some local law enforcement agencies, including in Maricopa County, Arizona, where the sheriff, Joe Arpaio operates the largest program, with 160 deputies. Arpaio is currently under investigation by the Department of Justice (DOJ) and the Inspector General of DHS for discriminatory and unconstitutional searches and seizures.
Critics of the program say sheriff’s deputies there have arrested thousands of illegal immigrants, many of whom were stopped for traffic violations, in sweeps that have led to thousands of lawsuits accusing the department of racial profiling.
The views of Michele Waslin, Ph.D., Senior Policy Analyst at the Immigration Policy Center of the American Immigration Law Foundation, are probably representative of many other immigration reform advocates.
She told us, “We all agree that our immigration system is broken, but empowering local cops to enforce federal immigration laws is not the way to go about fixing it.”
She contended that agreements between ICE and local police departments “have been costly and have led to mistakes and profiling. Police officials themselves have said that 287(g) agreements destroy the trust between the police and the community they serve and protect, making it much more difficult for them to do their jobs.”
“Do we really want our police to be checking documents and chasing millions of busboys and maids?” she asked. “ A much better solution would be for Congress to pass comprehensive immigration reform and legalize the 12 million undocumented immigrants so that the police can focus their attention on protecting their communities from dangerous threats.”
A recent report by the Government Accountability Office (GAO), the investigative arm of Congress, concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.
The absence of clear objectives is also a concern of Brittney Nystrom, Senior Legal Advisor to the National Immigration Forum, an immigration reform advocacy organization.
She told us, “It’s impossible to know how well this program is working without clear objectives being spelled out.”
“We are also concerned about allegations of racial and ethnic profiling, and diversion of legitimate local law enforcement resources to achieve unclear and questionable goals,” she said.
The GAO report analyzed 29 of the 67 local law enforcement agencies in the program. It found that they arrested 43,000 illegal immigrants last year, including 34,000 taken into custody by the immigration bureau.
Of the 34,000, the report said, about 41 percent were put in removal
proceedings, 44 percent waived their right to a hearing and were immediately deported, and 15 percent were released for reasons including humanitarian grounds, the “minor nature of their crime” and their having been sentenced to prison. The GAO was unable to determine how many of the arrested immigrants were suspected of committing serious crimes.
Use of the program has accelerated in recent years as the immigration debate
has intensified. It has grown to 67 agencies in 23 states with more than 950
deputized officers, from five law enforcement agencies in 2005. There is reportedly a waiting list of 42 agencies.
Justice Strategies concluded that 61 percent of jurisdictions that have entered into 287(g) agreements have crime rates that are lower than the national average. Census data show that 87 percent, however, are undergoing an increase in their Latino populations higher than the national average.
Their report said, “Residing in the U.S. without proper documentation is a civil immigration violation, but it is not a crime. Yet under 287(g), people are jailed when their civil immigration status is in question.”
“The statute requires that ICE officers ‘supervise and direct’ all local police partners, but in practice this does not happen. Poor training and lack of oversight means that local authorities are not equipped to deal with the complexities associated with civil immigration law,” the report said.
The report charged that local politicians are using 287(g) as an opportunity to raise their political profiles as tough on crime and restrictionist on immigration policy.
It cited a number of U.S. cities and counties where they say serious abuses have occurred. For example:
In Butler County, Ohio, ICE extended the powerful civil immigration search, arrest and detention authorities to the sheriff after he campaigned on an anti-immigrant platform.
In Berry Hill, Tennessee, a police officer arrested an immigrant driver in her last days of pregnancy, rather than issue her a routine traffic ticket. In jail, a 287(g) deputized officer issued a civil detainment order to keep her locked up without bond. She went into labor while shackled to a jail hospital bed.
In 2008, the Morris County Sheriff’s Office (New Jersey) issued an impact review of the ICE 287(g) program. It estimated that to have the capacity to house 60 287(g) civil detainees, the county would pay $1.3 million in personnel and facility start-up costs. “ICE would not reimburse the County for any start up costs such as those mentioned.”
And in Maricopa County (Phoenix), Arizona, ICE refuses to revoke the largest 287(g) agreement, with Sheriff Arpaio, “despite charges of racial profiling and national criticism of his posse’s street sweeps of day laborers.”
“Sheriff Arpaio promotes himself as the nation’s most prominent face of the 287(g) program, calling in the media to film the spectacle of thousands of detainees confined in his Tent City jail under the blazing desert sun,” the report said.
Thirty-five thousand people from all over the U.S. recently signed a petition calling on the departments of Justice and Homeland Security to investigate Arpaio. The petition, initiated by America's Voice, a Washington-based group for immigration reform, was delivered to the agencies by powerful members of Congress, including House Judiciary Committee Chairman John Conyers (D-Min.), Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), and Rep. Jerrold Nadler (D-NY).