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End It: 287(g) is Beyond Repair and Harms Local Communities Every Day

Joanne Lin,
Senior Legislative Counsel,
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April 5, 2010

Should an accident victim be taken to jail by a state’s highway patrol to check his or her immigration status?

Should undocumented residents who are victims or witnesses be afraid to report crimes to the police, creating public safety and national security gaps that trouble law enforcement leaders (PDF)?

Will we tolerate racial profiling by state and local law enforcement agencies in their zeal to enforce federal immigration law?

How long can Immigration and Customs Enforcement (ICE) ignore a leading police association’s view that “immigration enforcement by local police undermines their core public safety mission, diverts scarce resources, increases their exposure to liability and litigation, and exacerbates fear in communities already distrustful of police?”

Through every available channel, the ACLU has expressed its concern about ICE’s delegation of federal immigration authority to state and local law enforcement agencies (LEAs) under section 287(g) of the Immigration and Nationality Act. ICE describes the 287(g) program as “one of the agency’s most successful and popular partnerships.” This lavish praise comes despite 287(g)’s deplorable record, which includes the Los Angeles sheriff department’s referral of Pedro Guzman to ICE for deportation (contrast former LAPD Chief Bratton’s firm opposition to 287(g)). Pedro Guzman is a U.S. citizen born in California who was exiled to Mexico in 2007. While the ACLU of Southern California sued the government to stop its madness of deporting Americans, Guzman lived on Mexican streets, bathed in rivers, and ate out of trash bins for several months as his mother quit her job and searched desperately for him. Eighty-nine days later, Guzman was finally allowed to return to his home.

A comprehensive report released Friday (PDF) by the Department of Homeland Security’s Office of the Inspector General (“OIG”) gave official backing to years of criticism from the very communities ICE touts as 287(g) success stories. The report includes extensive commentary on 287(g)’s vulnerability to civil rights abuses such as racial profiling (see the ACLU of Georgia’s report on racial profiling in Gwinnett County released last week, and its earlier report (PDF) on 287(g) in Cobb County). The OIG report, echoing a prior Government Accountability Office (GAO) report (PDF), documents startling lapses in 287(g) priorities, oversight, and training. Among its findings:

  • 287(g) priorities are not followed: ICE says 287(g)’s mandate is to focus on noncitizens who pose a threat to national security or are dangers to the community. But less than 10 percent of those sampled by OIG were ICE “Level 1” offenders. Almost half the sample had no involvement in crimes of violence, drug offenses, or property crimes. (See ACLU of North Carolina/UNC Chapel Hill’s report (PDF) describing 287(g)’s use to “purge towns and cities of ‘unwelcome’ immigrants.”) OIG expresses 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.”
  • ICE is not supervising state and local law enforcement: One LEA — unidentified, although Maricopa County, Arizona, fits the description (see below) — advised ICE that its crime sweep operations were based on state law, so ICE decided to play no role. OIG’s audit shows that more than half the arrests made in those sweeps were based on federal immigration charges alone. “Random street operations” are not allowed under 287(g), according to ICE, but OIG notes that 287(g) officers have undertaken these operations in the guise of making arrests for “minor offenses and violations of local ordinances.”

    In four of seven jurisdictions visited by OIG, the LEAs operated jail-based 287(g) screening for several years without ICE authorization. In one jurisdiction, both ICE and the LEA were aware of the problem but did nothing.

  • 287(g) training is woefully inadequate: The OIG report documents a litany of training problems at both ICE and LEAs. It has been reported that 287(g) training is compressed into five weeks as compared with 13 weeks allocated to ICE officers. While ICE officers are required to be proficient in Spanish or to take a five-week language course, 287(g) deputies have no language assessment at all. One 287(g)-trained officer admitted he doesn’t speak Spanish but uses a “cheat sheet” of Spanish questions to interview suspected noncitizens. (No word on what he does with answers.)

OIG’s criticisms come as no surprise to 287(g) watchers. In the country’s most egregious example of 287(g)’s pernicious effects, Sheriff Joe Arpaio of Maricopa County, Arizona, has led a campaign of terror against the immigrant community. The Department of Justice is conducting a civil rights investigation of Arpaio’s department, and the ACLU has sued to stop his illegal racial profiling practices. The Goldwater Institute concluded (PDF) that Arpaio’s “massive diversion of resources into policing illegal immigration…coincides with growing rates of violent crimes, plummeting arrest rates, and increased response time to citizens’ calls for help.” Yet DHS continues to delegate immigration authority to Arpaio, who has refused to stop community raids despite even ICE’s misgivings. Sadly, ICE hasn’t learned from its Maricopa mess: According to OIG, neither new 287(g) applicants nor community groups in their jurisdictions are asked for application information about civil rights records (and ICE frequently overrules its own field staff’s take on where 287(g) should not be in force).

DHS’s own Southwest Border Task Force recommended that 287(g) be strictly limited (PDF). Its vice chairman, Sheriff Lupe Treviño of Hidalgo County, Texas, emphasized that enforcing federal immigration law distracts local authorities from their primary duties and implants fear into the immigrant community: “We do not want a repeat of what has happened in Maricopa County.” As the ACLU told Congress, “Latinos have often been singled out as a group for immigration stops and inquiries by local law enforcement. Such race-based immigration enforcement imposes injustices on innocent racial and ethnic minorities, in particular reinforcing the harmful perception that Latinos — U.S. citizens and noncitizens alike — are presumed to be ‘illegal immigrants’ and therefore not entitled to full and equal citizenship unless and until proven innocent or ‘legal.'”

Especially in light of last week’s revelation that ICE has not shaken off its quota culture, the OIG’s 287(g) report must lead ICE to stop its unsupervised outsourcing of federal immigration enforcement immediately. Only then can ICE begin to move past its assistant secretary’s unsupportable denials of 287(g) problems, now exposed again by the OIG report, and to live up to the agency’s stated goal of prioritizing the removal of dangerous noncitizens while respecting civil rights and civil liberties. ACLU will hold ICE’s feet to the report’s fire.

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