[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
EXAMINING 287(G): THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT IN
IMMIGRATION LAW
=======================================================================
HEARING
before the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 4, 2009
__________
Serial No. 111-3
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC] [TIFF OMITTED] CONGRESS.#13
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
__________
COMMITTEE ON HOMELAND SECURITY
Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California Peter T. King, New York
Jane Harman, California Lamar Smith, Texas
Peter A. DeFazio, Oregon Mark E. Souder, Indiana
Eleanor Holmes Norton, District of Daniel E. Lungren, California
Columbia Mike Rogers, Alabama
Zoe Lofgren, California Michael T. McCaul, Texas
Sheila Jackson Lee, Texas Charles W. Dent, Pennsylvania
Henry Cuellar, Texas Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania Paul C. Broun, Georgia
Yvette D. Clarke, New York Candice S. Miller, Michigan
Laura Richardson, California Pete Olson, Texas
Ann Kirkpatrick, Arizona Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
I. Lanier Avant, Staff Director
Rosaline Cohen, Chief Counsel
Michael Twinchek, Chief Clerk
Robert O'Connor, Minority Staff Director
C O N T E N T S
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Page
Statements
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Chairman, Committee on
Homeland Security.............................................. 1
The Honorable Mark E. Souder, a Representative in Congress From
the State of Indiana:
Oral Statement................................................. 2
Prepared Statement............................................. 4
The Honorable Emanuel Cleaver, a Representative in Congress From
the State of Missouri:
Prepared Statement............................................. 5
The Honorable Lamar Smith, a Representative in Congress From the
State of Texas:
Prepared Statement............................................. 5
The Honorable Gus M. Bilirakis, a Representative in Congress From
the State of Florida:
Prepared Statement............................................. 6
Witnesses
Mr. William F. Riley, Acting Director, Office of State and Local
Coordination, U.S. Immigration and Customs Enforcement,
Department of Homeland Security:
Oral Statement................................................. 7
Prepared Statement............................................. 9
Mr. Richard M. Stana, Director, Homeland Security and Justice
Issues, Government Accountability Office:
Oral Statement................................................. 14
Prepared Statement............................................. 16
Mr. Charles A. Jenkins, Sheriff, Frederick County, State of
Maryland:
Oral Statement................................................. 20
Prepared Statement............................................. 22
Mr. J. Thomas Manger, Chief, Montgomery County Police Department,
State of Maryland:
Oral Statement................................................. 26
Prepared Statement............................................. 27
Mr. Muzaffar A. Chishti, Director, NYU School of Law Office,
Migration Policy Institute:
Oral Statement................................................. 32
Prepared Statement............................................. 34
For the Record
Gary D. Leatherman, Noble County Sheriff:
Document, Submitted by the Honorable Mark E. Souder............ 47
The Honorable Ed Pastor, a Representative in Congress From the
State of Arizona:
Letter......................................................... 77
Wade Henderson, President and Chief Executive Officer, Leadership
Conference on Civil Rights, and Margaret Huang, Executive
Director, Rights Working Group:
Joint Statement................................................ 78
Harold L. Hurtt, Chief of Police, Houston, Texas:
Letter, Submitted by the Honorable Sheila Jackson Lee.......... 81
The Immigration Policy Center, a Division of the American
Immigration Law Foundation:
Statement...................................................... 82
The American Immigration Lawyers Association, the National
Immigration Forum, and the National Immigrant Justice Center:
Joint Statement................................................ 84
Appendix
Questions From Chairman Bennie G. Thompson....................... 93
EXAMINING 287(G): THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT IN
IMMIGRATION LAW
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Wednesday, March 4, 2009
U.S. House of Representatives,
Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 2:02 p.m., in Room
311, Cannon House Office Building, Hon. Bennie G. Thompson
[Chairman of the committee] presiding.
Present: Representatives Thompson, Sanchez, DeFazio,
Jackson Lee, Cuellar, Carney, Clarke, Richardson, Kirkpatrick,
Lujan, Cleaver, Green, Kilroy, Massa, Titus, Smith, Souder,
Lundgren, Rogers, McCaul, Dent, Bilirakis, Broun, Olson, Cao,
and Austria.
Also present: Representatives Bartlett and Edwards.
Chairman Thompson [presiding]. The Committee on Homeland
Security will come to order. I would like to ask unanimous
consent to allow Representative Edwards and Bartlett to sit in
on the hearing for the purpose of introducing their respective
witness.
Without objection.
The committee is meeting today to receive testimony on
``Examining 287(g): The Role of State and Local Law Enforcement
in Immigration Law.'' I want to thank the witnesses for
appearing today to provide testimony on the 287(g) program,
which has been around since 1996 but has experienced a
remarkable surge in popularity in recent years.
According to Immigration and Customs Enforcement, the main
goal of the program is to increase the safety and security of
our communities by apprehending and removing undocumented
criminal aliens who are involved in violent and serious crimes.
According to ICE, the local sheriffs and police officers would
work with ICE to identify, locate, and apprehend these
dangerous people.
The 287(g) program, as intended, would achieve two parallel
goals. No. 1, participating jurisdictions would have dangerous
people removed from their communities. No. 2, the Federal
Government would have a force multiplier to enhance efforts to
remove dangerous aliens from the country.
In theory, it seems like a good idea and a good deal for
everyone involved. In fact, many jurisdictions have bought into
the promise of this program as evidenced by the surge in
popularity over the last 2 years. Participation has grown from
29 programs in 2006 in 13 States to 67 programs in 23 States
today. There is even a waiting list to join. Forty-two State
and local law jurisdictions are on the waiting list. As the
popularity of this program has grown, so has funding. In the
last 3 years, the 287(g) program's budget has increased from $5
million to nearly $60 million.
Like everyone else, I applaud the growth of successful
programs. But the record is incomplete, at best, as to whether
or not this program is a success. For instance, in 2008, it was
credited with resulting in the removal of 29,000 people. Its
budget for fiscal year 2008 was just under $40 million. To
determine whether that was a prudent way to spend the
taxpayers' money, we would need to know whether the people
removed were dangerous aliens. Unfortunately, we do not know
the critical piece of information.
We cannot answer this basic question because, as we will
hear from the Government Accountability Office, ICE does not
require that specific data be collected, does not require that
specific information be reported and does not have any
performance measures. Without objective data, we cannot
evaluate the effectiveness of this program nor can we determine
whether better results could be achieved by other means such as
increasing the number of ICE agents.
While I do not know whether 287(g) is an effective program,
I do know that it is a program that has been accused of racial
profiling. That accusation should concern all of us. Effective
law enforcement and discrimination cannot coexist. Our
communities must be safe and our Nation must be secure. We will
only achieve that goal by making sure that our efforts are
strategic and tailored. Popularity cannot be a replacement for
documented performance and constitutional principles.
I look forward to hearing testimony from our distinguished
panel.
The Chair now recognizes our Ranking Member, Mr. Souder,
sitting in for Mr. King, from Indiana, for an opening
statement.
Mr. Souder. Thank you very much, Mr. Chairman.
This is an important hearing on a cornerstone Department of
Homeland Security law enforcement information sharing program.
While the 287(g) program was slow to start--the law was enacted
in 1996, the first agreement signed in 2002 after the 9/11
terrorist attacks--a major vote did not occur until 2007. There
are clear benefits for the jurisdictions who volunteer for this
program. They get access to immigration status information, a
direct link to ICE to identify and remove aliens in the custody
of local law enforcement, deterrent for aliens to commit crimes
and engage in gang activity in the community, the ability to
remove aliens from jail, saving space and money.
Under this program, officers undergo federally sponsored
training, receive equipment, and most importantly, have access
to information. This allows them to accurately check the
immigration status of the aliens they encounter during their
day-to-day activity such as arresting an individual for
narcotics violations, driving without a license or drunk
driving, investigating a violent crime or booking an individual
into a correctional facility. All of these things are in fact
crimes in addition to the illegal status.
ICE depends on data provided by local law enforcement.
Illegal immigration investigations are similar to counter-
narcotics in that a significant amount of data is necessary to
connect the dots and find systems of smuggling. For the entire
Nation as well as for foreign assignments, ICE has 6,000 agents
and 6,000 detention and removal officers. ICE resources are
stretched thin. For ICE to tackle the large smuggling networks,
they rely on partnerships with State and local law enforcement
and correctional facilities--by the way, just like we do in
narcotics and HIDAS.
ICE has 67 active agreements and 25 applications pending.
Unfortunately, ICE has also denied many requests from
jurisdictions wanting to participate in the 287(g) program.
There is clearly interest among State and local law enforcement
to--including in my own congressional district--to partner with
ICE as a means to enhance community safety and bolster national
security. My biggest frustration is that ICE, under both
Republican and Democratic administrations, has not done enough
to support the program.
In October 2007 after hearing from several sheriffs in my
district about their concerns with illegal immigration,
criminal aliens in particular, I organized an immigration law
enforcement roundtable. The event was attended by ICE and 25
representatives from across Indiana and parts of western Ohio,
including sheriffs, prosecutors, and jailors.
Allen County Sheriff Fries is from the largest county in my
district--350,000 people. He has applied to participate in
287(g) and was told that ICE did not have the resources to
support the request. Even if he did the training, they wouldn't
have any DRO agents to remove people that were arrested.
At the time of the roundtable, most of the law enforcement
jurisdictions present were encouraged that ICE had a person
dedicated to transporting illegal aliens from their jails who
had been arrested for other crimes to Federal detention
facilities. Shortly after, however, this arrangement fell
apart, as the individual assigned was involved in an accident,
and his replacement was sent on another assignment.
It is my understanding that this situation still has not
been corrected in Indiana. As recently as February 9, Sheriff
Fries reported that there are at least 200 illegal aliens
housed in my home county's jail for various crimes, costing the
taxpayers $40 a day. Sheriff Fries would prefer to turn them
over to ICE for removal from the country, but ICE cannot or
will not provide anyone to transport them. He and the taxpayers
of Indiana and other sheriffs from my district are ranging
between frustrated to angry that the Federal Government refuses
to execute their obligations and commitments to follow through
on their part.
I am looking forward to this hearing from ICE about this
situation and the future of the 287(g) program. I would like to
especially thank Sheriff Jenkins from Frederick County,
Maryland, for being here. I am interested in hearing about
287(g) and how it works in your jurisdiction. I also appreciate
the work of GAO in producing a report on 287(g) and offering
several common-sense suggestions that should improve the
program management.
Thank you to the other witnesses as well, and I look
forward to your testimony.
Thank you, Mr. Chairman.
[The statement of Hon. Souder follows:]
Prepared Statement of the Honorable Mark E. Souder
March 4, 2009
Thank you, Mr. Chairman. This is an important hearing on a
cornerstone DHS law enforcement information sharing program.
While the 287(g) program was slow to start--the law was enacted in
1996; the first agreement was signed in 2002 after the 9/11 terrorist
attacks--major growth did not occur until 2007.
There are clear benefits for the jurisdictions who volunteer for
this program:
Access to immigration status information;
Direct link to ICE to identify and remove aliens in the
custody of local law enforcement;
Deterrant for aliens to commit crimes and engage in gang
activity in the community;
Ability to remove aliens from jails--saving space and money.
Under this program, officers undergo Federally-sponsored training,
receive equipment, and most importantly have access to information.
This allows them to check the immigration status of aliens they
encounter during their day-to-day activities, such as arresting an
individual driving without a license or drunk driving, investigating a
violent crime, and booking an individual into a correctional facility.
ICE depends on data provided by local law enforcement. Illegal
immigration investigations are similar to counternarcotics in that a
significant amount of data is necessary to connect the dots and find
systems of smuggling. For the entire Nation, as well as foreign
assignments, ICE has 6,000 agents and 6,000 detention officers. ICE
resources are stretched thin. For ICE to tackle the large smuggling
networks, they rely on partnerships with State and local law
enforcement and correctional facilities.
ICE has 67 active agreements and 25 applications pending.
Unfortunately, ICE has also denied many requests from jurisdictions
wanting to participate in the 287(g) program. There is clearly interest
among State and local law enforcement to, including in my own
Congressional district--to partner with ICE as a means to enhance
community safety and bolster national security.
My biggest frustration is that ICE--under both Republican and
Democratic administrations--has not done enough to support the program.
In October 2007, after hearing from several Sheriffs in my district
about their concerns with illegal immigration, criminal aliens in
particular, I organized an Immigration Law Enforcement Roundtable. The
event was attended by ICE and 25 representatives from across Indiana
and parts of Western Ohio, including sheriffs, prosecutors, and
jailers.
One Sheriff from my District who wanted to participate in 287(g)
was told ICE did not have the resources to support the request. At the
time of the Roundtable, most of the law enforcement jurisdictions
present were encouraged that ICE has a person dedicating to
transporting illegal aliens from their jails to Federal detention
facilities. Shortly after, however, this arrangement fell apart as the
individual assigned was involved in an accident and his replacement was
sent on another assignment. It is my understanding that this situation
still has not been corrected.
As recently as February 9, a Sheriff reported that there are at
least 200 illegal aliens housed in his county jail for various crimes,
costing the taxpayers $40 per day. The Sheriff would prefer to turn
them over to ICE for removal from this country, but ICE cannot or will
not provide anyone to transport them.
I am looking forward to hearing from ICE about this situation and
the future of the 287(g) program. I would like to especially thank
Sheriff Jenkins from Frederick County, Maryland for being here; I am
interested in hearing about how the 287(g) program works in your
jurisdiction. I also appreciate the work of the GAO in producing a
report on 287(g) and offering several common-sense suggestions that
should improve the program management. Thank you to the other witnesses
as well. I look forward to the testimony.
Thank you Mr. Chairman.
Chairman Thompson. Thank you very much, Mr. Ranking Member.
Other Members of the committee are reminded that, under
committee rules, opening statements may be submitted for the
record.
[The statements of Hons. Cleaver, Smith, and Bilirakis
follow:]
Prepared Statement of the Honorable Emanuel Cleaver
March 4, 2009
Chairman Thompson, Ranking Member King: I look forward to hearing
testimony today about the 287(g) program. This section was added to the
Immigration and Nationality Act by Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, and allows the Federal Government
through Immigration and Customs Enforcement to work with State and
local authorities to carry out immigration enforcement. The objective
of the 287(g) program is to address serious criminal activity committed
by removable aliens.
I am concerned, however, with a number of the recent findings of
the GAO report entitled ``Immigration Enforcement: Controls over
Program Authorizing State and Local Enforcement of Federal Immigrations
Laws Should Be Strengthened.'' The report notes that ICE officials have
not properly documented their program objectives in memorandums of
agreement with local law enforcement agencies. This has resulted in
agencies removing aliens for ``minor offenses, such as speeding,
carrying an open container, and urinating in public.'' I hardly believe
that these minor offenses should be considered on par with the level of
serious criminal activity that was intended with the enactment of this
program.
I am further concerned that lack of ICE supervision and failure to
provide clear objectives has given local law enforcement agents far too
much leeway. I am troubled by reports in Arizona of raids by the county
sheriff. I am even more troubled by the report of a Nashville woman,
who while 9 months pregnant, was arrested on a minor traffic violation,
and forced to give birth while in custody. While I am grateful for the
community protection provided by local law enforcement officials, I am
eager today to question these witnesses, and assess whether immigration
enforcement is best left in the hands of ICE officials.
______
Prepared Statement of the Honorable Lamar Smith
March 4, 2009
The 287(g) program was created in the ``Illegal Immigration Control
and Immigrant Responsibility Act of 1996,'' which I co-authored. That
legislation has reduced illegal immigration and helped ensure the
integrity of America's legal immigration system.
The 287(g) program allows DHS to enter into an agreement with a
State or locality so that State and local law enforcement officers can
assist in the investigation, apprehension and detention of illegal
aliens. It is a voluntary program.
In recent years, the annual number of jurisdictions participating
has risen dramatically--from one in 2002 to 67 currently. And DHS
cannot keep up with the increased demand. In fiscal year 2007, ICE
received 69 new applications. I understand that some of those
applicants may not have been good candidates for the 287(g) program,
but according to ICE, the vast majority were rejected because of
limited funding.
The 287(g) program is effective because it allows State and local
law enforcement officials to augment immigration enforcement. In
September 2006, Corey Stewart, the Chairman of the Prince William
County, VA Board of Supervisors testified, that the 287(g) agreement
enabled his county in just 3 months to prevent 111 criminal aliens from
returning to the streets of Prince William County. In the over 2 years
since then, Prince William County has continued its success with the
287(g) program.
And there are stories like Prince William County's all over the
country. According to ICE, ``since January 2006, the 287(g) program is
credited with identifying more than 79,000 individuals, mostly in
jails, who are suspected of being in the country illegally.'' And more
than 950 officers have been trained and certified through the program.
State and local law enforcement officials have the inherent
authority to assist in the enforcement of immigration laws should they
choose to do so.
When we wrote the bill that created section 287(g), our goal was to
help local law enforcement officials reduce the crime committed by
illegal immigrants. Law enforcement officials believe that this
voluntary program works.
The Government Accountability Office has suggested some ways that
ICE could improve the 287(g) program.
One issue the GAO addresses is that ICE states the purpose of the
program is to ``enhance the safety and security of communities by
addressing serious criminal activity committed by removable aliens.''
This statement is being touted by those who oppose the program as a
reason to stop State and local law enforcement officers from arresting
illegal immigrants who have committed minor offenses.
Let me assure you, as the co-author of the legislation enacting the
287(g) program, it was not our intent that the program would only be
used to address ``serious criminal activity.'' 287(g) was created to
let State and local law enforcement officials help enforce all Federal
immigration laws and to remove illegal immigrants from the streets.
State and local law enforcement agencies are successfully using
287(g) authority to make communities safer. Those who are serious about
public safety should not only support the program, but also call for
its expansion.
______
Prepared Statement of the Honorable Gus M. Bilirakis
I am keenly interested in ensuring that all homeland security
programs in general, and this one in particular, are operating as
efficiently and effectively as possible. I welcome the GAO's
constructive comments and encourage Immigration and Customs Enforcement
(ICE) to continue its efforts to strengthen management controls over
the program.
I strongly support the 287(g) program and believe that it is an
invaluable tool to help enhance our ability to deter illegal
immigration and detect criminals and others who may wish to do us harm.
This program provides an additional tool to help local law
enforcement protect their communities by identifying illegal aliens who
commit crimes and ensuring they are removed from the country and not in
a position to commit subsequent crimes in the future. I believe it
would be short-sighted to allow current management challenges in the
program to deter us from expanding and maximizing its immigration
enforcement benefits.
Chairman Thompson. I now welcome our panel of witnesses.
Our first witness, Mr. William Riley, is acting director of the
Office of State and Local Coordination at Immigration and
Customs Enforcement, which administers the 287(g) program.
Our second witness is Mr. Richard Stana, director of
Homeland Security and Justice Issues at the Government
Accountability Office. During his 33-year career at GAO, Mr.
Stana has directed reviews on a wide variety of complex
military and domestic issues.
I will yield to the gentleman from Maryland, Mr. Bartlett,
to introduce our third witness.
Mr. Bartlett. Thank you very much, Mr. Chairman, and thank
you for the opportunity to come here to introduce Sheriff Chuck
Jenkins. Not only is Chuck a long-time friend, he is a really
great sheriff and a truly great American. He is also a pioneer.
He is one of the first in the general region and the first and
only law enforcement officer in Maryland cooperating with ICE
to identify and deport illegal aliens who are also felons.
Thank you very much for having him here as a witness.
Chairman Thompson. Thank you very much.
I will also yield to the young lady from Maryland to
introduce the next witness.
Ms. Edwards.
Ms. Edwards. Thank you, Mr. Chairman, and it is my great
pleasure to introduce to the committee today Chief J. Thomas
Manger of the Montgomery County Police Department, which is one
of the largest police departments in our State. One of the
things that you will find about Chief Manger is he understands
the important balance that needs to be struck in communities.
You will hear his insight and innovation and the creativity
with which he has led the Montgomery County Police Department
as it takes on these important challenges of immigration in a
very diverse community. So I thank you for inviting him here
today. I know that, as I have, you will have a lot to learn
from Chief Manger. Thank you.
Chairman Thompson. Thank you. Thank both of you for your
introductory remarks.
Our final witness is Mr. Chishti.
Director of Migration Policy Institute Office at New York
University School of Law. His work focuses on U.S. immigration
policy, the intersection of labor and immigration law, civil
liberties and local and State enforcement of immigration laws.
Welcome to all our witnesses.
Without objection, the witnesses' full statement will be
inserted in the record.
Mr. Riley, I now recognize you to summarize your statement
for 5 minutes.
STATEMENT OF WILLIAM F. RILEY, ACTING DIRECTOR, OFFICE OF STATE
AND LOCAL COORDINATION, U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY
Mr. Riley. Thank you.
Chairman Thompson. Congressman Souder and distinguished
Members of this committee, thank you for the opportunity to
testify before you today about U.S. Immigration and Customs
Enforcement management and oversight of the 287(g) delegation
of authority program, which allows State and local law
enforcement agencies to partner with ICE to enforce our
Nation's immigration laws.
My name is William Riley, and for the past 5 months I have
served as the acting executive director for the ICE Office of
State and Local Coordination, which is responsible for the
management and oversight of the 287(g) program. I am pleased to
discuss with you today the partnerships ICE has in place with
State and local law enforcement agencies through the 287(g)
program and also to discuss the General Accountability Office's
recommendations to improve management of the program.
As a result of community concern associated with illegal
migration and the public safety threat posed by criminal
aliens, there has been increased interest in the 287(g)
program, and it has become one of the primary tools requested
by State and local law enforcement agencies as they address
their immigration enforcement concerns. A review of the current
state of the 287(g) program reveals that, as of February 2009,
almost 1,000 law enforcement officers have been trained
pursuant to 67 signed memoranda of agreement in 23 States.
As of February 2009, ICE's 287(g) cross-designated partners
have encountered over 90,000 aliens who were identified for
removal from the United States. It should be noted that 90
percent or 60 of the 67 MOAs were signed in fiscal year 2007
and 2008. ICE looks forward to entering into additional
agreements with our State and local partners and will focus
future expansion on the jail enforcement model.
I would like to take this opportunity to discuss ICE's
response to GAO's report, ``Immigration Enforcement: Better
Controls Needed Over Program Authorizing State and Local
Enforcement of Federal Immigration Laws.'' First, let me note
that ICE welcomed GAO's review of the 287(g) program. Although
still in its infancy, as ICE has expanded the program, it has
not only seen an increase in public interest but increased
scrutiny as well.
To ensure the program is operating in the most efficient
manner, ICE developed a review of the draft copy of the GAO
report that contains five recommendations. ICE concurs with all
the recommendations and in some areas had already begun
addressing the recommendations before the GAO study was
completed.
Before addressing ICE's response to GAO's recommendations,
I would like to point out that soon after her confirmation as
Secretary of Homeland Security, Secretary Napolitano issued a
wide-ranging action directive on immigration and border
security. The directive requires specific department offices
and components to work together and with State and local
partners to review and assess current plans and policies in
this area.
Secretary Napolitano is looking for metrics of success,
gaps in service and resources, partnerships with State and
local governments and other Federal agencies, as well as other
suggestions for reforms, restructuring and consolidation where
needed. Included in that directive is a review of the current
287(g) program.
With that in mind, in a response to the GAO
recommendations, ICE has begun the process of redrafting the
template that is used to form 287(g) agreements. Once
redrafted, the template will be submitted to DHS headquarters
for comment and approval. Upon being approved, this template
will incorporate many of the recommendations made by GAO.
For example, the MOAs will include the nature and extent of
supervisory activities ICE officers are expected to carry out
as part of their responsibilities in overseeing the
implementation of the 287(g) program. The MOAs will outline how
and under what circumstances 287(g) authority is to be used by
State and local law enforcement officers and participating
agencies.
Also to be incorporated in each MOA are ICE's detention
priorities. These priorities ensure that ICE's finite detention
space is used to detain aliens who pose the greatest risk to
the public. Sunset dates will be incorporated into all MOAs to
ensure regular review and modification as needed. ICE will also
specify the program information and data that each agency is
expected to collect regarding the implementation of the 287(g)
program and how this information is to be reported.
The Office of State and Local Coordination is working to
create system enhancements to ENFORCE, which is the DHS's
primary administrative arrest booking case management system,
that will allow ICE to classify the types of aliens 287(g)-
trained officers are encountering and the severity of their
crimes. This data will be used by ICE to evaluate whether or
not our 287(g) partnerships function in accord using resources
with ICE priorities and to ensure that the continuation of an
agreement is in the best interest of ICE.
In closing, it is critically important to note, as pointed
out in GAO's report, many benefits have been realized by the
agencies participating in the 287(g) program. Program
participants reported to GAO a reduction in crime, the removal
of repeat offenders and other safety benefits.
I am proud of the partnerships ICE has formed with 287(g)-
trained State and local law enforcement officers. These
partnerships are essential to ICE in carrying out its mission
of deterring criminal activity and threats to national security
and public safety throughout the United States. While ICE has
expanded the 287(g) program rapidly and its internal management
controls can be improved, I believe that we have a strong
framework in place to effectuate improvements, and I look
forward to the challenges that lie ahead.
Again, I thank the committee for its support of ICE and our
critical mission. I would be happy to answer any questions you
might have at this time.
[The statement of Mr. Riley follows:]
Prepared Statement of William F. Riley
March 4, 2009
Chairman Thompson, Ranking Member King and distinguished Members of
the committee. Thank you for the opportunity to testify before you
today about U.S. Immigration and Customs Enforcement's (ICE) management
and oversight of the 287(g) delegation of authority program, which
allows State and local law enforcement agencies (LEA) to partner with
ICE to enforce our Nation's immigration laws.
ICE is the Department of Homeland Security's (DHS) largest
investigative agency with responsibility for investigations having a
nexus to the border and within the interior of the United States. I am
pleased to discuss with you today the partnerships ICE has in place
with State and local LEAs through the 287(g) delegation of authority
program and the Government Accountability Office's (GAO)
recommendations to improve management of the program.
ICE's homeland security mission readily acknowledges the critical
role that State and local law enforcement have in our country's broad
homeland security strategy. ICE's State and local partners are
frequently our Nation's first responders. They often encounter foreign-
born criminals and immigration violators who threaten national security
and public safety during the course of their daily duties. To ensure
that foreign nationals cannot exploit any perceived vulnerability, ICE
partners with State and local LEAs through a variety of arrangements,
including the 287(g) Program, which increases the overall effectiveness
of the entire law enforcement community's ability to protect our
homeland.
background and rapid growth of the 287(g) program
The Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), effective September 30, 1996, added Section 287(g) to the
Immigration and Nationality Act (INA), which authorized the Attorney
General, now the Secretary of Homeland Security, to designate State and
local law enforcement officers to act as Federal immigration officers.
Through Memoranda of Agreement (MOA), specially trained State and local
law enforcement officers perform immigration enforcement duties only
under the supervision of ICE agents and officers.
These agreements allow ICE to utilize State and local officers as
force multipliers in both task forces and detention facilities.
Agencies participating under the Task Force Officer (TFO) model work
under the supervision of the ICE Office of Investigations personnel.
These TFOs focus on criminal activity involving gangs, identity and
benefit fraud, human and narcotics smuggling and trafficking. TFOs
assist ICE with both long-term investigations and large-scale
enforcement activities. ICE's enforcement efforts have benefited
greatly from the synergy created by the fusion of Federal immigration
authority with the State and local law enforcement authority vested in
these cross-trained officers. For example:
In fiscal year 2008, the Northwest Arkansas Immigration and
Criminal Apprehension Task Force (ICAT), a 287(g) task force,
participated in the investigation of the Acambaro Mexican
Restaurant and Garcia's Distributor, Inc. This investigation
that involved harboring of aliens resulted in the execution of
six search warrants, four arrest warrants, and a seizure
warrant for 15 bank accounts. These warrants led to the arrest
of 19 foreign nationals and the seizure of nine vehicles and
approximately $114,000 in U.S. currency. In addition to the
seizures, ICE filed verified complaints of forfeiture on 11
real properties in Northwest Arkansas valued at more than $3.5
million.
Agencies participating in the 287(g) Program's Jail Enforcement
Officer (JEO) model partner with ICE in detention facilities under the
supervision of the ICE Office of Detention and Removal Operation
personnel. Cross-designated officers expand the reach of ICE's Criminal
Alien Program (CAP). The intersection of the CAP and 287(g) programs
further ICE's efforts to identify aliens charged with and/or convicted
of crimes who are incarcerated within State and local facilities.
Furthermore, the program helps to ensure that criminal aliens are not
released into the community by assisting with the identification of
removable aliens during the booking process and then assisting ICE with
the processing of those identified aliens for removal.
The following exemplifies how these partnerships have expanded
ICE's presence in State and local jails:
On September 30, 2008, officers assigned to the Wake County
(North Carolina) Sheriff's Office 287(g) Program identified,
interviewed, and placed detainers on five individuals who were
arrested and charged with murder and accessory after the fact
to murder. It was determined that all five individuals were
illegally present in the United States, and are being held in
connection with the murder of a 26-year-old individual from
Raleigh, North Carolina. The five individuals will be processed
for removal proceedings and, upon completion of any criminal
sentence served, they will be transferred to ICE for removal.
To place the great strides ICE has made with the 287(g) Program in
context, it is necessary to examine how the program began. The first
287(g) agreement was executed under the former Immigration and
Naturalization Service (INS) in the aftermath of the 9/11 attacks.
After Florida law enforcement officials became increasingly concerned
about the number of terrorism-related investigations in Florida, many
of which involved foreign nationals, Florida officials approached the
former INS seeking participation in the 287(g) Program. Thus, the first
287(g) agreement was executed with the Florida Department of Law
Enforcement (FDLE) in 2002, which resulted in the creation of seven
Regional Domestic Security Task Forces that were established in the
State of Florida. Thereafter, 35 officers assigned to these regional
task forces participated in, and graduated from, the 287(g) training
program. Since the inception of that agreement, ICE has trained and
certified an additional 23 officers under the FDLE MOA.
As I noted earlier, ICE partnered with State and local law
enforcement agencies to address the vulnerabilities discovered in the
aftermath of the 9/11 attacks. However, our work is not done. To
fulfill its homeland security and public safety mission, ICE has
carefully expanded the 287(g) Program to increase ICE's ability to
identify and remove criminal aliens from the United States.
As a result of community concern associated with illegal migration
and the public safety threat posed by criminal aliens, there has been
increased interest in the 287(g) Program. A review of the current state
of the 287(g) Program reveals that, as of February 2009, a total of 951
law enforcement officers have been trained pursuant to 67 signed MOA's
in 23 States.\1\ As the below chart illustrates, ICE has seen a
dramatic rise in 287(g) Program participation and interest during
fiscal years 2007 and 2008.
---------------------------------------------------------------------------
\1\ Please see Attachment 1 for a list of all 67 agreements.
As of February 2009, ICE's 287(g) cross-designated partners,
operating under 67 MOAs, have encountered over 90,000 aliens who were
screened for removability. We have seen positive results from the
current 287(g) Program. For example, the 29 287(g) LEA partners
selected for review during the GAO audit encountered 43,000 aliens. The
work conducted by the same 29 participants during fiscal year 2008
resulted in 34,000 aliens being detained by ICE. Of the 34,000
detained, approximately 41 percent were placed in removal proceedings
and approximately 44 percent agreed to voluntarily depart the United
States.
As ICE has expanded the 287(g) Program, it has become one of the
primary tools requested by State and local LEAs as they address their
immigration enforcement concerns. While ICE acknowledges the
effectiveness of a multi-agency, multi-authority approach to protect
public safety, ICE is not always in a position to grant all the
requests for participation in the 287(g) Program. Further, careful
study of the requirements of each LEA revealed that participation in
the 287(g) Program was not always the best fit for every State and
local LEA.
Accordingly, we created the ICE Agreements of Cooperation in
Communities to Enhance Safety and Security (ICE ACCESS) umbrella
program in fall 2007 to assist State and local LEAs that are not
enrolled in the 287(g) Program. ICE ACCESS programs allow ICE personnel
to collaborate with their local law enforcement peers to address
specific local challenges and provide solutions and alternatives
tailored to each community's needs. ICE ACCESS facilitates partnerships
between ICE and State and local LEAs to target criminal aliens,
document and immigration benefit fraud, human trafficking, fugitive
aliens, narcotics smuggling, and money laundering.
ice oversight of the 287(g) program
The ICE Office of State and Local Coordination (OSLC) was
established in December 2007, and is responsible for the management and
oversight of the 287(g) Program. OSLC has implemented the following
practices and procedures to ensure that ICE is adequately overseeing
the program:
Prior to attending training, all 287(g) candidates must
complete a background questionnaire. The questionnaire requires
the submission of fingerprints, a personal history
questionnaire, and the candidate's disciplinary history. ICE's
Office of Professional Responsibility conducts a background
check and determines each officer's suitability to participate
in the 287(g) Program.
Officers cleared to participate in the 287(g) Program must
complete a multi-week training program conducted by the ICE
Office of Training and Development. To successfully complete
the program, all officers must pass each examination with a
minimum score of 70 percent. If an officer fails to attain a 70
percent rating on any examination, the officer is provided a
single opportunity to review the curriculum and re-take a
similar examination. Only one remediation examination is
permitted during the entire course. Failure to achieve a 70
percent on any two examinations results in the automatic
disqualification of the candidate.
Upon successful completion of the training, officers are
granted the authority to carry out immigration enforcement
functions. 287(g) designated officers are only permitted to
exercise immigration enforcement consistent with the parameters
outlined in the Memorandum of Agreement (MOA) executed between
ICE and the officer's LEA. Each MOA includes a section that
requires that any immigration enforcement activities be
supervised and directed by ICE supervisory agents and officers.
Cross-designated officers are not authorized to perform
immigration functions except when working under the supervision
of ICE. If a State or local officer violates the MOA, ICE may
suspend or terminate an individual officer's participation in
the program. Additionally, at any time deemed necessary, ICE
may suspend or terminate the MOA with the LEA.
To ensure that the LEA and the supervising ICE component
operate in compliance with the terms in the MOA, OSLC and
Office of Professional Responsibility have developed a vigorous
inspection program to audit 287(g) agreements. These
inspections are conducted by the Office of Professional
Responsibility, which provides OSLC and ICE senior management
with an assessment regarding the performance of the MOA.
To ensure cross-designated officers' training remains
current, additional training is available to the officers
through eight different courses available through ICE's on-line
Virtual University. These courses were developed to ensure that
State and local officers are informed of new developments in
immigration law and policy.
comments on gao report
I would like to take this opportunity to discuss ICE's response to
the Government Accountability Office (GAO) report, Immigration
Enforcement: Better Controls Needed Over Program Authorizing State and
Local Enforcement of Federal Immigration Laws. First, let me note that
ICE welcomed GAO's review of the 287(g) Program. Although still in its
infancy, as ICE has expanded the program, it has not only seen an
increase in public interest, but increased scrutiny as well. To ensure
the program is operating in the most efficient manner, ICE reviewed the
draft copy of the report that contained five recommendations. ICE
concurs with all of the recommendations and, in some areas, had already
begun addressing the recommendations before the GAO study was
completed.
Before addressing ICE's response to GAO's recommendations, I would
like to point out that soon after her confirmation as Secretary of
Homeland Security, Secretary Napolitano issued a wide-ranging action
directive on immigration and border security. The directive requires
specific Department offices and components to work together and with
State and local partners to review and assess current plans and
policies in this area.
Secretary Napolitano is looking for metrics of success, gaps in
service and resources, partnerships with State and local governments
and other Federal agencies as well as other suggestions for reforms,
restructuring and consolidation where needed. Included in that
directive is a review of the current 287(g) Program. With that in mind
and in response to the GAO recommendations, ICE has begun the process
of redrafting the template that is used to form 287(g) agreements. Once
redrafted, the template will be submitted to DHS headquarters for
comment and approval. Upon being approved, this template will
incorporate many of the recommendations made by GAO. For example:
1. The MOAs will include the nature and extent of supervisory
activities ICE officers are expected to carry out as part of
their responsibilities in overseeing the implementation of the
287(g) Program;
2. Communicating that information to both ICE officers and State
and local participating agencies;
3. The MOAs will outline how and under what circumstances 287(g)
authority is to be used by State and local law enforcement
officers in participating agencies;
4. Also incorporated in each MOA are ICE's detention priorities.
These priorities ensure that ICE's finite detention space is
used to detain the aliens who pose the greatest risk to the
public. Specifically, the following list reflects the
categories of aliens that are a priority for detention, with
the highest priority being Level 1 criminal aliens. The
following priorities will be listed in all MOAs:
Level 1--Individuals who have been convicted of major drug
offenses and/or violent offenses such as murder,
manslaughter, rape, robbery, and kidnapping;
Level 2--Individuals who have been convicted of minor drug
offenses and/or mainly property offenses such as burglary,
larceny, fraud and money laundering; and,
Level 3--Individuals who have been convicted of other
offenses.
5. ``Sunset'' dates will be incorporated into all MOAs to ensure
regular review and modification as needed; and,
6. ICE will also specify the program information or data that each
agency is expected to collect regarding their implementation of
the 287(g) Program and how this information is to be reported.
Furthermore, all 287(g) partners are required to use the ENFORCE
\2\ system to ensure that ICE has all relevant data with which to
monitor the operation of each 287(g) MOA. However, ICE recognizes that
in its current state, ENFORCE has limited capabilities to capture the
criminal history of each alien processed.
---------------------------------------------------------------------------
\2\ ENFORCE is the primary administrative arrest and booking case
management system for DHS.
---------------------------------------------------------------------------
OSLC is working to create system enhancements to ENFORCE that will
allow ICE to classify the types of aliens 287(g) trained officers are
encountering. Specifically, ICE will require that the program
participants populate mandatory ENFORCE data fields concerning the type
of criminal activity the alien has engaged in. Violent crimes, crimes
against property, narcotics violations, traffic driving under the
influence (DUI) related violations and non-DUI related traffic
violations will all be captured. Furthermore, there will be fields
within ENFORCE concerning the severity of crimes broken down by
felonies, misdemeanors or civil violations. This data will be used by
ICE to evaluate whether or not our 287(g) partnerships function in
accord using resources with ICE priorities and to ensure that the
continuation of an agreement is in the best interest of ICE.
Additionally, pursuant to the 2009 Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act of 2009, the DHS Office
of Inspector General will be reviewing the 287(g) Program to ensure
that none of the funds provided to the 287(g) Program are being used
where the terms of the 287(g) agreements have been violated.
conclusion
In closing, it is critically important to note, as pointed out in
GAO's report, many benefits have been realized by the agencies
participating in the 287(g) Program. Program participants reported to
GAO a reduction in crime, the removal of repeat offenders and other
safety benefits. The cost savings associated with crime reduction are
not being easily quantified, but there has undoubtedly been a positive
impact on many communities. I am proud of the partnerships ICE has
formed with 287(g)-trained State and local law enforcement officers.
These partnerships are essential to ICE carrying out its mission of
deterring criminal alien activity and threats to national security and
public safety throughout the United States. While ICE has expanded the
287(g) Program rapidly and its internal management controls can be
improved, I believe that we have a strong framework in place to
effectuate improvements, and I look forward to the challenges that lay
ahead.
Again, I thank the committee for its support of ICE and our
critical mission. I would be happy to answer any questions you might
have at this time.
ATTACHMENT 1
----------------------------------------------------------------------------------------------------------------
State MOA--Name MOA--Type Signed--Date
----------------------------------------------------------------------------------------------------------------
AL................................ AL State Police............... Task Force........... 9/10/2003
AL................................ Etowah County Sheriff's Office Detention............ 7/8/2008
AR................................ Benton County Sheriff's Office Detention/Task Force. 9/26/2007
AR................................ City of Springdale Police Task Force........... 9/26/2007
Department.
AR................................ Rogers Police Department...... Task Force........... 9/25/2007
AR................................ Washington County Sheriff's Detention/Task Force. 9/26/2007
Office AR.
AZ................................ AZ Department of Corrections.. Detention............ 9/16/2005
AZ................................ AZ Department of Public Safety Task Force........... 4/15/2007
AZ................................ City of Phoenix Police Task Force........... 3/10/2008
Department.
AZ................................ Maricopa County Sheriff's Detention/Task Force. 2/7/2007
Office.
AZ................................ Pima County Sheriff's Office.. Detention/Task Force. 3/10/2008
AZ................................ Pinal County Sheriff's Office. Detention/Task Force. 3/10/2008
AZ................................ Yavapai County Sheriff's Detention/Task Force. 3/10/2008
Office.
CA................................ Los Angeles County Sheriff's Detention............ 2/1/2005
Office.
CA................................ Orange County Sheriff's Office Detention............ 11/2/2006
CA................................ Riverside County Sheriff's Detention............ 4/28/2006
Office.
CA................................ San Bernardino County Detention............ 10/19/2005
Sheriff's Office.
CO................................ CO Department of Public Safety Task Force........... 3/29/2007
CO................................ El Paso County Sheriff's Detention............ 5/17/2007
Office.
FL................................ Bay County Sheriff's Office... Task Force........... 6/15/2008
FL................................ Brevard County Sheriff's Detention............ 8/13/2008
Office.
FL................................ Collier County Sheriff's Detention/Task Force. 8/6/2007
Office.
FL................................ FL Department of Law Task Force........... 7/2/2002
Enforcement.
FL................................ Jacksonville Sheriff's Office. Detention............ 7/8/2008
FL................................ Manatee County Sheriff's Detention............ 7/8/2008
Office.
GA................................ Cobb County Sheriff's Office.. Detention............ 2/13/2007
GA................................ GA Department of Public Safety Task Force........... 7/27/2007
GA................................ Hall County Sheriff's Office.. Detention/Task Force. 2/29/2008
GA................................ Whitfield County Sheriff's Detention............ 2/4/2008
Office.
MA................................ Barnstable County Sheriff's Detention............ 8/25/2007
Office.
MA................................ Framingham Police Department.. Task Force........... 8/14/2007
MA................................ MA Department of Corrections.. Detention............ 3/26/2007
MD................................ Frederick County Sheriff's Detention/Task Force. 2/6/2008
Office.
MN................................ MN Department of Public Safety Task Force........... 9/22/2008
MO................................ MO State Highway Patrol....... Task Force........... 6/25/2008
NC................................ Alamance County Sheriff's Detention............ 1/10/2007
Office.
NC................................ Cabarrus County Sheriff's Detention............ 8/2/2007
Office.
NC................................ Cumberland County Sheriff's Detention............ 6/25/2008
Office.
NC................................ Durham Police Department...... Task Force........... 2/1/2008
NC................................ Gaston County Sheriff's Office Detention............ 2/22/2007
NC................................ Henderson County Sheriff's Detention............ 6/25/2008
Office.
NC................................ Mecklenburg County Sheriff's Detention............ 2/27/2006
Office.
NC................................ Wake County Sheriff's Office.. Detention............ 6/25/2008
NH................................ Hudson City Police Department. Task Force........... 5/5/2007
NJ................................ Hudson County Department of Detention............ 8/11/2008
Corrections.
NM................................ NM Department of Corrections.. Detention............ 9/17/2007
NV................................ Las Vegas Metropolitan Police Detention............ 9/8/2008
Dept.
OH................................ Butler County Sheriff's Office Detention/Task Force. 2/5/2008
OK................................ Tulsa County Sheriff's Office. Detention/Task Force. 8/6/2007
SC................................ Beaufort County Sheriff's Task Force........... 6/25/2008
Office.
SC................................ York County Sheriff's Office.. Detention............ 10/16/2007
TN................................ Davidson County Sheriff's Detention............ 2/21/2007
Office.
TN................................ TN Department of Safety....... Task Force........... 6/25/2008
TX................................ Carrollton Police Department.. Detention............ 8/12/2008
TX................................ Farmers Branch Police Dept.... Task Force........... 7/8/2008
TX................................ Harris County Sheriff's Office Detention............ 7/20/2008
UT................................ Washington County Sheriff's Detention............ 9/22/2008
Office UT.
UT................................ Weber County Sheriff's Office. Detention............ 9/22/2008
VA................................ City of Manassas Police Task Force........... 3/5/2008
Department.
VA................................ Herndon Police Department..... Task Force........... 3/21/2007
VA................................ Loudoun County Sheriff's Task Force........... 6/25/2008
Office.
VA................................ Manassas Park Police Task Force........... 3/10/2008
Department.
VA................................ Prince William County Police Task Force........... 2/26/2008
Department.
VA................................ Prince William County Task Force........... 2/26/2008
Sheriff's Office.
VA................................ Prince William-Manassas Adult Detention............ 7/9/2007
Detention Center.
VA................................ Rockingham County Sheriff's Detention/Task Force. 4/25/2007
Office.
VA................................ Shenandoah County Sheriff's Detention/Task Force. 5/10/2007
Office.
----------------------------------------------------------------------------------------------------------------
Chairman Thompson. Thank you very much for your testimony.
Mr. Stana, I now recognize you to summarize your statement
for 5 minutes.
STATEMENT OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND
JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Stana. Okay, thank you, Chairman Thompson, Mr. Souder,
Members of the committee.
As you know, section 287(g) of the INA authorizes ICE to
enter into written agreements that allow State or local law
enforcement agencies to perform at their own expense and under
the supervision of ICE officers certain functions of an
immigration officer, including searching selected Federal
databases and conducting interviews to identify criminals who
are in the country illegally. My prepared statement is based on
our report that was released today on the management controls
ICE has in place to govern the 287(g) program implementation
and the resources, benefits, and concerns reported by
participating agencies.
In sum, we found that ICE had some controls to govern the
program, such as MOAs with participating agencies as well as
background checks and training for officers participating in
the program. But the program lacked other key controls, which
make it difficult for ICE to ensure that it is operating as
intended. I would like to highlight four areas.
First, the program lacked documented program objectives to
help ensure that participants work toward a consistent purpose.
ICE officials stated that the objective of the program is to
address serious crime, such as drug trafficking and violent
crimes committed by removable aliens. However, ICE has not
documented this objective in MOAs or key program materials. In
absence of a clear objective, at least four of 29 program
participants we reviewed used 287(g) authority to process
individuals for minor crimes, such as speeding or carrying open
containers of alcohol, which is contrary to what ICE said is
the program objective.
Second, ICE has not consistently articulated in program-
related documents how participating agencies are to use their
287(g) program authority. While all 29 MOAs we reviewed contain
language that authorizes a State or local officer to
interrogate any person believed to be an alien as to his right
to remain in the country, none of them mentioned that ICE's
position is that the 287(g) authority should be used in
connection with an arrest. We found differing interpretations
by participants about the scope of 287(g) authority, such as
permitting officers to go to people's houses to question them
about immigration status. Further, although processing
individuals for possible removal is to be conducted in
connection with a conviction of a State or Federal felony
offense, this issue is not mentioned in seven of the 29 MOAs we
reviewed.
Third, although by law, State and local officials are to
use 287(g) authority under the supervision of ICE officials,
ICE has not described the nature and extent of supervision it
is to exercise over participating agencies. This has led to
wide variation in the nature and extent of ICE's activities.
ICE officials in one location told us they provided no direct
supervision. In another location, we were told they provided
frontline support for the program. At two other locations, they
described their supervisory activities as overseeing training
and ensuring that computer systems are working properly. At
another location, they described their supervisory activity as
reviewing files for completeness and accuracy.
For their part, the majority of State and local officials
we contacted said that ICE supervision was good. But others
said they did not receive adequate or direct supervision or
that ICE supervisors were either unresponsive or not available.
ICE officials in headquarters noted that the level of ICE
supervision provided to participating agencies has varied due
to a shortage of supervisory resources.
Finally, ICE states in the MOAs signed 2007 or later that
participating agencies are responsible for tracking and
reporting data to ICE. But those MOAs did not define what data
should be tracked or how it should be collected and reported.
We found considerable confusion among participating
jurisdictions regarding whether they had a data tracking and
reporting requirement, what type of data should be tracked and
reported and what format they should use in reporting data to
ICE.
Turning now to program resources, in fiscal years 2006
through 2008, ICE received about $60 million to train,
supervise, and equip program participants. As of last month,
ICE reported enrolling 67 agencies and training 951 State and
local enforcement officers. They had 42 additional requests for
participation, as has been mentioned. In six of the 42, their
participation has been approved pending the approval of the
MOA.
According to fiscal year 2008 data provided by ICE, for 25
of the 29 program performance participants we reviewed, about
43,000 aliens had been arrested pursuant to the program, and of
those ICE detained about 34,000. Program benefits reported by
participants include a reduction in crime, the removal of
repeat offenders and other public safety improvements. However,
over half the 29 agencies we contacted reported concerns from
community members, including concerns that the use of program
authority would lead to racial profiling and intimidation by
law enforcement officials.
We made several recommendations to strengthen internal
controls for the program to address the deficiencies we
identified and to help ensure the program operates as intended.
DHS and ICE concurred with each of our recommendations and
reported plans and steps taken to address them.
In closing, the 287(g) program can be an important tool for
ICE and participating jurisdictions to use to enforce our
Nation's immigration laws. Controversy can arise when
jurisdictions misunderstand the limits of their authority. ICE
fails to provide appropriate guidance and supervision. This
underscores the need for ICE to ensure that effective control
mechanisms exist to govern the 287(g) program.
This concludes my oral statement, and I would be happy to
answer any questions that Members may have.
[The statement of Mr. Stana follows:]
Prepared Statement of Richard M. Stana
March 4, 2009
Mr. Chairman and Members of the committee: I am pleased to be here
today to discuss the Department of Homeland Security's (DHS) U.S.
Immigration and Customs Enforcement's (ICE) management of the 287(g)
program. Recent reports indicate that the total population of
unauthorized aliens residing in the United States is about 12
million.\1\ Some of these aliens have committed one or more crimes,
although the exact number of aliens that have committed crimes is
unknown. Some crimes are serious and pose a threat to the security and
safety of communities. ICE does not have the agents or the detention
space that would be required to address all criminal activity committed
by unauthorized aliens. Thus, State and local law enforcement officers
play a critical role in protecting our homeland because, during the
course of their daily duties, they may encounter foreign-national
criminals and immigration violators who pose a threat to national
security or public safety. On September 30, 1996, the Illegal
Immigration Reform and Immigrant Responsibility Act was enacted and
added section 287(g) to the Immigration and Nationality Act.\2\ This
section authorizes the Federal Government to enter into agreements with
State and local law enforcement agencies, and to train selected State
and local officers to perform certain functions of an immigration
officer--under the supervision of ICE officers--including searching
selected Federal databases and conducting interviews to assist in the
identification of those individuals in the country illegally.\3\ The
first such agreement under the statute was signed in 2002, and as of
February 2009, 67 State and local agencies were participating in this
program.
---------------------------------------------------------------------------
\1\ Under section 101(a)(3) of the Immigration and Nationality Act,
8 U.S.C. 1101(a)(3), the term ``alien'' means any person not a
citizen or national of the United States. It does not include foreign
nationals who have become U.S. citizens.
\2\ Pub. L. No. 104-208, div. C, 133, 110 Stat. 3009-546, 3009-
563 to 64.
\3\ The change to the Immigration and Nationality Act is codified
in 8 U.S.C. 1357(g).
---------------------------------------------------------------------------
My statement today is based on our January 30, 2009, report
regarding the program including selected updates made in February
2009.\4\ Like the report, this statement addresses: (1) The extent to
which Immigration and Customs Enforcement has designed controls to
govern 287(g) program implementation; and, (2) how program resources
are being used and the activities, benefits, and concerns reported by
participating agencies. To do this work, we interviewed officials from
both ICE and participating agencies regarding program implementation,
resources, and results. We also reviewed memorandums of agreement (MOA)
between ICE and the 29 law enforcement agencies participating in the
program as of September 1, 2007, that are intended to outline the
activities, resources, authorities, and reports expected of each
agency. We also compared the controls ICE designed to govern
implementation of the 287(g) program with criteria in GAO's Standards
for Internal Control in the Federal Government, the Government
Performance and Results Act (GPRA), and the Project Management
Institute's Standard for Program Management.\5\ More detailed
information on our scope and methodology appears in the January 30,
2009 report. In February 2009, we also obtained updated information
from ICE regarding the number of law enforcement agencies participating
in the 287(g) program as well as the number of additional law
enforcement agencies being considered for participation in the program.
We conducted our work in accordance with generally accepted government
auditing standards.
---------------------------------------------------------------------------
\4\ GAO, Immigration Enforcement: Better Controls Needed Over
Program Authorizing State and Local Enforcement of Federal Immigration
Laws, GAO-09-109 (Washington, DC: January 2009).
\5\ GAO, Standards for Internal Control in the Federal Government,
GAO/AIMD-00-21.3.1 (Washington, DC: November 1999); and GAO, Executive
Guide: Effectively Implementing the Government Performance and Results
Act, GAO/GGD-96-118 (Washington, DC: June 1996). Additional program
management standards we reviewed are reflected in the Project
Management Institute's The Standard for Program Management (2006).
---------------------------------------------------------------------------
In summary, ICE has designed some management controls, such as MOAs
with participating agencies and background checks of officers applying
to participate in the program, to govern 287(g) program implementation.
However, the program lacks other key internal controls. Specifically,
program objectives have not been documented in any program-related
materials, guidance on how and when to use program authority is
inconsistent, guidance on how ICE officials are to supervise officers
from participating agencies has not been developed, data that
participating agencies are to track and report to ICE has not been
defined, and performance measures to track and evaluate progress toward
meeting program objectives have not been developed. Taken together, the
lack of internal controls makes it difficult for ICE to ensure that the
program is operating as intended. ICE and participating agencies used
program resources mainly for personnel, training, and equipment, and
participating agencies reported activities and benefits, such as a
reduction in crime and the removal of repeat offenders. However,
officials from more than half of the 29 State and local law enforcement
agencies we reviewed reported concerns members of their communities
expressed about the use of 287(g) authority for minor violations and/or
about racial profiling. We made several recommendations to strengthen
internal controls for the 287(g) program to help ensure that the
program operates as intended. DHS concurred with our recommendations
and reported plans and steps taken to address them.
ice lacks key internal controls for implementation of the 287(g)
program
ICE has designed some management controls to govern 287(g) program
implementation, such as MOAs with participating agencies that identify
the roles and responsibilities of each party, background checks of
officers applying to participate in the program, and a 4-week training
course with mandatory course examinations for participating officers.
However, the program lacks several other key controls. For example:
Program Objectives.--While ICE officials have stated that
the main objective of the 287(g) program is to enhance the
safety and security of communities by addressing serious
criminal activity committed by removable aliens, they have not
documented this objective in program-related materials
consistent with internal control standards. As a result, some
participating agencies are using their 287(g) authority to
process for removal aliens who have committed minor offenses,
such as speeding, carrying an open container of alcohol, and
urinating in public. None of these crimes fall into the
category of serious criminal activity that ICE officials
described to us as the type of crime the 287(g) program is
expected to pursue. While participating agencies are not
prohibited from seeking the assistance of ICE for aliens
arrested for minor offenses, if all the participating agencies
sought assistance to remove aliens for such minor offenses, ICE
would not have detention space to detain all of the aliens
referred to them. ICE's Office of Detention and Removal
strategic plan calls for using the limited detention bed space
available for those aliens that pose the greatest threat to the
public until more alternative detention methods are available.
Use of Program Authority.--ICE has not consistently
articulated in program-related documents how participating
agencies are to use their 287(g) authority. For example,
according to ICE officials and other ICE documentation, 287(g)
authority is to be used in connection with an arrest for a
State offense; however, the signed agreement that lays out the
287(g) authority for participating agencies does not address
when the authority is to be used. While all 29 MOAs we reviewed
contained language that authorizes a State or local officer to
interrogate any person believed to be an alien as to his right
to be or remain in the United States, none of them mentioned
that an arrest should precede use of 287(g) program
authority.\6\ Furthermore, the processing of individuals for
possible removal is to be in connection with a conviction of a
State or Federal felony offense. However, this circumstance is
not mentioned in 7 of the 29 MOAs we reviewed, resulting in
implementation guidance that is not consistent across the 29
participating agencies. A potential consequence of not having
documented program objectives is misuse of authority. Internal
control standards state that Government programs should ensure
that significant events are authorized and executed only by
persons acting within the scope of their authority. Defining
and consistently communicating how this authority is to be used
would help ICE ensure that immigration enforcement activities
undertaken by participating agencies are in accordance with ICE
policies and program objectives.
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\6\ While law enforcement officers without 287(g) designation are
not prohibited from contacting ICE to get information on the
immigration status and identity of aliens suspected, arrested, or
convicted of criminal activity, the statutory authority of an ICE
officer to interrogate individuals as to their immigration status is
one of the Federal immigration enforcement functions specifically
delegated to State and local officers who are certified to perform this
function under the 287(g) program.
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Supervision of Participating Agencies.--Although the law
requires that State and local officials use 287(g) authority
under the supervision of ICE officials, ICE has not described
in internal or external guidance the nature and extent of
supervision it is to exercise over participating agencies'
implementation of the program. This has led to wide variation
in the perception of the nature and extent of supervisory
responsibility among ICE field officials and officials from 23
of the 29 participating agencies that had implemented the
program and provided information to us on ICE supervision. For
example, one ICE official said ICE provides no direct
supervision over the local law enforcement officers in the
287(g) program in their area of responsibility. Conversely,
another ICE official characterized ICE supervisors as providing
frontline support for the 287(g) program. ICE officials at two
additional offices described their supervisory activities as
overseeing training and ensuring that computer systems are
working properly. ICE officials at another field office
described their supervisory activities as reviewing files for
completeness and accuracy. Officials from 14 of the 23 agencies
that had implemented the program were pleased with ICE's
supervision of the 287(g) trained officers. Officials from
another four law enforcement agencies characterized ICE's
supervision as fair, adequate, or provided on an as-needed
basis. Officials from three agencies said they did not receive
direct ICE supervision or that supervision was not provided
daily, which an official from one of these agencies felt was
necessary to assist with the constant changes in requirements
for processing of paperwork. Officials from two law enforcement
agencies said ICE supervisors were either unresponsive or not
available. ICE officials in headquarters noted that the level
of ICE supervision provided to participating agencies has
varied due to a shortage of supervisory resources. Internal
control standards require an agency's organizational structure
to define key areas of authority and responsibility. Given the
rapid growth of the program, defining the nature and extent of
ICE's supervision would strengthen ICE's assurance that
management's directives are being carried out.
Tracking and Reporting Data.--MOAs that were signed before
2007 did not contain a requirement to track and report data on
program implementation. For the MOAs signed in 2007 and after,
ICE included a provision stating that participating agencies
are responsible for tracking and reporting data to ICE.
However, in these MOAs, ICE did not define what data should be
tracked or how it should be collected and reported. Of the 29
jurisdictions we reviewed, 9 MOAs were signed prior to 2007 and
20 were signed in 2007 or later. Regardless of when the MOAs
were signed, our interviews with officials from the 29
participating jurisdictions indicated confusion regarding
whether they had a data tracking and reporting requirement,
what type of data should be tracked and reported, and what
format they should use in reporting data to ICE. Internal
control standards call for pertinent information to be recorded
and communicated to management in a form and within a time
frame that enables management to carry out internal control and
other responsibilities. Communicating to participating agencies
what data is to be collected and how it should be gathered and
reported would help ensure that ICE management has the
information needed to determine whether the program is
achieving its objectives.
Performance Measures.--ICE has not developed performance
measures for the 287(g) program to track and evaluate the
progress toward attaining the program's objectives.\7\ GPRA
requires that agencies clearly define their missions, measure
their performance against the goals they have set, and report
on how well they are doing in attaining those goals.\8\
Measuring performance allows organizations to track the
progress they are making toward their goals and gives managers
critical information on which to base decisions for improving
their programs. ICE officials stated that they are in the
process of developing performance measures, but have not
provided any documentation or a time frame for when they expect
to complete the development of these measures. ICE officials
also stated that developing measures for the program will be
difficult because each State and local partnership agreement is
unique, making it challenging to develop measures that would be
applicable for all participating agencies. Nonetheless,
standard practices for program and project management call for
specific desired outcomes or results to be conceptualized and
defined in the planning process as part of a road map, along
with the appropriate projects needed to achieve those results
and milestones. Without a plan for the development of
performance measures, including milestones for their
completion, ICE lacks a roadmap for how this project will be
achieved.
---------------------------------------------------------------------------
\7\ In general, performance measures are indicators, statistics, or
metrics used to gauge program performance.
\8\ 8GAO/GGD-96-118.
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program resources are used for training, supervision, and equipment;
benefits and concerns are reported by ice and participating agencies
ICE and participating agencies used program resources mainly for
personnel, training, and equipment, and participating agencies reported
activities, benefits, and concerns stemming from the program. For
fiscal years 2006 through 2008, ICE received about $60 million to
provide training, supervision, computers, and other equipment for
participating agencies. State and local participants provided officers,
office space, and other expenses not reimbursed by ICE, such as office
supplies and vehicles.
ICE and State and local participating agencies cite a range of
benefits associated with the 287(g) partnership. For example, as of
February 2009, ICE reported enrolling 67 agencies and training 951
State and local law enforcement officers. At that time, ICE had 42
additional requests for participation in the 287(g) program, and 6 of
the 42 have been approved pending approval of an MOA. According to data
provided by ICE for 25 of the 29 program participants we reviewed,
during fiscal year 2008, about 43,000 aliens had been arrested pursuant
to the program.\9\ Based on the data provided, individual agency
participant results ranged from about 13,000 arrests in one location,
to no arrests in two locations. Of those 43,000 aliens arrested
pursuant to the 287(g) authority, ICE detained about 34,000, placed
about 14,000 of those detained (41 percent) in removal proceedings, and
arranged for about 15,000 of those detained (44 percent) to be
voluntarily removed.\10\ The remaining 5,000 (15 percent) arrested
aliens detained by ICE were either given a humanitarian release, sent
to a Federal or State prison to serve a sentence for a felony offense,
or not taken into ICE custody given the minor nature of the underlying
offense and limited availability of the Federal Government's detention
space.\11\
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\9\ ICE provided data for 25 of the 29 participating agencies we
reviewed. ICE also provided data for four other participating agencies,
but we do not report them as they were not within the scope of our
review. We used the data provided by ICE for illustrative purposes only
and not to draw conclusions about the 287(g) program.
\10\ A voluntary removal (called voluntary departure) occurs when
an alien is allowed to depart the country at his or her own expense
(escorted by ICE) in lieu of formal removal proceedings or prior to
completion of such proceedings.
\11\ Individuals arrested on administrative charges who may be sole
caregivers or who have other humanitarian concerns, including those
with serious medical conditions that require special attention,
pregnant women, nursing mothers, parents who are the sole caretakers of
minor children or disabled or seriously ill relatives, and parents who
are needed to support their spouses in caring for sick or special needs
children or relatives, may be released by ICE. As appropriate, if ICE
is provided with new information regarding a humanitarian condition
after an arrestee has been processed and detained, ICE may consider the
possibility of release on humanitarian grounds based on such
information. In general, aliens given a humanitarian release or not
taken into custody due to limited detention space receive a notice to
appear in immigration court at a later date for removal proceedings.
Removable aliens serving a sentence in Federal State prison are to be
processed for removal at the end of their sentences.
---------------------------------------------------------------------------
Participating agencies cited benefits of the program including a
reduction in crime and the removal of repeat offenders. However, more
than half of the 29 State and local law enforcement agencies we
reviewed reported concerns community members expressed about the 287(g)
program, including concerns that law enforcement officers in the 287(g)
program would be deporting removable aliens pursuant to minor traffic
violations (e.g., speeding) and concerns about racial profiling.
We made several recommendations to strengthen internal controls for
the 287(g) program to help ensure the program operates as intended.
Specifically, we recommended that ICE: (1) Document the objective of
the 287(g) program for participants; (2) clarify when the 287(g)
authority is authorized for use by State and local law enforcement
officers; (3) document the nature and extent of supervisory activities
ICE officers are expected to carry out as part of their
responsibilities in overseeing the implementation of the 287(g)
program; (4) specify the program information or data that each agency
is expected to collect regarding their implementation of the 287(g)
program and how this information is to be reported; and, (5) establish
a plan, including a time frame, for the development of performance
measures for the 287(g) program. DHS concurred with each of our
recommendations and reported plans and steps taken to address them.
Mr. Chairman and Members of the committee, this concludes my
statement. I would be pleased to respond to any questions you or other
Members of the committee may have.
Chairman Thompson. Thank you very much.
Sheriff Jenkins. I now recognize you to summarize your
statement for 5 minutes.
STATEMENT OF CHARLES A. JENKINS, SHERIFF, FREDERICK COUNTY,
STATE OF MARYLAND
Sheriff Jenkins. Good afternoon, Mr. Chairman,
distinguished committee Members. I am Charles A. Jenkins,
sheriff, Frederick County, Maryland, your neighbor to the
north.
I moved forward to the 287 program in 2007 for two reasons:
No. 1, national security, specifically the identification of
individuals encountered through arrest and investigations that
may be a potential terrorist threat inside of our borders; No.
2, the enormous increase in crime throughout the United States,
to include this region, which can be tied directly to the
unchecked flow of illegal immigrants through our southern
borders with Mexico.
The agreement for participation was signed in late 2007.
ICE provided training for 26 Frederick County Sheriff's Office
personnel: 16 correctional officers and 10 sworn law
enforcement deputies. Frederick County currently participates
in both arms of the 287 program. The detention center program
was implemented on April 11, 2008, and the law enforcement task
force program was implemented on August 1, 2008.
In Frederick County, everyone arrested by our agency and
all other local and State agencies in the county are screened
and identified through the detention program to determine their
legal presence, their alienage or legal status in the United
States. Persons arrested, charged and convicted for violent and
serious crimes, crimes of moral turpitude and serious
arrestable driving offenses are not released back onto the
streets of our community to commit even more serious crimes or
to cause the horrific crashes and driving events that we have
seen across our country.
Those identified as being in the United States illegally
are prosecuted locally, serve time on the State/local charges
as appropriate, then placed into the removal proceedings. The
first arrest and detainer filed under 287(g) was arrested for
driving intoxicated at two times the legal limit in his blood
through a school zone during school hours. Since April 11,
2008--and these are some stats I think are very important--the
following arrests reflect the effectiveness and significance of
the 287 program in Frederick County, Maryland.
Frederick County has lodged detainers on 337 arrestees
identified through the program with 309 of those placed into
removal proceedings. The program has allowed us to identify and
place into removal proceedings nine members of the notoriously
violent gangs, MS-13 and 18th Street, originally out of El
Salvador, now thriving on this side of the coast. Also among
those arrested and identified were a Nicaraguan military-
trained sniper and a Salvadorian guerilla trained in knife
fighting.
Some of the most serious offenses in which criminal aliens
have been arrested are attempted second-degree murder, second-
degree rape, armed robbery, child abuse, burglary. Over the
past 2 years, all of the largest multi-kilo narcotics
investigations and seizures by our narcotics task force for
both cocaine and marijuana have involved the arrest of illegal
criminal aliens and the trafficking of those drugs in Frederick
County. Several cases involve the drugs being brought directly
from the border States.
I will strongly argue that national security is at risk by
the increased organized street crimes we are seeing now in our
communities. It is in this light that the argument is made--and
I will make it--that national security and fighting that crime
are one and the same.
Human trafficking is yet another element of the organized
crime we are seeing. Immigrants themselves are victimized. The
bleeding of our borders and the crime associated is in fact
terrorism. It is also recognized that the face of terrorism has
changed. It is no longer identified by one face, one profile,
one country of origin, or one ethnic group.
Our law enforcement task force deputies work not as a
separate unit but as criminal investigator, as narcotics
investigators, patrol deputies, now trained in the
investigation and identification of fraudulent documents, now
able to identify criminal aliens. They work closely under the
direct supervision of an ICE agent or supervisor. We have also
worked on an ICE gang surge unit.
As far as the relationship, the working relationship
between ICE and Frederick County has been outstanding from day
1. We work at the direction of ICE supervisors who have trusted
our well-trained people to effectively run the program with
direct supervision when needed and availability when we need
them. This speaks well to the training program and the
oversight. I would be remiss if I said that at times ICE--their
manpower is strained, they are understaffed, and they need
additional manpower. As a sheriff and a participant in the
program, I would fully support additional manpower and
resources for the 287 program.
I educated the county about what we were going to do from
the start. From the outset, I made the public aware of my
intentions and the reasons why. It was well publicized in the
local media. I have attended many organizational and community
meetings where this program has been brought up and discussed
at length. The facts were explained and the rumors were
dispelled and the false information was set aside. Again, I
listen to the citizens of Frederick County in moving forward
with this program.
The negative criticism--yes. Overall, public support of and
comment about this program has been overwhelmingly positive.
Estimates of local public support in Frederick County are as
high as 90 percent. There are opponents who have criticized our
involvement in the program and have made false assertions and
claims. CASA de Maryland, the ACLU, the local chapter of the
NAACP have all voiced opposition, but they should be behind
this. This is not about profiling; this is not about
discrimination.
A couple of points: There have been absolutely no
complaints of profiling or discrimination based on ethnicity
since the implementation of the program. The program has not
harmed police-immigrant community relations. The program has
not been a huge additional cost to the citizens of Frederick
County. I would argue that the cost of doing nothing is
enormous. All other costs are paid for through the program
funding. There has been no special immigration enforcement unit
created in our office.
Chairman Thompson. Sheriff, we don't like to stop folk with
badges on, because you might have a weapon too, but----
Sheriff Jenkins. Could I----
Chairman Thompson. If you could summarize----
Sheriff Jenkins. Okay, I will summarize in closing. In the
10 months since the 287 program was implemented, I can show you
with statistics, with proof, that it has been an overwhelming
success. We have been cited as a model agency in the program.
The citizens of this country are clearly frustrated. I
would respectfully urge the committee to expand the resources
and oversight for the program.
Mr. Chairman, committee Members, Americans are angered,
they are tired, they are frustrated. We are dying on American
soil. I urge you to listen to them. There is a role for local
law enforcement in the enforcement of the immigration laws of
America.
Thank you.
[The statement of Mr. Jenkins follows:]
Prepared Statement of Charles A. Jenkins
introduction
Frederick County, Maryland is located approximately 60 miles
northwest of Washington, DC, with a population of approximately
230,000. Frederick County has a very strong agricultural industry base,
also bio-science, and light manufacturing industry. The Frederick
County Sheriff's Office is a full-service law enforcement agency with
primary law enforcement responsibility outside of the municipalities,
also responsible for the operations of the courthouse and adult
detention center.
The city of Frederick is currently the second-largest city in the
State of Maryland. As recent as late 2008, Frederick County has been
identified as one of the top five counties in the United States in
terms of seeing increases of immigrants moving into the community, a
significant number here illegally.
Elected as Sheriff in November 2006, I had researched this program
extensively and the reasons for seeking participation were two-fold:
(1) National security, specifically the identification of
individuals encountered through arrests and investigations,
which may be a potential terrorist threat inside of our
borders.
(2) The enormous increase in crime throughout the United States, to
include this region which can be tied directly to the unchecked
flow of illegal immigrants through our southern borders with
Mexico.
Federal, State, and local law enforcement agencies across the
country know and have attributed much of the increase in violent crime
and drug trafficking to the rapid growth of trans-national gangs and
organized crime tied to drug cartels outside of our borders.
general overview of 287(g) program in frederick county
With executive authority as Sheriff, my agency applied for
participation the DHS/ICE 287(g) Delegation of Authority Program in
early 2007. The agreement for participation was signed in late 2007.
ICE provided training for 26 Frederick County Sheriff Office personnel,
16 Correctional Officers and 10 sworn law enforcement deputies. The 4
weeks of intensive training was conducted by ICE in February 2008,
hosted at the Frederick County Law Enforcement Center.
Frederick County currently participates with both arms of the
287(g) Program, the detention center program and the law enforcement/
task force program. The detention center program was implemented on
April 11, 2008, and the law enforcement/task force program was
implemented on August 1, 2008.
Through the 287(g) Program, Frederick County Sheriff's Deputies and
Correctional Officers are authorized to act as immigration officers in
the enforcement of the United States Immigration Laws, in effect a
force multiplier for DHS/ICE. I view this as critical that State/local
law enforcement participate with DHS/ICE in accomplishing the overall
mission of enforcing the immigration laws in accordance existing
Federal laws and the removal of criminal illegal aliens.
As a valuable tool to law enforcement in fighting crime, I would
urge every law enforcement executive, both police chiefs and sheriffs,
to request participation into the program. In Frederick County,
everyone arrested by all other local and State agencies, are screened
and identified through the detention program, to determine their legal
presence or status in the United States.
Persons arrested, charged, and convicted for violent and serious
crimes, crimes of moral turpitude, and serious driving offenses are not
released back onto the streets of our community to commit even more
serious crimes, or to cause the horrific crashes and driving events
that have victimized our communities.
To dispute the detractors and arguments that many arrestees in
driving offense arrests, are eventually identified, detained, and
removed through the program, criminal background checks show criminal
records of serious and violent crimes. Those identified as being in the
United States illegally are prosecuted locally; serve time on the
State/local charges as appropriate, then placed into removal
proceedings. The first arrest and detainer filed under the 287(g)
Program was arrested for driving intoxicated, through a school zone,
during school hours of operation.
results of the program/statistics of significant interest
Since April 11, 2008, the following statistics on arrest reflect
the effectiveness and significance of the 287(g) Program in Frederick
County, Maryland:
Frederick County has lodged detainers on 337 arrestees
identified through the program as being in the United States
illegally, with 309 of those placed into removal proceedings.
The program has allowed us to identify and place into
removal proceedings 9 members of the notoriously violent gangs
MS-13 and 18th Street, originally out of El Salvador, now
thriving across the United States. Also, among those arrested
and identified were a Nicaraguan military trained sniper and a
Salvadorian guerilla fighter trained in knife fighting.
Some of the most serious offenses in which criminal aliens
have been arrested as offenders and identified include:
Attempted 2nd Degree Murder, 2nd Degree Rape, Armed Robbery,
1st Degree Assault, Child Abuse, Burglary, and Possessing
Counterfeit U.S. Currency.
Over the past 2 years, all of the largest (multi-kilo)
narcotics investigations and seizures by our Frederick County
Narcotics Task Force, for both cocaine and marijuana, have
involved the arrests of illegal criminal aliens and the
trafficking of those illegal drugs in Frederick County. Several
cases have involved drugs being trafficked directly from the
southern Border States.
crime and national security
It can be strongly argued that national security is at risk by the
increased organized street crimes we are seeing in our communities. It
is in this light that the argument is made that national security and
fighting that crime are one in the same, with the increases of violent
crime spilling across our borders, controlled by the corruption and
power of the Mexican drug cartels, driven by trans-national and
organized street gangs. Human trafficking is yet another element of the
organized crime we are seeing.
The bleeding of our borders and the crime associated is in fact
terrorism. Terrorists and criminals are able to easily exploit our
immigration system because of our vulnerable borders and by utilizing
fraudulent identification. They seek to operate and remain in the
United States under the radar of the Federal Government.
The 287(g) Program in this regard is a strong and effective tool in
safeguarding our national security at our borders. It is also
recognized that the face of terrorism has changed dramatically across
the globe and that it can no longer be identified by just one face, one
profile, country of origin, or ethnic group.
This valuable program can be of enormous assistance to local law
enforcement in the identification of suspects who may be looking to
target soft targets and critical infrastructure on our soil.
Our law enforcement/task force deputies work within the authority
of the 287(g) Program as an extension of their routine law enforcement
duties. Those deputies include criminal investigators, narcotics
investigators, and patrol deputies, now trained in the investigation
and identification of fraudulent documents, now able to identify
criminal aliens in the process of investigating street crimes. They
have worked under the direct supervision of ICE on a gang surge effort.
relationship with ice
The working relationship between ICE and the Frederick County
Sheriff's Office has been outstanding from day 1. We have worked at the
direction of ICE supervisors who trust our well trained personnel to
effectively run the program with direct supervision when needed, and
constant availability and response to assist and answer questions. This
speaks well to the training program.
ICE special agents, supervisors, extending to the director level in
both the investigations side and detention programs have worked to
assure that this program and our participation have been effective and
seamless. I am fortunate to have an ICE Special Agent working in-house
on a very routine basis.
I would be remiss if I did not acknowledge that at times, DHS/ICE
is understaffed and in need of additional manpower.
Recognizing the magnitude of their mission in the 287(g)
Immigration Enforcement Program, I would strongly encourage an
expansion of the program and the appropriate increase in field agents
and supervisory personnel to support the number of law enforcement
agencies who want to participate.
As a Sheriff and as a participant in this program, I would fully
support additional manpower and resources for the 287(g) Program, given
that many agencies have shown the value and effectiveness of the
program.
community education about the program
In listening and hearing the frustrations and concerns of the
citizens of Frederick County, I went forward in seeking this program.
From the outset I made the public aware of my intentions to move the
agency forward into this program. It was well-publicized in the local
media, to include local radio, the newspapers, and local television
when interested.
In addition, I have attended many organizational and community
meetings where this program has been brought up and discussed at
length, to explain the facts and value of the program and to dispel
rumors and false information. Again, I listened to the citizens of this
county in moving forward with participation in this program.
In educating the public the focus has been to make people aware
that everyone taken into the detention center is screened, asked the
same questions to determine legal status, and are processed in the
identical manner.
dispelling the negative criticism of the 287(g) program
Overall, public support of and comment about this program has been
overwhelmingly positive. It is very clear by way of phone calls,
emails, letters, letters to the local paper, and radio call-ins, that
the vast majority of the citizens of this county are in favor of this
illegal immigration enforcement initiative. Estimates of local public
support are as high as 90 percent.
Many residents of neighboring counties also voice their approval of
this effort in Frederick County.
I have received many calls from naturalized citizens and legal
immigrants who are offended at those who violate the laws entering this
country illegally and have been given a free pass while breaking State
and local laws, to remain in this country illegally.
There are detractors that have criticized our involvement in the
program, and have made false assertions and claims of discrimination
and profiling. CASA de Maryland, the ACLU, and the local chapter of the
NAACP has voiced opposition, citing profiling, discrimination, and
creating distrust within the local immigrant communities. Those same
organizations and detractors also cited the exorbitant costs of the
program to the citizens of this county. These claims have been proven
to be false.
There have been absolutely NO complaints of profiling or
discrimination based on ethnicity since the implementation of
the 287(g) Program.
The program has NOT harmed police/immigrant community
relations, and has not created fear or distrust of law
enforcement. This is all rhetorical, with no real basis. Any
existing fear or distrust of law enforcement is generally
cultural based, as most countries where immigrants originate
from do have corrupt governments, corrupt and abusive law
enforcement, which is all they have been exposed to in their
lives. This is simply not true.
This program has NOT been a huge cost to the citizens of
Frederick County. The training was hosted at no cost, other
than the normal salaries of those FCSO deputies and officers
attending. The database access, computers, hardware, IT lines,
and other tie-in and technical expenses were paid for through
ICE program funding, not local taxpayer dollars.
Other program expenses such as travel, medical expenses for
detainees, and detention housing expenses are covered by and
reimbursement by DHS/ICE through program funding.
There is NO special Immigration Enforcement Unit created in
the FCSO as a result of this program. All of our enforcement
efforts in the detention program and the law enforcement/task
force program are an extension of the current duties of the
personnel trained in the program.
closing statement
In the almost 10 months since the 287(g) Program was implemented in
Frederick County, the results have clearly shown it to be an
overwhelming success. The Frederick County Sheriff's Office has been
cited as a model agency in this partnership with DHS/ICE. Clearly, the
program has become an effective tool in fighting crime, keeping
criminal aliens from being set free on the streets of our communities,
and being placed into removal proceedings and returned to their home
countries.
Testifying here today, I strongly believe I am representing the
voice of America. The citizens of United States clearly are frustrated
with the problems associated with illegal immigration including the
crime, national security risks, and the associated economic effects.
Detractors and opponents of the 287(g) Immigration Enforcement
Program will say they want nothing done. With everything currently at
stake, doing nothing is NOT an option. I would respectfully urge this
committee to expand the resources for this program and to encourage law
enforcement across the entire United States to participate in this
partnership with DHS/ICE.
Chairman Thompson. Thank you.
For the membership of the committee, we will hear one other
witness. We will recess at that point. We will have four votes,
and we will reconvene right after those four votes.
Chief Manger for 5 minutes.
STATEMENT OF J. THOMAS MANGER, CHIEF, MONTGOMERY COUNTY POLICE
DEPARTMENT, STATE OF MARYLAND
Chief Manger. Mr. Chairman, distinguished Members of the
committee, I am Tom Manger, chief of police of Montgomery
County, Maryland, and chairman of the Major Cities Chiefs'
Legislative Committee. The Major Cities Chiefs Association
represents the 56 largest police departments in the United
States.
Each one of these 56 police chiefs is dealing every day
with the issues of undocumented residents and the crime
committed by a fraction of these residents. Nowhere is this
challenge more acute than in this country's largest urban
settings. Local governments have, by necessity, had to react
and respond to the growing number of challenges caused by an
increasing population of undocumented residents.
Municipalities have chosen a range of approaches. Some are
proud to be called sanctuary jurisdictions, where not only does
local law enforcement not inquire about anyone's immigration
status, some jurisdictions don't honor nor serve warrants from
ICE. On the other end of the spectrum, some jurisdictions have
adopted policies that prohibit government services going to
undocumented individuals and have elected to participate in the
Federal 287(g) training. Most jurisdictions have adopted
policies somewhere between the two approaches I just described.
The overwhelming majority of major city police agencies
have elected not to participate in 287(g) training. In fact,
the last figures I have seen indicate that over 95 percent of
police and sheriffs' departments in the United States have
elected not to participate in the 287(g) training.
But I think it is important to make two points here. One, I
am not trying to be critical of those agencies that do
participate. It just would not work in most large, urban
jurisdictions. We believe that there would be--we also believe
that there should be strong cooperation and coordination with
all of our Federal law enforcement partners, including ICE.
So why have the Nation's largest police agencies elected
not to participate in 287(g)? First, it undermines the trust
and cooperation with immigrant communities that are essential
elements of community policing. We need to have strong policies
that take into full account the realities of local law
enforcement. One of those realities is that public safety
increases when people have trust and confidence in their police
department. Consequently, unreported crime goes down.
Another reality is that immigrants, both documented and
undocumented, are more likely to be victims of crimes than are
U.S. citizens. Delivering fair and consistent police service to
all crime victims has to be a priority.
A second reason that most jurisdictions are not taking the
287(g) training is that local agencies do not possess adequate
resources to enforce these laws in addition to the added
responsibility of homeland security. Enforcing Federal law is
an unfunded mandate that most agencies just cannot afford to
do.
Third, immigration laws are very complex, and the training
required to understand them would significantly detract from
the core mission of the local police to create safe
communities. Prior to just a few years ago, enforcing
immigration law was solely a Federal responsibility. It was a
specialty, like the IRS and tax law. If the Federal Government
comes to the conclusion someday that too many people are tax
evaders, will the solution be to authorize local police to
enforce tax laws? This is contrary to our mission.
That said, working cooperatively with our Federal partners
is essential for public safety. Using the IRS again as an
example, when we make a case against an individual as a major
narcotics distributor, notifying and working closely with the
IRS is the effective thing to do. In the same way, working
closely with ICE on human trafficking cases, gang
investigations, fraudulent document cases is a proven crime-
fighting technique.
Montgomery County Corrections sends a list of all foreign-
born inmates to ICE once a week. In addition, my police
officers and detectives notify ICE on every violent crime
arrest that we make. But the bottom line is this: Local law
enforcement needs to work closely and effectively with our
Federal partners, but we cannot do their job for them.
The Major Cities Chiefs have sent a clear and consistent
message to each attorney general for the past 8 years. That
message is: No. 1, secure our borders; it has to be a top
priority. No. 2, remove civil immigration detainers from the
NCIC database. In August 2003, Attorney General John Ashcroft
put these civil warrants in a national database that had
previously been for criminal warrants. Our current attorney
general can remedy this with the stroke of a pen. No. 3,
consulting and involving local police agencies when developing
any immigration initiative is imperative if that initiative is
to involve local law enforcement.
Thank you.
[The statement of Mr. Manger follows:]
Prepared Statement of J. Thomas Manger
enforcement of immigration laws by local police agencies
a. statement of issue
Illegal immigration is a problem that vases our Nation and society
as a whole and one that must be dealt with at the national level. It is
absolutely critical that our country develop a consistent unified
national plan to deal with immigration and this plan must include the
critical component of securing our borders to prevent illegal entry
into the United States.
Since the horrendous attacks of September 11, 2001, local law
enforcement has been called upon to do its part in protecting the
Nation from future terrorist attacks. The response of local law
enforcement to the call to protect the homeland has been tremendous.
Today, local police agencies stand as the first line of defense here at
home to prevent future attacks. Local law enforcement's unending
efforts include providing additional training and equipment to
officers, increasing communication and coordination with Federal
agencies, gathering, assessing and sharing intelligence, modifying
patrol methods and increasing security for potential targets such as
power plants, airports, monuments, ports, and other critical facilities
and infrastructure. Much of these efforts have been at a high cost to
local budgets and resources.
The Federal Government and others have also called upon local
police agencies to become involved in the enforcement of Federal
immigration laws as part of the effort to protect the Nation. This
issue has been a topic of great debate in the law enforcement community
since September 11. The call for local enforcement of Federal
immigration laws has become more prominent during the debate over
proposed immigration reform at the national level.
Major city police departments have a long undeniable history of
working with Federal law enforcement agencies to address crime in the
United States, whether committed by citizens, visitors, and/or illegal
immigrants. Local police agencies have not turned a blind eye to crimes
related to illegal immigration. They have worked and continue to work
daily with Federal agencies whenever possible and to the extent
allowable under state criminal law enforcement authority to address
crimes such as human trafficking and gang violence, which have a nexus
with illegal immigration.
How local agencies respond to the call to enforce immigration laws
could fundamentally change the way they police and serve their
communities. Local enforcement of Federal immigration laws raises many
daunting and complex legal, logistical and resource issues for local
agencies and the diverse communities they serve. Some in local law
enforcement would embrace immigration enforcement as a means of
addressing the violation of law represented by illegal immigration
across our borders. Many others recognize the obstacles, pitfalls,
dangers and negative consequences to local policing that would be
caused by immigration enforcement at the local level.
It is important for Major Cities Chiefs [MCC] as a leader and
representative of the local law enforcement community to develop
consensus on this important subject. The purpose of this position
statement is to evaluate and address the impact and potential
consequences of local enforcement of Federal immigration laws and to
highlight steps that, if taken, might allow local agencies to become
involved in immigration enforcement. It is hoped that this statement
will help to draw attention to the concerns of local law enforcement
and provide a basis upon which to discuss and shape any future national
policy on this issue. In this regard it is absolutely critical that MCC
be involved in all phases of this debate from developing this official
position statement to demanding input and involvement in the
development of any national initiatives.
b. overview of immigration and immigrant status
The Federal Government has the clear authority and responsibility
over immigration and the enforcement of immigration laws. With this
authority, the Federal Government has enacted laws, such as the
Immigration and Naturalization Act (INA), that regulate a person's
entry into the United States, his or her ability to remain in the
country, and numerous other aspects of immigration. The Federal
Government has given Federal agencies such as Immigration and Customs
Enforcement [ICE] the specific authority to investigate a person's
immigration status and deport individuals who have no legal status or
authority to be in the United States.
Under the current immigration laws there exist various immigration-
status classifications. The immigration status of any particular person
can vary greatly. The most common status classifications include the
following:
(1) Legal Immigrants are citizens of other countries who have been
granted a visa that allows them to live and work permanently in
the United States and to become naturalized U.S. citizens. Once
here, they receive a card, commonly referred to as a ``green
card'' from the Federal Government indicating they are
permanent residents. Some legal immigrants are refugees who
fear persecution based on race, religion, nationality,
membership in a particular social group, or political opinion
in their home countries. Refugees are resettled every year in
the United States after their requests for asylum have been
reviewed and granted.
(2) Nonimmigrant Visa Holders are persons who are granted temporary
entry into the United States for a specific purpose, such as
visiting, working, or studying. The United States has 25 types
of nonimmigrant visas, including A1 visas for Ambassadors, B2
visas for tourists, P1 visas for foreign sports stars who play
on U.S. teams and TN visas for Canadians and Mexicans entering
the United States to work under NAFTA. Visa Holders are allowed
to stay in the United States as long as they meet the terms of
their status.
(3) Illegal Immigrants are citizens of other countries who have
entered or remained in the United States without permission and
without any legal status. Most illegal immigrants cross a land
or sea border without being inspected by an immigration
officer. Some persons fall into illegal status simply by
violating the terms of a legal entry document or visa.
(4) Absconders are persons who entered the United States legally
but have since violated the conditions of their visa and who
have had a removal, deportation, or exclusion hearing before an
immigration judge and are under a final order of deportation
and have not left the United States.
c. concerns with local enforcement of federal immigration laws
Local police agencies must balance any decision to enforce Federal
immigration laws with their daily mission of protecting and serving
diverse communities, while taking into account: Limited resources; the
complexity of immigration laws; limitations on authority to enforce;
risk of civil liability for immigration enforcement activities and the
clear need to foster the trust and cooperation from the public
including members of immigrant communities.
(1) Undermine Trust and Cooperation of Immigrant Communities
Major urban areas throughout the Nation are comprised of
significant immigrant communities. In some areas the immigrant
community reaches 50 percent-60 percent of the local population. Local
agencies are charged with protecting these diverse populations with
communities of both legal and illegal immigrants. The reality is that
undocumented immigrants are a significant part of the local populations
that major police agencies must protect, serve and police.
Local agencies have worked very hard to build trust and a spirit of
cooperation with immigrant groups through community-based policing and
outreach programs and specialized officers who work with immigrant
groups. Local agencies have a clear need to foster trust and
cooperation with everyone in these immigrant communities. Assistance
and cooperation from immigrant communities is especially important when
an immigrant--whether documents or undocumented--is the victim of or
witness to a crime. These persons must be encouraged to file reports
and come forward with information. Their cooperation is needed to
prevent and solve crimes and maintain public order, safety, and
security in the whole community. Local police contacts in immigrant
communities are important as well in the area of intelligence-gathering
to prevent future terroristic attacks and to strengthen homeland
security.
Immigration enforcement by local police would likely negatively
affect and undermine the level of trust and cooperation between local
police and immigrant communities. If the undocumented immigrant's
primary concern is that he/she will be deported or subjected to an
immigration-status investigation, then the individual will not come
forward and provide needed assistance and cooperation. Distrust and
fear of contacting or assisting the police would develop among legal
immigrants as well. Undoubtedly legal immigrants would avoid contact
with the police for fear that they themselves or undocumented family
members or friends may become subject to immigration enforcement.
Without assurances that contact with the police would not result in
purely civil immigration-enforcement action, the hard-won trust,
communication, and cooperation from the immigrant community would
disappear. Such a divide between the local police and immigrant groups
would result in increased crime against immigrants and in the broader
community, create a class of silent victims, and eliminate the
potential for assistance from immigrants in solving crimes or
preventing future terroristic acts.
(2) Lack of Resources
The budgets and resources of local police agencies are not
unlimited. Local police agencies struggle every year to find the
resources to police and serve their respective communities. Since the
events of September 11, local agencies have taken on the added duty of
serving as the first line of defense and response to terrorist attacks
for our country. These efforts on the local level to deter and prevent
another terrorist attack and to be prepared to respond to the aftermath
of an attack have stretched local resources even further. Since the
creation of the Homeland Security Department, Federal funding for major
city police departments has been greatly reduced. Local agencies have
also had to take on more responsibilities in areas that have
traditionally been handled by the FBI, whose investigative resources
are now more focused on counter-terrorism efforts. Local agencies are
forced to fill the gap left by the shift of Federal resources away from
investigating white-collar crimes and bank robberies, areas
traditionally handled by Federal agencies.
Enforcement of Federal immigration laws would be a burden that most
major police agencies would not be able to bear under current resource
levels. The cost in terms of personnel, facilities and equipment
necessary for local agencies to address the 8-12 million illegal
immigrants currently living in the United States would be overwhelming.
The Federal Government, which has primary authority to enforce
immigration laws, has itself failed to provide the tremendous amount of
resources necessary to accomplish such enforcement to its own agencies
specifically charged with that responsibility. Local communities and
agencies have even fewer resources to devote to such an effort than
does the Federal Government, given all the numerous other demands on
local police departments.
Local police agencies must meet their existing policing and
homeland-security duties and can not even begin to consider taking on
the added burden of immigration enforcement until Federal assistance
and funding are in place to support such enforcement. Current calls for
local police agencies to enforce immigration come with no clear
statement or guarantee to provide adequate Federal funding. Local
agencies also fear that the call for local enforcement of immigration
laws signals the beginning of a trend toward local police agencies
being asked to enter other areas of Federal regulation or enforcement.
(3) Complexity of Federal Immigration Law
Federal immigration laws are extremely complicated in that they
involve both civil and criminal aspects. The Federal Government and its
designated agencies such as ICE and the Department of Justice have
clear authority and responsibility to regulate and enforce immigration
laws. It is these Federal agencies who have the authority to determine
if a person will be criminally prosecuted for his/her violations of
immigration laws or be dealt with through a civil-deportation process.
Based on their authority, training, experience and resources available
to them, these Federal agencies and the Federal courts are in the best
position to determine whether or not a person has entered or remained
in the country in violation of Federal regulations and the
applicability of criminal sanctions.
Immigration violations are different from the typical criminal
offenses that patrol officers face every day on their local beats. The
law enforcement activities of local police officers revolve around
crimes such as murder, assaults, narcotics, robberies, burglaries,
domestic violence, traffic violations and the myriad of other criminal
matters they handle on a regular basis. The specific immigration status
of any particular person can vary greatly and whether the person is in
fact in violation of the complex Federal immigration regulations would
be very difficult if not almost impossible for the average patrol
officer to determine. At this time local police agencies are ill-
equipped in terms of training, experience, and resources to delve into
the complicated area of immigration enforcement.
(4) Lack of Local Authority and State Law Limitations of Authority
The Federal Government has clear authority over immigration and
immigration enforcement. Federal law does not require the States or
local police agencies to enforce immigration laws nor does it give the
States or local agencies the clear authority to act in the area of
immigration.
Laws in their respective States define the authority of local
police officers. The authority of local police officers to act to
enforce against criminal acts is clear and well established. Federal
immigration laws, however, include both civil and criminal process to
address immigration violations. It is within the authority of Federal
agencies such as ICE and the Department of Justice to determine if an
immigration violation will be dealt with as a criminal matter or
through a civil process. Given the complexity of the immigration laws,
it would be difficult for local police agencies to determine if a
particular violation would result in criminal charges or purely civil
proceedings and regulation. This duality in immigration law creates a
gap in authority for local police officers who generally are limited to
acting only in criminal matters.
In addition, State laws may restrict a local police officer's
authority to act even in criminal matters in such a way that it would
prevent or hinder the officer's ability to investigate, arrest, or
detain a person for immigration violations alone. Federal agents are
specifically authorized to stop persons and conduct investigations as
to immigration status without a warrant. Local police officers may be
constrained by local laws that deal with their general police powers
such as the ability to arrest without a warrant, lengths of detention,
and prohibitions against racial profiling.
An example of this conflict between the civil nature of immigration
enforcement and the established criminal authority of local police
exists in the Federal initiative of placing civil immigration detainer
notices on the NCIC system. The NCIC system had previously been used
only to notify law enforcement of strictly criminal warrants and/or
criminal matters. The civil detainers being placed on this system by
Federal agencies notify local officers that the detainers are civil in
nature by including a warning that local officers should not act upon
the detainers unless permitted by the laws of their State. This
initiative has created confusion due to the fact that these civil
detainers do not fall within the clear criminal-enforcement authority
of local police agencies and in fact lays a trap for unwary officers
who believe them to be valid criminal warrants or detainers.
(5) Risk of Civil Liability
In the past, local law enforcement agencies have faced civil
litigation and liability for their involvement in immigration
enforcement. For example, the Katy, Texas, Police Department
participated in an immigration raid with Federal agents in 1994. A
total of 80 individuals who were detained by the police were later
determined to be either citizens or legal immigrants with permission to
be in the country. The Katy Police Department faced suits from these
individuals and eventually settled their claims out of court.
Because local agencies currently lack clear authority to enforce
immigration laws, are limited in their ability to arrest without a
warrant, are prohibited from racial profiling and lack the training and
experience to enforce complex Federal immigration laws, it is more
likely that local police agencies will face the risk of civil liability
and litigation if they chose to enforce Federal immigration laws.
d. mcc's nine-point position statement
Based upon a review, evaluation, and deliberation regarding the
important and complex issue of local enforcement of Federal immigration
laws, the members of MCC, who are the 56 Chief Executive Officers of
police departments located within a metropolitan area of more than 1.5
million population and which employ more than 1,000 law enforcement
officers, hereby set forth our consensus-position statement, which is
comprised of nine crucial components.
(1) Secure the Borders
Illegal immigration is a national issue and the Federal Government
should first act to secure the national borders to prevent illegal
entry into the United States. We support further and adequate funding
of the Federal agencies responsible for border security and immigration
enforcement so they can accomplish this goal. We also support
consideration of all possible solutions including construction of
border fences where appropriate, use of surveillance technologies, and
increases in the number of border-patrol agents. Only when the Federal
Government takes the necessary steps to close the revolving door that
exists at our national borders will it be possible for local police
agencies to even begin to consider dedicating limited local resources
to immigration enforcement.
(2) Enforce Laws Prohibiting the Hiring of Illegal Immigrants
The Federal Government and its agencies should vigorously enforce
existing immigration laws prohibiting employers from hiring illegal
immigrants. Enforcement and prosecution of employers who illegally seek
out and hire undocumented immigrants or turn a blind eye to the
undocumented status of their employees will help to eliminate one of
the major incentives for illegal immigration.
(3) Consult and Involve Local Police Agencies in Decision-Making
Major Cities Chiefs and other representatives of the local law
enforcement community such as the International Association of Chiefs
of Police and local district attorneys and prosecutors should be
consulted and brought in at the beginning of any process to develop a
national initiative to involve local police agencies in the enforcement
of Federal immigration laws. The inclusion of local law enforcement at
every level of development would utilize their perspective and
experience in local policing, address their concerns and likely result
in a better program that would be more effectively implemented.
(4) Completely Voluntary
Any initiative to involve local police agencies in the enforcement
of immigration laws should be completely voluntary. The decisions
related to how local law enforcement agencies allocate their resources,
direct their work force, and define the duties of their employees to
best serve and protect their communities should be left in the control
of State and local governments. The decision to enter this area of
enforcement should be left to the local government and not mandates or
forced upon them by the Federal Government through the threat of
sanctions or the withholding of existing police assistance funding.
(5) Incentive-Based Approach with Full Federal Funding
Any initiative to involve local police agencies in the enforcement
of immigration laws should be an incentive-based approach with full
Federal funding to provide the necessary resources to the local
agencies that choose to enforce immigration laws. Federal funds should
be available to participating local agencies to cover the costs
associated with enforcement such as expenditures on equipment and
technology, training and educational programs, and costs of housing,
caring for, and transporting immigrants prior to their release to
Federal authorities.
(6) No Reduction or Shifting of Current Assistance Funding
The funding of any initiative to involve local police agencies in
the enforcement of immigration laws should not be at the detriment or
reduction directly or indirectly of any current Federal funding or
programs focused on assisting local police agencies with local policing
or homeland security activities. Local police agencies are currently
working on strained budgets and limited resources to meet local
policing needs and strengthening homeland security and in fact need
increased funding and grant assistance in these areas. Merely shifting
or diverting Federal funding currently available for local policing and
homeland security activities to any new immigration enforcement
initiative would only result in a detrimental net loss of total
resources available to local police agencies to police their
neighborhoods and strengthen homeland security.
(7) Clarification of Authority and Limitation of Liability
The authority of local police agencies and their officers to become
involved in the enforcement of immigration laws should be clearly
stated and defined. The statement of authority should also establish
liability protection and an immunity shield for police officers and
police agencies that take part in immigration enforcement as authorized
by clear Federal legislation.
(8) Removal of Civil Immigration Detainers From the NCIC System
Until the borders are secured and vigorous enforcement against
employers who hire illegal immigrants has taken place and the concerns
regarding lack of authority and confusion over the authority of local
agencies to enforce immigration laws and the risk of civil liabilities
are adequately addressed, MCC strongly requests that the Federal
agencies cease placing civil-immigration detainers on NCIC and remove
any existing civil detainers currently on the system. The integrity of
the system as a notice system for criminal warrants and/or criminal
matters must be maintained. The inclusion of civil detainers on the
system has created confusion for local police agencies and subjected
them to possible liability for exceeding their authority by arresting a
person upon the basis of a mere civil detainer.
MCC would encourage the Federal agencies to seek Federal criminal
warrants for any person they have charged criminally with violations of
immigration laws and to submit those criminal warrants on the NCIC
system so the warrants can be acted upon by local police officers
within their established criminal-enforcement authority and training.
(9) Commitment of Continued Enforcement Against Criminal Violators
Regardless of Immigration Status
MCC member agencies are united in their commitment to continue
arresting anyone who violates the criminal laws of their jurisdictions
regardless of the immigration status of the perpetrator. Those
immigrants--documented and/or undocumented--who commit criminal acts
will find no safe harbor or sanctuary from their criminal violations of
the law within any major city but will instead face the full force of
criminal prosecution.
Chairman Thompson. Thank you, Chief.
As previously indicated, we will recess. There are only
three votes rather than four. Shortly after the three votes, we
will reconvene.
[Recess.]
Chairman Thompson. We would like to reconvene our recessed
meeting. We have one witness left to offer testimony.
Mr. Chishti, I now recognize you to summarize your
statement for 5 minutes.
STATEMENT OF MUZAFFAR A. CHISHTI, DIRECTOR, NYU SCHOOL OF LAW
OFFICE, MIGRATION POLICY INSTITUTE
Mr. Chishti. My written testimony has been submitted. I
will just highlight three major areas that I have covered in
the testimony. One is sort of the evolution of these
agreements. The second is about their accountability and
supervision. The third is what costs and public policy issues
does this program raise.
The first point we understand from these memoranda of
understanding--we have been studying them at MPI for the last
few months--is their recent dramatic growth and their
concentration. As we know, the 1996 law provided for the
enactment of these agreements. None were signed until 2002. At
the start of 2007, there were eight agreements in effect. In
2007, however, 26 agreements were signed, and 28 more in the
last year.
The program's growth, therefore, has not only been dramatic
and recent, it has also been concentrated. Of the current 67
agreements under this program, 42 are in the South-Central
region of the country. What is striking, Mr. Chairman, is the
majority of these agreements--37 of them--are in the Southeast.
There has been a rapid growth, we know, in that part of the
country about recent immigrants and foreign-born population. We
also know that a good chunk of that may be unauthorized. But we
cannot ignore the fact also that this is a region of the
country that comes with a troubled legacy of civil rights
violation and racial profiling.
The second point I want to make is sort of remarkably--you
know, evolution of the purposes of these programs. If you look
at the legislative history of 287(g), the Congressman who
introduced it on the floor of the House said that what he meant
to be covered by these agreements were what we today would call
a fugitive alien. In the Florida first agreement that was
signed, it was supposed to cover terrorist suspects.
But beginning in 2005, you heard senior ICE officials
coming before subcommittees of this committee assuring that
these MOUs will be focused on issues of high criminal target
and high criminal activity. In fact, if you look at all the ICE
public material on this, it is targeted on criminal aliens.
But beginning in 2006, the focus of the program started
shifting. No longer did these programs target criminal aliens,
but rather at least some agencies were by this point seeking to
apprehend as many unauthorized immigrants as possible. Thus the
focus appears to have shifted from dangerousness of targeted
immigrants to raw numbers.
The issues of supervision and guidance, I think, have been
very well covered by the GAO report. They raise very serious
concerns; I won't repeat them here.
The last point I want to make from the testimony that we
offered is that there are obviously very important issues of
cost and policy that these agreements raise. Mr. Chairman, we
live in a world of limited resources. The core function of law
enforcement agencies is to protect the public and keep the
community safe. Deviation from that core function must be done
for a compelling reason and be done with caution.
Focusing on terrorists, on dangerous fugitives, or serious
criminals can be a high priority of local community; however,
when that focus is lost and ordinary civil immigration
violators become the target, there is a significant societal
cost. The issues of ethnic profiling, the racial profiling, and
the impact on community policing we heard so well today from
Chief Manger, and therefore I won't repeat it.
But the last point on the cost I want to mention is
immigration laws are complex and ever-changing, as the two
police organizations, the MCC and IACP have mentioned, that
they obviously come with significant costs of racial profiling
and community policing. But the most important ultimately may
be the Federal Government's ability to dictate and establish a
coherent national immigration enforcement policy. Because of
the need to respond to the demands of the applicants of the
287(g) program, ICE has lost a great deal of initiative as to
where and when and how to deploy enforcement resources. So
instead of these agreements advancing a coherent national
immigration policy--are likely to advance the political
mandates at the local level.
So for these reasons we are making a few recommendations.
We are asking that the expansion of the program be put on hold
to permit a thorough review of this program and its design. We
would like this committee to hold hearings in those
jurisdictions which have these programs and which chose not to
have these programs.
We believe that if Congress chooses to continue this
program, in the future you must articulate specific, meaningful
programmatic objectives for this program. If the program has to
be continued, the committee should examine clearly the
possibility of limiting it to jail programs for serious
criminal offenses. We should also suggest that Congress should
make it clear that law enforcement agencies that--if they
consistently exceed the authority of the MOAs, those MOAs
should be terminated.
Thank you very much.
[The statement of Mr. Chishti follows:]
Prepared Statement of Muzaffar A. Chishti
March 4, 2009
Mister Chairman and distinguished Members of the committee: My name
is Muzaffar Chishti, and I am the Director of the Migration Policy
Institute's Office at New York University School of Law. Thank you for
inviting me to testify before your committee on ``Examining 287(g): The
Role of State and Local Law Enforcement in Immigration Law.''
introduction
The Migration Policy Institute (MPI) is a non-partisan, non-profit
think tank that studies migration and the management of migration
systems worldwide, and one of its key areas of focus is U.S.
immigration policy. Last month, MPI issued a report which called on the
Federal Government to reassert its authority and willingness to enforce
immigration law, while recognizing the discrete co-operative role that
States and localities could play in important Federal enforcement
efforts.\1\ MPI also recently issued a report on the National Fugitive
Operations Program,\2\ another component of the interior enforcement
strategy of U.S. Immigration and Customs Enforcement (ICE). In that
report, we concluded that the fugitive operations program had strayed
far from its initial mandate and ICE's core priorities, and issued a
series of recommendations to restore integrity and bring efficacy to
the program. We are currently engaged in an in-depth study of the
287(g) program; we have been studying the 67 Memoranda of Agreement
(MOA) that the Federal Government has signed with various State and
local government agencies for immigration-related enforcement. As part
of that work, we are collecting data and will be doing site visits over
the next several months in preparation for a comprehensive report
expected to be released later this year. Among other things, we are
seeking to understand the character, implementation, and impacts of the
287(g) agreements. The latter include their costs and benefits to
national, State, and local law enforcement and to local communities.
What follows are some preliminary conclusions based primarily on our
examination of the MOAs themselves and publicly available data.
---------------------------------------------------------------------------
\1\ Doris Meissner and Donald Kerwin, ``DHS and Immigration: Taking
Stock and Correcting Course,'' (Washington, DC: Migration Policy
Institute, 2009), pg. 48-50, http://www.migrationpolicy.org/pubs/
DHS_Feb09.pdf.
\2\ Margot Mendelson, Shayna Strom, and Michael Wishnie,
``Collateral Damage: An Examination of ICE's Fugitive Operations
Program,'' (Washington, DC: Migration Policy Institute, 2009), http://
www.migrationpolicy.org/pubs/NFOP_Feb09.pdf.
---------------------------------------------------------------------------
i. two years of dramatic, regionalized growth
The 287(g) program was created as part of the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The first
agreement under the provision was not signed until 2002 by the State of
Florida. Growth in the program remained measured for the next 5 years,
but the last 2 years have seen dramatic growth in the number of 287(g)
agreements.
At the beginning of 2007, there were eight agreements in effect,
including six ``jailhouse'' agreements whereby cross-deputized local
incarceration officers perform immigration functions exclusively with
respect to individuals already detained on State criminal charges. In
2007, however, 26 agreements were signed, and another 28 were added the
following year. The agreements signed in 2007 and 2008 were not
confined to the jails, but also included the Task Force model in which
287(g)-authorized officers perform immigration-related enforcement on
the streets, and the ``hybrid'' model, which entails both the Task
Force and jailhouse components. Jailhouse agreements comprise the
majority of the 67 agreements currently in force. (Figure 1 in the
Appendix section summarizes the growth of 287(g) agreements by year and
type.)
While the 287(g) program encompasses law enforcement agencies at
the State, county, and local levels, counties comprise approximately
two-thirds of all program participants. The Task Force model is
predominant in State and city law enforcement agencies, while nearly
all of the counties have either the jail or hybrid model. (See Figure 2
for MOAs by jurisdiction and type.)
The 287(g) program's growth has been regionally concentrated. Of
the 67 agreements, 42 are in the South, 17 are in the West, five in the
Northeast and three in the Midwest. ICE has confirmed that there are
approximately 80 applications pending to join the 287(g) program. About
two-thirds of the pending applications are from jurisdictions in the
South, according to ICE.
ii. mission drift: the evolving purpose of section 287(g)
One critical threshold issue immediately apparent in our study of
the 287(g) program is that its ostensible purpose has undergone a
dramatic evolution from the time it was added to the Immigration and
Nationality Act (INA) in 1996 to the present day. Initially conceived
with a narrow mandate, the program has undergone at least two major
transformations. The first, following the Sept. 11, 2001 attacks,
sought to utilize the program as a tool to fight terrorism and promote
public safety. The second transformation, which occurred around 2006,
made the program a broader, more generalized immigration enforcement
program. The program's rapid expansion has been accompanied by an
apparent shift in mission. These changes suggest the need for closer
supervision of on-going 287(g)-related operations, more extensive
training of State and local law enforcement officers in the often
complex arena of immigration law, and clear, publicly released
guidelines for participating agencies.
1996: Legislative History
The primary legislative sponsor of the amendment that added the
287(g) program to the INA, Representative Tom Latham (R-IA), explained
during the House floor debate that it was intended to ``allow State and
local law enforcement agencies to enter into voluntary agreements with
the Justice Department to give them the authority to seek, apprehend
and detain those illegal aliens who are subject to an order of
deportation.''\3\ Thus, as initially conceived, the program was to
focus on non-citizens to whom ICE now refers as ``fugitive aliens'' and
who were previously referred to by the Immigration and Naturalization
Service (INS) as ``absconders.''
---------------------------------------------------------------------------
\3\ Floor statement of Rep. Tom Latham, (R-IA), 142 Congressional
Record, H2475-01, *H2477, 1996.
---------------------------------------------------------------------------
1998: Salt Lake Debate
Although the first MOA was not signed until 2002, the Salt Lake
City Council came close to enacting a 287(g) agreement just 2 years
after IIRIRA's passage because of a shortage of INS officers in the
area. As a result of the shortage, unauthorized immigrants subject to
INS detainers were nonetheless released by local law enforcement
because there were not sufficient Federal personnel to transport the
individuals to a facility in Las Vegas or Denver, and the local police
had neither the space to continue to hold them nor the authority to
convey them across State lines.\4\
---------------------------------------------------------------------------
\4\ Statement of Aaron Kennard, Salt Lake County Sheriff, to the
House Judiciary Committee, Subcommittee on Immigration and Claims,
Problems Related to Criminal Aliens in the State of Utah, 105th Cong.,
2d sess., July 27, 1998, pg. 14-15.
---------------------------------------------------------------------------
This scenario frustrated local law enforcement and led Salt Lake
City and County to explore the possibility of signing a Memorandum of
Understanding, or MOU as the agreements were then called, so that its
officers could gain ``the authority to . . . assist the INS in
transporting that person across State lines to an INS holding facility
in Denver or Las Vegas.''\5\ Both the County Commission and Sheriff
emphasized that this was the sole purpose of seeking the MOU; as the
latter put it, ``I have no intention of cross-deputizing my deputies so
they can enforce the INS laws. I have enough to do in Salt Lake County
with the local laws. I have no intention of my people arresting people
for illegal status.''\6\ Ultimately, however, Salt Lake did not pursue
the MOA because of strong public concerns about the potential for
racial profiling.\7\
---------------------------------------------------------------------------
\5\ Ibid., Statement of Mary Callaghan, Commissioner, Salt Lake
County Commission, pg. 6.
\6\ Ibid., Statement of Aaron Kennard, Salt Lake County Sheriff,
pg. 15.
\7\ Shawn Foster, ``SLC Council Says No to Cross-Deputization,''
Salt Lake Tribune, September 2, 1998.
---------------------------------------------------------------------------
2002-2005: Florida, Alabama and the Los Angeles County Sheriff's
Department
The first 287(g) agreement was ultimately signed by the State of
Florida in 2002. The officers trained under the new agreement were
members of the Regional Domestic Security Task Forces created to
address perceived shortcomings in the State's ability to combat
terrorism after the Sept. 11 terrorist attacks.\8\ In 2003, the State
of Alabama entered an MOA to address particular problems it was
experiencing with fraudulent documents being presented to secure
drivers' licenses.\9\
---------------------------------------------------------------------------
\8\ Statement of Mark F. Dubina, Special Agent Supervisor, Tampa
Bay Regional Operations Center, Florida Department of Law Enforcement,
Regional Domestic Security Task Force Supervisor, before the House
Committee on Homeland Security, Subcommittee on Management, Integration
and Oversight, The 287(g) Program: Ensuring the Integrity of America's
Border Security System Through Federal-State Partnerships, 109th Cong.,
1st sess., July 27, 2005), pg. 17.
\9\ Ibid., Statement of Major Charles E. Andrews, Chief,
Administrative Division, Alabama Department of Public Safety, pg. 20.
---------------------------------------------------------------------------
In July 2005, when only three agreements were in force, a House
Homeland Security Committee Subcommittee held a hearing on the 287(g)
program. Paul M. Kilcoyne, Deputy Assistant Director of ICE's Office of
Investigations, assured the subcommittee that the program would remain
``focused on criminal organizations, those individuals who pose a
threat to the border security,'' and not ``the landscape architect that
had the broken headlight.''\10\ At the time, a 287(g) agreement had
recently been instituted in Los Angeles County, where custody
assistants in the county jails were trained to check the immigration
status of inmates after they had been convicted of a crime. Mr.
Kilcoyne emphasized the importance of maintaining ``a very focused
approach'' to the 287(g) program in order to make the best use of
limited fiscal and managerial resources. For precisely this reason, the
subcommittee was told that the 287(g) program would expand only into
State and local jails.
---------------------------------------------------------------------------
\10\ Ibid., Statement of Paul M. Kilcoyne, Deputy Assistant
Director, Office of Investigations, ICE.
---------------------------------------------------------------------------
2006: A Shift in Focus
By September 2006, the program had expanded into four additional
jails, bringing to seven the total number of agreements. The focus of
the program--or at least the manner in which it was being employed by
some law enforcement agencies--had shifted further. No longer did
287(g) officers focus solely on targeting criminal aliens; rather, at
least some law enforcement agencies were, by this point, seeking to
apprehend as many unauthorized immigrants as possible on the belief
that all unauthorized immigrants are more likely to commit crimes and
in response to perceived fiscal burdens placed on public services by
immigrants to new immigrant-receiving communities.\11\
---------------------------------------------------------------------------
\11\ Testimony of Jim Pendergraph, Sheriff of Mecklenburg County,
North Carolina, before the House Committee on Government Reform,
Subcommittee on Criminal Justice, Drug Policy and Human Resources,
Empowering Local Law Enforcement to Combat Illegal Immigration, 109th
Cong., 2nd sess., August 25, 2006.
---------------------------------------------------------------------------
The Special Agent in Charge of the Atlanta ICE Office of
Investigations, Kenneth Smith, stated that while it could help identify
criminal aliens, ``the real beauty of the program'' is that it
guaranteed that every person who enters a jail that has an MOA is
screened for civil immigration law violations.\12\ Mr. Smith
acknowledged that this ``would not have necessarily a huge impact on
the criminal system,'' but that ``it certainly would on our detention
and removal capabilities.''\13\ Mr. Smith speculated that the
Mecklenburg County approach was a ``model that . . . will be mirrored
in jurisdictions around the country.''\14\
---------------------------------------------------------------------------
\12\ Ibid., Statement of Kenneth A. Smith, Special Agent in Charge,
Atlanta, Georgia, Office of Investigations, ICE, pg. 35
\13\ Ibid.
\14\ Ibid., pg. 29.
---------------------------------------------------------------------------
At the time, Mecklenburg County was the only jurisdiction in North
Carolina with an MOA, and its sheriff, Jim Pendergraph, reported that
the agreement had permitted his officers to identify a large number of
civil immigration law violators. ICE Detention and Removal Operations,
the sheriff said, was ``overwhelmed by the numbers we are generating
for removal in Mecklenburg County alone,''\15\ and ``they've had to
reassign ICE agents to deal with the numbers that we're seeing.''\16\
In so doing, he also foreshadowed significant problems relating to ICE
supervision and the 287(g) program's interference with Federal
immigration priority-setting and initiative. According to Sheriff
Pendergraph, his office had generated so many removal cases for ICE
that:
---------------------------------------------------------------------------
\15\ Ibid., pg. 49.
\16\ Ibid., pg. 70.
``They can't support many more because they are flooded with work. I
don't know where the resources are going once they're appropriated in
Washington but they're not getting to the local field offices because
they can't handle what they have now. If more sheriffs in this State
got on-board then there would be no ICE agents to deal with what they
normally do.''\17\
---------------------------------------------------------------------------
\17\ Ibid.
Since 2006, seven other North Carolina counties have signed MOAs--all
of which use largely the same language as the Mecklenburg County MOA
(there are reportedly an additional 16 jurisdictions in the State with
applications pending). In fact, from the beginning of 2007 to the
present day, all or virtually all of the 54 MOAs signed in this period
seem to be based on the same template, and thus not designed to reflect
the targeted needs or priorities of each participating agency.
ICE's Statements About the Program's Purpose
ICE's own 287(g) documents also suggest that the program has gone
beyond its initial purpose, which ICE has consistently described as
combating serious crime committed by immigrants. According to a 2007
ICE Fact Sheet, the program is aimed at ``violent crimes, human
smuggling, gang/organized crime activity, sexual-related offenses,
narcotics smuggling and money laundering.''\18\ The fact sheet went on
to clarify that ``[t]he 287 (g) programs is not designed to allow State
and local agencies to perform random street operations. It is not
designed to impact issues such as excessive occupancy and day laborer
activities.'' This 2007 Fact Sheet was even used as evidence that a
particular law enforcement agency had exceeded the authority conveyed
by the MOA.\19\ Later versions of the 287(g) Fact Sheet have not
contained similar language concerning the objectives or limitations of
the program.\20\
---------------------------------------------------------------------------
\18\ Delegation of Immigration Authority, Section 287(g),
Immigration and Nationality Act, September 6, 2007.
\19\ E.g., Am. Compl. 22-23, Melendres, et al. v. Arpaio, et
al., No. 07-02513 (D. Ariz. filed July 16, 2008).
\20\ E.g., Delegation of Immigration Authority, Section 287(g),
Immigration and Nationality Act, August 18, 2008; ``The ICE 287(g)
Program: A Law Enforcement Partnership,'' (November 19, 2008); Section
287(g), Immigration and Nationality Act, ``Frequently Asked
Questions,'' (last modified February 20, 2009), http://www.ice.gov/
partners/287g/Section287g_faq.htm.
---------------------------------------------------------------------------
Arrest Statistics
According to ICE, law enforcement agencies participating in the
287(g) program were responsible for approximately 79,000 arrests of
suspected immigration law violators from January 2006 through November
2008.\21\ However, it is not known how many of those arrested posed
national security or public safety threats because ICE has not set
forth priority categories with respect to the 287(g) program and has
not released any information to date beyond the raw number of arrests.
The statistics, however, indicate that the program has departed from
the earlier risk-based approach to immigration enforcement articulated
by the Department of Homeland Security (DHS).
---------------------------------------------------------------------------
\21\ ``The ICE 287(g) Program: A Law Enforcement Partnership,''
(November 19, 2008).
---------------------------------------------------------------------------
By way of illustration, under the first MOA signed, the State of
Florida devoted 35 officers to high-value targets--in particular those
who posed threats to national security. In the first 36 months that the
MOA was in operation, those officers made approximately 165 arrests
(i.e., fewer than five arrests a month, or slightly less than one
arrest per seven deputized officers per month). The second MOA, through
which 21 members of the Alabama State Police were trained, resulted in
approximately 200 arrests in the first 21 months--fewer than 10 arrests
a month, or about one arrest per two officers per month.\22\ In
contrast, in the last 3 years, each law enforcement agency has
arrested, on average, roughly 100 immigrants a month, suggesting a
shift in emphasis from high-priority targets to volume of arrests.
Though the removal of unauthorized immigrants is clearly within ICE's
mandate, there are less costly, less disruptive and more efficient ways
of accomplishing that.
---------------------------------------------------------------------------
\22\ Hearing, supra note 8, at 16.
---------------------------------------------------------------------------
iii. costs to the system
It appears that the rapid expansion of the 287(g) program imposes
considerable costs--both tangible and intangible--on the entire
immigration enforcement system. I will focus here on four.
Subordination of Federal Immigration Enforcement Priorities
The 287(g) program threatens the ability of DHS and ICE to set a
coherent immigration enforcement agenda at the national level. Because
of the need to respond to the demands of the 287(g) program and its
State and local partners, the Federal Government has lost initiative
with respect to where, how, and when to deploy enforcement resources.
Instead, operations have been initiated by 287(g) law enforcement
agencies, most of which are led by elected sheriffs who may be using
their MOAs for local purposes not necessarily consistent with the
overall needs of the region or country. Even law enforcement agencies
with the best intentions are primarily concerned with their own
communities.
Under some circumstances, law enforcement agencies entering into
287(g) agreements can have an incentive to detain large numbers of
immigrants. After the initial arrest and processing by the 287(g)
partner, the Federal Government bears the full cost for virtually every
other step in the enforcement process, including detention,
prosecution, adjudication and removal. In fact, with regard to law
enforcement agencies reimbursed by the Federal Government for holding
immigration detainees through an Inter-Governmental Service Agreement
(IGSA), there are strong financial incentives to make as many arrests
as possible. For example, under the IGSA between ICE and the Frederick
County, Maryland Sheriff's Office--which also has a 287(g) MOA--the
county is reimbursed $83 a day for holding an immigration detainee.
However, according to Frederick County Sheriff Charles Jenkins, it
costs the county $7 a day to feed and house a detainee.\23\ The
difference between the reimbursement rate and the actual cost
represents pure profit, and can be an incentive for over-enforcement--
particularly in the current economic climate. At least 22 287(g)
partners also have IGSAs providing reimbursement for housing
immigration detainees.
---------------------------------------------------------------------------
\23\ Nicholas C. Stern, ``Sheriff Updates County on ICE Action,''
Frederick News-Post, October 17, 2008.
---------------------------------------------------------------------------
Immigration enforcement priorities must be set at the Federal
level. Only from a national perspective can all of the relevant factors
and resource levels be taken into account. This permits a much more
efficient allocation of resources on a system-wide basis and avoids
expending a great deal of Federal resources on individuals who pose
neither a threat to public safety nor national security. Although ICE
has not released comprehensive arrest statistics on the 287(g) program,
independent data obtained by journalists suggest that significant
resources are expended to remove unauthorized immigrants who are guilty
only of traffic violations. In Frederick County, Maryland, for example,
more than half of the first 300 suspected immigration law violators
charged under its MOA were arrested for driving without a license.
Likewise, data from Gaston, North Carolina reveals that 95 percent of
State charges filed against 287(g) arrestees were for misdemeanors; 60
percent were for traffic violations that were not DWIs.\24\ In
Mecklenburg County, 2,321 unauthorized immigrants were placed in
removal proceedings in 2007. Data shows that fewer than 5 percent of
the charges against these individuals were felonies.\25\ By yielding
such a high rate of relatively low-priority civil immigration arrests,
MOAs compromise DHS' ability to set the immigration enforcement agenda.
---------------------------------------------------------------------------
\24\ Michael Barret, ``Officers Decide When to Arrest, But for
Immigrant Community Decision Can Lead to Deportation,'' Gaston Gazette,
July 7, 2008; Aarti Shahani and Judith Green, Local Democracy on ICE,
(New York: Justice Strategies, 2009), http://www.justicestrategies.org/
sites/default/files/JS-Democracy-On-Ice.pdf.
\25\ Lindsay Haddix, Immigration and Crime in North Carolina:
Beyond the Rhetoric, (Chapel Hill, NC: Department of City and Regional
Planning, UNC Chapel Hill, 2008).
---------------------------------------------------------------------------
Fiscal Costs
Although ICE has not publicly released information about the total
fiscal cost of the 287(g) program, statements by agency administrators
indicate it is substantial. Former ICE Assistant Secretary Julie Myers
testified in July 2007 that it costs slightly more than $17.5 million
in the first year of an MOA to implement the program.\26\ This figure
included ``startup and first-year maintenance costs consisting of such
items as detention, removal and bed space management, IT infrastructure
and maintenance, [Office of Investigations]/[Detention and Removal
Operations] personnel and support positions, training, transportation
and other elements,'' and was based on a law enforcement agency with 20
trained officers that made 240 arrests in the first year. Assuming that
this figure has remained fairly constant, the first year of the 67 MOAs
currently in force would constitute an expenditure of more than $1.1
billion.
---------------------------------------------------------------------------
\26\ Pre-hearing questionnaire by Julie Myers, DHS Assistant
Secretary nominee, submitted to the Senate Committee on Homeland
Security and Governmental Affairs, 110th Cong., 1st sess., July 26,
2007.
---------------------------------------------------------------------------
It is important to note that this $1.1 billion estimate includes
only the front end of the removal process. This estimate does not
include immigration court prosecution expenses such as the salaries for
ICE attorneys, immigration judges and support personnel; maintenance
and overhead expenses for their offices; etc.--as well as similar
expenses for appeals to the Board of Immigration Appeals and U.S.
Courts of Appeals.
The program's substantial apparent costs reinforce the need for it
to advance DHS' overall enforcement priorities.
Community Impact
Given the complexity of immigration law and the apparent paucity of
supervision and training offered to agents under the current 287(g)
program, harmful errors and even racially motivated law enforcement
tactics may be inevitable. Whereas regular ICE agents receive 5 months
of training in the intricacies of immigration law, 287(g) officers
receive 4 weeks of ICE training. Furthermore, because immigration
enforcement is not the primary job of local law enforcement agents,
they do not accumulate the experience and expertise of ICE agents.
Noting that immigration law is intricate, voluminous, and distinct, the
International Association of Chiefs of Police (IACP) has expressed
concern that local law enforcement agents acting under 287(g)
agreements will violate the unique standards and constitutional
requirements surrounding immigration enforcement: ``What constitutes
`probable cause' in immigration matters may not be easy to
discern.''\27\ Indeed, evidence shows that 287(g)-authorized officers
purporting to enforce immigration law have illegally detained and even
deported U.S. citizens.\28\
---------------------------------------------------------------------------
\27\ International Association of Chiefs of Police, Police Chiefs
Guide to Immigration Issues, July 2007, 13.
\28\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's
Deportation Ordeal,'' Los Angeles Times, February 28, 2008.
---------------------------------------------------------------------------
Community Policing
The core functions of law enforcement officers are to protect the
public and keep communities safe. By deputizing State and local law
enforcement officials to enforce civil immigration law, the 287(g)
program may detract from officers' ability to fulfill their core
mission in addition to diverting scarce local law enforcement resources
to general immigration enforcement.
In 2005, an IACP representative testified before this committee
that local enforcement of civil immigration laws ``would likely have a
chilling effect on both legal and illegal aliens reporting criminal
activity or assisting police in criminal investigations'' and could
thereby ``diminish the ability of law enforcement agencies to
effectively police their communities and protect the public they
serve.''\29\ IACP and the Major Cities Chiefs (MCC) both have publicly
expressed concern that 287(g) agreements weaken their capacity to
police their communities.
---------------------------------------------------------------------------
\29\ Hearing, supra note 8, at 11.
---------------------------------------------------------------------------
Fear and distrust of law enforcement agencies have broad
reverberations. Immigrant victims of crime are less likely to seek
police assistance and therefore more vulnerable. Immigrant women facing
domestic violence may not report or seek protection from abuse out of
fear that they, their partners or their relatives will be deported.
Likewise, witnesses to street crime and violence may not come forth
with valuable evidence and testimony. With respect to national security
and counterterrorism, DHS has long emphasized the necessity for all
individuals to report information and intelligence to law enforcement
agencies. The underlying message is clear: building safe communities
requires that all residents feel safe turning to and cooperating with
law enforcement.
Furthermore, as a recent MPI study of the National Fugitive
Operations Program demonstrates,\30\ failure to abide by strict
priorities in immigration enforcement inevitably blurs the distinction
between immigrants who are unlawfully present and those convicted of
violent crimes. The 287(g) agreements, as they have been applied,
potentially collapse the important distinction between civil
immigration violations and criminal offenses by affecting all
individuals, citizen or non-citizen, suspected of being unauthorized
immigrants. In so doing, these agreements send a message to the public
that immigrants are criminals--thus, reinforcing harmful stereotypes.
---------------------------------------------------------------------------
\30\ Mendelson, Strom and Wishnie, Collateral Damage: An
Examination of ICE's Fugitive Operations Program.
---------------------------------------------------------------------------
iv. the lack of guidance, supervision and accountability
The statutory authorization for the 287(g) program requires that:
``With respect to each officer or employee of a state or political
subdivision who is authorized to perform a function under this
subsection, the specific powers and duties that may be, or are required
to be, exercised or performed by the individual, the duration of the
authority of the individual, and the position of the agency of the
Attorney General who is required to supervise and direct the
individual, shall be set forth in a written agreement between the
Attorney General and the state or political subdivision.''\31\
---------------------------------------------------------------------------
\31\ INA 287(g)(5), 8 U.S.C. 1357(g)(5). 32 Hearing, supra note
8, at 16.
Although the MOAs generally set forth the powers and authorities
that may be wielded by the deputized officers, they are far from
comprehensive; indeed, those written in the last 2 years seem to be
mostly boilerplate. Of particular concern, the MOAs do not articulate
any overall objectives for the program or provide guidance as to when
the law enforcement agencies should exercise their immigration
enforcement powers. These newer agreements simply state that the intent
of the agreeing parties (ICE and the law enforcement agency) is either
that the MOA will ``enable [the law enforcement agency] to identify and
process immigration violators'' or ``result in enhanced capacity to
deal with immigration violators.'' Such vague statements of intent are
less likely to constrain abuses and direct resources to high national
enforcement priorities.
This absence of objectives and guidance has essentially authorized
participating law enforcement agencies to employ their 287(g) authority
as they wish. Inevitably, this has led to widely divergent applications
of the newly acquired powers, as well as many of the highest-profile
abuses of the program. The wide discretion afforded law enforcement
agencies is accompanied by questionable and uneven supervision and
insufficient accountability measures.
Lack of Guidance Regarding Immigration Enforcement Functions
While some of the MOAs state that the participating officers ``will
exercise their immigration-related authorities during the course of
criminal investigations,'' the language offers little concrete
direction. Nowhere do the MOAs prohibit the officers from using their
authorities outside of criminal investigations or set forth
consequences if they do. Thus, law enforcement agencies are basically
free to use their 287(g) powers at their discretion, including during
non-criminal investigations, such as routine traffic stops.
The jailhouse MOAs do little more to curb unbridled officer
discretion. One reason is that the jail agreements are no longer
confined to the post-conviction stage of criminal proceedings, as the
first one was. Instead, the immigration functions are frequently, if
not always, performed as to every inmate booked in the facility,
including those detained on arrestable traffic offenses and even civil
contempt, at the time of initial intake.
Inadequate Supervision
The requirement that ICE ``supervise'' participating law
enforcement agencies is so vague as to render the statutory language
virtually meaningless. To our knowledge, ICE has issued no guidelines,
regulations, or protocols with respect to the nature of its
supervision, how frequently it must take place or which ICE office must
provide it. Because of the differentiated regional concentration for
the 287(g) agreements, some regional ICE offices have a greater
supervision responsibility than others. (See Figure 3 in the Appendix
section.)
ICE and its partners have emphasized the importance of close
supervision over participating 287(g) partners. Florida Task Force
Supervisor Mark Dubina testified to a subcommittee of this committee
that ``[i]n all cases, the ICE team leader to the [task force], the
[State law enforcement] special agent supervisor and the local ICE
immigration supervisor must agree on a decision to arrest or detain a
person, pursuant to 287(g) authority.''\32\
---------------------------------------------------------------------------
\32\ Hearing, supra note 8, at 16.
---------------------------------------------------------------------------
In practice, however, the boilerplate MOA states only that
``activities conducted by the participating law enforcement agency
personnel will be supervised and directed by ICE supervisory
officers.'' In sharp contrast to Mr. Dubina's description of joint
deliberation in advance of arrests, most MOAs require only that
participating personnel ``shall give notice to the ICE supervisory
officer as soon as practicable after, and in all cases within 24 hours
of, any detainer issued.'' Only five of the 67 MOAs set forth specific
circumstances in which 287(g) partners must notify ICE of their
actions. And, even then, the language is retrospective: law enforcement
agencies, for example, are to contact ICE immediately in the event of
``death or injury of an alien(s).''
Inadequate Accountability Measures
At a minimum, a program that does not constrain its State and local
partners from deviating from their traditional role and shifts
immigration enforcement authority away from Federal officials requires
careful recordkeeping and close review. However, the 287(g) program
entails few mechanisms for accountability, transparency or public
scrutiny. Most MOAs do not contain requirements or guidelines about the
nature of the data that law enforcement agencies should collect.
Likewise, ICE has released no information about processes or protocols
by which it audits or reviews its 287(g) partners and the data they
collect.
Given the magnitude of the program's authority, one would expect
strict and transparent procedures by which individuals can report
inappropriate or problematic experiences with law enforcement agencies
functioning in their immigration enforcement capacity. To the contrary,
however, the complaint procedures set forth in MOAs are vague and
boilerplate.
v. conclusion and recommendations
We live in a world of choices, with limited law enforcement
resources. In general, when law enforcement agencies go beyond their
core mission, we must be sure of the purpose and objectives for the
departure. Law enforcement agencies already face myriad competing
pressures and priorities. They are over-stretched and under-funded:
trends that will no doubt worsen under the current economic conditions.
The 287(g) program necessarily requires officers to spend time on
activities beyond their core functions. With this new responsibility
come risks and costs for the participating law enforcement agencies,
the Federal Government and communities across the country.
When conceived by Congress in 1996, the 287(g) program was to be
narrowly aimed at training local and State law enforcement officers to
arrest unauthorized immigrants already subject to outstanding warrants
of deportation (i.e. ``fugitive aliens''). Eight years later, the first
287(g) agreement, signed by the State of Florida, was not focused on
fugitive aliens, but rather tailored to the counter-terrorism
objectives of Florida's Regional Domestic Security Task Forces. Had the
287(g) program remained confined to either of these initial purposes--
fugitive aliens, as envisioned by Congress, or counter-terrorism, as
embodied in the first agreement with the State of Florida--perhaps it
would be a success today and prove to be a good model for a force
multiplier in Federal immigration enforcement.
But much has changed in the interim years. The program has grown to
include nearly 1,000 officers at 67 law enforcement agencies in 23
States, with most of that expansion happening in just the last 2 years.
Because of the growth of the 287(g) program over a short period of
time, its potential to distract from the Federal Government's important
efforts to enact a coherent national immigration policy, and its
potential costs to communities, we therefore make the following
recommendations:
1. Expansion of the program should be put on hold to permit a
thorough review and potential redesign.--Congress or DHS should
impose a moratorium on new 287(g) agreements while a broad, in-
depth, empirically based study is undertaken to evaluate cost
effectiveness and community impact.
2. The committee should hold field hearings on the 287(g)
program.--I would encourage the committee to consider today's
hearing a starting point to further examination of the program
by holding field hearings in communities that have MOAs as well
as those that have chosen not to pursue an agreement.
3. If Congress chooses to continue the 287(g) program, it should
enumerate specific and meaningful programmatic objectives with
clear reporting requirements.--The program would benefit from
coherent, transparent objectives that fit logically into the
overall DHS enforcement priorities. With respect to its
fugitive operations, ICE has set forth priority categories in
which individuals posing a threat to national security are
specifically identified as most important. ICE should adopt a
similar set of publicly articulated priorities for 287(g)
operations. Local law enforcement agencies should be required
to regularly report arrest data, with specific indication of
the individuals' priority levels. As part of that process,
287(g)-authorized agencies should also record and report the
violation for which each individual was arrested as well as the
individual's race and country of origin.
4. If the 287(g) program is continued, the committee should examine
whether it should be confined to the jailhouse model and
whether only those convicted of serious crimes should be
screened for civil immigration violations.
5. All existing agreements should be reviewed to determine how well
they advance Federal objectives, how efficaciously they
allocate resources, and whether they are sufficiently cost-
effective.--Agreements that do not advance DHS' objectives or
suffer from other problems of management or oversight should be
modified or terminated.
6. Congress should make clear any law enforcement agency that
consistently exceeds its authority shall have its MOA
terminated.--All MOAs should also undergo a mandatory, periodic
review to monitor compliance.
7. The basic MOA itself should ensure sufficient training and
supervision by ICE and include clear reporting and
accountability measures. Moreover, processes should be included
that require law enforcement agencies to seek the input of
affected communities.
vi. appendices
FIGURE 1.--TYPES OF 287(g) MOAS SIGNED BY YEAR
----------------------------------------------------------------------------------------------------------------
Hybrid
Jailhouse Task Force Jailhouse/
Year Agreements Agreements Task Force Total
Agreements
----------------------------------------------------------------------------------------------------------------
2002............................................................. .......... 1 .......... 1
2003............................................................. .......... 1 .......... 1
2004............................................................. .......... .......... .......... 0
2005............................................................. 3 .......... .......... 3
2006............................................................. 3 .......... .......... 3
2007............................................................. 11 9 6 26
2008............................................................. 14 13 6 28
----------------------------------------------
TOTAL...................................................... 31 24 12 67
----------------------------------------------------------------------------------------------------------------
FIGURE 2.--TYPES OF 287(g) MOAS BY JURISDICTION TYPE
----------------------------------------------------------------------------------------------------------------
Hybrid
Jailhouse Task Force Jailhouse/
Year Agreements Agreements Task Force Total
Agreements
----------------------------------------------------------------------------------------------------------------
STATE............................................................ 4 8 0 12
COUNTY........................................................... 25 6 12 43
CITY............................................................. 2 10 0 12
----------------------------------------------
TOTAL...................................................... 31 24 12 67
----------------------------------------------------------------------------------------------------------------
FIGURE 3.--SUPERVISING ICE OFFICES AND SUPERVISED LAW ENFORCEMENT
AGENCIES
------------------------------------------------------------------------
Avg.
Number of Distance
Location of Supervising Office Agencies to Agency
Supervised (Miles)
------------------------------------------------------------------------
Atlanta, GA...................................... 13 219
New Orleans, LA.................................. 8 544
Phoenix, AZ...................................... 7 42
Fairfax, VA...................................... 7 25
Charlotte, NC.................................... 5 64
Los Angeles, CA.................................. 4 45
Miami, FL........................................ 4 313
Tampa, FL........................................ 4 194
Fort Smith, AR................................... 4 70
Boston, MA....................................... 4 44
Dallas, TX....................................... 4 75
------------------------------------------------------------------------
Chairman Thompson. Thank you for your testimony as well as
each of you before our last witness.
I remind each Member that he or she will have 5 minutes to
question the panel.
I will now recognize myself for questions.
Mr. Riley, you have heard Mr. Stana testify that ICE
presently has no performance measures or program goals. Do you
agree with that statement?
Mr. Riley. Yes, that is an accurate statement.
Chairman Thompson. If that is correct, how do we determine
success or failure within the 287(g) program?
Mr. Riley. Right now, the Office of State and Local
Coordination that I am overseeing recently finished a draft of
a strategic plan that is currently being vetted through ICE
right now. That strategic plan is going to have baseline
performance measures for which ICE can then project the success
of agreements that are currently in place and future
agreements. I would also like to note that Secretary Napolitano
on January 30 issued an action directive to ICE specifically
for a full review of the 287(g) program, and part of that
program is for us to start getting performance measures by
which we can judge the success of all the agreements that we
have in place.
Chairman Thompson. So let me be absolutely clear with the
testimony. At this point, you have said that there are no real
measurements in place, but you plan to do that.
Mr. Riley. Right, the measures that we have tracked for the
past few years, as I did testify, that 90 percent of the
agreements we have in place were entered into in the past 3
years. The measures that we had been tracking were the number
of State and local officers that have been trained, the number
of individuals identified by 287(g)-trained officers that were
identified for removal via the memoranda of agreement and the
number of agreements that we have entered.
Chairman Thompson. Thank you.
Mr. Stana, did GAO make any suggestions as to how ICE could
determine success or failure within the 287(g) program?
Mr. Stana. Not anything specific in the report, and this is
because--first before you articulate what your performance
measures are, you have to articulate what the objective of the
program was. Since there was some variation depending on which
document you looked to as to what the intent of the program
was, it is hard to create a measure.
But assuming that one measure might be to address serious
crime by removable aliens, one measure might be, for example,
the percentage of serious criminal activity reduction in a
jurisdiction participating in 287(g) or if, say, 90 percent of
the arrests under the program were for crimes that are
considered serious criminal activity. Those might be two.
But again, the fundamental underpinning of having
performance measures is to have a more wide-reaching control
mechanism and a control structure that you are trying to
measure success against. That is also something that ICE said
they are going to be working on.
Chairman Thompson. Thank you.
Mr. Riley, can you provide this committee with the last 2
fiscal years' arrest statistics under the 287(g) program? After
providing that information, can you provide us ICE's definition
of serious crime?
Mr. Riley. The statistics I will have to get back to the
committee on. Serious crime--I don't know if we have a specific
definition for that, but what I will say is that over the past
few years, ICE has been enhancing its database systems, one of
which is ENFORCE, which is DHS's administrative arrest booking
system. Both Customs and Border Protection, USCIS, and ICE use
this system.
What we plan to do is have a short-term fix in the next few
months that will allow us to better track those types of data.
Specifically we are going to be requiring that the State and
local 287(g)-trained officers populate additional fields that
are going to be added to ENFORCE, specifically that will track
if the individual was charged with a felony, misdemeanor or
non-driving----
Chairman Thompson. So we don't have a measurement or
identifier for serious crime?
Mr. Riley. ICE doesn't have a definition that I know of for
serious crime. We have aggravated felon, felon, and
misdemeanor.
Chairman Thompson. Mr. Stana, I guess what I am trying to
figure out is if we have a memorandum of agreement between ICE
and a unit of Government as an objective to stop and apprehend
serious crime but we can't define what a serious crime is, how
can we measure anything?
Mr. Stana. Well, that is a really good question. I think--
DRO, the Detention Removal Office, does have definitions of
serious crime, and they might list things such as drug
traffickers or sex crimes, things like that. They put that
information out to participating jurisdictions with the idea--
and I think Mr. Souder alluded to this. ICE isn't going to come
and pick up or doesn't have the space to deal with people who
fall below a certain threshold.
It is not that they don't understand and aren't sensitive
to the need to respond to other types of crime; it is just that
there are not enough resources, and they try to--if you look at
the statistics that ICE has, you will see that--I think it was
about 43,000 people were arrested under this program, about
34,000 of which, and this is for the 29 jurisdictions we
studied, were accepted by ICE, meaning there were about 9,000
that they didn't take presumably because it was too low a
threshold for them to take them.
Of the 34,000 that were taken, it is interesting to see how
they were dealt with jurisdiction by jurisdiction. Some of the
large feeder jurisdictions, one in particular, Maricopa County,
about three-quarters were V.R.--voluntary removal--indicating
it probably wasn't a serious crime that they were arrested for,
but they were removed from the country nonetheless. I am not
arguing that they shouldn't have been if they are out of status
here, but I am concerned about the focus of the program.
Chairman Thompson. Thank you.
I yield to the Ranking Member for questions.
Mr. Souder. First, let me say to Mr. Stana, I appreciate
your thoroughness, and we all agree pretty much on the
recommendations that--I wanted to ask Mr. Riley, is anybody
forced into this program who doesn't voluntarily want to join?
Because if so they should resign so that I can have some of my
sheriffs who want to voluntarily join.
Mr. Riley. No, Congressman, it is a completely voluntary
program.
Mr. Souder. Because there was some implication here that--
for example, who are other people to decide whether an elected
sheriff who is voluntarily joining the program is doing what he
thinks reduces his law enforcement most--his problems? Because
he is elected by the people; he is subject to reelection by the
people. If he makes a decision the best way to reduce my crime
is by ``X'', it is a tad arrogant of other people to decide
that that should be otherwise. Now, if it is Federal money,
there can be guidelines. But there was an implication here that
one group has a better judgment as to what their pressure is
than another group, and that should be up to elected officials.
I am also concerned--I was relieved to here that basically
the big city police chiefs--I was disappointed to hear you get
to selectively decide which laws of the United States you are
going to enforce and which ones are unfunded mandates and not.
I was relieved to hear that you still consider narcotics laws,
which are Federal, an unfunded mandate on local police that
will still be enforced by most jurisdictions.
Because in fact these things are partnerships. What is
local crime is also Federal crime. It is often the Federal law
to go across State lines, and I am a little nervous about this
implication that, oh, well, we are going to pick and choose
which Federal laws to enforce.
We are running into this in medicinal marijuana as well. We
already had a civil war over whose jurisdiction supersedes. It
is not a question of local authority to decide which laws they
are going to enforce.
Also the 10-day or once a week that you fax to ICE--most
people are released within 48 hours. We will lose most before
they could do a background check. I just wanted to get those
things on the record.
I have also some additional concerns about the ability of
ICE--because really the No. 1 challenge here is they don't have
enough money to do all the different missions. That is how you
wind up targeting. As Mr. Stana just referred, as I did
earlier, when we had this meeting in Indiana, one of the
prosecutors, ClaraMary Winebrenner from DeKalb County--she has
got about 45,000 people--said, okay, you are saying you will
only take him if I get a conviction, because most prosecutors
are having to plea bargain because they have to make the same
decisions too.
Most marijuana convictions in the United States for
possession aren't for possession; it is that they are plea-
bargaining through, making tradeoffs of where they do
prosecution for dealing. You don't get a marijuana possession
unless you have a plea bargain basically. But the same thing is
true in many of the illegals that they have in the sense of
they are showing up as misdemeanors because they are plea-
bargaining them because they don't have time to go through all
this process and that they were told by ICE that if they got
the conviction for a felony they would be deported, but they
are still there.
One of my direct questions related to my district to Mr.
Riley is when will we have a DRO person in Indiana, where we
have people who have been meth dealers, cocaine dealers, spouse
abusers, that in Allen County I think they have 40-some felony
in addition to others who have plea-bargain negotiated--when
are we going to get somebody in Indiana to do the removal?
Mr. Riley. I am going to have to take your question back to
the operational components within ICE to address your concerns
and get back to you on that.
Mr. Souder. All right, thank you, sir. Forgive me, but we
have been frustrated. I have asked to insert into the record a
three-page memo I got this morning from Sheriff Leatherman from
Noble County, who has been raising this to me for 4 years. He
has got 158 who had felony processes who weren't picked up in a
county of 45,000 people. It has been very frustrating.
Now, the other thing I don't quite understand is that at
the border, because you can't use ICE agents--we are having
them do immigration issues. They are trained, a lot of them in
narcotics and financial-type thing, and then we have DRO, but
sometimes they are having to move agents over to do DRO work.
Why isn't this contracted out with Wackenhut or people like
that like it is done around the border? Because it is just a
matter of taking people out. You don't need trained agents.
Mr. Riley. I am going to have to consult with the Office of
Detention and Removal to formulate an answer for you.
Mr. Souder. Because one of the frustrations here is that if
we have cost pressures--and it would seem best to try to figure
out a way once decisions are made that this person clearly has
been convicted--they are out of status--because part of the
problem with local police unless they get in this progress,
they make judgments based on their driver's license but don't
have any way to verify whether they are unless they get in this
program, unless they have a fingerprint system. So it has been
very frustrating, that in Indiana there is a lot of frustration
with the process. So I yield back.
Chairman Thompson. Thank you very much. If the gentleman
will provide minority or majority counsel a copy of the
information, we will insert it after it is shared with
everyone.
[The information follows:]
Document Submitted For the Record By the Honorable Mark E. Souder
Chairman Thompson. The Chair now recognizes other Members
for questions they may wish to ask the witnesses. In accordance
with our committee rules, I will recognize Members who are
present at the start of the hearing based on seniority on the
committee, alternating between majority and minority. Those
Members coming in later will be recognized in the order of
their arrival.
The Chair now recognizes the gentlelady from California for
5 minutes.
Ms. Sanchez. Thank you, Mr. Chairman, and thank you for
calling what I think is a very important hearing. Out in Orange
County, California, we have some jurisdictions where my police
chiefs don't want to do 287(g), and we have others where we
have actually implemented the program. In my district in
particular, which is a heavily immigrant district of all sorts
of people from all different types of countries, for some of
the reasons given in the testimony by Chief Manger, they don't
want to have this program because they need the information
from the community on real criminals and crimes going on in
their district.
My concern, and it has been reiterated by the written
testimony of Mr. Stana--and you have a lot of stamina, Mr.
Stana, to be before our committee so often on so many of these
issues; it is great--is that the objectives and the standards
and the overall policies of the program are really not
communicated effectively in the MOAs and in other program-
related material.
So my question is to Mr. Riley. How do local officials know
what the penalties for noncompliance will be if they are not
really clearly communicated in the materials and information
that are provided to them?
Mr. Riley. All the agreements, I will start off, can be
terminated by either party at any time. As far as the severity
of it, ICE initiated a study last year, a review of all the
existing memoranda of agreement by ICE's Office of Professional
Responsibility.
Ms. Sanchez. Have any been terminated by ICE?
Mr. Riley. No, they have not. OPR to date is projected to
do 20 reviews this year and they completed four last year. The
increase was based on an appropriation in the 2009, so we are
projecting that within the next few years, all of the existing
agreements will have been reviewed by the Office of
Professional Responsibility.
Ms. Sanchez. But yet in reading the testimony of Mr. Stana
or the report of Mr. Stana, it was really quite evident given
all the different agencies he had spoken to, a majority of them
didn't understand what the responsibilities were under the
MOAs.
Mr. Riley. I believe that is why Secretary Napolitano
issued an action directive for a full review of the program. In
addition to updating our template MOA that we will use for
future agreements, which take into account a lot of the GAO
recommendations and also other lessons that ICE has learned
through the various different evolutions of the MOAs we have
created over the past few years, we are also reviewing all
existing MOAs, especially earlier ones to ensure that these
directives and the priorities of the program are better spelled
out.
Ms. Sanchez. What type of oversight do you think is really
needed from ICE agents in order to have a good and effective
program on the ground? I will ask that of the whole membership
up there.
Mr. Riley. I believe----
Ms. Sanchez. What type of supervision is required? Because
in reading the report from Mr. Stana, I mean, supervision was
all over the place. There were some ICE agents who thought all
they had to do was keep the computer program going. There were
others who never showed up and did any of that. There were
others who thought 25 percent of the time should be toward it.
Mr. Riley. Early on, a lot of the MOAs, and as GAO noted,
did not specify the specific duties. ICE is working to fix
those duties but still retain the flexibility because the
agreements are unique in nature. Each one is different. Some
range from programs that may only encounter a dozen
apprehensions a month to some that encounter hundreds per
month.
You know, to have an exact template with that is difficult
because it does vary between the different programs. We are
looking at instituting SOPs specifically formulated with the
field office and in conjunction with ICE's review of the 287(g)
program to specify exactly what we see as the supervisor needs
for each of these individual programs. That is something we
hope to achieve in the near future.
Sheriff Jenkins. Congressman, I would like to comment to
that. I think a lot of this goes back to what I said in my
statement about the intensive--the quality of the training, No.
1, the intensity of the training and the quality of the people
that you put into the program as an agency. What we found--that
early on, yes, we needed constant supervision, constant
oversight and as, you know, you learn as you go. It is like
anything else. As we moved forward and that ICE felt
comfortable in the way we were implementing the program and
moving forward, the less we had the need for daily supervision.
So again, like I said before, they are there when we need
them, but, you know, and again, every arrest we make, there is
an agent who looks at the A-files, they inspect the paperwork,
so it is a work in progress. But I think it goes back to the
quality of the original oversight and the training.
Ms. Sanchez. Mr. Stana.
Mr. Stana. You know, this is a controversial and even a
polarizing program, and so I think it requires sort of an extra
measure of supervision. It starts with articulating what you
want out of the program, collecting performance data, visiting
the program periodically and sometimes unannounced to
understand what is going on.
You know, about half of the jurisdictions told us they were
just fine with the supervision. But when you peeled that back a
little bit and asked them why they were fine with it, they
would say because they leave me alone; they don't come around.
I agree to some extent that this is a program that is a work in
progress, and that might have been true for the first 10. But
we are up to number 67 now. We ought to know now what we want
out of these jurisdictions in this program.
This is a problem that needs to have--you know, the
criminal alien problem needs to have some help and some
resolution and some control. This population is like any other
population; there are bad people in it, and we have to identify
the bad people and we have to deal with them. But if we spend a
lot of time on people who aren't bad, there are other programs
to deal with that.
These are resources that we want to devote to the worst of
the worst. That is what Assistant Secretary Myers said a year
ago. That is what ICE's informal guidance says. But it is just
not articulated and not understood by the program participants
in all cases.
Ms. Sanchez. Mr. Chairman, I would just like to put on the
record that it also is very dependent--and what the sheriff
said about what type of person you put to do this type of
program. For example, in one of the jurisdictions that I have
without the program, I had a particular officer who was picking
people up on normal traffic stops, putting them in his police
car, driving them down about an hour and a half to the border,
to the secondary border area we had, and dropping them off to
INS agents. So this type of officer, I mean, obviously just
doesn't want anybody that looks, in this particular case,
Mexican, in my opinion, in my city.
So it is very important to understand who is going into the
program, that we have MOAs that articulate what the program and
what the objectives are and what the measurement is and that we
have good oversight, as I think Mr. Stana said, if we are going
to continue with these types of programs.
Sheriff Jenkins. Could I make a comment to Mr. Stana's
comment? You know, when we talk about what is the worst of the
worst. Well, is a person who is driving drunk through a school
zone during the daytime with a violent criminal past any worse
or less a bad person than a drug dealer? How do you measure who
are the worst of the worst?
Chairman Thompson. We will resolve that issue too. That is
one of the issues for the program, and if you had an MOU that
was definitive enough, a lot of those questions would not be
left to the individual, but they would be quite specific. I
think that is where this hearing is moving us.
Ms. Sanchez. Thank you, Mr. Chairman, for the time.
Chairman Thompson. Thank you very much.
The gentleman from Alabama, Mr. Rogers, is recognized for 5
minutes.
Mr. Rogers. Thank you, Mr. Chairman.
Sheriff Jenkins, I think the answer to your question is it
depends on if it is your kids in that schoolyard.
I want to ask Mr. Riley, this program--the Alabama
Department of Public Safety has been involved since the
beginning. It was one of, I believe, three States that had
participation in the ICE program starting in 2003, and it has
been incredibly popular. I get feedback regularly from State
troopers about how much they appreciate it and how they want
more access to it.
Can you, Mr. Riley, tell me a little bit about how you
think this task force model works in Alabama and why we aren't
hearing more of that kind of feedback from these other States?
Mr. Riley. Yes, the Alabama model, as you said, was one of
the first ones. It was the first model where it was the actual
State patrol that was using it. Recently did a review of that
MOA, and one of the findings that we found was that the
troopers acknowledged that they wanted additional training on
our ENFORCE database system, and we created a specialized
training class specifically for the troopers. I believe we
trained 15 of them to go back as a train-the-trainer to show
them, you know, how the database system has changed since they
went through. I think most of those troopers went through 4 or
5 years ago, and they hadn't had refresher training.
So that was an outtake of our review process, that that was
a concern of OPR and a concern of the Alabama State Troopers,
and we moved quickly to fix that. So I think it shows that is
the kind of partnership we have, and I think it is a successful
task force.
Mr. Rogers. To my knowledge, there has not been one alleged
incident of profiling by the Alabama State Troopers since 2003
when this program was initiated. Do you know anything different
than that?
Mr. Riley. I don't, and as part of the OPR's review of the
MOAs, although ICE doesn't investigate civil rights violations,
our Office of Professional Responsibility does check with the
United States Attorney's Office, the local Federal Bureau of
Investigation and also the agencies' internal affairs bureau to
see if there were any allegations of racial profiling, and
there weren't any reflected in that report.
Mr. Rogers. Thank you, Mr. Riley.
Mr. Stana, do you know of anything different, anything
contrary with regard to the Alabama Public Safety Department
and the involvement with 287(g)--any complaints or profiling?
Mr. Stana. No, I don't. I will add that most of the
organizations we spoke with were also positive about the
program. It increased public safety. It dealt with recidivists.
It performed a function that ICE didn't have the resources to
perform.
The question isn't: ``Was it popular?'' The question is:
``Is it being put to best use?'' With regard to Alabama or any
other jurisdiction, there is a complaint process in the MOA. It
is a little hazy as to what it is supposed to be about. We
didn't see any complaints in the files of any jurisdiction or
in OPR about any jurisdiction that was filed. I don't quite
know how to reconcile that with media reports about problems
with these programs in certain jurisdictions. But we didn't
find any in the ICE files.
Mr. Rogers. In your audit, did you--when you talked about
the question is whether or not they are being put to best use,
did you find any concerns like that in the Alabama program----
Mr. Stana. We didn't look at any individual program,
Alabama or otherwise, but, you know, there are always
allegations in some jurisdictions that some people being
deported weren't really serious criminals.
Mr. Rogers. There are few programs that we put in place in
Congress that I get as much positive feedback about as this
287(g) program, so it is very concerning to me when I hear you
use words like controversial and polarizing to reference this
program, because I don't see that in my world. Can you tell me
why I am wrong?
Mr. Stana. I don't think it is a matter of right or wrong.
I think it is a matter of perception that we are reflecting in
our report. Of the 29 jurisdictions we looked at in detail that
were in place as of October 1, 2007, about half of them made
that observation that the Hispanic communities in their
jurisdictions were a little wary of the program.
Now, some tried to overcome that wariness with public
outreach, like the chief mentioned, trying to put some
transparency to the program. We found one jurisdiction that
found a woman who passed a bad check, found out her status, and
she was out of status. Rather than deport her, they told her
that that crime didn't rise to the level they were really
looking at in this program, sent her back to the community with
the message that we are after people who are serious criminals,
so tell your friends and--well, not accomplices--tell your
friends and associates that it is okay to report crimes to us;
you are not in danger if you are not a serious criminal.
So I think it is a--you know, it is not disagreeing with
you. It is a matter of how the program is being implemented and
to what end.
Mr. Rogers. Well, it is being implemented very well in
Alabama, and I don't want anything that comes out of this
hearing to disturb that.
Thank you, Mr. Chairman.
Chairman Thompson. Thank you.
The Chair now recognizes the young lady from Texas for 5
minutes, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman, for
holding this hearing, and let me acknowledge each and every one
of the witnesses as patriots and individuals who love this
country, and we respect that.
It is well to note that this Congress has a major
responsibility, hopefully in the 111th Congress, to implement
comprehensive immigration reform, which will then denote for
all of us individuals who will either be able to access, if you
will, legalization and others who are in fact bad actors. No
one sitting on the Homeland Security Committee wants bad
actors, potential terrorists, individuals who travel up the
southern border or northern border that can integrate in our
community and pose a serious threat.
At the same time, we recognize that crime is on the rise
and resources are precious. My position is that we should have
comprehensive immigration reform. Our resources for crime
fighting should go to crime fighting. Those individuals who are
comfortable with this particular program, let them continue
under the present or lessened funding, because I have
constituents in my community who are crying because of crime
that has no label of whether or not it has been immigrant or
nonimmigrant; it is crime.
That is what I see. Law enforcement on the local and State
level is fighting the kind of crime that our neighbors are
talking about that is not necessarily pointed to a traffic
stopping of someone who happens to be non-status, possibly
driving to their work.
Now, let me just say this. There are problems with people
who are non-status and driving without a license who are
engaged in criminal activity. Frankly I believe the normal law
enforcement can be as helpful if we provide them with more
funding like cops on the beat.
Let me acknowledge--I think it is Sheriff Jenkins--just to
thank him for his work. This is not intended to indicate that
the program in your community is not working or the program in
Alabama is not working.
But let me speak to--I am in an awkward location here; I
can't see the head of the national chiefs organization's name.
Chairman Thompson. Chief Manger.
Ms. Jackson Lee. Yes, Chief, let me pose a question to you,
because I think you have a reasonable approach to that, because
I frankly am from one of the large cities. My understanding is
do you let any immigrant that may be detained go without--it
seems that you provide a weekly report or a monthly report of
individuals that are detained or picked up. Is that not true?
Chief Manger. That is true. Everyone we arrest we run a
warrant check on so if there is any outstanding warrant from
any organization, including ICE, we serve that warrant. Once a
week, our corrections department sends a list of all foreign-
born inmates to ICE.
Ms. Jackson Lee. In doing so, you believe that you are
covering the responsibility, frankly, that you don't represent
yourself--I heard you say the word sanctuary; that has gotten
to be an ugly word--but the point is you are engaged in law
enforcement. If someone is in violation and if they happen to
be out of status, you make sure that you follow through on
providing the Federal Government with the information.
Chief Manger. That is correct. We allow ICE to do their
job, yes.
Ms. Jackson Lee. You also have indicated something very
important. In large cities with multiple multicultural
communities, it is very difficult to extract information on
violent crimes or human trafficking when there is this sense of
intimidation. Is that not true?
Chief Manger. That is true. In some of our most heavily
populated immigrant communities, we know that there is a great
deal of unreported crime that goes on, and in order to make
those communities, those neighborhoods, safer, we need to have
the trust and cooperation from the people that live there.
Ms. Jackson Lee. So showing up at a laundry with a raid and
you have your uniform on, that would spill through the
community and keep you from finding the MS-13 or anyone else
that you might try to find.
Chief Manger. We believe that to be the case, yes, ma'am.
Ms. Jackson Lee. Let me ask the gentleman--I can't see any
names here, but this gentleman here. You have written in your
testimony here--and I am sorry, what is the name? Mr. Chishti--
because I can't see from over here in this location. But in any
event, you have indicated that Federal authorities need to
focus on their Federal authorities or organizing this
particular program. Would you comment on that and comment on
the potential for racial profiling?
Mr. Stana, in my last period I notice that your sentence
says ICE lacks key internal controls for implementation of this
program. I don't think we have answered that. That is true, and
we need to improve that. I would like you to comment. Would you
comment on why you think the Federal Government needs to be
more involved?
Mr. Chishti. Thank you, well, this is a program written for
the Federal Government. I mean, Congress wrote it so that
enforcement mandate of the Federal Government could be helped
by the assistance from local government. So it is intended to
help improve the Federal enforcement immigration
responsibility. Therefore, the agreements should be seen
advancing that enforcement strategy.
I think what we have seen increasingly is that, when given
the limited resources that the DHS has for its enforcement,
then you are confronted with a number of applications coming
in. You therefore have to decide how to spend the resources of
enforcement, and if you spend them on 287(g)'s programs, which
don't target criminal aliens but principally target regular,
unauthorized workers--not that they should not be removed, but
this is a very expensive program, targeted program.
If it targets those at the expense of going at high-
interest immigrants who may be committing crimes, are of
terrorist interest, then I think it deviates from the real
mission of the Federal enforcement function of the Government.
So it doesn't advance Federal enforcement policy actually; it
advances the local political interest of the people who might
be interested in applying for these.
Now, the racial profiling was important because the
training that these local cops and State cops get is obviously
very limited. It is about 4 to 5 weeks. As you know, Congress
submits a very complex field of law which constantly changes.
The immigration agents who do this on a day-to-day basis have
months of training, years of experience.
So when you have to go on the beat and determining that
someone is undocumented, and in the absence of very rigorous
training, and if you have to make those decisions in a very
short period of time, you are inevitably going to use race or
ethnicity as a proxy for someone's illegal status. That is, I
think, what the MCC and the police in the International
Association of Chiefs of Police have consistently stated in
their positions. It is that cost of doing racial profiling in
their function of this new mandate that I think they have
chosen not to do it.
Ms. Jackson Lee. Thank you, Mr. Chishti and Mr. Manger.
I am sorry, Mr. Chairman, I didn't see their names, Chief
Manger and Mr. Chishti. Maybe Mr. Stana might be able to answer
the question later. I posed a question to him.
Chairman Thompson. That is good.
Ms. Jackson Lee. Mr. Chairman.
Chairman Thompson. The gentlelady's time has expired.
I will now recognize the gentleman from Texas, Mr. Olson,
for 5 minutes.
Mr. Olson. Thank you very much, Mr. Chairman. Welcome to
all the witnesses and thank you for all your service to our
country and your local communities.
Mr. Riley, I have a few questions for you. Last year the
Houston Chronicle reported that ICE was releasing criminal
aliens and putting them back on the street. Specifically the
Chronicle said that ICE officials didn't file paperwork to
detain roughly 75 percent of more than 3,500 inmates who told
jailors during the booking process that they were here in the
United States illegally. Many of these illegal aliens were
child molesters, rapists and drug dealers.
A bipartisan group of the Houston congressional delegation
met with ICE officials after the story broke and were told that
funding from the fiscal year 2009 Homeland Security
appropriations bill had helped fix some of the programs that
this article highlighted by having Harris County deputies train
in 287(g). How have these deputies helped ICE stop this problem
in Houston?
Mr. Riley. 287(g)-trained deputies in Harris County. I will
note that that is one of the largest programs we have now in
terms of individuals identified for removal. That helped
tremendously. They do the vast majority of the screening in
Harris County and identify several hundred individuals per
month alone just out of Harris County. To us it is definitely
one of the successes of the program.
Mr. Olson. Great, so it does work in a large jurisdiction,
in Harris County being the third most populous county in our
Nation. It can work there if applied properly and----
Mr. Riley [continuing]. Well there.
Mr. Olson. My other question for you is just regarding the
backlog of funding. Is it deterring communities from entering
the program at this time? I mean, can you----
Mr. Riley. Backlog of----
Mr. Olson. The backlog of funding for 287(g). Is that
deterring communities from enrolling in the program?
Mr. Riley. No, we currently have approximately 42 requests
pending. The slow process of reviewing the agreements--the
reason why there has been a significant delay in the past year
is that we were looking at enhancing the program, looking at,
you know, working with GAO in their audit and also internally
had been working on additional measures to enhance the program,
building performance measures and identifying those agreements
where we feel that ICE's priority is the best.
So going back to the program only really having expanded
dramatically in the past 2 years, it is a growing process, and
that is why we do have a backlog. But we haven't really seen
much of a reduction. There has been a slight reduction in the
number of requests, but we still have quite a few pending.
Mr. Olson. Okay, great.
Thank you very much, Mr. Chairman. I yield back my time.
Chairman Thompson. Thank you very much.
Chair will now recognize Mr. Cuellar, the gentleman from
Texas, for 5 minutes.
Mr. Cuellar. Thank you, Mr. Chairman.
I would like to follow up on some of the questions the
Chairman asked earlier today, more of a structural question I
guess to Mr. Riley and Mr. Stana and anybody who wants to
answer on that. If you know the answer, we can talk about this
later.
What is the mission of the program, No. 1? What are the
goal or goals of the program? What are the specific outputs,
performance measures, efficiencies, that is how much--you know,
for every individual they have, for every deputy or police, how
much does it cost to have that? I am sure every MOA is going to
be a little different. Do you have those answers or would you
prefer if we get together later with Mr. Stana to work that
out?
Mr. Riley. I prefer later on because ICE is actually
working with our, as I knew before--having a finalized,
strategic plan, which will have our future performance measures
and how we are going to extract them. So I think once that
strategic plan is approved through ICE, it might be more
productive time where we can sit down and look at those----
Mr. Cuellar. Mr. Riley, believe it or not I am a supporter
of the program if we have the right definitions as to what is a
major offense, if we have the right performance measures, if we
have the strategy, the right mission, the right goals on it.
Because otherwise it is a good program--well, I don't want to
be judgmental. But a program with good intentions might turn
bad. I think for the local officials, I think having that is
important. So I take it that you are trying to finalize it but
there is no strategic plan in place right now.
Mr. Riley. There is not.
Mr. Cuellar. Okay.
Mr. Riley. But we are, again, looking at our review
process. One of the main areas of review is tying in, you know,
the serious crime issue, looking at some of our other programs,
such as Secure Communities and our Detention and Removal that
have pre-existing definitions, tying ours to be similar so we
have consistent definitions across our various programmatic
areas. Once we have those, then bringing them back out to our
partner agencies and showing them--these are ICE's priorities
and this is where we want to work within the MAOs.
Mr. Cuellar. Would the Executive branch have a problem
sharing with the committee the strategic plan before you
finalize it with your partners, local partners?
Mr. Riley. I would have to review that through our legal
advisor to come up with an answer for you on that, Congressman.
Mr. Cuellar. Mr. Chairman, I would like to ask the
committee to officially request the--Mr. Riley--and again, we
want to--it is not us vs. them; that is the theme we have been
using. We want to work with you and make this better, but I
would like to see the strategic plan before it becomes
finalized. You know, Mr. Chairman, because you can have a
program with good intentions, but if you don't have the right
strategy, the right goals, the right performance measures and
what have, the outputs and the efficiencies, we might be
talking about this a year from now on that. So I would like to
at least have some sort of input, constructive input, on this.
Chairman Thompson. If the gentleman will yield, I think we
will share with the Secretary the committee's interest in
whatever plan, including all those items you have articulated
just now. As well as, as you know, our oversight responsibility
will allow us to at any point look at whatever the Department
is doing.
Mr. Cuellar. Yes, and just, Mr. Riley, just, again, in the
past there has been an us versus them. I want to emphasize it
is us together as a team and certainly want to work with you on
that part.
Moving from that structural question, let me ask you a
couple questions. Why is the Border Patrol, who has primary
jurisdiction between the ports of entry and the first
responders along with State and local, not part of this
program? I know it is an ICE program, but any particular reason
how they can get involved or whether they should get involved?
Mr. Riley. I am not sure why they are not involved. I mean,
they are another agency, and I guess when ICE was formed, the
287(g) program came with ICE when Border Patrol was shifted
under Customs and Border Protection.
Mr. Cuellar. Okay, because they do have the Sole Guardian
Program, where they give money to the local folks, so--an issue
that I think we will follow up a later time.
The other thing I have--what about the Criminal Alien
Program? How does that work along with this program?
Mr. Riley. The Criminal Alien Program is managed out of our
Office of Detention and Removal, and it is one of many outreach
programs with State and locals that ICE has under its ICE
ACCESS umbrella. The Criminal Alien Program is ICE officers
working in correctional facilities to identify the individuals
that have been charged with crimes in the jails, lodging
detainers on them, placing them into removal proceedings and
attempting to ensure that they come into ICE custody prior to
being released to the street.
Mr. Cuellar. Okay, last question--I have got about 24
seconds left. I guess, Mr. Chishti, you mentioned this. I am
from the Southwest, from the border, right at the border. Why
aren't there many other programs, I mean other sheriffs' or
police departments, on the border, the Southwest border part of
this program? Since that is the entry into the United States,
at least the southern entry?
Mr. Riley. I will have to check to see if any have
requested, but primarily it is a voluntary program so if a
sheriff or chief or the political entity overseeing that
department does not want it, it is not something we go out and
recruit heavily for. We wait for the request to come in to us.
Mr. Cuellar. I understand it is voluntary, but any--I mean,
doesn't that get you to think why there is not any more from
the border part of it?
Mr. Riley. Yes, I don't have an answer for that.
Mr. Cuellar. Thank you, Mr. Chairman.
Chairman Thompson. Thank you very much.
Chair would ask unanimous consent to include in the record
Mr. Souder's letter from Noble County, the letter from
Congressman Ed Pastor, Leadership Conference on Civil Rights,
Ms. Jackson Lee and the Immigrant Policy Center, without
objection.*
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* The information referred to is included elsewhere in the hearing
record.
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Chairman Thompson. Chair now recognizes gentleman from
Louisiana, Mr. Cao, for 5 minutes.
Mr. Cao. Thank you, Mr. Chairman, and thank you for the
witnesses being here today.
Based on what I have heard from the panel, it seems to me
that ICE does not really have the capacity to arrest and detain
and eventually deport the number of illegal immigrants here in
the United States. Is that correct?
Mr. Riley. All individuals that may be subject to removal?
Mr. Cao. That is correct.
Mr. Riley. Depending on those numbers, I doubt we would
have that type of capacity.
Mr. Cao. Based on the numbers that were estimated, it is
approximately 12 million illegal immigrants.
Mr. Riley. I would have to extrapolate what the actual cost
of all that is, but I have read studies where it would be in
the multi, multibillions of dollars, which would far exceed the
budget that we have.
Mr. Cao. Now, is there a more efficient and effective
proposal out there to address the issue of illegal immigration
that you know of?
Or can you propose a more--or maybe this question can be
posted to Mr. Chishti or Mr. Stana, whether or not there is a
more efficient, effective way to approach this problem that we
have.
Mr. Stana. Well, there are a number of approaches that are
already outlined. Of course, the Border Patrol has been plussed
up to over 18,000 agents now. That is one. The Secure Border
Initiative is another. Those are, you might say, the line of
scrimmage.
In the interior, E-Verify would, you know, show some
promise if we can, you know, work some of the bumps in the road
out of it. But that needs some more debate I think. But that is
really addressing the jobs magnet that brings most people in,
but those are just a handful. There are many programs that
address the problem, but those are just a couple.
Mr. Chishti. As you know, Congressman, there have been a
number of proposals issued; our institute has issued a proposal
itself. I mean, first of all you have to deal with the present
12 million people, and it is hard to see anything to do other
than acknowledge their presence and find a way for them to come
out of the shadows and become part of the mainstream society,
in some form legalize them toward eventual citizenship.
But a second is that you have to recognize as to what
causes undocumented population. Our analysis is that this--
significantly the pro-factors, the demand and the labor market
in the United States--and there are no legal channels for
people to come which has been the outcome of our present
immigration system, that our selection system now allows very
few people to be able to come legally in our existing
preference system, that we have expanded that system to allow
people who now come illegally to come through legal channels.
We have improved enforcement, and I think most of it has to
be done at the workplace in a very smart way than we have been
able to do so far, which respects people's rights but at the
same time gets us to the heart of why people come to the United
States.
Mr. Cao. Now, the 287(g) program allows the Federal
Government to pay State and local law enforcement agencies
money for detaining these Federal ``inmates.'' Is that correct?
Mr. Riley. No, not exactly. Our Detention and Removal
branch enters into intergovernmental service agreements to
reimburse them for individuals that are being detained in the
local jail. It is not specifically 287(g), but ICE uses a lot
of State and local facilities that can meet our standards and
enter into a contractual agreement with them, but it is not
specifically--there is 287(g) detention bed money, but it is
not an authorization that is within 287(g).
Mr. Cao. Now, does this lead to certain abuse where
possibly law enforcement agencies would just arrest and detain
people in order just to get reimbursements from Federal
Government?
Mr. Riley. We haven't seen that. It is a reimbursement for
the costs that they have encountered and used to detain
prisoners that have been put into removal proceedings.
Mr. Cao. Sheriff Jenkins.
Sheriff Jenkins. I will address that. The answer is no,
because we are involved in actually the 287(g) and the IGSA
agreement, in which we are reimbursed. However, the vast
majority of our reimbursement are for detainees that are
brought into our facility by ICE because we do have bed space
available. So it does not encourage or it doesn't promote going
out and profiling to fill bed space.
Mr. Chishti. But Congressman, I am sure GAO will study it
sometime. There is clearly disparity between how much the
localities get reimbursed for housing these undocumented
immigrants and how much the cost to get them--to actually house
them. So I think that is the next plus for a number of these
local communities which choose to detain them.
Mr. Cao. Thank you very much.
Chairman Thompson. Thank you very much.
Sheriff, since you raised a question, for the record, how
much does it cost you to keep a prisoner that Mr. Cao was
talking about in your facility?
Sheriff Jenkins. Well, there is a couple ways of looking at
it; let me explain. I think right now at the State level, it is
looked at as the cost of detaining any prisoner, anyone
incarcerated, is $90-some a day, say low $90's. Now, yes, we do
generate revenue off of the IGSA agreement.
Looking at the operation of the detention center as a
constant expense operationally, the constant expense in
staffing, we do have available bed space, so we do actually, if
you will, profit from the housing of detainees through the
IGSA. The actual cost over and above the operational cost of
the jail is roughly about $7 a day per detainee for a small
amount of medical services plus the meals. You know, in effect
we are generating revenue off of that program.
Chairman Thompson. So it is costing you $7 per day for a
person you detain and how much per day are you reimbursed?
Sheriff Jenkins. I think our rate currently--about $87 a
day or $83 a day.
Chairman Thompson. Oh, okay.
Sheriff Jenkins. Yes, but----
Please understand, that is only because we do have
available jail space, bed space in our jail. If we didn't have
that, we couldn't do that. We don't create a problem of
overcrowding because of the program.
Chairman Thompson. Okay, does that help you, Mr. Cao, in
terms of numbers?
Mr. Cao. Thank you, Mr. Chairman.
Chairman Thompson. Thank you.
Will now recognize the gentleman from New Mexico for 5
minutes, Mr. Lujan?
Mr. Lujan. Mr. Chairman, thank you very much.
Mr. Riley. I want to go back to some of the questions in
and around the performance measures. I just want to ask the
question again. Has ICE developed performance measures? Because
I am not sure if I have heard yes or no completely.
Mr. Riley. For the 287(g) program, we have built
performance measures into our strategic plan on the 287(g)
program, they just have not been approved through ICE yet. So
our goal is to not only have the strategic plan but also
looking at the review of the program itself, tying future
agreements better into ICE priorities and having them spelled
out within the agreement. But we do have performance measures
that are in draft form that we are trying to get completed.
Mr. Lujan. Mr. Riley, when were those developed?
Mr. Riley. The strategic plan has been in development for
approximately--at least the 5 months that I have been the
acting director.
Mr. Lujan. And----
Mr. Riley. It started prior to that so a little longer than
5 months.
Mr. Lujan. Mr. Riley, when was the first time that we
entered into an agreement with a local law enforcement agency
in this program?
Mr. Riley. 2002.
Mr. Lujan. So between 2002 and 2009, the beginning of the
year, there have been no performance measures put together to
be able to measure the success or failure of this program?
Mr. Riley. Other than any officers trained and individuals
identified and agreements met, no, there haven't been.
Mr. Lujan. So when there is discussion of success in this
program or failures of this program, there hasn't been anything
identified that has been formalized yet to be able to measure
that.
Mr. Riley. No, I don't believe so.
Mr. Lujan. Mr. Chairman, one of the questions I have also
in this area is currently, and I think this was touched upon--
what is the process if someone who is not necessarily well-
trained in enforcing immigration law violates what we hope are
the parameters of 287(g), for example if someone was improperly
detained?
Mr. Riley. An individual officer's authority can be
revoked. We have policy in place that discusses the suspension
and or revocation of an individual officer's authority based on
cause. The allegation is forwarded to ICE's OPR, the matter is
reviewed, and the authorization can be pulled unilaterally.
In fact we recently had an instance where a 287(g) officer
was charged with a serious off-duty crime, nothing to do with
his duty, that the next day we revoked his authority and
canceled his actions into our system. So there are policies in
place to address the allegations and/or misconduct of 287(g)
officers.
Mr. Lujan. Mr. Riley, are you aware of any comprehensive
audits or reviews of all of those that have been detained back
to 2002? Have they been reviewed to see if there were any that
were detained that were not undocumented?
Mr. Riley. As part of OPR's review of all the MOAs that is
on-going, they do spot checks on a certain percentage of alien
trials that were created under the program. They review to
ensure that the charging documents were prepared properly and
also look to see if there were any complaints filed by any
detainees against any 287(g) and/or ICE officers.
Mr. Lujan. Sheriff Jenkins, you made reference a little bit
earlier that there was a certain number--it sounded like it was
in the high 300's--of arrests, but only of which 307 or so were
actually--there were violations there. Could you refresh my
memory with those numbers?
Sheriff Jenkins. Yes, let me find that here. Bear with me
for 1 second--337 persons who were brought in through central
booking who had committed, again, some type of crime or an
arrestable traffic offense, booked through our central
processing and then were determined to be illegal status; 309
of those persons were placed into removal proceedings.
Mr. Lujan. Okay, Mr. Stana, one question that I have for
you specifically is your report includes a trouble point that
many agencies the GAO contacted noted concerns for community
members that 287(g) could lead to racial profiling and
intimidation. I come from a very diverse district in which this
is something that we embrace and where we look forward to
having strong relationships with our law enforcement, as the
chief has described, where we are able to work closely with one
another to go after and make sure that we are addressing those
drug dealers and those that are committing serious crimes. What
do you think of these concerns about intimidation and profiling
that are being expressed, and how can we better work with our
communities to address these specific concerns?
Mr. Stana. I would answer the question this way. There are
fundamentally three different models that this program uses.
One is the jail model, and that is when people come in and they
are booked and then they check the status and most people, the
vast majority of people have no problem with that. You have a
felon or at least a very bad person who is arrested. They are
brought before you; they did something wrong.
Then there is what used to be the patrol model, and I
believe ICE has stopped that one. But the patrol model enabled
officers to, in the course of their normal patrol duties, to
identify people who are out of status, supposedly in the course
of arrest action. But some allege that this is not being done
in the course of arrest action, that there are people who are
arrested for minor traffic violations, cracked windshield or
something like that--this is the allegation--and they felt that
there was profiling going on.
That model, I believe, is not in use anymore. It was now
turned over into what is known as the task force model. These
are supposed to be ICE-led task forces. I looked at the list
and I don't know if all of them are ICE-led. But this is to
provide another measure of control where ICE is a partner among
other agencies to work on, say, a drug case or a trafficking,
human-trafficking case or something like that. Haven't heard
much noise about that one either.
It was the patrol model that seemed to generate the most
concern. Now, the issue is people feeling that they are maybe
committing a crime--a crime is sort of a loose term--but a
relatively minor infraction but that the officers were just
waiting for them. Some of the allegations we had heard were
corn vendors on the street, and they were brought in on charges
that they didn't comport with food and safety laws--or people
with cracked taillights and someone who looks Hispanic. The
people who raised the issues were people of Hispanic descent
who happened to be U.S. citizens who were concerned about being
pulled over too. So those were the kinds of complaints that we
are, you know, we are aware of.
Now, this is a program that set a rather high bar of
serious crime that is supposed to be the target here. If you
want to lower that bar, that is within the, you know--Congress
hasn't defined where the bar is, so ICE could reasonably define
where that bar should be. If you want to lower it, that would
be fine if they articulate that. But the cost is going to go
up. The cost is going to go up in terms of detention space
needed, officers needed to supervise and another cost very well
may be what Chief Manger pointed out, a cost in are you going
to get community cooperation in your pursuit to root out crime.
Mr. Lujan. Thank you, and, Mr. Chairman, I know my time is
expired here. But I would just go on to say, Mr. Chairman, that
I completely agree with Ms. Jackson Lee that the answer and the
solution to many of these problems is comprehensive immigration
reform. I hope that, as we are doing our jobs to make sure that
we are protecting our Nation against crime, that we do not lose
sight that we are talking about real lives and real people with
everything that we do and that we keep that in the back of the
mind when we are making decisions going forward.
Thank you very much, Mr. Chairman.
Chairman Thompson. Thank you. The gentleman's time has
expired.
Now recognize the gentleman from Texas, Mr. Smith, for 5
minutes.
Mr. Smith. Thank you, Mr. Chairman.
First of all, Mr. Stana, with the GAO, I want to thank you
for your suggestions on how to improve the 287(g) program. I
just want to emphasize something that you alluded to a while
ago--and I say this because I was the House author of the 1996
immigration reform bill that included the 287(g) program--and
that is that there is nothing in the legislation that limits
the program to detaining those who have committed serious
crimes. It sounds like to me you agree with that.
In fact, the goal was not that at all. The goal was to
really enable those local law enforcement authorities who
wanted to, to enforce the immigration laws in whatever way they
thought best, and that might or might not include those who had
committed serious crimes. Some people, I think, are under the
mistaken impression that somehow that is required by the
legislation, and as you pointed out, that is really a decision
made by the Government and individual situations.
The other thing is I think clearly the program has been a
success, in part because of the testimony of various law
enforcement officials, like Sheriff Jenkins--and I have a
question for you in just a minute--but also in part because of
the dramatic increase in applications, so many applications by
local law enforcement authorities, in fact, that the Federal
Government can't even keep up with approving those agreements.
So clearly there is an interest in the program, which I think
is to be commended.
I also think, and I want to read here, and I don't know if
Mr. Riley got to it in his oral testimony or not, and I
apologize for not being here at that point. I was on the floor.
I am a Member of another committee, Judiciary Committee. We had
bills on the floor. So I may have missed it if you said it.
But I just want to make sure it is in the record, and this
goes to the success of the program. It is critically important
to note, as pointed out in GAO's report, many benefits have
been realized by the agencies participating in the 287(g)
program. Program participants reported to GAO a reduction in
crime, the removal of repeat offenders and other safety
benefits. The cost savings associated with crime reduction are
not being easily quantified, but there has undoubtedly been a
positive impact on many communities. These partnerships are
essential to ICE carrying out its mission of deterring criminal
alien activity and threats to national security and public
safety throughout the United States.
That is a strong statement which I very much appreciated,
but again I think it points to the success of the program. I
would also say in fact that I consider 287(g) to really be a
litmus test as to whether we are serious about enforcing
immigration laws, whether we are serious about making our
communities safer and whether we are serious about reducing
illegal immigration. That is how important the program is.
Mr. Stana, a few minutes ago, you mentioned that we have
18,000 Border Patrol agents. Well, when you think that you have
to cover 24 hours a day, that means you divide by three of the
8-hour shifts; there is only 6,000 agents on duty at any one
time. We have 4,000 miles of border north and south. That means
we have only got three agents for every 2 miles of border.
Believe me, that is not enough, and I don't know of anybody who
thinks that that is enough, but that is why we need programs
such as 287(g) to augment our efforts to try to secure the
border.
Let me run through a couple of questions if I could.
Sheriff Jenkins, I will begin with you. Thank you for being an
example of how the program works. You suggest in your written
testimony that we actually ought to expand the program. Is that
correct?
Sheriff Jenkins. That is correct, sir.
Mr. Smith. Why is that?
Sheriff Jenkins. Well, again, I say--you look at the needs
of the agencies or the requests of the number of agencies that
want to get on board, and again I think there is a true role
for the need and involvement of local law enforcement. The
reason I say this is because if the resources were available to
ICE to provide all the oversight and supervision that was
needed, I think the program would be even more successful.
Mr. Smith. Okay, thank you, Sheriff Jenkins.
Chief Manger, let me just ask you a question based upon
what I read in your testimony. You said local police agencies
must balance any decision to enforce Federal immigration laws
with their daily mission of protecting and serving diverse
communities and so forth. I know you have--feel pros and cons
about 287(g), but it sounds like to me from your written
statement, at least, that you believe that it should be up to
the local law enforcement authorities whether they participate
or not. Is that accurate?
Chief Manger. That is accurate, yes, sir.
Mr. Smith. Okay, that is helpful because I think what we
all want to do is try to improve the program. In my judgment, I
think we ought to expand it. I agree with Sheriff Jenkins in
that regard--and make it, you know, improve it to the point
where more and more communities want to use it.
But the problem we have is that we need more personnel
within the Department of Homeland Security so that we can get
those agreements approved. I just think it is inexcusable to
have local law enforcement authorities wanting to participate
and not having the personnel in D.C. to approve those
agreements. I hope we could rectify that.
Madam Chairman, I will yield back.
Ms. Clarke [presiding]. Thank you very much.
I will now recognize myself for 5 minutes.
I wanted to thank Chairman Thompson and Mr. Souder for the
opportunity to address our witnesses today.
As a New Yorker, I am acutely aware that we are in a post-
9/11 world, and it is incredibly important that we protect our
Nation from terrorist threats. In order to do so, it is
important that we identify the bad actors, both documented and
undocumented, residing within our borders. But unfortunately I
think we are all stuck at a point where we recognize wherein
our current immigration system is antiquated and is in urgent
need of fundamental reform. I am particularly concerned about
the lack of internal controls, oversight and accountability in
the 287(g) program.
Let me just state that, as a second-generation American of
immigrant parents and a representative of a congressional
district with a substantial and diverse immigrant population, I
am concerned about the potential this program poses for racial
profiling and for the lack of trust and the hostility that it
fosters between immigrant communities and law enforcement. As
noted in both the testimonies of Chief J. Thomas Manger and MPI
director, Mr. Chishti, even legal immigrants will cease to
report crimes in a culture of fear and paranoia.
So that sort of brings me to you, Sheriff Jenkins. I kind
of found it interesting that in your conversation here, you
said that your department has found a way to make--what is it,
$80 per detainee? Is that what your reimbursement is per
detainee?
Sheriff Jenkins. Eighty-three dollars reimbursement.
Ms. Clarke. Okay, and that could be quite profitable
particularly if your jurisdiction has additional bed space,
couldn't it?
Sheriff Jenkins. I think it is a good use of bed space.
Ms. Clarke. Yes.
Sheriff Jenkins. Again, look at helping the overall mission
of ICE.
Ms. Clarke. Yes, okay. In terms of community policing, it
is vital that every local police and sheriff's department have
a strong relationship with the community. Victims of crime and
witnesses should be able to come forward and talk to the police
freely without fear of being arrested or deported. I am
concerned that participation in this program may negatively
impact this important relationship.
I wanted to ask if you believe that undocumented immigrants
in your community who were victims of a crime or witness to a
crime are reluctant to come forward because they fear of
detention or deportation.
Sheriff Jenkins. The answer is no, not for that reason. I
think you will find--and I am going to go back to my
experiences in working crime and criminal investigation is that
the reluctance is a cultural thing. It is not an issue that you
can tie to the immigration enforcement. I mean, there is
typically a mistrust of police, Government and law enforcement
in most of the rest of the world. We know that. So I think in a
lot of cases it is cultural. I could tell you----
Ms. Clarke. Could you go a little bit more into detail
about what you mean when you say it is cultural?
Sheriff Jenkins. Well, I mean, a lot of other countries in
the world, let us face it, their police are corrupt. Their
governments, in a lot of senses, are corrupt, and there is just
a general mistrust of law enforcement, not necessarily in this
country but other areas of the world, and not tied to one
specific country. I mean, I think we know that. I mean, look at
the law enforcement in South America, Central America. I mean,
we all know what is going on below the borders.
I will be very frank with you, I mean, let us face it. A
lot of other countries people cannot trust law enforcement. I
don't think this program creates mistrust. We participate very
strongly in community policing. We reach out to the Latino
communities, all the immigrant communities. I have had calls, I
have had letters from immigrants who are in this country
illegally who frankly they believe in this program.
Ms. Clarke. Let me ask you something. If that is indeed
your premise, then how do you become an effective crime fighter
in an environment where we know that we would need the
intelligence of individuals within our own community to avoid
and avert really, really bad things from happening?
Sheriff Jenkins. We do and we----
Ms. Clarke. So I am just asking you, I mean, just the two
responses just don't jive.
Sheriff Jenkins. Okay.
Ms. Clarke. You know, it--but they don't jive.
Sheriff Jenkins. There are mechanisms in this program to
protect victims of crime. We make that very clear. I mean, just
because you are a victim of a crime and you happen to be an
immigrant doesn't mean we won't do everything absolutely within
our power to protect you.
Ms. Clarke. Yes, okay, well, Mr. Jenkins, my time is
running out and I am going to just end with one more question
for you. Have you participated in any outreach efforts
specifically designed to inform the community about the 287(g)
authority?
Sheriff Jenkins. Yes, I have.
Ms. Clarke. Could you just give us a little bit more detail
on that?
Sheriff Jenkins. I have made myself accessible to any
community group.
Ms. Clarke. No, I said outreach not----
Sheriff Jenkins. Outreach, yes, yes. I have, again, from
the onset of this program, I have let the community know where
we were going to go, the reasons we were getting involved in
this program and have taken an active posture in getting out
and letting the community know. All segments of the community
know what this program is. I have been very transparent about
it.
Ms. Clarke. Okay, very well.
Let me now acknowledge Mr. Dent. I believe you are next
to--Mr. McCaul, just going by the list here, sir.
Mr. McCaul. I thank the Chair.
Ms. Clarke. You are acknowledged for 5 minutes.
Mr. McCaul. I thank the gentleman from Pennsylvania as
well.
There is an old expression: If it is not broken, don't fix
it. I think this has been a very successful program, and if
anything we should look at expanding it in the Congress, not
criticizing it.
You know, after 9/11 we all talked about working together--
Federal, State and local. I think that applies to this issue as
well. Our local law enforcement are the eyes and ears. We
talked about the patrol model. That is the model that picked up
Tim McVeigh on the streets with a routine traffic stop.
I think the American people are frustrated by the illegal
immigration issue, but when they see illegal immigrants come
into this country and commit crimes, they find that to be
intolerable and unacceptable. They certainly do in my district.
This program, in the Houston area, has been very successful.
The only problem that I have seen is that more local police
departments want to participate in it that cannot qualify and
that ICE does not have the resources that it needs to properly
carry this out.
I met in the Houston area with ICE with our smaller local
police departments, and the ICE official literally pointed at
me, as a Member of Congress, and said--as the local law
enforcement officers are saying, ``We want to do this. We want
to participate. We need ICE to help us detain more of these
illegals committing crimes in the United States.'' The response
from the ICE official was, he pointed at me and said, ``Well,
you are from the Congress. You need to help us.'' I think he is
right.
I think that Congress needs to appropriate more money for
this program to expand it. I think Congress needs to
appropriate more money so that ICE can fully participate in
this program, which I believe ICE cannot fully participate in
this program given the limited resources available.
So with that question and given that this is a voluntary
program--we are not forcing any local police department to do
this--but given that, I will throw my first question to Mr.
Riley at DHS, in terms of--does ICE have the resources to fully
participate in this program?
Mr. Riley. Currently with the workload we have, I believe
we do. The Congress has been very generous in appropriating
funds. The 287(g) program receives over $54 million this
current year, and that is up from zero 5 years ago. The growth
has been dramatic in the past 2 years, and we have signed on 60
MOAs just in the past 2 fiscal years, and we have more in the
pipeline.
We started tracking the full cost expended upon the program
as a result of GAO asking what the average cost per agreement
was, and looking at that, and we have expanded that
spreadsheet. GAO looked at 29; we have it expanded to all 67
now. So in the upcoming years we are going to be tracking what
the full impact is as detention bed costs, space, personnel
costs and things of that nature to get a better picture on what
the average memorandum of agreement does cost.
Mr. McCaul. Well, then, I would--Mr. Stana, is that your
experience as well with your report?
Mr. Stana. Well, the $60 million goes for computers and
training mainly, some equipment, but not for people, not for
bed space, not for ICE supervision. They are in short supply
there. So to some extent, Mr. Riley is correct. On another
plane, we might want to reexamine.
I think the question people normally ask GAO is: ``How well
did they spend what they got?'', not: ``Do they need more?''
But, you know, the fact that Mr. Souder can't get in the
program or his jurisdiction can't get in the program and others
are waiting would suggest that maybe the resource question
ought to be revisited.
Mr. McCaul. Well, and I agree with that.
Mr. Riley. I would love to invite you down to my district
and you can talk to several local police departments that want
to be in this program but cannot. The director of ICE in the
Harris County area who has been very, I think--I commend him
for being honest with me and very straightforward that they do
need more resources. I think that is an issue that we in this
Congress should be focused on. I think it is a successful
program. I think it deserves expansion.
With that, I have 2 seconds left. I just want to ask
Sheriff Jackson and Mr. Riley if--I would like to hear the
successes of your model, Sheriff, and then also ask the
question: Have there been any complaints filed regarding racial
profiling both in Maryland and also, Mr. Riley, Nation-wide?
Sheriff Jenkins. The answer is no. I have had no complaints
or investigation--no complaints of racial profiling or
discrimination as a result of the program. It has been a very
successful program. I don't quantify that with numbers. I look
at how well we run the program in partnership with ICE.
Mr. McCaul. I commend you for that.
Mr. Riley, have you had any complaints regarding racial
profiling pertaining to this program?
Mr. Riley. ICE does take the allegations that are out there
very seriously, and I believe we have built several measures
into it. Although we don't audit the investigative agency for
racial profiling, we do have a multilayered approach when
looking at the issue. The way the agreements are established,
there is a complaint process for any violation of the MOA,
which is a complaint process through our Office of Professional
Responsibility.
The officers that are recommended for the training, we do
background checks on those officers and look at pending
disciplinary actions. As well as within the training, there are
components of the 287(g) training program that looks at racial
profiling and civil rights issues. The officers are advised
that now that they are Federal officers when exercising a
287(g) authority, that they are bound by the Department of
Justice's civil rights policies and procedures on racial
profiling and use of race in law enforcement activities.
Additionally, our OPR reviews, when they go out to the
officers and review the MOAs, they do check with the racial
civil rights entities, the U.S. Attorney's Office and the FBI
to ascertain if there are any pending racial or civil rights
issues----
Mr. McCaul. Are there? My question is: Have there been any
filed?
Mr. Riley. None of our OPR reports have reflected any----
Mr. McCaul. Thank you.
Mr. Riley [continuing]. With them.
Ms. Clarke. I now acknowledge the gentleman from Texas, Mr.
Green, for short--for 5 minutes.
Mr. Green. For a short 5 minutes.
[Laughter.]
Thank you, Madam Chair.
Ms. Clarke. The standard 5 minutes.
Mr. Green. Thank you very much. I want to thank the
witnesses as well.
For edification purposes, permit me to share this with you.
I have been in and out because we have another hearing in
Financial Services, and it is quite important that I attend
both of these hearings today. So I may have missed something
that I will ask you to share, and I beg your indulgence because
of my trying to split my time.
Let us start with some intelligence that I have received
indicating that ICE officials reported to GAO that they are in
the process of developing performance measures. Let us go to
Mr. Stana. Is this true that ICE has been in touch with you and
they are in the process of developing some performance
standards?
Mr. Stana. That is correct. Mr. Riley and his people are
developing a strategic plan; embedded in the strategic plan are
performance measures. We have not seen them. The strategic plan
is still in draft form and I am not sure exactly when it is
going to come out, but we will be looking to that plan----
Mr. Green. Well, that is a good segue into my next
question. Have you been given any time table as to when you can
expect this performance plan, if you will, or measure?
Mr. Stana. Nothing specific.
Mr. Green. Perhaps I should move now to ICE then and ask
you the follow-up question. Is there a time frame within which
the performance measures will be accorded GAO?
Mr. Riley. The plan is in final format and with our 287(g)
review that we are conducting across the board. I don't have a
time frame. I can check on the status of where the strategic
plan is and the performance measures and get back to you on the
time frame.
Mr. Green. Understanding that you do not have a time frame,
is it fair to assume that it will be done within the next 6
months?
Mr. Riley. I believe so with the review that is being
conducted at the direction of Secretary Napolitano; I believe
we will have it done in the next 6 months.
Mr. Green. Would it be done within the next 3 months?
Mr. Riley. That I can't answer. I can get back to you on
that when I have a chance to consult.
Mr. Green. So within about 3 to 6 months--given that not 3
but possibly 6? I ask because, having gone through this on many
occasions now, I have learned that time frames are important,
and if we are going to have an efficacious program, we do need
these performance standards. The best way to get to them is to
have some horizon that we are looking to. So I am going to not
necessarily say that I will hold you to it, but I will at least
expect to see something in about 6 months, so that we can get a
better handle on what we are doing.
Next point is this: The MAOs generally do not provide
details, according to my intelligence, as to what data should
be collected or how the data should be collected and how the
data should be reported to ICE. Is this true?
Mr. Riley. That is correct.
Mr. Green. Given that some of this can become standard, why
can we not standardize certain aspects of these MOAs so that we
can have one that we can use generally speaking that we tweak
for a given location? Is this possible?
Mr. Riley. That is our goal, and that is what we are doing
right now is we have a draft, a new draft. We have gone through
several evolutions of MOAs, and they have been templates and
standardized and we have added to them over the years. The
current one that we are putting together takes into account
many of the GAO recommendations plus other areas that we wish
to improve internally with our current review.
One of the measures is the data collection--and, for the
record, that we have data that we extract out of our database
system that the State and locals are required to put in. It is
not spelled out in the MOA, but it is a seamless mission where
we give instructions on what fields need to be filled out so
that we just pull the data out directly. Even that system
itself, the ENFORCE system, is being enhanced so that the data
collection will be better to focus on the individual----
Mr. Green. My time is about to expire, so forgive me for
interrupting. But I do have one final question. This is rather
general and it will help me with many hearings of this type.
Was there anything that prevented you from visiting with GAO
prior to the implementation of the program and ascertaining
what type of acid tests might be best used given what your
mission was? Is there anything that prohibits this?
Mr. Riley. I am not sure if there is a prohibition from us
consulting with GAO.
Mr. Green. I only ask because we find ourselves after the
fact making these kinds of adjustments that in many
circumstances are based upon what I have seen now--this is my
observation. Based upon my observations, we could have
prevented this hearing possibly by having had a meeting with
someone in GAO and your organization. This doesn't just apply
to you, so I am not finger-pointing. I am just trying to find a
better way to do business and save money for the Government.
Mr. Stana. You know, Mr. Green, from time to time, other
organizations do engage us. We call them constructive
engagements. They ask our counsel on certain things they are
thinking about doing. In this case, if Mr. Riley and his people
would like us to have a look at what they have drafted and
provide any insights, we would be welcome to do that, but we
haven't been asked yet.
Mr. Green. Seems like a fairly reasonable thing to do.
I thank you, Madam Chair. By the way, you do look good in
the seat.
[Laughter.]
Ms. Clarke. Thank you very much.
I would now like to acknowledge the gentleman from
Pennsylvania for 5 minutes.
Mr. Dent. Thank you, Madam Chair.
Ms. Clarke. Mr. Dent.
Mr. Dent. Great to be here.
Mr. Riley, good to see you again.
Mr. Riley. You too, Congressman.
Mr. Dent. How did you get this job, by the way, can I ask?
Mr. Riley. All luck.
[Laughter.]
Mr. Dent. Why don't you tell them what you did before you
were--when I used to run into you up in my----
Mr. Riley. Prior to my assignment here as the acting
director of the State and local law enforcement, I was an
assistant special agent in charge with ICE's Office of
Investigations in Philadelphia and worked with Congressman Dent
on some significant community issues.
Mr. Dent. Interesting issues trying to help facilitate
greater collaboration between my ICE and local law enforcement,
if I recall.
Mr. Riley. Very ironic.
Mr. Dent. Some interesting meetings. But it is great to see
you again.
I have a lot of questions. But, one, I just want to say,
Mr. Riley, and I would be remiss if I didn't ask you about a
situation that just occurred in my district in the last few
days. It was in, again, Northampton County where you had some
experience. I had an individual enter the United States
illegally and then got a green card when he married a U.S.
citizen. The individual is now facing his sixth drunk driving
charge--sixth.
I guess my question is what does it take to pull the guy's
green card? He is operating under aliases, entered the country
illegally--and send him packing. You know, I guess, you know, I
mean, my constituents are asking. Does he have to kill somebody
first before we get him out? Would there be any relevance for
the 287(g) program in a case like this?
Mr. Riley. If the individual has a green card, is a lawful
permanent resident, only a deportable criminal offense would
render him removable. It has been a few months since I have
reviewed some notices to appear and understanding the
Pennsylvania statute, but not knowing what the exact conviction
is for and the severity of it, I would have to, you know, if
you want to forward the information, I----
Mr. Dent. I will get it to you, but the individual was
convicted of drunk driving in 1993, 1994, 1996 and 2007 twice,
just got picked up for a 0.23 and, you know, this has been on-
going. There are aliases, improper or false aliases and that
sort of thing. So that has kind of come up and I just wanted to
raise that with you and look forward to working with you on
that particular situation.
I also wanted to mention, too, that--and I guess my next
question is to Sheriff Jenkins. Can you tell me in this
committee, you know, how many criminal aliens identified by
your agency have been released and not deported because ICE has
not had the resources to deport everybody?
Sheriff Jenkins. To my knowledge, none--I mean, again--I am
sorry, sir--to my knowledge, none. Again, when you look at the
numbers of persons we filed detainers on--337--the number that
were placed into removal proceedings--again I go back to the
program has worked well for us. We have never been in the
situation where the person was removable that it has not
occurred.
Mr. Dent. Okay, and, you know, we have a lot of situations,
too, up where I live as you are well aware, Mr. Riley, but I
just really would like to have further dialog with you on these
issues because it is becoming a bigger issue. As you know, we
have had some celebrated cases, which you have been familiar
with.
I guess finally, too, I just wanted to say that we have a
lot of people, too, in this country--I am not sure what you
folks can do about this, but I know there are about 139,000
people, Mr. Riley, in the United States from about eight
countries who are awaiting removal orders but cannot be
repatriated. I don't know if you have any insight or thoughts
on that particular issue. We have got legislation out here
pending that would make it--we would like to hold up visas from
those countries where these individuals are from, places like
India, China, Jamaica, Vietnam, Laos. I can go through the list
of eight countries. I don't know if anybody wants to respond. I
picked on Mr. Riley, but maybe somebody else has some insight.
Mr. Stana. Well, it has been several years, but we did some
work on the Zabidas cases, which I think is what you are
talking about, which was named after a Supreme Court decision.
Mr. Dent. Yes, we can't hold these people indefinitely----
Mr. Stana. Yes, and that is part of the problem. If I
remember right, there needed to be more collaboration between
States and Homeland Security and local jurisdictions to make
sure that all the paperwork was right and all the appeals were
exhausted, in concert with law but in an expeditious manner.
But there are some--it is just a tough nut to crack. Laos--I
can name the countries also--will not take them back. So they
languish in the detention facility.
Mr. Dent. At this time, I have no further questions. I
just----
Mr. Souder. Will the gentleman yield----
Mr. Dent. I will yield to Mr. Souder.
Mr. Souder. Sheriff Jenkins, does the Federal Government
pay any of the salaries on your people who participate in
287(g)?
Sheriff Jenkins. No, sir, they do not.
Mr. Souder. I think it is really important to point out
that when we are talking about control, that the salaries are
paid just like in HIDA by the local law enforcement, and if we
don't include local law enforcement in the decision of what
they are allowed to do, we won't have a program, because the
Federal Government is merely doing training. Anybody who is
watching this today, listening to this, needs to understand
Sheriff Jenkins is funding the program. The Federal Government
only did the training.
Sheriff Jenkins. Correct, sir.
Mr. Souder. Thank you.
Ms. Clarke. It think it is also important to note that it
is a voluntary program.
The next person to give their questions at this time is the
gentleman from Missouri, Mr. Cleaver.
Mr. Cleaver. Thank you, Madam Chair.
I am apologetic as well. I am on the Financial Services
Committee, and we are dealing with TARP, so we have been in and
out. My colleague, Mr. Green, is accustomed to sitting by me in
both committees. He will be lost without me so I will have to
join him to create some comfort for him as soon as I can.
But this is a very important subject. I just want to say I
think some highly publicized cases like those that Mr. Dent, my
colleague, mentioned are the kinds of things that really will
irritate the American public. I think we have got to clean up
our laws and figure out ways to address some of these issues
because those are the things that are lifted up to anger the
American public.
But at the same time, I am also very concerned about
xenophobia. I think in the aftermath of 9/11, there is a great
deal of that. I think it would be very difficult for someone to
dismiss the fact that that is the case. So I am concerned about
that, and I know that, you know, the American public--Chief
Jenkins, you mentioned the fact that there was, you know,
people, I guess, criticizing your program, 287(g) and your
operation, but I do have to say that sometimes the public is
wrong. You know, politicians aren't supposed to say that, but
it is a fact.
I mean, as a little boy growing up in Texas, I can remember
this Congress in these walls repeatedly refusing to pass a
civil rights bill. The poll showed that they were doing what
their constituents said. So I think we have to--I mean, we have
to be really careful. I think we are the leaders who have to
make sure that the xenophobia is not a part of what we push and
fail from these hallowed walls.
But I would like to move to Chief Thomas. Do you believe
that 287(g) creates tension between the police operation and
immigrant community?
Chief Manger. You know, it is going to be different from
jurisdiction to jurisdiction and I can speak for Montgomery
County, where I police. I can tell you with the number of
immigrants that we have, with the number of undocumented
immigrants that we have, it would pose a difficult issue for us
if that segment of the community saw us as ``the immigration
police.'' Yes, it would be a problem.
Mr. Cleaver. Do you think that would spill over into--I
mean, I think, you know, for sure in Latin America and in other
places around the world that there is a fear of police and of
authority. I think minorities and certainly immigrants may have
that same paranoia, and so--I think someone mentioned it
earlier. I think the Chair mentioned that we need some
cooperation to adequately fight crime from all segments of the
population.
Mr. Chishti, do you believe that there is something we can
do to tweak 287(g) that would make it workable but it not
oppressive?
Mr. Chishti. I think so, Congressman. I mean, there are
clearly four or five things that you can do. First of all, you
can insist that these agreements have a clear, narrow
objective, because the limited resources--they must be spent on
high target-of-interest criminal aliens, I think. No. 2 is that
I think they must have very strict supervision. Right now, the
supervisory language in these agreements is so vague that they
make the statutory language essentially meaningless.
They must also have very tight guidance as to when they are
going to use the authority that they are given by the
agreement. I think they should have very strict compliance
procedures, and they should be monitored. Most importantly, we
should have very important reporting requirements, which we
don't have now.
We all talked about how many criminal aliens they are
picking; we have no idea today how many criminal aliens have
been picked as a result of these operations because the program
doesn't allow them to keep numbers like that. Then we must have
a--from the local community here. I think if the local
community buys into the program, it will be a success. Without
that, it won't be.
Mr. Cleaver. Well, thank you, Madam Chair. I apologize I
have to go. Mr. Green needs me.
[Laughter.]
Ms. Clarke. Thank you. I now call upon the gentleman from
Florida for 5 minutes.
Mr. Bilirakis. Thank you, Madam Chairwoman, I appreciate it
very much.
I strongly support 287(g) and believe it is invaluable,
too, to help enhance our ability to deter illegal immigration
and detect criminals and others who may wish to do us harm. I
believe it would be shortsighted to allow current management
challenges in the program to deter us from expanding and
maximizing its immigration enforcement benefits.
I have a question for Sheriff Jenkins. Do you believe, as
Sheriff Bob White in my district does, that legal, law-abiding
immigrants are actually more afraid of the criminal aliens in
their communities than they are of local law enforcement and
that because they lack confidence in the ability of local law
enforcement to keep these people off the streets, they are
hesitant to cooperate with and trust local authorities?
Sheriff Jenkins. Yes, I believe the local population--and I
am speaking again for my jurisdiction.
Mr. Bilirakis. Yes.
Sheriff Jenkins. There is a fear among the resident
community of the crime that is attributed to illegal aliens in
this country. Now, I don't think that they are frustrated with
the efforts of police or law enforcement. The problem is
enormous. This problem is not isolated to one jurisdiction, one
State. It is an enormous problem from coast to coast. So I
think overall, I think people are frustrated by the fact we
can't enforce the laws any more than what we do.
Mr. Bilirakis. Thank you.
I would like to yield 1 minute to Representative Dent.
Mr. Dent. Thank you.
Mr. Riley, just one other question I thought of as I was
listening to the discussion. It is my understanding based on
one of our last conversations that much of the resource
allocation for removing people who are in this country
illegally focuses in these areas: terrorists, human smugglers
and criminals. Is that a fair assessment that they tend to get
more attention in terms of your enforcement efforts at ICE?
Mr. Riley. Within the Office of Investigations, they pursue
those areas, but our Office of Detention and Removal, one of
the top focuses is the criminal alien population.
Mr. Dent. Yes.
Mr. Riley. The criminal aliens in all the areas that we
target them, both in our gang efforts, in our CAP program and
things like that in 287(g). I would say criminal aliens is one
of the top priorities of ICE.
Mr. Dent. I yield back at this time.
Mr. Chishti. Congressman, if I could----
One of the problems with the present program is that it
allows us no way of knowing whether those priorities are being
met. We have no idea how many terrorists have been picked up as
a result, how many criminal aliens, how many drug traffickers.
What we know is a large number of people are being picked up.
So we have gone from quality to quantity in this program, which
ultimately is the problem in terms of its long-term objectives.
Mr. Riley. Actually just to rebut that one issue that we do
know that more than 90 percent of the individuals picked up in
the 287(g) program were either picked up in a jail setting or
had criminal histories. We are trying to tighten those numbers
up because it may be higher and also so we can reflect what
initial crimes they were charged with or convicted of. Our
system doesn't allow us to do it now, but by and large the vast
majority of the 287(g) arrests were encountered in jail
settings.
Mr. Bilirakis. Thank you. I yield the balance of my time to
Representative Souder.
Mr. Souder. One of the challenges here, as Mr. Smith said,
who wrote the bill, and I was in negotiations in my first term
because our class was so big in the negotiations on the final
immigration bill--this Congress did not specify that this was
just supposed to be high-risk people or people who were
violent. That is not there. In talking to--it may be a
logical--if we are going to have restricted funding and
different targets, that may be a logical outgrowth, but it is
not a failure of ICE nor was it the intent of Congress to do
that.
It was part of an immigration bill, and 287(g) does not
fund local law enforcement; 287(g) was to extend because we
were not going to use ICE agents to do regular type of
immigration work, and that the 287(g) was to extend and try to
offer a program to people like Sheriff Jenkins who said,
``Look, I will take my limited resources and put them into this
program.'' We will to some degree be changing the intent.
Now, I talked to Assistant Secretary Myers in both
categories. One is how do we, with limited funding, which I
believe there should be more, target ICE, and do you do random
investigations or you target bigger organizations? Then second,
is there a goal that ideally we would pick up more high-risk
people? Ideally we pick up that, but that is not the
legislative purpose written or intent.
Now, I think that there are suggestions now that this is
going to be a limited program. How do we best use the funds?
How do we work that through if Congress doesn't pass more
money? That is what we are debating here.
But there needs to be a clear understanding that if we
narrow it, in fact people like Sheriff Jenkins may withdraw. It
is their money. It is really important for a program like this
to not just be Washington top down, which is what we have run
into in narcotics, and we have had this back and forth, because
if you want local law enforcement in, you have to let them
participate in the decision that says if I am going to put my
resources in, what do I think my problem is in my district.
In narcotics, they wouldn't do meth. They said, ``Oh, well,
we will do cocaine; we are not going to do meth.'' The sheriffs
pulled out their funding. In this case, if they feel they have
different types of crimes in their district, 287(g) was to
allow some flexibility for illegal activity, not just the
highest kind of violence.
Yield back the rest of Mr. Bilirakis'----
Ms. Clarke. Well, I want to thank the witnesses for their
valuable testimony and their time today and the Members for
their questions. The Members of the committee may have
additional questions for you, and we will ask you to respond
expeditiously in writing to those questions.
Without objection, I have letters and statements from
several organizations commenting on the 287(g) program. I offer
them for the record. Hearing no objections, so ordered.
[The information referred to follows:]
______
Joint Statement of Wade Henderson, President and Chief Executive
Officer, Leadership Conference on Civil Rights, and Margaret Huang,
Executive Director, Rights Working Group
March 4, 2009
Chairman Thompson, Ranking Member King, and Members of the
committee: We are Wade Henderson, president & CEO of the Leadership
Conference on Civil Rights (LCCR), and Margaret Huang, executive
director of the Rights Working Group. Thank you for the opportunity to
submit testimony for the record regarding today's hearing on State/
local enforcement of Federal immigration laws.
As the Nation's oldest, largest, and most diverse coalition of
civil and human rights organizations, LCCR has long been concerned with
the civil rights implications surrounding the use of Section 287(g) of
the Immigration and Nationality Act (``287(g)''). LCCR was founded in
1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, and seeks
to further the goal of equality under law through legislative advocacy
and public education. LCCR consists of approximately 200 national
organizations representing persons of color, women, children, organized
labor, people with disabilities, older Americans, LGBT Americans, and
major religious groups.
Formed in the aftermath of September 11, the Rights Working Group
(RWG) is a national coalition of more than 250 organizations
representing civil liberties, national security, immigrant rights and
human rights advocates. RWG seeks to restore due process and human
rights protections that have eroded since 9/11, ensuring that the
rights of all people in the United States are respected regardless of
citizenship or immigration status, race, national origin, religion, or
ethnicity. RWG is particularly concerned about the impact of 287(g)
agreements on the civil liberties and human rights of communities of
color.
287(g) was passed in 1996 as part of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRAIRA), at a time when the
Department of Justice recognized no inherent authority for State and
local law enforcement to enforce Federal immigration law. A 2002
opinion from the Department of Justice Office of Legal Counsel (OLC),
however, reversed the earlier ruling and found that State and local
police departments did have such an inherent authority. The use of
Section 287(g), combined with the 2002 OLC opinion, has lead to rampant
abuses of the authority granted to local law enforcement agencies.
An ICE fact sheet describing the 287(g) program states that it is:
``not designed to allow State and local agencies to perform random
street operations. It is not designed to impact issues such as
excessive occupancy and day laborer activities . . . it is designed to
identify individuals for potential removal, who pose a threat to public
safety, as a result of an arrest and/or conviction for State crimes. It
does not impact traffic offenses such as driving without a license
unless the offense leads to an arrest . . . Officers can only use their
287(g) authority when dealing with persons suspected of committing
State crimes and whose identity is in question or are suspected of
being an illegal alien.''\1\
---------------------------------------------------------------------------
\1\ United States Immigration and Customs Enforcement, Delegation
of Immigration Authority: Section 287(g) Immigration and Nationality
Act, Sept. 5, 2007, available at http://www.ice.gov/pi/news/factsheets/
070906factsheet287gprogover.htm.
When one looks closely at the implementation of 287(g) agreements,
a few things become clear. First, despite the rhetoric that these
programs are not intended to be used for traffic stops or to disrupt
day laborer sites, the facts argue otherwise. The agreements have been
used to set up traffic checkpoints in areas heavily populated by
Latinos and engage in ``crime suppression sweeps'' of day laborer
sites. Arrest records in localities that have 287(g) agreements show
that a majority of the arrests result from traffic stops, not incident
to serious criminal activity. Second, because it is impossible to
ascertain a person's legal status by his or her name, appearance, or
way of speaking, 287(g) programs that focus on enforcing civil
immigration law incentivize police to target members of the Latino
community in a broad way, leading to racial profiling. Finally, the
push to focus on civil immigration status has pulled limited law
enforcement resources away from addressing criminal activity in their
communities.
Local enforcement of civil immigration laws under 287(g) agreements
is a civil and human rights issue, not just an immigration issue.
Although the program is promoted as one that allows local and State
police to identify serious criminals who are non-citizens and
facilitate their deportation once their sentence is completed, the
reality of that program has been rampant racial profiling that has
affected undocumented immigrants, legal residents and citizens.
The reality is that police officers have interpreted this authority
as allowing them to raid day laborer sites and use traffic stops to
check people's immigration status. Citizens have been detained after
traffic stops based on their name and accent, or even for listening to
Spanish music while standing outside a family business. Painting the
program with a veneer of immigration enforcement does not accurately
relay the nature of the program, nor does it cure the underlying
violations. A recent Justice Strategies report entitled ``Local
Democracy on ICE: Why State and Local Governments Have No Business in
Federal Immigration Law Enforcement'' found that 287(g) agreements were
being used in Maricopa County, AZ to do ``crime suppressions sweeps''
of day laborer sites.\2\ A report by the North Carolina ACLU and the
University of North Carolina Chapel Hill Immigration and Human Rights
Policy Clinic studying the implementation of 287(g) agreements in North
Carolina found that a majority of arrests in several counties came as a
result of traffic stops, not criminal acts.\3\
---------------------------------------------------------------------------
\2\ See generally Chapter ``Local Democracy on ICE: Why State and
Local Governments Have No Business in Federal Immigration Law
Enforcement,'' February 2009, http://www.justicestrategies.org/sites/
default/files/JS-Democracy-On-Ice-print.pdf.
\3\ ``For example, during the month of May 2008, eighty-three
percent of the immigrants arrested by Gaston County ICE authorized
officers pursuant to the 287(g) program were charged with traffic
violations. This pattern has continued as the program has been
implemented throughout the State. The arrest data appears to indicate
that Mecklenburg and Alamance Counties are typical in the targeting of
Hispanics for traffic offenses for the purposes of a deportation
policy.'' The Policies and Politics of Local Immigration Enforcement
Laws, February 2009, Pg. 29, http://acluofnc.org/files/
287gpolicyreview_0.pdf.
---------------------------------------------------------------------------
Racial profiling is an insidious violation of civil and human
rights that can affect people in both public and private places--in
their homes or at work, or while driving, flying or walking. Racial
profiling by law enforcement instills fear and distrust among members
of targeted communities, making them less likely to cooperate with
criminal investigations or to seek police protection when victimized.
Multiple studies have shown that when police focus on race, even as one
of several predictive factors, they tend to pay less attention to
actual criminal behavior.
Racial profiling is defined as any use of race, religion,
ethnicity, or national origin by law enforcement agents as a means of
deciding who should be investigated, except where these characteristics
are part of a specific suspect description. Under this definition,
racial profiling doesn't only occur when race is the sole criterion
used by a law enforcement agent in determining whom to investigate.
Such a definition would be far too narrow.
Today, overt racism is roundly condemned whenever it comes to
light, and it is rare for individuals to be targeted by law enforcement
agents solely because of their race. However, race is often the
decisive factor in guiding law enforcement decisions about whom to
stop, search, or question. Selective enforcement based in part on race
is no less pernicious or offensive to the principle of equal justice
than is enforcement based solely on race. Indeed, because the first
form of selective enforcement is more prevalent and more subtle than
explicit racism, it may be more damaging to our constitutional fabric.
According to the U.S. Constitution, Federal laws and guidelines,
and international treaties, every person has the fundamental right to
equal protection under the law, regardless of race, ethnicity,
religion, or national origin. Two of these sources are the 14th
Amendment of the Constitution and the Department of Justice's
``Guidance Regarding the Use of Race By Federal Law Enforcement
Agencies.'' The Equal Protection clause of the Constitution reads in
part `` . . . nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.'' The DOJ Guidance
states unequivocally:
``In making routine or spontaneous law enforcement decisions, such as
ordinary traffic stops, Federal law enforcement officers may not use
race or ethnicity to any degree, except that officers may rely on race
and ethnicity in a specific suspect description. This prohibition
applies even where the use of race or ethnicity might otherwise be
lawful.''\4\
---------------------------------------------------------------------------
\4\ Department of Justice ``Guidance Regarding the Use of Race By
Federal Law Enforcement Agencies,'' June 2003, http://www.usdoj.gov/
crt/split/documents/Kguidance_on_race.php.
Implementation of 287(g) programs by local law enforcement have run
afoul of both of these provisions, and many more.
This is a dangerous trend that can inhibit effective law
enforcement and ultimately can endanger the lives of all persons who
depend on law enforcement for protection. When local law enforcement
begins targeting people for their suspected immigration status and not
criminal activity, the entire community suffers. Recommendations by the
Major Cities Chiefs on local enforcement of Federal immigration law
states in part:
``Immigration enforcement by local police would likely negatively
effect and undermine the level of trust and cooperation between local
police and immigrant communities. If the undocumented immigrant's
primary concern is that they will be deported or subjected to an
immigration status investigation, then they will not come forward and
provide needed assistance and cooperation. Distrust and fear of
contacting or assisting the police would develop among legal immigrants
as well. Undoubtedly legal immigrants would avoid contact with the
police for fear that they themselves or undocumented family members or
friends may become subject to immigration enforcement. Without
assurances that contact with the police would not result in purely
civil immigration enforcement action, the hard won trust, communication
and cooperation from the immigrant community would disappear. Such a
divide between the local police and immigrant groups would result in
increased crime against immigrants and in the broader community, create
a class of silent victims and eliminate the potential for assistance
from immigrants in solving crimes or preventing future terroristic
acts.''\5\
---------------------------------------------------------------------------
\5\ Major Cities Chiefs Immigration Committee Recommendations: For
Enforcement of Immigration Laws by Local Police Agencies, Adopted June,
2006 http://www.majorcitieschiefs.org/pdfpublic/
mcc_position_statement_revised_cef.pdf.
The use of 287(g) agreements to target people based on their race
has led to civil rights violations beyond the initial racial profiling.
For example, Juana Villegas was pulled over in Nashville, TN, while
driving back from a doctor's appointment. She was 9 months pregnant and
had her two other children in the car with her. Although the traffic
violation would usually result in a citation, the police officer
arrested her and took her to the police station on suspicion of being
undocumented. Even though she was being held on a misdemeanor traffic
violation and a civil immigration infraction, she was forced to give
birth while shackled and in police custody, then separated from her
newborn and not allowed to nurse or use a breast pump for the next 2
days.\6\
---------------------------------------------------------------------------
\6\ Tennessee Immigrant and Refugee Rights Coalition, ``Immigrant
Mother Suffers at Hands of Nashville Law Enforcement,'' July 14, 2008,
available at http://www.tnimmigrant.org/news.php?viewStory=153; see
also, ``Immigrant, Pregnant, Is Jailed Under Pact,'' Julia Preston, New
York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/
20/us/20immig.html?_r=1.
---------------------------------------------------------------------------
These violations are not limited to immigrant communities; they
also affect U.S. citizens. No case illustrates this better than that of
Pedro Guzman, a U.S. citizen born in California who was deported to
Mexico because an employee of the Los Angeles County Sheriff's Office
determined that Mr. Guzman was a Mexican national. Mr. Guzman,
cognitively impaired and living with his mother prior to being
deported, ended up being dumped in Mexico--a country where he had never
lived--forced to eat out of trash cans and bathe in rivers for several
months. His mother, also a U.S. citizen, took leave from her job to
travel to Mexico to search for her son in jails and morgues. After he
was located and allowed to reenter the United States, Mr. Guzman was so
traumatized that he could not speak for some time. The illegal
deportation of Mr. Guzman occurred pursuant to an INA 287(g) MOA
between Los Angeles County and ICE. Mr. Guzman and his mother have
filed a lawsuit against ICE.\7\
---------------------------------------------------------------------------
\7\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's
Deportation Ordeal,'' Los Angles Times, February 28, 2008, available at
http://articles.latimes.com/2008/feb/28/local/me-guzman28.
---------------------------------------------------------------------------
In sum, the 287(g) agreements are not being implemented as
advertised by ICE and, in fact, are violating the rights of both
immigrants and U.S. citizens. The agreements have led to widespread
profiling by local law enforcement, terrorized communities, and
increased threats to public safety. LCCR and RWG strongly urge the
Department of Homeland Security to:
Mandate a thorough independent review of current agreements
and similar programs during which time no new INA 287(g)
agreements should be entered into;
Actively enforce anti-discrimination civil rights
protections and implement policies and funding that support
community policing and effective law enforcement;
Re-assert Federal authority over national immigration laws
and policies and reject the authority of States and localities
to enforce these Federal responsibilities;
Train State and local officials about their proper role in
the enforcement of criminal laws related to immigration rather
than civil immigration enforcement.
Thank you again for the opportunity to express our views regarding
today's important hearing. We would be happy to answer any post-hearing
follow-up questions you may have.
______
Letter From Harold L. Hurtt, Chief of Police, Houston, Texas, Submitted
by the Honorable Sheila Jackson Lee
March 3, 2009.
The Honorable Sheila Jackson Lee,
U.S. House of Representatives, 2160 Rayburn Building, Washington, DC
20515.
Dear Rep. Jackson Lee: I have been advised that on Wednesday, March
4, the House Committee on Homeland Security will be conducting a
hearing on the topic of ``Examining 287(g): The Role of State and Local
Law Enforcement in Immigration Law.'' This is an important issue and I
wanted to take a moment to provide you and the committee with my
perspective this topic in advance of the committee hearing. As Police
Chief of the City of Houston and a current member of the executive
board and past president of Major Cities Chiefs, I have been involved
in numerous discussions at both the national and local level on the
topic of local law enforcement's involvement in the enforcement of
Federal immigration laws. In 2006 while I was president of Major Cities
Chiefs, the organization evaluated and adopted nine specific
recommendations concerning this issue. I have attached a copy of the
recommendations for your reference.
Illegal immigration is a problem that faces our Nation and society
as a whole and one, which must be dealt with at the national level. It
is absolutely critical that our country develop a consistent unified
national plan to deal with immigration and this plan must first and
foremost include the Federal Government taking the necessary steps to
secure our borders to prevent illegal entry into the United States.
Secondly, Federal agencies such as Immigration and Customs
Enforcement [ICE] and the Department of Justice who have the specific
duty of enforcing immigration laws should be given adequate Federal
resources to fulfill that duty.
Local enforcement of Federal immigration laws raises many daunting
and complex legal, logistical, and resource issues for local law
enforcement, especially agencies such as the Houston Police Department
which serves a large and diverse community. Local law enforcement
agencies must balance the call for us to enforce Federal immigration
laws with our primary mission of protecting our diverse communities
from crimes such as murders, sexual assaults, drug trafficking, gang
violence, robberies, and burglaries which are committed by and
victimize citizens, legal immigrants, and illegal immigrants. Like
other major cities, the City of Houston's policies regarding
enforcement of immigration laws takes into account our limited
resources; the complexity of immigration laws; limitations on authority
to enforce; risk of civil liability for immigration enforcement
activities and the clear need to foster the trust and cooperation from
the public including members of immigrant communities within our
jurisdictions.
The 287(g) programs appear more appropriate for law enforcement
agencies which operate large jail facilities and in many jurisdictions
it is often the county level agencies such as the county sheriff's
department which operate these facilities. The City of Houston
transfers the majority of its prisoners to the Harris County Sheriff's
Department which is primarily responsible for incarcerating criminal
defendants in Harris County, Texas where the city is located. The
city's jail facilities serve mainly as temporary holding locations
until prisoners can be transferred to the county jail. Because of our
current high level of cooperation with ICE cited below and the fact
that the 287(g) programs have been used primarily to train local
jailers, the Houston Police Department has not chosen or seen the need
to take part in the 287(g) training programs.
The Houston Police Department does and will continue to enforce
against criminal violations occurring within our jurisdiction
regardless of the perpetrator's immigration status. Due to the issues
mentioned above, the police department does not engage in the direct
enforcement of Federal immigration laws; however, where possible and
reasonable, we cooperate with and provide assistance to ICE, which has
the primary and specific duty to enforce Federal immigration laws. We
have given ICE full access to our jail facilities to conduct
immigration and citizenship investigations. In addition, the department
has developed procedures to hold persons who are subject to an
immigration detainer issued by ICE. The department conducts a computer
check of all arrested persons to determine if they are subject to an
ICE detainer. If an ICE detainer exists, the person is held pursuant to
ICE's detention authority so that ICE can take custody of the person
within a reasonable amount of time.
I would conclude with my sincere hope that the committee's hearings
and work on immigration issues will move our country towards finding a
comprehensive national response to the critical issue of illegal
immigration. Thank you for your time and consideration.
Sincerely,
Harold L. Hurtt,
Chief of Police.
______
Statement of the Immigration Policy Center, a Division of the American
Immigration Law Foundation
summary of recent publications on 287(g) memoranda of understanding
Local Democracy on ICE: Why State and Local Governments Have No
Business in Federal Immigration Law Enforcement, by Aarti Shahani and
Judith Greene, Justice Strategies, February 2009.
The report points out that while some localities have
claimed to need a partnership with ICE because of rising crime
rates, an analysis of the jurisdictions with 287(g) agreements
and found that immigration rates are not associated with higher
crime rates. According to Justice Strategies, 61 percent had a
violent crime index lower than the national average, and 55
percent witnessed an overall decrease in violent crimes from
2000 to 2006. Furthermore, 61 percent had a property crime
index lower than the national average, and 65 percent saw an
overall decrease in property crimes from 2000 to 2006.
Justice Strategies looked at the factors that 287(g)
jurisdictions have in common and found that 87 percent of the
jurisdictions with 287(g) agreements had a rate of Latino
population growth higher than the national average.
Furthermore, 62 percent of the local ICE partners were county
sheriff departments.
According to Justice Strategies, there is very little ICE
oversight of the 287(g) partnerships and ICE personnel do not
lead or directly oversee 287(g) arrests. When faced with
criticism that he had not followed the requirements of his MOA,
Sheriff Joe Arpaio of Maricopa County, Arizona stated, ``Do you
think I'm going to report to the Federal Government? I don't
report to them.''
The Policies and Politics of Local Immigration Enforcement Laws: 287(g)
Program in North Carolina, by the ACLU of North Carolina Legal
Foundation and the Immigration and Human Rights Policy Clinic at the
University of North Carolina at Chapel Hill, February 2009.
The report found that, while the 287(g) partnership program
with DHS was intended to target immigrants convicted of violent
crimes, human smuggling, gang/organized crime activity, sexual-
related offenses, narcotics smuggling, and money laundering,
the Federal/local partnerships are actually being used to
``purge towns and cities of `unwelcome' immigrants.''
During May 2008, 83 percent of the immigrants arrested by
officers deputized to perform immigration enforcement duties in
Gaston County, NC were charged with traffic violations.
The report pointed out that immigration is not associated
with high crime rates. A 2008 comprehensive study of population
growth and crime in North Carolina showed that between 1997 and
2006 the counties with the highest Hispanic population growth
rates had the lowest violent and property crime rates.
The authors state that 287(g)'s have ``created a climate of
racial profiling and community insecurity'' in communities
across North Carolina. Law enforcement officials have stated
time and time again that trust with immigrant communities is
crucial to preventing and investigating crimes and leads to
safer communities. Anecdotal evidence from North Carolina
points to undocumented residents being less likely to contact
law enforcement to report crimes.
``Reasonable Doubt,'' the East Valley Tribune, July 2008.
This series of articles found that immigration-enforcement
activities have been expensive, resulting in few key arrests
and drawing law enforcement personnel away from investigating
non-immigration-related crimes. Highlights from the series
include:
The Sheriff's Office created a $1.3 million deficit in just
3 months, much of it due to overtime. In order to staff the
immigration team, Sheriff Arpaio pulled deputies off patrol
beats and used them to staff the human-smuggling unit. Tactics
include racial profiling, sweeps of Hispanic neighborhoods, and
stops for minor traffic offenses.
While Sheriff Arpaio has diverted resources to immigration
enforcement, response times to 911 calls have increased, arrest
rates have dropped, and thousands of felony warrants have not
been served.
Despite the time and energy spent on immigration
enforcement, the Tribune found that MCSO has had little success
building cases against violent immigrant offenders or those at
the top of the smuggling rings. In 2006-2007, Maricopa County
sheriff deputies arrested 578 illegal immigrants in the course
of traffic stops, and of those, 498 faced a single charge of
conspiracy to smuggle themselves.
Mission Unaccomplished: The Misplaced Priorities of the Maricopa County
Sheriff's Office, by Clint Bolick, Goldwater Institute Scharf-Norton
Center for Constitutional Litigation, December 2008.
The report documents how the Maricopa County Sheriff's
Office, under the leadership of Sheriff Arpaio, has failed to
serve and protect his community. The Goldwater Institute found
that, though the Maricopa County Sheriff's Office (MCSO) budget
has increased at four times the rate of the county's
population, violent crimes increased nearly 70 percent, and
homicides increased 166 percent between 2004 and 2007.
The Goldwater Institute also found that MCSO has refused to
share crime statistics and other data, and in 2007, the county
had to pay $38,000 in legal fees to a newspaper for withholding
press releases. Despite reporting a high crime clearance rate,
MCSO reported that relatively few of the cleared cases--18
percent--ended with an arrest. In contrast, in Phoenix, 78
percent of cleared cases ended with an arrest. A high number of
those cases cleared without an arrest correlate to MCSO's use
of an ``exceptionally cleared'' category. A case may be
designated ``exceptionally cleared'' when a suspect is known
and enough evidence exists to make an arrest, but circumstances
beyond the control of law enforcement prevent an arrest. In
some instances where cases were ``exceptionally cleared'' there
is no evidence that an investigation took place at all.
______
Joint Statement of the American Immigration Lawyers Association, the
National Immigration Forum, and the National Immigrant Justice Center
state and local enforcement including ina 287(g) and secure
communities
a. ice access and ina 287(g)
Through the INA 287(g) program and other ICE ACCESS programs, the
Federal Government has shifted its responsibility for enforcement of
civil immigration laws to State and local police and other State and
local agencies. It has--without meaningful oversight or review or
statutory authority in many cases--encouraged immigration enforcement
at the local level that has resulted in racial and ethnic profiling and
the detention of U.S. citizens and permanent residents.
The basic problem is this: in INA 287(g) jurisdictions, State, or
local police with minimal training (or, in the case of a ``jail
model,'' no training) in immigration law are put on the street with a
mandate to arrest ``illegal aliens.'' Local officials often make it a
high political and policy priority that these arrests take place.
Meanwhile, the Federal Government has not provided meaningful
oversight. The predictable and inevitable result is that any person who
looks or sounds ``foreign'' is more likely to be stopped by police, and
more likely to be arrested (rather than warned, or cited, or simply let
go) when stopped. Moreover, any other abuses that police commit when
exercising INA 287(g) authority are likely to go unreported and
unpunished, given that many of the individuals they arrest are swiftly
deported and have little access to counsel; that State or local
officials may not exercise their ordinary oversight roles when their
police are performing a ``Federal'' function; and that the Federal
Government has not created effective oversight mechanisms. DHS should
terminate INA 287(g) Memoranda of Agreement (MOAs) with localities
that have misused their limited authority. It should engage in
meaningful oversight of the conduct of local law enforcement agencies
both before and after an INA 287(g) MOA is put in place.
INA 287(g) Agreements Have Contributed to Pervasive Racial Profiling
by Local Law Enforcement
In Maricopa County, Arizona Sheriff Arpaio and his deputies have
engaged in a widespread pattern and practice of racial profiling in an
illegal, improper, and unauthorized attempt to enforce Federal
immigration laws against Latinos without regard for citizenship or
valid immigration status. Claiming authority under the INA 287(g)
MOA, Arpaio and his deputies in September 2007 launched a series of
massive so-called ``crime suppression sweeps'' by utilizing deputies
and volunteer ``posse'' members. Together they have targeted Latinos
for investigation of immigration status, using pretextual and unfounded
stops, racially motivated questioning, searches and other mistreatment,
and arrests that are often baseless. In 2008, several U.S. citizens
sued Sheriff Arpaio and Maricopa County for racial profiling and other
racially and ethnically discriminatory treatment.\1\ One plaintiff,
Manuel Nieto, a U.S. citizen, was grabbed and handcuffed by several
Maricopa County deputies, his face pressed against his car and arms
twisted behind his back. This took place in front of his family's auto
repair business. Mr. Nieto's father ran out of the shop, told the
deputies that he owned the shop, and that Mr. Nieto was his child and a
U.S. citizen. The deputies then uncuffed Mr. Nieto and ran his
identification through their computer system.
---------------------------------------------------------------------------
\1\ See, Spencer S. Hsu, ``Arizona Sheriff Accused of Racial
Profiling,'' July 17, 2008, available at http://www.washingtonpost.com/
wp-dyn/content/article/2008/07/16/AR2008071602636.html.
---------------------------------------------------------------------------
David and Jessica Rodriguez are two other plaintiffs in the same
lawsuit who have sued Sheriff Arpaio and Maricopa County for racial
profiling.\2\ They were issued a traffic citation for failing to follow
a road sign. The Rodriguezes were the only residents to receive a
citation, even though deputies pulled over several other vehicles and
gave oral warnings to the other drivers, all of which were Caucasian.
In addition, the deputy demanded to see Mr. Rodriguez's Social Security
card, which has no bearing on his driving, but did not request Social
Security information of the other drivers.
---------------------------------------------------------------------------
\2\ Daniel Gonzalez, ``U.S. Citizens Claim Profiling, Join Lawsuit
Against Sheriff Arpaio,'' July 17, 2008, available at http://
www.azcentral.com/news/articles/2008/07/17/20080717profiling0717.html.
---------------------------------------------------------------------------
In an example reported by the Tennessee Immigration and Refugee
Coalition, a pregnant woman was detained after being stopped for a
traffic violation.\3\ On July 3, 2008, Juana Villegas was driving in
Nashville when she was pulled over by a Berry Hill police officer for
``careless driving.'' Mrs. Villegas, 9 months pregnant, was forced to
wait in her hot car with her three children for over an hour.
Eventually, the children were allowed to leave with a family member
without Villegas's permission, and she was taken into custody. By the
time Mrs. Villegas was released from the county jail 6 days later, she
had gone through labor with a sheriff's officer standing guard in her
hospital room, where one of her feet was cuffed to the bed most of the
time. County officers barred her from seeing or speaking with her
husband. Up until an hour before the actual birth, Mrs. Villegas's hand
and foot remained shackled to the hospital bed. As she was taken back
to the Davidson County jail, she was told that her baby would be given
to her husband. Mrs. Villegas was never allowed to speak to her
husband. On July 9, Mrs. Villegas appeared in court on the misdemeanor
charge of driving without a license, and was sentenced to time served.
She did not see her newborn again until the morning of July 10, after
she was released from sheriff's custody on her own recognizance. On
August 15, 2008, the ``careless driving'' charge against Juana Villegas
was dismissed in Berry Hill Municipal Court. Mrs. Villegas is still
being processed for deportation as a result of the INA 287(g)
program.
---------------------------------------------------------------------------
\3\ Tennessee Immigrant and Refugee Rights Coalition, ``Immigrant
Mother Suffers at Hands of Nashville Law Enforcement,'' July 14, 2008,
available at http://www.tnimmigrant.org/news.php?viewStory=153; see
also, ``Immigrant, Pregnant, Is Jailed Under Pact,'' Julia Preston, New
York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/
20/us/20immig.html?_r=1.
---------------------------------------------------------------------------
Legal service providers across the country report racial profiling
cases in areas with INA 287(g) programs. In York County, along the
North Carolina and South Carolina border, deputies have abused the INA
287(g) program to arrest Latinos for broken windshields or improper
vehicle tags. Traffic offenses that ordinarily would lead to a citation
and court summons are now resulting in criminal arrests. Only about 5
percent of the arrests of Latinos are for serious crimes. Since the
implementation of the INA 287(g) program in York County, relations
between local law enforcement and the Latino communities have
deteriorated, and the county jail population has exploded. Longtime
residents of York County describe the situation as ``out of control.''
U.S. Citizens Have Been Illegally Detained, and In One Case Deported,
Under the Auspices of INA 287(g) Agreements
The practice of deputizing State and local police to enforce
Federal immigration laws has proven to be highly ineffective and
dangerous. No case illustrates this better than that of Pedro Guzman, a
U.S. citizen born in California who was deported to Mexico because an
employee of the Los Angeles County Sheriff's Office determined that Mr.
Guzman was a Mexican national. Mr. Guzman, cognitively impaired and
living with his mother prior to being deported, ended up being dumped
in Mexico--a country where he had never lived--forced to eat out of
trash cans and bathe in rivers for several months. His mother, also a
U.S. citizen, took leave from her job to travel to Mexico to search for
her son in jails and morgues. After he was located and allowed to
reenter the United Statets, Mr. Guzman was so traumatized that he could
not speak for some time. The illegal deportation of Mr. Guzman occurred
pursuant to a INA 287(g) MOA between Los Angeles County and ICE. Mr.
Guzman and his mother have filed a lawsuit against ICE.\4\
---------------------------------------------------------------------------
\4\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's
Deportation Ordeal,'' Los Angles Times, February 28, 2008, available at
http://articles.latimes.com/2008/feb/28/local/me-guzman28.
---------------------------------------------------------------------------
In Alamance County, North Carolina, State troopers--who were not
authorized under an INA 287(g) MOA--stopped and boarded a bus
destined for Mexico. On-board were two bus drivers, one who spoke
English and one who did not. The troopers refused to talk to the driver
who spoke English. One of the troopers called the Alamance County
Sheriff's Office and requested assistance from the INA 287(g)
officers. When the sheriff deputies arrived, they boarded the bus and
asked everyone on board for ``papers,'' including the U.S. citizen
passengers. The deputies ordered that the bus driver pull off the
highway to a local motel, where all the passengers including U.S.
citizen children were detained in the motel lobby all day while
deputies and later ICE agents questioned them. In the end, five
passengers were arrested by ICE, and the rest of the passengers were
allowed to continue their trip to Mexico, but not after losing the
better part of a day of travel. It is important to note that the INA
287(g) program in Alamance County is a jail model, not a task force or
field model. But as illustrated in this case, the INA 287(g) MOA--
though designed to be limited to jails only--has negatively shaped the
conduct of law enforcement in the field and on the roads, in this case
involving both deputized sheriffs as well as undeputized State
troopers.
INA 287(g) Agreements Undermine Community Policing and Public Safety
There are legitimate concerns that INA 287(g) is not being used
to keep communities safer by removing dangerous, violent criminals;
rather people who do not pose a serious threat to public safety are
being deported under the guise that they are dangerous criminals. In
the absence of empirical evidence as to the number and types of crimes
committed by undocumented immigrants before and after the
implementation of INA 287(g), it would be impossible to evaluate the
program's appropriateness and effectiveness. Before making the decision
to implement a program that has such large fiscal and social impacts,
it would be wise to consider whether INA 287(g) truly makes our
communities safer and whether it comports with DHS's overall priorities
in immigration enforcement.
The Major Cities Chiefs' Association, which represents large cities
across the country, has expressed concern about entering into INA
287(g) programs. The Association has stated that the programs work
counter to community policing goals by undermining the trust and
cooperation of immigrant communities, stress the cities' already
reduced resources, and leave cities vulnerable to civil liability
claims.\5\
---------------------------------------------------------------------------
\5\ See Major City Chiefs' Immigration Committee Recommendations
for Enforcement of Immigration Laws by Local Police Agencies, June
2006, available at http://www.majorcitieschiefs.org/pdfpublic/
mcc_position_statement_revised_cef.pdf.
---------------------------------------------------------------------------
INA 287(g) programs impose additional costs on communities that
are being severely affected by the downturn in the economy. While local
authorities may apply for an INA 287(g) MOA believing that it will
bring additional fiscal resources to their community, in fact, by
statute, it is an unfunded program that will likely add additional
costs to a department's budget. For example, the Sheriff's Department
of Morristown, New Jersey evaluated a proposed INA 287(g) program and
found that it would add an additional $1,331,876 to its budget. As a
result of this cost, plus additional liability risks, the Sheriff's
Department recommended that the county not go forward with the proposed
application.\6\
---------------------------------------------------------------------------
\6\ ``An Impact Review of the United States Bureau of Immigration
and Customs Enforcement 287(g) Program Upon the County of Morris,''
Morris County Sheriff's Office, October 19, 2007.
---------------------------------------------------------------------------
Without adequate oversight, it is difficult to determine if this
costly program is meeting its goals. ICE has not developed or
instituted a standardized statistical report that delineates, for
example, offenses and/or the disposition of cases involving non-
citizens encountered through an INA 287(g) jail enforcement model
program. In April 2006, the Mecklenburg County Sheriff's Office in
North Carolina took the initiative to develop its own tracking report
to record the crimes for which non-citizens were arrested.\7\ Other
sheriffs in North Carolina use this template and modify it to fit their
own needs. ICE requests that sheriffs in North Carolina send the
reports to them. ICE's reliance on these non-uniform and voluntary
reports highlights a lack of oversight in the current INA 287(g)
program.
---------------------------------------------------------------------------
\7\ Presentation to the Joint Legislative Corrections, Crime
Control and Juvenile Justice Oversight Committee, North Carolina
General Assembly, November 18, 2008, Illegal Immigration Project, North
Carolina Sheriffs' Association.
---------------------------------------------------------------------------
INA 287(g) Programs Target Individuals Who Do Not Pose a Risk to the
Community
The INA 287(g) program in Mecklenburg County has targeted
individuals who are not serious criminals. Of the 2,321 undocumented
immigrants in Mecklenburg County who were put into removal proceedings
in 2007, fewer than 5 percent of the charges against them were
felonies.\8\ Over 16 percent of the total charges were traffic
violations.
---------------------------------------------------------------------------
\8\ ``Immigration and Crime in North Carolina: Beyond the
Rhetoric,'' Lindsay Haddix, Department of City and Regional Planning,
UNC Chapel Hill, Master's Project, Spring 2008.
---------------------------------------------------------------------------
Similarly, in Alamance County, North Carolina of the 434
undocumented immigrants who were put into removal proceedings in 2007,
less than 10 percent of the charges against them were felonies. Nearly
25 percent of the charges were traffic violations. In at least one
case, the overzealous immigration enforcement by Alamance County
deputies has resulted in the endangerment of children. On June 14,
2008, around 2 a.m. Maria Chavira Ventura was pulled over by Alamance
County deputies on Interstate 85 near Burlington, North Carolina. In
the vehicle were her three young children and an adult male who was a
fellow church parishioner but unrelated to the family. The deputies
arrested Ms. Ventura for driving without a license and false vehicle
tags. When they took Ms. Ventura away, the deputies also took the car
keys, leaving her three children with the adult male in the car.
Shortly thereafter, he left, looking for help. Alone, frightened and
crying, the children called their father in Baltimore (the family was
en route to visit him). He immediately drove down to get them, but it
took over 6 hours to drive from Baltimore to Burlington, North
Carolina. During those 7 hours the children were stranded in the car on
Interstate 85, with one water bottle to share. No deputy or law
enforcement official returned to the car to check on them; nor did the
deputies take the children's mobile telephone number to confirm they
returned home safely.
In Wake County, North Carolina, a man was arrested during a traffic
stop by local police, who were not authorized to act under the INA
287(g) MOA. The MOA in Wake County covers the Sheriff's department. As
the police arrested the man, they told his two young children that
their father would be deported and they would never see him again. All
of this was heard by the children's mother, who was on the mobile
telephone, left on in ``speaker phone'' mode. The police officer picked
up the telephone and told the mother that her children would be left in
the car on the side of the road, waiting for her.
In Colorado, the Rocky Mountain Immigrant Advocacy Network (RMIAN)
encountered a woman who was arrested by the Colorado State Patrol
during a routine traffic stop. Because the Colorado State Patrol has
entered into an INA 287(g) agreement with ICE in Colorado, the woman
was almost immediately deported to Mexico without the opportunity to
speak to an attorney or learn about her legal rights. Unfortunately,
because of the officer's likely unfamiliarity with immigration law, he
did not explain to the woman that she might be eligible for relief from
removal from the United States. Rather, the woman believed her only
option was leaving the county as soon as possible, and believed the
officer was doing her a favor by allowing her to sign a voluntary
removal order rather than putting her into proceedings before an
immigration judge. However, the woman had been the victim of severe
domestic violence in the United States and had helped law enforcement
in the prosecution of that criminal case, and thus was eligible for a U
Visa. Nonetheless, she only learned about her rights and her
eligibility after calling RMIAN from Mexico, subsequent to her
deportation and separation from her family in the United States. This
is but one example of individuals who have relief or may have relief
being removed under an INA 287(g) program.\9\
---------------------------------------------------------------------------
\9\ Correspondence from the Rocky Mountain Immigrant Advocacy
Network.
---------------------------------------------------------------------------
Return immigration enforcement responsibility to the Federal
Government.--Without statutory authority for any program beyond the
memoranda of understanding envisaged by INA 287(g), DHS has marshaled
an array of State and local immigration law enforcement programs
collectively referred to as ICE ACCESS (ICE Agreements of Cooperation
in Communities to Enhance Safety and Security). Involvement of State
and local police in immigration enforcement under INA 287(g) and
other ICE ACCESS programs occurs without adequate oversight or review.
These programs are not an effective, efficient way to enforce Federal
immigration laws; do not respect the rights of citizens and immigrants;
and undermine community policing and public safety.
Recommendations
Mandate a thorough independent review of current agreements
and similar programs during which time no new INA 287(g)
agreements or other ICE ACCESS agreements should be entered
into.
Actively enforce anti-discrimination civil rights
protections and implement policies and funding that support
community policing and effective law enforcement.
Re-assert Federal authority over national immigration laws
and policies and reject the authority of States and localities
to adopt these Federal responsibilities by taking the specific
steps outlined below.
Train State and local officials about their proper role in
the enforcement of criminal laws related to immigration rather
than civil immigration enforcement.
Policy Recommendations: INA 287(g)
DOJ should rescind the 2002 Bush Administration Office of
Legal Counsel opinion that reversed longstanding agency
interpretation about the limits of State and local enforcement
of civil immigration laws and issue a new opinion reaffirming
that State and local police cannot enforce civil immigration
laws except where there is specific statutory authorization for
them to do so (e.g., 8 U.S.C. 1103(a)(10), providing for
certain enforcement upon certification of ``an actual or
imminent mass influx of aliens . . . '') The 2002 opinion is
fundamentally flawed from a legal standpoint, and it
complicates and obstructs Federal efforts to oversee and
coordinate immigration enforcement and to effectuate a uniform
national immigration enforcement policy.
DHS Office of Policy should issue guidance to State and
local law enforcement entities explicitly clarifying that their
authority to engage in immigration enforcement is limited to
narrow circumstances (i.e. where there is sufficient suspicion
that an individual has committed a criminal immigration
violation, such as illegally re-entering the United States as a
previously deported felon, that would provide police with
arrest authority, provided that any State-law limitations on
authority are also satisfied) and that any decision to assist
DHS or participate in immigration enforcement must be voluntary
and must comport with State and/or local laws and policies.
DHS should commission independent experts to undertake a
comprehensive, detailed review and evaluation of existing INA
287(g) agreements to determine whether and to what extent these
programs:
Enhance public safety;
Undermine community policing efforts;
Increase racial profiling;
Result in the arrest, detention, or deportation of U.S.
citizens or permanent residents;
Reduce individuals' likelihood of reporting crimes or
serving as witnesses;
Reduce access to education, health, emergency/fire
department, and other services by immigrants and members of
their families and communities;
Exceed the limitations established in the MOU/MOA;
Are sufficiently supervised by ICE personnel;
Collect data necessary to enable proper oversight;
Are subject to sufficient community, municipal, State and
Federal oversight;
Result in costs to the State/local participants;
Are cost-effective from the Federal Government's
perspective; and
Undermine Federal prosecutorial discretion or the ability
of DHS and ICE to effectively set priorities in immigration
enforcement.
DHS should require and fund meaningful training including on
the complexity of immigration laws, limitations of State/local
authority, ICE enforcement priorities, and problems with
profiling, as a precondition to any officer's participation in
ICE ACCESS, Secure Communities, CAP, or other programs
envisioning state and local participation in immigration
enforcement and to all officers operating in an INA 287(g)
jurisdiction, regardless of whether the particular officer is
actually provided with authority under the MOA.
DHS should stop entering civil immigration violations
including records relating to so-called ``absconders'' and
``NSEERS violators'' into the NCIC database and remove those
records that have previously been entered. FBI should mandate
that all NCIC entries comply with the accuracy standards of the
Privacy Act.
DHS Should Use the Following Operational Guidance for INA
287(g) Programs
DHS should not conduct joint operations with State or local
entities that are credibly alleged to have engaged in
profiling.
DHS should consider the direct and indirect effects on
public safety and community policing before requesting State or
local participation in any enforcement operation.
DHS should only issue immigration detainers to State and
local agencies to retain custody of persons held on criminal
charges where: (1) Interviewing and taking custody of the
individual in question is impossible for ICE; (2) the
individual's identity and removability are positively
confirmed; (3) the individual would ordinarily be placed into
removal proceedings if ICE exercised its prosecutorial
discretion; and (4) the individual would actually be subject to
continued detention if he had been apprehended and processed by
ICE.
DHS should issue guidance clarifying that an immigration
detainer is not the equivalent of a criminal arrest warrant or
criminal detainer and is simply a non-mandatory request that
police maintain custody of an individual for a maximum of 48
hours to facilitate DHS picking that person up. Any detainer
request should clarify that the institution is not authorized
under any circumstance to detain the subject for a period
exceeding 48 hours, excluding weekends and holidays.
All INA 287(g) MOUs must include:
Specific mandate;
Sunset provision;
On-going training requirement;
Specific circumstances under which officers can make
arrests for immigration violations;
Means of information and referral for victims of domestic
violence, crime victims and trafficking victims;
Systematic tracking and reporting requirements: how many
arrests, how many criminal convictions, how many detained,
how long it takes ICE to respond, race/ethnicity of those
arrested, number of complaints, number of U.S. citizens and
permanent residents arrested or detained, countries of
origin of those arrested/detained, training, all funding
spent on execution of MOU;
The establishment of a community advisory commission;
Complaint and redress procedures;
Public education and outreach campaign;
Oversight;
Specified ICE response time to requests for assistance for
State and local officials;
Prohibition on racial profiling;
Penalties for noncompliance.
b. secure communities
The Secure Communities Program was created as part of the ICE
ACCESS program to give ICE technological access to the 3,100 local
jails throughout the United States to identify removable aliens. The
Secure Communities Program was announced through ICE press releases,
``fact sheets,'' and blog entries on the ICE web site, but no complete,
coherent description of the program has been made available. No
regulations have been issued for its operation, no guidance to State
and local authorities has been made public, and no criteria for how ICE
will exercise the authority granted to it under the program have been
announced. To date, there is no system in place to track those
individuals against whom detainers are issued, including the crimes for
which identified non-citizens are arrested, the disposition of the
underlying criminal case, and the nationality and ethnicity of
identified non-citizens.
Under the Program, criminal arrestees' fingerprints are
automatically checked against DHS databases as well as FBI criminal
databases. ICE is automatically notified of a ``hit.'' According to
ICE, the program will allocate its resources against those convicted of
crimes, in accordance with the following:
Level 1.--Individuals who have been convicted of major drug
offenses and violent offenses such as murder, manslaughter,
rape, robbery, and kidnapping;
Level 2.--Individuals who have been convicted of minor drug
offenses and property offenses such as burglary, larceny,
fraud, and money laundering; and
Level 3.--Individuals who have been convicted of other
offenses.\10\
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\10\ U.S. Immigration and Customs Enforcement, ``Secure
Communities: A Comprehensive Plan to Identify and Remove Criminal
Aliens, Nov. 19, 2008, available at http://www.ice.gov/pi/news/
factsheets/secure_communities.htm.
---------------------------------------------------------------------------
DHS claimed that Secure Communities would be phased in, beginning
with Level 1 criminal aliens. However, it is unclear how or if the
prioritization is taking place. Statements by ICE officials raise
questions about how the program is working in practice. Julie Myers,
former Assistant Secretary for ICE stated that while the program
focuses on those who have committed serious crimes, in cases involving
less serious offenses ICE would consider its staffing levels and
resources in deciding how to proceed.\11\ Myers also stated that those
who have not had contact with DHS may not be included in the database,
making additional investigation necessary to determine if the person
has permission to be in the United States.\12\ It remains unclear
whether this means that ICE will seek to hold these individuals in
detention until their status can be determined.
---------------------------------------------------------------------------
\11\ Anabelle Garay, ``Dallas County to Check Immigration
Database,'' Associated Press, Nov. 12, 2008, available at http://
www.dallasnews.com/sharedcontent/APStories/stories/D94D2RS00.html.
\12\ Id.
---------------------------------------------------------------------------
ICE has not clearly stated what it will do when Level 2 or 3 aliens
are identified. It is unclear whether ICE considers someone having
entered without inspection (EWI) sufficient to be considered a
``criminal'' under this program or whether that EWI will generate a
``hit'' and/or a detainer under a Secure Communities program. It is
also unclear whether ICE will consider the lawfulness of an arrest and
whether it was made under purported (and disputed) ``inherent
authority'' to arrest for civil immigration violations.
While Secure Communities is ostensibly directed at those convicted
of crimes, the identification process is actually focused on those
arrested for crimes, before they have been either tried or convicted.
This creates an incentive for agents to arrest persons on pretextual
grounds or to arrest persons who might otherwise have received a
warning or a ticket. It also leads to individuals being held by ICE who
have been arrested for minor crimes but not yet tried or convicted.
Questions that have been raised about collateral arrests in the context
of Fugitive Operations have also been raised with regard to Secure
Communities.\13\
---------------------------------------------------------------------------
\13\ Margot Mendelson, Shayna Strom, and Michael Wishnie,
``Collateral Damage: An Examination of ICE's Fugitive Operations
Program,'' Migration Policy Institute, February 2009, available at
http://www.migrationpolicy.org/pubs/NFOP_Feb09.pdf.
---------------------------------------------------------------------------
Reports suggest that when ICE takes custody of arrested
individuals, they are frequently prevented from exercising their right
to go to criminal court and challenge their criminal charges. It may
also mean that individuals who would otherwise be released are
ineligible for release on bail. In addition to raising obvious due
process problems, this causes courts to issue warrants of arrest or
judgments of conviction. This in turn makes the individuals ineligible
for future immigration benefits.
Individuals who have committed minor offenses may be held without
bond in criminal custody because of ICE intervention through Secure
Communities. For example, in North Carolina there are reports of no
bond for minor traffic violations, as well as arrests without cause
(which have included in North Carolina: failure to signal, failure to
dim headlights, walking in a neighborhood at night without showing a
driver's license to an officer, non-cooperation with an officer while
riding a bicycle (refusing to show driver's license), fishing without a
(fishing) license).
Jails routinely hold detainees well in excess of the 48 hours
period permitted by regulation. In some counties, reports have
indicated that non-citizens are held for weeks before ICE assumes
custody. Detainers are being filed indiscriminately with no apparent
attempt to distinguish serious criminal offenders from those who have
committed minor offenses.
U.S. citizens are swept up in this broad net. Mr. O, a U.S. citizen
from Colorado, is serving a criminal sentence at Bent County
Correctional Facility in Colorado. He has an immigration detainer that
is preventing his entry into a halfway house. Several years ago, Mr. O
was placed into removal proceedings. The immigration judge terminated
the proceedings at the request of the Government when it realized that
Mr. O had derived citizenship from his American parents. Nonetheless,
Mr. O has not been able to convince ICE to lift the immigration
detainer despite being a U.S. citizen.\14\
---------------------------------------------------------------------------
\14\ Correspondence from the Immigrant Defense Project, New York.
---------------------------------------------------------------------------
Anecdotal evidence from advocates in locations with pilot programs
suggests that Secure Communities does not require an MOU between ICE
and the local jail, sheriff, or police department. As a result, the
level of training or instruction provided to jail or law enforcement
personnel remains murky. According to ICE's web site and fact sheet,
the plan is to eventually install the system in all State and local
detention facilities Nation-wide. It is unclear whether the program
will be mandatory or optional for all law enforcement agencies.
It is unclear whether ICE requires the consent or participation of
local officials in implementing Secure Communities programs. It may be
possible that ICE can simply connect its IDENT system to the jail's
fingerprinting system, and ICE therefore can automatically access
information about anyone being fingerprinted, possibly without the
approval of local officials. ICE would then determine whether it has
the resources to issue a detainer and pick up the individual within the
48-hour time frame, leaving local authorities out of the process
entirely. If this is the current structure of the program, Secure
Communities raises serious questions about the relationship between
Federal and local law enforcement agencies, and about a local
community's ability to weigh in on important decisions affecting the
community.
Because Secure Communities involves creating automatic data links
between booking databases and immigration enforcement systems, it
deprives police of the discretion to choose when to run ICE checks.
This raises questions about local police authorities' ability to build
strong, trusting relationships with their communities. For example,
many police report that it is important to assure crime victims that
they will not suffer immigration consequences if they call or talk to
the police. But a Secure Communities jurisdiction may lose this
flexibility with regard to ICE checks. Needlessly running names through
the ICE databases will result in local law enforcement losing the trust
of the immigrant community, a significant cost for police who depend
upon the community to fight and solve crime.
The existence of various ICE programs in a State or locality also
makes recordkeeping difficult. If an inmate has a detainer, it is
impossible to determine if the detainer is the result of a 287(g)
agreement, Secure Communities, or if the individual simply confessed to
an immigration status violation. This makes it extremely difficult to
determine the effectiveness of any one program or initiative.
In sum, Secure Communities denies due process to those arrested by
ICE. The program's description makes no mention of protection of civil
rights, redress when an individual is wrongly identified, auditing or
monitoring of its operation, measurement of racial or ethnic profiling,
effect of detainers, or measurement of whether it in fact complies with
the levels established for use of ICE resources.
There are also many reports from advocates across the country of
inappropriate actions by State and local enforcement officials where it
is unclear if the officials are working under the guise of Secure
Communities or other ICE ACCESS programs. For example, in Washington
State, public defenders report that ICE agents routinely peruse the
jails to single out Latino males for interrogation.\15\ It is common
practice for ICE agents to simply place detainers on any defendant on
the booking sheets provided by the jail without interviewing them.
Since the majority of defendants arrested are for low-level misdemeanor
offenses the majority of people being apprehended by ICE do not fit
within the priorities of the Secured Communities initiative. In the
municipality of Lynwood, Washington it is standard practice for
individuals in traffic court to be interviewed by ICE officers. If
believed to be undocumented, they are taken into ICE custody. Again,
such tactics are akin to a fishing expedition and divert resources from
more pressing law enforcement goals.\16\
---------------------------------------------------------------------------
\15\ Letter from Washington Defender Association's Immigration
Project to Secretary Napolitano, February 16, 2009 regarding ``Issues
and Impacts of ICE Enforcement In Washington State Jail Facilities.''
\16\ Id.
---------------------------------------------------------------------------
Recommendations
Given ICE's history of misdirecting its enforcement
resources, and the lack of supervision and auditing of racial
and ethnic profiling under 287(g) agreements, DHS should
measure the impact of the program before expanding it further.
No further expansion of the Secure Communities should take
place until the program is thoroughly audited and clear
guidelines are set forth.
Secure Communities initiatives, including data processing
initiatives, should ensure that in every instance the State,
local, or tribal police retain the discretion to determine
whether ICE should be sent an individual's data.
All jurisdictions participating in Secure Communities should
receive training and guidance prohibiting illegal racial or
other profiling. The DHS Office for Civil Rights and Civil
Liberties should oversee the development of this training, with
periodic review from the Department of Justice. The DOJ has
made eliminating racial profiling a priority, and their
oversight of this program would be an asset.
ICE should issue reports to Secure Communities partners and
Congress on a regular basis with statistics on the crimes for
which identified non-citizens are arrested, the disposition of
the underlying criminal case, and the nationality and ethnicity
of identified non-citizens.
The program should be independently evaluated to determine
if the enforcement criteria have been met, the effects on
community policing and willingness of witnesses and victims to
report crimes, and the extent of racial or ethnic profiling.
All jurisdictions participating in Secure Communities should
at the same time report periodically to ICE supervisors their
arrest and identification statistics for oversight and
management purposes. Any jurisdictions whose statistics
indicate a racial profiling pattern should be suspended from
the program.
Ms. Clarke. There being no further business, the committee
stands adjourned.
[Whereupon, at 5:01 p.m., the committee was adjourned.]
A P P E N D I X
----------
Questions From Chairman Bennie G. Thompson of Mississippi for William
F. Riley, Acting Executive Director, Office of State and Local
Coordination, Immigration and Customs Enforcement, Department of
Homeland Security
Question 1. During the hearing, the committee was reassured that a
number of the issues raised in the GAO report (GAO, Better Controls
Needed Over Program Authorizing State and Local Enforcement of Federal
Immigration Laws, GAO-09-109, January 30, 2009 ) would be addressed in
a strategic plan currently under development. Please outline the issues
that will be addressed in the plan. What is the time frame for the
plan? How will the modifications in the strategic plan be implemented?
Answer. In addition to revising the Memorandum of Agreement (MOA)
to ensure that 287(g) agreements operate consistently with ICE
priorities, ICE anticipates that the Strategic Plan for the Office of
State and Local Coordination (OSLC) will be approved and published on
or about September 4, 2009. The intent of the OSLC Strategic Plan is to
better articulate OSLC's mission, objectives, goals and priorities
while detailing the framework for management of OSLC programs such as
the ICE Agreements of Cooperation in Communities to Enhance Safety and
Security (ACCESS), of which the delegation of 287(g) immigration
authority is a part.
Specifically, the OSLC Strategic Plan will establish a body of
performance measures in support of improved management of ICE's 287(g)
partnerships. The plan establishes performance targets and identifies
metrics to support them. These metrics presently include the number of
287(g) partnerships, the number of partnerships terminated or suspended
due to lack of activity, types and level of criminal activity being
encountered by 287(g) partners, and the number of criminal
prosecutions. To further support internal control, the plan
synchronizes with Department of Homeland Security priorities and
includes provisions for compliance monitoring in the form of one or two
program reviews per month by the ICE Office of Professional
Responsibility (ICE OPR). Control activities will also include weekly
review of each partner's ENFORCE statistical data, which includes
country of birth, gender, and age. The control activities and
compliance monitoring set forth in the strategic plan will help further
provide reasonable assurance of management control of the local
application of 287(g) authority.
Question 2. Please provide the committee with arrest statistics
made under the 287(g) program for fiscal year 2007 and fiscal year 2008
by jurisdiction and nature of crime.
Answer. OSLC tracks encounters and not arrests. The purpose for the
use of encounter is that a 287(g) trained individual typically
``encounters'' a foreign national subsequent to another law enforcement
activity.
During the time period covering the request, the primary interface
used to collect data entered by field users was not designed to capture
the ``nature of crime''. During the stated time period, ENFORCE, the
primary data collection tool, relied and still relies heavily on user-
provided information. This leads to data being entered in an
inconsistent manner.
Prior to October 2008, OSLC relied on generic data pulls provided
by DRO and/or OI. Since October 2008, OSLC has taken the lead in
collecting and reporting its own statistical data. Since October 2008,
changes/enhancements to ENFORCE have been requested and are being
implemented to help track the nature of criminal activity under the
287(g) program. Previously this data was left to the user to input.
Once the changes are in effect, the data entry fields will be mandatory
and will require users to enter 287(g) driven information.
Attached is the weekly summary dated April 5, 2009 which identifies
the number of encounters by jurisdiction.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2009
State 287(g) Office 2006 2007 2008 -------------------------------------------------------- 2009 Program
Total Total Total Oct Nov Dec Jan Feb Mar Apr Total Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
AL.......................... ............... ........ ........ ........ ...... ...... ...... ...... 1 1 ...... 2 2
AL State Police ........ ........ ........ ...... ...... ...... ...... 1 1 ...... 2 2
AR.......................... ............... ........ 8 871 88 62 59 54 82 69 12 426 1,305
Benton County ........ 3 413 26 26 22 19 35 15 5 148 564
Sheriff's
Office.
City of ........ ........ 140 28 11 8 18 20 23 2 110 250
Springdale
Police
Department.
Rogers Police ........ 2 103 12 6 12 5 13 15 2 65 170
Department.
Washington ........ 3 215 22 19 17 12 14 16 3 103 321
County
Sheriff's
Office AR.
AZ.......................... ............... 418 5,208 16,129 1,343 1,274 1,185 1,313 1,260 1,344 431 8,150 29,905
AZ Department 418 1,913 2,485 275 234 244 326 274 346 149 1,848 6,664
of Corrections.
AZ Department ........ 1 2 ...... ...... 28 ...... ...... ...... ...... 28 31
of Public
Safety.
Maricopa County ........ 3,294 13,340 1,040 998 882 943 940 937 251 5,991 22,625
Sheriff's
Office.
Pinal County ........ ........ 45 6 4 4 8 25 43 1 91 136
Sheriff's
Office.
Yavapai County ........ ........ 257 22 38 27 36 21 18 30 192 449
Sheriff's
Office.
CA.......................... ............... 5,219 12,147 11,589 1,113 931 900 1,079 987 1,204 469 6,683 35,638
Los Angeles 3,650 4,544 3,854 442 409 329 442 378 423 224 2,647 14,695
County
Sheriff's
Office.
Orange County ........ 3,558 4,168 307 254 253 254 254 396 122 1,840 9,566
Sheriff's
Office.
Riverside 338 2,116 1,545 163 91 106 175 159 193 49 936 4,935
County
Sheriff's
Office.
San Bernardino 1,231 1,929 2,022 201 177 212 208 196 192 74 1,260 6,442
County
Sheriff's
Office.
CO.......................... ............... ........ 198 961 151 92 47 62 78 81 15 526 1,685
CO Department ........ 198 786 120 62 26 39 54 56 7 364 1,348
of Public
Safety.
El Paso County ........ ........ 175 31 30 21 23 24 25 8 162 337
Sheriff's
Office.
FL.......................... ............... ........ 21 832 158 165 178 178 220 217 81 1,197 2,050
Bay County ........ ........ 7 19 26 24 3 18 14 2 106 113
Sheriff's
Office.
Brevard County ........ ........ ........ ...... ...... ...... 2 5 13 9 29 29
Sheriff's
Office.
Collier County ........ 18 813 104 82 96 118 148 129 56 733 1,564
Sheriff's
Office.
FL Department ........ 3 12 ...... ...... 1 1 2 1 ...... 5 20
of Law
Enforcement.
Jacksonville ........ ........ ........ 31 49 43 51 41 52 9 276 276
Sheriff's
Office.
Manatee County ........ ........ ........ 4 8 14 3 6 8 5 48 48
Sheriff's
Office.
GA.......................... ............... ........ 128 4,732 347 343 319 355 291 338 125 2,118 6,978
Cobb County ........ 128 3,750 247 216 207 229 187 221 77 1,384 5,262
Sheriff's
Office.
GA Deptartment ........ ........ 9 2 ...... 3 2 2 ...... 1 10 19
of Public
Safety.
Hall County ........ ........ 873 79 100 76 94 56 75 35 515 1,388
Sheriff's
Office.
Whitfield ........ ........ 100 19 27 33 30 46 42 12 209 309
County
Sheriff's
Office.
MA.......................... ............... ........ ........ 76 9 1 5 2 5 3 3 28 104
MA Department ........ ........ 76 9 1 5 2 5 3 3 28 104
of Corrections.
MD.......................... ............... ........ ........ 232 33 23 26 22 31 33 10 178 410
Frederick ........ ........ 232 33 23 26 22 31 33 10 178 410
County
Sheriff's
Office.
MO.......................... ............... ........ ........ 1 1 ...... ...... ...... ...... ...... ...... 1 2
MO State ........ ........ 1 1 ...... ...... ...... ...... ...... ...... 1 2
Highway Patrol.
NC.......................... ............... 518 2,695 4,064 549 539 500 509 486 568 234 3,385 10,662
Alamance County ........ 299 523 47 19 26 41 32 32 22 219 1,041
Sheriff's
Office.
Cabarrus County ........ ........ 221 27 25 23 19 18 15 6 133 354
Sheriff's
Office.
Cumberland ........ ........ 27 1 1 10 5 9 11 7 44 71
County
Sheriff's
Office.
Durham Police ........ ........ 33 2 ...... 4 5 4 ...... ...... 15 48
Department.
Gaston County ........ 195 402 32 35 26 21 23 24 14 175 772
Sheriff's
Office.
Henderson ........ ........ 104 21 30 67 70 40 39 11 278 382
County
Sheriff's
Office.
Mecklenburg 518 2,201 2,213 189 209 170 176 183 236 110 1,273 6,205
County
Sheriff's
Office.
Wake County ........ ........ 541 230 220 174 172 177 211 64 1,248 1,789
Sheriff's
Office.
NH.......................... ............... ........ ........ 5 ...... ...... ...... ...... ...... ...... ...... ........ 5
Hudson City ........ ........ 5 ...... ...... ...... ...... ...... ...... ...... ........ 5
Police
Department.
NJ.......................... ............... ........ ........ ........ ...... ...... ...... ...... 10 10 7 27 27
Hudson County ........ ........ ........ ...... ...... ...... ...... 10 10 7 27 27
Department of
Corrections.
NM.......................... ............... ........ ........ 5 ...... ...... ...... ...... ...... ...... ...... ........ 5
NM Department ........ ........ 5 ...... ...... ...... ...... ...... ...... ...... ........ 5
of Corrections.
NV.......................... ............... ........ ........ ........ 10 130 139 230 236 251 82 1,078 1,078
Las Vegas ........ ........ ........ 10 130 139 230 236 251 82 1,078 1,078
Metropolitan
Police Dept.
OH.......................... ............... ........ ........ 347 42 56 38 25 33 36 8 238 585
Butler County ........ ........ 347 42 56 38 25 33 36 8 238 585
Sheriff's
Office.
OK.......................... ............... ........ 40 1,346 88 115 95 94 105 97 29 623 2,009
Tulsa County ........ 40 1,346 88 115 95 94 105 97 29 623 2,009
Sheriff's
Office.
SC.......................... ............... ........ ........ 363 28 28 34 37 45 39 17 228 591
Beaufort County ........ ........ 11 5 4 4 6 10 11 7 47 58
Sheriff's
Office.
York County ........ ........ 352 23 24 30 31 35 28 10 181 533
Sheriff's
Office.
TN.......................... ............... ........ 1,739 2,650 191 219 190 204 174 210 77 1,265 5,654
Davidson County ........ 1,739 2,650 191 219 185 199 172 207 76 1,249 5,638
Sheriff's
Office.
TN Department ........ ........ ........ ...... ...... 5 5 2 3 1 16 16
of Safety.
TX.......................... ............... ........ ........ ........ ...... 252 711 646 573 864 325 3,371 3,371
Harris County ........ ........ ........ ...... 252 711 646 573 864 325 3,371 3,371
Sheriff's
Office.
UT.......................... ............... ........ ........ ........ ...... 17 33 7 18 10 2 87 87
Washington ........ ........ ........ ...... ...... 2 1 4 ...... ...... 7 7
County
Sheriff's
Office UT.
Weber County ........ ........ ........ ...... 17 31 6 14 10 2 80 80
Sheriff's
Office.
VA.......................... ............... ........ 158 1,224 111 112 108 108 115 100 26 680 2,062
City of ........ ........ 1 ...... ...... ...... ...... ...... ...... ...... ........ 1
Manassas
Police
Department.
Herndon Police ........ ........ 72 13 3 9 5 5 2 2 39 111
Department.
Loudoun County ........ ........ 2 3 5 4 9 5 3 ...... 29 31
Sheriff's
Office.
Prince William ........ ........ 30 5 11 8 8 5 3 ...... 40 70
County Police
Department.
Prince William ........ ........ 2 ...... ...... ...... ...... ...... ...... ...... ........ 2
County
Sheriff's
Office.
Prince William- ........ 114 929 81 83 74 75 91 88 24 516 1,559
Manassas Adult
Detention
Center.
Rockingham ........ 32 163 9 10 12 11 7 4 ...... 53 248
County
Sheriff's
Office.
Shenandoah ........ 12 25 ...... ...... 1 ...... 2 ...... ...... 3 40
County
Sheriff's
Office.
----------------------------------------------------------------------------------------------------------
Program Total.. 6,155 22,342 45,427 4,262 4,359 4,567 4,925 4,750 5,475 1,953 30,291 104,215
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of States Reporting: 22.
No. of Offices Reporting: 58.
The above ICE enforcement data/statistics reflect a ``snapshot'' of the data in the respective ICE Law Enforcement System (LES) at the time the report
was compiled by the Executive Information Reporting Section. ICE enforcement data within the ICE LES may be modified at any given time by authorized
personnel owning the data, which may result in an increase or decrease of ICE data/statistics previously reported.
Question 3. According to statements made by Sheriff Jenkins,
Frederick County, Maryland is currently reimbursed $83 per day for each
detainee held in its jail through its intergovernmental service
agreement (IGSA) with ICE. However, Sheriff Jenkins has stated the
actual cost for the county to hold and detain persons average $7 per
day. How does ICE determine IGSA reimbursement rates and how often are
these rates evaluated?
Answer. Before ICE enters into an agreement with a county for
detention space, a rate is negotiated with the county for the per diem
costs of the detainee care and custody. Before negotiating a rate, the
county must submit a Jail Services Cost Statement (JSCS). The JSCS
outlines the facility's entire operational costs for the jail. ICE
determines the reimbursement rate by examining the cost elements from
individual documents in the JSCS as submitted by the county. Cost
components are examined and analyzed to determine whether they are
allowable, can be allocated, and are reasonable in accordance with
Office of Management and Budget (OMB) Circular A-87. Items reimbursed
under this agreement include personnel costs, personnel benefits,
consultant costs, on-site medical care expenses, and other direct costs
as well as indirect costs and depreciation based on the purchase price
for the county's building. If a county provides transportation service,
the county is reimbursed separately for this service. After examining
actual costs of these components, a per diem rate is determined and
negotiated with county officials.
In accordance with Article XII of the IGSA, Adjusting the Detainee
Day Rate, ICE shall reevaluate/adjust the detainee rate every twelve
(12) months after the agreement becomes effective. If ICE does not
receive an official request for a detainee day rate adjustment with a
new JSCS, the fixed detainee day rate as stated in the agreement will
remain in place indefinitely.
In the last JSCS submitted by Frederick County to ICE, Frederick
County proposed a per diem rate of $92.36. The JSCS supported rate is
$83.00 per day. ICE will contact Frederick County to discuss the $7.00
figure you cite and determine whether a reevaluation is appropriate.
Question 4. Section 12 of the Maricopa County MOA places reporting
requirements on the Maricopa County Sheriff Office. Pursuant to that
section of the agreement, has ICE requested data and statistical
information on the ``progress and success of the [Maricopa County]
287(g) program?''
Answer. ICE frequently relies on ENFORCE, the administrative
immigration booking system, to gather statistical information related
to the 287(g) program. Agencies use ENFORCE when processing individuals
who are subject to removal. Because ICE gathers information from
ENFORCE on a real time basis, ICE has not frequently requested
information directly from the Maricopa County Sheriff's Office.
However, the ENFORCE system historically had limited data fields
related primarily to processing an alien.
Based on an internal review and the recent GAO audit, ICE has
requested several system changes to enable ICE to extract more detailed
information from ENFORCE about the type and severity of the charges
lodged against removable aliens identified by 287(g) officers. In
addition, ICE is working to modify the MOA template to mandate the
entry of certain mandatory data and ensure the partner agencies with
287(g) authority exercise that authority in accordance with ICE's
priorities.
Question 5. Section 14 of the Maricopa County MOA outlines a
Complaint Procedure. Earlier this month, 5,000 people marched to
complain about the program. What has ICE done to monitor and respond to
complaints about the Maricopa County Sheriff's use of the 287(g)
program?
Answer. The Maricopa County Sheriff's Office (MCSO) MOA provides
that complaints against MCSO personnel relating to their immigration
enforcement should be reported to the ICE OPR and the MCSO's Internal
Affairs Division. ICE OPR forwards complaints to the Department of
Homeland Security's Office of Inspector General (DHS OIG) as
appropriate for review, and will refer all allegations of racial and
ethnic profiling, police misconduct, race and national origin
discrimination, and limited language access to the U.S. Department of
Justice Civil Rights Division (DOJ CRT) and the DHS Office of Civil
Rights and Civil Liberties.
Complaint reporting procedures are posted within all facilities
under MCSO's jurisdiction in English and Spanish in order to ensure
that individuals are aware of the availability of such procedures.
Additionally, ICE OPR created a 287(g) Inspection Group to conduct
inspections of the 287(g) cross-designated State and local law
enforcement agencies. These inspections are designed to determine if
agencies are operating in compliance with MOA. In fiscal year 2008, ICE
OPR inspected four 287(g) programs; and in fiscal year 2009, ICE OPR
anticipates reviewing an additional 20 sites. OSLC reviews the ICE OPR
audit report for any area identified as non-compliant with the MOA. The
OSLC program will then consult with ICE Office of Investigation (ICE
OI) and ICE Office of Detention and Removal (DRO) to address issues
identified in the ICE OPR reports. If any concerns with racial and
ethnic profiling, police misconduct, race and national origin
discrimination, and limited language access are raised as a result of
an OPR review, OSLC will also consult with the DHS Office for Civil
Rights and Civil Liberties and will refer all allegations to DOJ CRT.
In September 2008, the ICE Office of Personnel Responsibility (OPR)
conducted an audit of the MCSO 287(g) Delegation of Authority Program.
MCSO utilizes both the Jail Enforcement Officer (JEO) program in which
officers working in a detention environment (jail) that are trained to
identify foreign nationals amenable to removal proceedings, after they
have been arrested or convicted of violating criminal laws and the Task
Force Officer (TFO) model in which officers work in an investigative
setting and are trained to identify foreign nationals amenable to
removal proceedings during the course of their duties. The OPR audit
included interviews with ICE management, employees, in addition to
interviews with MSCO management and their employees. The overall
findings of the ICE Office of Professional Responsibility (OPR) audit
support that MSCO is in compliance with the MOA. Recommendations were
made to improve effectiveness and efficiency of the MOA, which included
the establishment of a standard operation procedure (SOP) within the
MOA specific to both the JEO and TFO model and the establishment of a
uniform requirement for collecting and reporting specific statistical
data. ICE has begun to apply such recommendations to the MCSO and other
Law Enforcement Agencies (LEAs), which have 287(g) agreements with ICE
to improve efficiency, reduce complaints, and better monitor the
existing MOA. Finally, pursuant to the Secretary of Homeland Security's
action directives, ICE is currently re-drafting the standard MOA
template to increase oversight and accountability. The revised MOA will
also work to further ensure that 287(g) MOAs operate consistently with
ICE arrest and detention priorities.
Question 6. Section 16 of the Maricopa County MOA mandates the
formation and maintenance of a steering committee to ``ensure
compliance with the terms of the Memorandum of Agreement.'' Who is on
that committee? Has it met? What has it met about? Did ICE and Maricopa
hold a review meeting within 9 months of the start of the program as
mandated by the agreement?
Answer. The Maricopa County MOA was signed on February 24, 2007.
The first Steering Committee meeting was held on September 6, 2007,
which was within the required 9-month guideline as outlined in the MOA.
The second Steering Committee meeting was held on October 21, 2008. The
next steering committee meeting is scheduled to be held in October
2009.
The September 6, 2007, meeting was held at the MCSO Executive
Conference Room in Phoenix, Arizona. The Representatives from the
following ICE offices were in attendance:
ICE
Special Agent in Charge, ICE OI, SAC Office Phoenix; Deputy Special
Agent in Charge, ICE OI, SAC Office Phoenix; Group Supervisor ICE OI,
SAC Office Phoenix; Chief Counsel, Phoenix Office of the Chief Counsel
Office, ICE Office of the Principal Legal Advisor (OPLA); Assistant
Field Office Director, ICE DRO, Phoenix; Assistant Field Office
Director, ICE DRO, Phoenix; and Supervisory Deportation Officer, ICE
DRO Phoenix.
MCSO officers were also present.
MCSO
Sheriff; Super Chief; Chief Deputy; Lieutenant; Lieutenant; Lieutenant;
Joe Sousa.
The issues discussed included, but were not limited to, the
following topics: background investigations/vetting; computer equipment
for five additional sites; training completion; media coordination
under the MOA; ICE Fusion Center; statistics; and MCSO 287(g)
successes.
The October 21, 2008, meeting was held at MCSO in the Executive
Conference Room in Phoenix, Arizona. ICE and MCSO representatives were
in attendance.
ICE
Special Agent in Charge, ICE OI, SAC Office Phoenix; Assistant Special
Agent in Charge, ICE OI, SAC Office Phoenix; Assistant Special Agent in
Charge, ICE OI, SAC Office Phoenix; Deputy Field Office Director, DRO;
Senior Attorney, Phoenix Office of the Chief Counsel Office, ICE, OPLA;
Public Affairs Officer, ICE; Senior Special Agent, ICE OI, SAC Office
Phoenix; Special Agent, ICE OI, SAC Office Phoenix; Special Agent, ICE
OI, SAC Office Phoenix; Staff Assistant, ICE OI, SAC Office Phoenix.
MCSO
Chief; Captain; Captain; Lieutenant; Sergeant; Sergeant; Lieutenant.
A roundtable introduction of all members was initiated by SAC
Matthew Allen. SAC Allen reiterated the reason behind the Steering
Committee meetings. He explained that per the MOA, ICE is required to
have these meetings at least once a year. Additionally, Chief Sheridan
commented that MCSO has an excellent working relationship with ICE.
The issues discussed included, but were not limited to arrest
statistics and progress of the program; future training; 287(g) Letters
of Authorization and credentials; Virtual University recurring
training; ICE OPR and MCSO Internal Affairs; 287(g) property inventory;
and media relations.
Question 7. Section 15 of the Maricopa County agreement binds
Maricopa County Sheriff's Officers to U.S. civil rights laws and
specifically to the U.S. Department of Justice ``Guidance Regarding the
Use of Race by Federal Law Enforcement Agencies.'' Given complaints
from Phoenix Mayor Phil Gordon, from community members, and from media
outlets that the 287(g) program is being used to racially profile
Latinos, what steps has ICE taken to ensure compliance with this
section of the MOA?
Answer. We understand that the Department of Justice has initiated
an investigation of allegations of discriminatory police practices and
unlawful searches and seizures by the Maricopa County Sheriff's Office
(MCSO). DOJ will thus be in the best position to determine, following
that investigation, whether the MCSO is in fact in compliance with
applicable civil rights laws.
ICE provides a 4-week training program to LEAs who are authorized
to receive training under the 287(g) MOA. The training is held at the
Federal Law Enforcement Training Center (FLETC) Advanced Training Site
in Charleston, SC, where certified instructors conduct the training.
The 287(g) Training Program includes guidance, mandated by the DOJ,
regarding the Use of Race by Federal Law Enforcement Agencies. An
overview on civil rights is also part of the 287(g) Training Program
and training program participants receive a 2-hour lesson on Alien
Encounters. This lesson includes instruction on the levels of
encounters, as well as the primary line of questioning to establish
alienage and removability.
Racial profiling and civil rights issues are also covered in the
``Use of Race'' and ``Officer Liability'' courses as part of the 287(g)
Training Program. These courses specifically cover racial profiling
practices and the Constitutional concerns regarding the use of race in
the conduct of law enforcement activities. These courses outline the
necessity to establish or observe more than one articulable fact, not
based on race, that leads the officers to believe that the subject(s)
is/are in the United States illegally, and have no right to be in,
remain or reside in, or transit through United States lawfully.
It should also be noted that ICE is currently in the process of
incorporating a racial profiling training module into the Virtual
University annual refresher training curriculum that will be mandatory
for all 287(g) officers to take.
Questions From Chairman Bennie G. Thompson of Mississippi for Richard
M. Stana, Director, Homeland Security and Justice Issues, Government
Accountability Office
Question 1. According to your report, there seemed to be
significant confusion among 287(g) program participants about what they
could or could not do pursuant to their 287(g) authority. What should
ICE do to ensure local agencies understand the limitations and scope of
their 287(g) agreements? Does ICE review program participants to ensure
they are acting within the scope of their authority pursuant to 287(g)?
Answer. Currently, the Memorandum of Agreement (MOA) between State
and local 287(g) participants and Immigration Customs Enforcement (ICE)
are broadly written and do not consistently communicate the objective
of the 287(g) program or under what circumstances 287(g) authority is
to be used. For example, ICE officials told us that the objective of
the program is to enhance the security and safety of communities by
addressing serious crime such as narcotics smuggling committed by
removable aliens. However, ICE has not documented these objectives in
program materials. We identified instances where participating agencies
have used their 287(g) authority to process for removal aliens arrested
for minor offenses. All of the MOA's we reviewed contained language
that authorizes State or local officers to interrogate ``any person''
believed to be an alien as to his right to be or remain in the United
States, but none specified when or how this authority was to be used.
Some program participants we interviewed interpreted this as giving
them broad powers to enforce immigration law. According to ICE
officials and other ICE documents, 287(g) authority is to be used in
connection with an arrest for a State offense; however, we noted that
none of the MOAs state that any use of 287(g) authority should be
preceded by an arrest. And while the processing of individuals for
possible removal is to be done in connection with a conviction for a
State or Federal felony offense, seven MOAs we examined were void of
this language (these were earlier MOAs that have never been revised).
We recommended that ICE document the objective of the 287(g) program
for participants and clarify and document how and under what
circumstances 287(g) authority is to be used by State and local law
enforcement officers in participating agencies.
According to ICE, its Office of Professional Responsibility (OPR)
has implemented a regular inspection process to assess local law
enforcement agencies' compliance with the terms of the MOA. Currently,
the OPR inspections are conducted using checklists developed primarily
from information in the applicable MOA. According to OPR officials, it
completes an inspection report after each inspection that will be used
to address any deficiencies identified. At the time of our review, ICE
had performed only a limited number of these inspections and none of
the inspection reports had been finalized. As noted in our report,
these inspections do not include performance assessments of the
program. ICE has not yet developed performance measures from which to
monitor how the program is being implemented. Performance measures are
important to provide ICE with a basis for determining whether the
program is achieving its intended results.
Question 2. According to your report, over half of the 29 agencies
GAO contacted conveyed concerns from community members that use of
287(g) program authority would lead to racial profiling and
intimidation by law enforcement officials. To what do you attribute
this concern? Could ICE do more to ensure that profiling and
intimidation will not occur under 287(g)? If so, what?
Answer. The enforcement of immigration law by State and local
officials has raised concerns among some community and immigrants'
rights groups about the proper role of such law enforcement officials.
As noted in our report, more than half of the 29 State and local law
enforcement agencies we interviewed reported concerns that some members
of their communities expressed about the 287(g) program including fear
and apprehension that law enforcement officers would engage in racial
profiling. Groups are also concerned that such activities could lead to
apprehension in immigrant communities and less inclination to report
crimes out of fear that officers with 287(g) authority would inquire
about crime victims' immigration status. Groups said that these
concerns may reduce the effectiveness of the program and other law
enforcement initiatives, which they believe were intended to target
serious criminal activity.
These concerns underscore the importance of ICE having management
controls to help ensure that the program was operating as intended;
however, we found that key controls were lacking. First, while ICE
officials have stated that the main objective of the 287(g) program is
to enhance the safety and security of communities by addressing serious
criminal activity committed by removable aliens, they have not: (1)
Documented this objective in 287(g)-related materials for participants;
(2) clarified when the 287(g) authority is authorized for use by State
and local law enforcement officers; (3) documented in MOAs the nature
and extent of supervisory activities ICE officers are expected to carry
out as part of their responsibilities in overseeing the implementation
of the 287(g) program and communicate that information to both ICE
officers and State and local participating agencies. As a result, some
participating agencies are using their 287(g) authority to process for
removal aliens who have committed minor crimes, such as carrying an
open container of alcohol. Second, ICE has not consistently articulated
in program-related documents how participating agencies are to use
their 287(g) authority. For instance, although the processing of
individuals for possible removal is to be conducted in connection with
a conviction of a State or Federal felony offense, this issue is not
mentioned in 7 of the 29 MOAs we reviewed. Third, ICE has not described
the nature and extent of the agency's supervision over participating
agencies' implementation of the program. This has led to wide variation
in the perception of the nature and extent of supervisory
responsibility among ICE field officials and officials from 23 of the
participating agencies that provided information on ICE supervision.
We made recommendations for ICE to improve its management controls
in these areas. Specifically, we recommended that ICE document the
objective of the 287(g) program for participants, clarify when the
287(g) authority is authorized for use by State and local law
enforcement officers, and document in MOAs the nature and extent of
supervisory activities ICE officers are expected to carry out as part
of their responsibilities in overseeing the implementation of the
287(g) program and communicate that information to both ICE officers
and State and local participating agencies. One of these supervisory
activities would be to ensure that State and local officers are
exercising their 287(g) authority in full compliance with Federal law.
Another way to help address community concerns is through community
outreach. Each of the MOAs we reviewed discusses engaging in community
outreach with individuals and organizations expressing an interest in
the 287(g) program. However, community outreach is not a requirement of
the program, and the nature and extent of outreach is left to the
discretion of the State or local agency. Nearly all of the 29
jurisdictions we reviewed told us they engaged in community outreach
and that doing so helped address concerns about the 287(g) program.
Question 3. How are complaints about the 287(g) program processed
at ICE? Do you believe there is sufficient transparency in the 287(g)
program? ICE has stated there have been no complaints made related to
the program. Yet, the media has highlighted various troubling accounts
of program management. How would you explain this gap?
Answer. According to the MOAs, complaints involving participating
State and local personnel with regard to 287(g) immigration enforcement
actions will be accepted from any source (e.g., ICE, the State or local
agency, personnel operating under 287(g) authority, and the public).
The complaints can be reported to ICE Headquarters Office of
Professional Responsibility (ICE OPR) or to the participating agency
telephonically or by mail. Each MOA includes the office names,
addresses, and telephone numbers for ICE OPR and the State or local
agency where complaints can be reported.
The MOAs state that regardless of where the complaint is initially
received, ICE OPR and the State or local agency are to coordinate
complaint receipt and investigation. ICE OPR is to follow its
established procedures relating to the review, reporting, and
resolution of allegations of employee misconduct. In this regard, ICE
OPR is to forward complaints to the Department of Homeland Security's
Office of Inspector General (DHS OIG), as appropriate, for review, and
ensure notification as necessary to the U.S. Department of Justice
Civil Rights Division. ICE OPR may also refer complaints it receives
involving participating State and local personnel to the agency for
resolution. For its part, the State or local agency is to follow its
own applicable policies and procedures, personnel rules, State
statutes, and any other operating guidelines, and is to inform ICE OPR
of the disposition and resolution of any complaints referred by ICE
OPR.
The MOAs state that complaint-reporting procedures shall be
disseminated as appropriate by the participating agency within
facilities under its jurisdiction in order to ensure that individuals
are aware of the complaint procedures. We observed that the complaint
procedures were posted at selected locations we visited, but we did not
assess the public exposure to avenues for filing a complaint. The
complaint-reporting procedures pertaining to the 287(g) program are not
posted on the ICE web site.
In response to our inquiries, neither ICE OPR nor the 29
participating jurisdictions we reviewed told us they received any
complaints of officer misconduct related to the 287(g) program. We do
not know why the apparent discrepancy exists between media reports of
program problems and the lack of formal complaints to ICE OPR or the
participating State and local agencies.
Question 4. My understanding is that under 287(g), State and local
law enforcement participants are ``supervised'' by an ICE agent. Based
on your review, what does ICE's supervision consist of? Do you believe
that supervision is adequate to ensure participants are abiding by the
requirements of the program? If not, what more does ICE need to do?
Answer. The statute that established the program specifically
requires ICE to direct and supervise the activities of the State and
local officers who participate in the 287(g) program. The statute and
associated legislative history, however, do not define the terms of
direction and supervision, which leaves the responsibility for defining
them to ICE. Although ICE has the discretion to define these terms in
any manner that it deems reasonable, it has not defined them in program
documents. Based on our interviews with officials from the 29
participating jurisdictions we reviewed, there was wide variation in
the type and amount of supervision provide by ICE. Some participants
expressed satisfaction with the ICE supervision they received, while
others expressed dissatisfaction. According to ICE officials,
supervision of participating agencies varied due to shortages of
supervisory resources. These officials said it has been necessary in
many instances to shift local ICE resources from other programs or to
utilize new supervisory officers to provide the required oversight and
to manage the additional workload that has resulted from the 287(g)
program. We recommended that ICE document the nature and extent of
supervisory activities ICE officers are expected to carry out as part
of their responsibilities in overseeing the implementation of the
287(g) program and to ensure that this information is communicated to
both ICE officers and the State and local participating agencies.
Question 5. What efforts on the part of DHS, ICE, and State/local
agencies are being undertaken to ensure that the training provided to
State and local law enforcement agents is comparable to the complex and
voluminous body of immigration law training ICE agents receive? How did
the participants you interviewed for your report view their training?
What kind of continuing education requirements exist for the officers?
How does ICE monitor completion of ``refresher'' training?
Answer. State and local officers participating in the 287(g)
program attend a mandatory 4-week training program at the Federal Law
Enforcement Training Center. This program includes training in areas
consistent with that given to ICE agent, although more condensed--
immigration and criminal law, document examinations, cross-cultural
communications and intercultural relations, alien status, ICE
operations, statutory authority, removal charges, ICE use of force
policy, and avoidance of racial profiling. In order to become certified
to exercise certain authorities of an immigration officer, participants
are required to pass written examinations which, according to ICE, are
equivalent to those given to ICE officers. While we did not
specifically evaluate training program content, officials from the 29
participating jurisdictions we reviewed consistently told us that the
ICE prepared them to perform their 287(g) activities. The MOAs that we
reviewed state that, approximately 1 year after participating agencies
personnel are trained and certified, ICE will provide those personnel
with additional updated training. However, at the time of our review,
ICE had not yet established a continuing-education requirement or
refresher training for 287(g) participants.