A meeting with lawmakers June 25 will be the Obama administration's first official poke to the Immigration hornet's nest. So far the new White House has soothed hardliners and vexed antsy advocates by emphasizing enforcement before reform of immigration laws. New guidelines have tweaked how enforcement should happen, but one hornet that tends to escape high-level debate in the swarm of secure borders and employer sanctions, "amnesty" and guest-worker programs, is the issue of who should be doing the enforcing.
In 1996, a program went on the books letting state and local agencies in on immigration enforcement. The way addendum 287(g) to the Immigration and Nationality Act (INA) works is that the interested jurisdiction applies, terms get set in a Memorandum of Agreement (MOA), U.S. Immigration and Customs Enforcement (ICE) comes to town for a training, and the cross-designated cops go forth with new immigration-officer powers stuck in their belts. The idea was the strict separation of duties "ties the hands" of local law enforcement officers (for example forcing them to let detention-eligible "fugitive aliens" go because they lacked authority to hold them or drive them over state lines to ICE detention centers). The 287 (g) program would work as a "force multiplier" for ICE and, focused on those "aliens who pose a risk to the public," pave the way for "multi-agency synergies" to get bad guys out of town, and further.
The case made by proponents of the program is hard to mess with. Frederick County, Maryland's, MOA has helped it nab a "Nicaraguan military trained sniper" and a "Salvadorian guerilla fighter trained in knife fighting," besides drug-runners, counterfeiters and drunk drivers, its sheriff told Congress at a hearing to review the 287 (g) program in March. It's trained Sheriff Charles A. Jenkins' men in screening for fake documents, set them up with new IT, and teamed them up with ICE in a strategic surge targeting gangs. He recommended every law enforcement agency get one.
But since 1996, the program has become a kind of runaway train. If its original purpose was to grow the team authorized to go after duckers of deportation orders, it's seen what they call in the industry 'mission drift' - at two marked moments. When the first agreement was signed by the State of Florida after September 11, 2001, its language was less about dangerous "fugitive aliens" than about adding muscle against a perceived terrorist threat. And when 287 (g) really got popular starting 2006 - seven agreements in September of that year became 29 by year's end became 67 programs to date, with approximately 80 pending - the part about "dangerous" seems in some cases to have been lost altogether. Sheriff Jenkins reported 309 unauthorized immigrants booked for removal in the first year of Frederick County's MOA; ICE reports around 29,000 in 2008 through the program overall. Neither say how many were guilty of more than being undocumented. Concentrated in conservative areas and Southern border states, mushrooming in concert with flared passions over immigration in the years of twice-failed reform, the 287 (g) program today seems to have broadened focus from either "fugitive" or "criminal" to just "alien."
But so, whom are these ICE-authorized local officers targeting? Whom are they supposed to target? Who says, and who's checking? The missing answers to these questions was the stuff of a tough GAO review of the 287 (g) program earlier this year. Charges of fuzzy program definition included failure to document objectives in any program-related materials, inconsistent guidance on how and when to use program authority, undeveloped guidance on how ICE officials are to supervise officials from participating agencies, undefined requirements for data participating agencies are to track and report to ICE - to start.
ICE said it would do better. At the same March hearing before the House Subcommittee on Homeland Security, the agency promised to start keeping the numbers, and reaffirmed the program's aim at criminals. They'd make sure MOAs kept step with ICE's own "detention priorities" - making murderers a One, for example, money-launderers a Two, other convicted offenders only after that.
But "prioritization," worried Randy Capps, a researcher for the Migration Policy Institute[, by phone,] may not be strong enough. In communities where the political will says flush out unauthorized immigrants, "prioritization" of Salvadorian knife-fighetrs won't block a cop from detaining a few Guatamalan day laborers, too. By and large MOAs instruct that immigration status should be investigated only if immigrants enter the system 'incidentally to routine policing duties,' but Capps found that condition a little flimsy, too - open to pretextual arrests for taillight offenses and 'improper use of horn,' if the political climate so encourages.
"You've got political pressure coming from constituencies that link immigration and crime, that think the federal government isn't doing its job," said Capps. Local law enforcement responds.
An alternative "jailhouse model" of 287 (g) agreement - authorizing immigration status checks only after someone's been detained on state criminal charges - might be less vulnerable to abuse, said Capps. But like smoke and fire, where there are pretextual stops on the street there will probably be pretextual bookings, too.
Not to mention honest mistakes. ACLU Arizona Director Alessandra Soler Meetze told me about cases of U.S. citizens being booked and even deported, where ICE's express-training of local sheriffs left a margin for error in telling real documents from fake.
"ICE agents spend their careers at this. It's why there's a federal enforcement agency - to enforce complex federal law," Meetze said [by phone].
Arizona if anywhere is where they've taken 287 (g) and run. Maricopa County Sheriff Joe Arpaio - the same who experimented with bringing human-smuggling charges against unauthorized immigrants, for smuggling themselves - has made "crime suppression sweeps" in Latino areas his trademark. Critics understand them as pretextual raids on whole communities, targeting unauthorized immigrants. Former mayor of the largely Latino town of Guadalupe, Arizona, remembered for a student group recently what she called the sheriffs' "siege" of her town the year before:
"Kids missed communion, people stayed home from work, they had checkpoints at the roads in and out of town. It was like a war zone," said Mayor Jimenez.
Jimenez told of a Mexican-American friend pulled over for failure to signal. When he presented papers proving his legal status, he was let go without a ticket.
(Maricopa County is still doing these sweeps, if possibly a little subdued by some national scrutiny. I was in Avondale, near Phoenix, in late April on Day One of what one sheriff called a "pre-emptive saturation of an ar--" before another sheriff shushed him. Roadside protesters held bilingual signs inviting honks of anti-Arpaio solidarity. I worried about 'improper use of horn.')
The ACLU believes the collateral damage of the 287 (g) program is systemic. "Racial profiling," they reminded a House hearing April 2, "is a term used to describe improper use of race or ethnicity in targeting suspects or engaging in other law enforcement actions. ... manifest in at least two principal ways: (1) selective enforcement of certain laws against members of a particular racial or ethnic group; or (2) pretextual stops and arrests motivated by the race or ethnicity..." The thrust of the testimony is that if 287 (g) allows policing for immigration violations, in a country where most of the estimated 12 million unauthorized immigrants are Latino, it would take blind cops not to profile a little. ACLU lawyers in Arizona filed a class action complaint again Arpaio and the Maricopa County Sheriff's Office in 2008 and have come repeatedly to Washington about the culture of fear created by the program among Latinos.
But is ICE so blind? Are federal agents innocent of the same racial shortcuts? ICE isn't perfect, said Cristina Rodriguez, an NYU Law professor affiliated with the Migration Policy Institute - but then you don't have people running up to ICE agents reporting crimes. The distinction gets at the worry commonly expressed by cops themselves about local immigration enforcement: its at-times conflict of interest with local policing. The nonpartisan Police Federation released a report in May on the 287 (g) effect of undermined trust with the immigrant community, leading to dangerous non-reporting of crimes. The chair of the Major Cities Chiefs Association (MCC) brought the same worries to Congress in March, and others: the program diverts resources, it's further federal work in our hands, ICE's flags of civil immigration violators on our criminal database "lay a trap for unwary officers who believe them to be valid criminal warrants or detainers."
In other words, what if in enforcing federal immigration law at home we break laws? Local officers know their authority to enforce against criminal acts, but immigration law's got both civil and criminal processes - creating a potential tricky gap in local police authority. "Federal law does not require local enforcement of immigration law nor give the states or local agencies the clear authority to act in the area of immigration," the MCC testified. If the 287 (g) program does go forward, the MCC requests an "immunity shield" for its officers.
At the back of the debate over the abusability of 287 (g) is that question: is this delegation of federal power constitutional? Yes, probably, said Rodriguez, but it nonetheless represents a "sea change" from before 2002 when immigration enforcement was clearly thought federal business. A report she co-wrote on the legality of state and local immigration measures agrees with the chiefs: "Courts have not spoken with much clarity on the issue." A 2002 memo from the Justice Department's legal counsel affirming the "inherent authority" of the states to enforce immigration law came out of left field. Or was it Right field? At worst, legal opinion seems to be flubbing along after regionalized anti-immigrant passion, of those who indeed claim 'clarity on this issue' - Washington letting hardline nativist counties blow off steam through this loophole as they stall on real reform. In any case, the sea that changed in 2002 seems surely the same one 287 (g) drifted out on.
If lawmakers don't take the issue up June, it will be because the 'alien removals' achieved through these agreements represent a drop in the bucket (approximately 2%) relative the estimated 12 million unauthorized immigrants currently here. Small potatoes. But to critics, that same proportional paltriness of what's gained make the abuses and errors suffered under the 287(g) program even less justifiable: rough means to ultimately puny ends.