The Evolution of 287(g)

The 287(g) program began in 1996 with the passage of legislation by the United States Congress. The citation is (oddly enough) Section 287(g) of 8 U.S.C. 1357, otherwise known as 110 STAT. 3009–563 PUBLIC LAW 104–208—SEPT. 30, 1996.

It’s purpose and functions are stated in the law itself:
“an officer or employee of the State or subdivision… may enter into a written agreement…to perform a function of an immigration officer in relation to the investigation,
apprehension,
or detention
of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.”

These trained officers or employees “may use Federal property or facilities.”

They are authorized by, trained, supervised and directed by the Attorney General.

Agencies may not be forced by the federal government to participate in the program.

The 287(g) program is not a requirement for an agency “to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or…otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.’’

And the program was created following the law, which required a Memorandum of Understanding (MOU) between the local government agency and the Attorney General.

Note that the law does not restrict the agencies that may participate. Any political subdivision may be a 287(g) agency.

Also note that there is no provision for refusal by the federal government. They cannot deny 287(g), only restrict their authority through the MOU language.

Note as well that the law does not limit the functions of officers. The program has evolved to mean only two functions, task force participation or jail screening. But the law doesn’t say that.

A review of the performance of the 287(g) program was requested (I believe for purely political reasons) by the following Members of Congress. I have included their recent (2006-2009) immigration scorecard rating as provided by Numbers USA:
Sen. Joseph Lieberman – F-
Sen. Susan Collins – C-
Rep. Bennie Thompson - D
Rep. Christopher Carney - C
Rep. Mike Rogers – C+
Rep. Mark Souder – B

The review was published by the Government Accountability Office in January of 2009 under document number GAO-09-109.

According to the GAO report, “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.” (pg. 4) Oh really? The statute doesn’t say that.

But that doesn’t stop the GAO from commenting on it as a problem when they write, “some participating agencies are using their 287(g) authority to process for removal aliens who have committed minor crimes.” (pg. 4)

The GAO then explains what would happen if local agencies were to turn in every illegal alien they find. “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.” (pg. 4)

Later on, the GAO raises the flag of racial profiling. Here’s what the report says: “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 members of their communities 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.” (pg. 6)

Concerns by members of the community do not a valid profiling case make, yet the report does not explore the comment, leaving it to hang in the air as if it were true.

Of course, the ACLU has leveled allegations but no proof. Such that the House Chairman of Homeland Security, Rep. Bennie Thompson, raises the scepter of suspicion when he enters this statement into the record on March 4, 2009. After making the mistake of defining 287(g) as a program for removing “dangerous people” exclusively he remarks: “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. And that accusation should concern all of us. Effective law enforcement and discrimination cannot coexist.”

Let’s parse that statement a bit. First of all, Thompson has the report of the results of the program, including the number of detainers and deportations. It is effective.

Next, he is more than willing to throw out the program because it has been “accused of racial profiling.” Hmm. It would be easy to halt all the programs in this nation with racial profiling allegations hanging over their heads.

Shall we stop TSA airport screenings? They have been “accused of racial profiling,” as has the FBI, ATF, Secret Service, CIA…Perhaps Rep. Thompson would like to pass a federal law suspending police activities in any local jurisdiction where an accusation of racial profiling has been raised.

That same mentality has carried over to the federal budget, where a note about 287(g) funding says, “That none of the funds provided under this heading may be used to continue a delegation of law enforcement authority authorized under section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) if the Department of Homeland Security Inspector General determines that the terms of the agreement governing the delegation of authority have been violated.”

Indeed a witch hunt is afoot in Washington intended to undermine the success of 287(g). The communities of Waukegan and Carpentersville Illinois have been denied the program without a public explanation.

A lack of funding, coupled with administrative malaise at ICE will surely undermine the expansion of 287(g). It might even decimate existing partnerships.

Yet the public face at Homeland Security tells a different story. As Secretary Napolitano indicated on May 6th of this year, “DHS also has continued to expand its partnerships with state and local law enforcement under the 287(g) program, which gives specially trained officers authorization to perform immigration enforcement duties under the supervision of ICE agents and officers. ICE has 58 active Memoranda of Agreement (MOAs) with law enforcement agencies in 23 states. As of April 2009, ICE's 287(g) partners have encountered over 104,000 aliens who were screened for removability.”

“This program continues to be an effective force multiplier for our efforts.”

An interesting statement, but not consistent with budget allocations or other efforts to undermine 287(g). Local officials need to be vigilant and investigate any refusals for a signed MOU.