ICE slights MCSO on 287(g) where drug and human smuggling reigns

By Linda Bentley | October 21, 2009

‘ICE has not documented this objective in program materials’
WASHINGTON – On Friday, John Morton, assistant secretary for U.S. Immigration and Customs Enforcement (ICE), announced the agency has entered into standardized Memorandums of Agreement (MOA) with 67 state and local law enforcement agencies to participate in 287(g) partnerships.

The press release announced these 287(g) partnerships with state and local law enforcement agencies are designed to improve public safety “by prioritizing criminal aliens who are a threat to local communities, ensuring consistent and uniform policies and providing a force multiplier for ICE’s immigration enforcement efforts across the country.”
However, that’s not what Section 287(g) of 8 U.S.C. 1357, passed in September 1996, actually says.

The law states 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.”

While it’s no secret to ICE that the Phoenix Metropolitan area in Maricopa County is considered the largest transportation hub for drug and human smuggling, it has, so far, declined to renew Maricopa County Sheriff Joe Arpaio’s MOA with the Maricopa County Sheriff’s Office, except as it pertains to its jails.

Department of Homeland Security (DHS) Secretary Janet Napolitano is quoted in the press release as saying, “Coordinating with our state and local partners is important for smart and effective enforcement of our immigration laws. These new agreements promote public safety by prioritizing the identification and removal of dangerous criminal aliens and ensure consistency and stronger federal oversight of state and local immigration law enforcement efforts across the nation. The rules set forth in these agreements will enhance our efforts to work together effectively with our local partners.”

Perhaps Napolitano should have said identification and removal of “known” dangerous criminal aliens, since Napolitano’s policy prioritizes for arrest and removal only violent repeat offenders.

So, as Napolitano and Morton tout the 287(g) program as a “force multiplier” to carry out “smart, effective immigration enforcement efforts aligned with ICE priorities,” specifically “the identification and removal of criminal aliens,” those living in Maricopa County must now spend more resources to prosecute, defend, provide translation services for and jail dangerous criminal aliens who might have been removed during a previous traffic stop.

ICE’s new MOA “clearly defines the objectives of the 287(g) program,” which has clearly watered down the authority to enforce our immigration laws.

In fact, U.S. Attorney General Eric Holder has threatened Arpaio with a federal investigation because of his success at removing criminal aliens under the 287(g) MOA during his crime suppression sweeps.

Arpaio who isn’t shy about saying, “I don’t take orders from anyone,” said he will continue doing his sweeps and if ICE refuses to take illegal aliens his deputies attempt to turn over, he will drive them to the border and hand them over to the border patrol.

The Government Accountability Office (GAO) was asked to audit the 287(g) program to review the extent to which ICE has designed controls to govern 287(g) program implementation, how program resources were being used and the activities, benefits and concerns reported by participating agencies.

GAO issued a “Report to Congressional Requesters” of its findings on Jan. 30, 2009. The report was titled: “Immigration Enforcement – Better Controls over Program Authorizing State and Local Enforcement of Federal Immigration Laws.”

While ICE officials claim their objective is to address serious crime, such as narcotics smuggling committed by removable aliens, the GAO reports states “ICE has not documented this objective in program materials” and, 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,” which ICE claims is “contrary to the objective of the program.”

The report also states that participating agencies are not prohibited from seeking ICE assistance for aliens arrested for minor offenses, although it added if all the participating agencies sought assistance to remove aliens for such minor offenses, ICE would not have enough space to detain all the aliens referred.

It said over half of the 29 agencies GAO contacted “reported concerns from community members that use of program authority would lead to racial profiling and intimidation by law enforcement officials.”

The GAO noted, “According to ICE senior program officials, the main objective of the 287(g) program is to enhance the safety and security of communities by addressing serious criminal activity such as violent crimes, human smuggling, gang/organized crime activity, sexual related offenses, narcotics smuggling and money laundering committed by removable aliens. However, program-related documents, including the MOA and program case files for the initial 29 participating agencies, the 287(g) brochure, training materials provided to state and local officers, and a ‘frequently asked questions’ document do not identify this as the objective of the 287(g) program.”

During its review, the GAO identified cases where participating agencies used their 287(g) authority to remove aliens arrested for minor offenses with four agencies saying they used their 287(g) authority “to process for removal those aliens officers stopped for minor violations such as speeding, carrying an open container of alcohol, and urinating in public,” none of which fall into the category of serious criminal activity that ICE officials described as the type of crime the 287(g) program is expected to pursue.

It also pointed out another potential consequence of not having documented program objectives is “misuse of authority” and, without mentioning names, stated, “The sheriff from a participating agency said that his understanding of the 287(g) authority was that 287(g)-trained officers could go to people’s homes and question individuals regarding their immigration status even if the individual is not suspected of criminal activity,” which GAO said “is illustrative of the lack of clarity regarding program objectives and the use of 287(g) authority by participating agencies.”