Reading the Fine Print: DHS Has Not Ended 287(g) in Arizona
& Joanne Lin, Senior Legislative Counsel, ACLU
& Charanya Krishnaswami, ACLU Washington Legislative Office
On Monday, the Supreme Court in Arizona v. United States struck down three provisions of Arizona’s S.B. 1070 racial profiling law, but reinstated, for now, the most controversial provision, which requires Arizona police officers to demand the immigration papers of anyone they stop, arrest, or detain. S.B. 1070 makes racial profiling Arizona state policy. When a police officer asks for papers, it’s based on bias because there is no way to tell by looking at or listening to someone whether the person is lawfully in the United States.
In response, the federal Department of Homeland Security (“DHS”) announced a partial termination of its 287(g) program—which deputizes state and local police to function as federal immigration enforcement agents—in Arizona. Monday’s DHS announcement was widely misreported in the media as marking the end of 287(g) in Arizona.
This is far from true. DHS has terminated only one type of 287(g) agreement in Arizona, the “task force” model, while keeping all its “jail enforcement” agreements intact. “Task force” models involve roving police officers empowered to act as immigration agents, while “jail” models involve police officers screening people arrested and booked into jail. (Those jurisdictions are the Counties of Mesa, Phoenix, Florence, Pima, Pinal, and Yavapai, as well as the Arizona Department of Corrections and Arizona Department of Public Safety.
Even after Monday’s Supreme Court decision, DHS’s 287(g) jail enforcement agreements remain in full force in Arizona. What does this mean for Latinos and immigrants in Arizona? State and local officers granted 287(g) jail enforcement authority will continue to have extensive immigration enforcement power, including issuing immigration detainers, processing people for immigration violations, and preparing immigration charging documents. This is not an end to the 287(g) program in Arizona.
The 287(g) jail enforcement agreements incentivize state and local police to engage in racial profiling and discriminatory policing. A series of critical reports by the DHS Office of Inspector General in 2010 and 2011 demonstrated fundamental flaws with the 287(g) program as a whole, finding that more than one half of the immigrants identified through the 287(g) program were arrested for misdemeanors, primarily traffic offenses. The OIG expressed a complete lack of confidence that the program’s "resources are being appropriately targeted toward aliens who pose the greatest risk to public safety and the community." One OIG report detailed the troubling delegation of immigration enforcement authority to jurisdictions under investigation for racial profiling (see page 23 of this report).
The same type of racial profiling at the heart of S.B. 1070 is promoted by 287(g)’s delegationof immigration enforcement power to Arizona. The two regimes are first cousins of discrimination: both encourage and condone racial profiling by state and law enforcement officials. Now DHS must follow up and revoke all 287(g) jail/detention authority in Arizona, to ensure that DHS is not complicit in the same civil rights violations that SB 1070 will cause.