New and Revised ICE Agreements with State and Local Law Enforcement Met with Criticism
By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
August 17, 2009
The Department of Homeland Security is expanding the controversial 287(g) immigration enforcement program and has issued a revised Memorandum of Agreement (MOA) for all participating state and local law enforcement agencies intended to ensure they uniformly implement the program.
Eleven new jurisdictions will be added to program, which allows state and local law enforcement agencies to enforce certain aspects of immigration law, bringing the total number of participants to 77.
Law enforcement agencies already participating in the program have 90 days from July 10 to sign the revised agreement or terminate their participation. Many participating agencies have already indicated they will sign it.
The revised agreement takes into account recommendations from a January 2009 Government Accountability Office (GAO) report, and asks program participants to prioritize resources to target noncitizens who have committed serious crimes like murder, rape, robbery, or kidnapping.
The agreement also directs participants to complete the prosecution of any underlying criminal charges brought against the aliens screened through the program.
In addition, the agreement states that participants are subject to ICE supervision while performing immigration-enforcement duties. And participants must meet yearly with ICE to review their immigration enforcement actions and confirm that they comply with the agreement's terms.
The Obama administration's decision to expand the 287(g) program has drawn sharp criticism from both immigrant advocates, who expected the administration to terminate the program, and proponents of increased immigration enforcement.
Advocates argue the existing program has led to racial profiling and undermined cooperation between the police and immigrants communities. They have highlighted reports of abuse by Sheriff Joe Arpaio of Maricopa County, Arizona, who they believe has used 287(g) authority to conduct mass roundups of suspected immigration violators.
Immigrant advocates have also said the new agreement does not address many of the troubling aspects of the 287(g) program. For example, while the new MOA states that participating agencies should prioritize criminal aliens, it does not provide any mechanism for ensuring that they do so.
Some immigrant advocate groups staged public demonstrations against Homeland Security Secretary Janet Napolitano — the first such protests since President Barack Obama took office.
Proponents of tougher immigration enforcement have also criticized ICE, arguing that the new agreement will create a "de facto amnesty" by limiting its reach to unauthorized immigrants who have committed crimes.
Despite this criticism, the Obama administration's decision to expand the 287(g) program indicates that it supports it, especially as the program applies to criminal aliens. ICE Assistant Secretary John Morton said in a statement, "The 287(g) program is an essential component of DHS's comprehensive immigration enforcement strategy."
Congress authorized the 287(g) program in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). However, the first MOA was not signed until 2002, when Florida requested an agreement to train local police officers to combat terrorism threats after September 11, 2001. By the end of 2006, ICE had only eight participants in the 287(g) program.
ICE signed 27 agreements with state and local law enforcement agencies in 2007, and an additional 28 in 2008. The program's mission also became broader as local law enforcement agencies sought participation as a tool to control illegal immigration in their jurisdictions.
At the same time, Congress dramatically increased the program's budget from $5 million in fiscal year (FY) 2006 to $54 million in FY 2009.
In September 2007, Congress asked GAO to review the 287(g) program. The agency's January 2009 report criticized the program for lacking documented program objectives. Specifically, GAO found that 287(g) failed to explain the purpose of the partnerships, adequately describe how ICE would supervise the program, and indicate the kind of data that local law enforcement agencies were expected to collect.
Obama Administration to Restructure Immigration Detention
Immigration and Customs Enforcement (ICE) plans to overhaul the nation's immigration detention system and increase federal oversight of private detention centers.
Currently, ICE detains roughly 31,000 immigrants daily in a system of 350 prisons that includes ICE detention centers, private prisons run by government contractors, and state and local jails.
As part of the proposed overhaul, ICE is creating an Office of Detention Policy and Planning that will be tasked with redesigning a civil detention system that treats immigration violators differently from criminal convicts. ICE is also appointing 23 government "detention managers" who will ensure that the largest detention centers comply with ICE's detention standards.
ICE also will no longer detain families at the privately run T. Don Hutto Family Residential Facility in Taylor, Texas. The American Civil Liberties Union (ACLU) had filed a lawsuit on behalf of children detained at Hutto, arguing that their rights were violated.
Immigrant advocates lauded the Hutto decision, calling it a significant departure from the detention policies of the Bush administration, which portrayed Hutto as a model for detaining families. Former Hutto detainees will be moved to other detention centers or enrolled in alternative detention programs, such as community homes or electronic monitoring programs.
Critics of ICE's plans have argued that reworking the system will lead to "catch-and-release," a term used to describe the government's failure to ensure that formerly detained immigrants attend their court dates after being released from government custody.
Immigrant advocates, while generally positive about the news, have said that further reforms, such as meaningful alternatives to detention and legally enforceable detention standards, are needed.
ICE's announcement came soon after the government declined to issue regulations for immigration detention in response to a lawsuit brought by two immigrant advocacy organizations on behalf of formerly detained immigrants. The suit claims that the current set of detention standards, which DHS last revised in September 2008, do not protect against mistreatment and violations of due process because they are merely "guidelines" and are not legally enforceable.
In July, a report issued by the National Immigration Law Center, the ACLU of Southern California, and law firm Holland & Knight found that immigrant detainees have been frequently denied required recreation time, access to telephones and lists of low-cost attorneys, and adequate medical care. The report was based on 18,000 pages of ICE documents on detention conditions.
In a separate development, Senators Robert Menendez (D-NJ), Edward Kennedy (D-MA), and Kirsten Gillibrand (D-NY) have introduced two bills aimed at reforming the immigration detention system and protecting the basic rights of detainees.
The Strong Standards Act would create legally enforceable detention regulations and require ICE to provide adequate medical treatment, access to telephones, and legal assistance materials.
The Protect Citizens and Residents from Unlawful Raids and Detention Act would require ICE to inform individuals being questioned about their immigration status of their right to representation, and would prohibit ICE from apprehending immigrants at day cares, schools, and hospitals.
Policy Beat in Brief
New Head of USCIS. Alejandro Mayorkas was sworn in as Director of US Citizenship and Immigration Services (USCIS) on August 12 after the Senate confirmed him on August 7. Prior to his appointment, Mayorkas, an immigrant from Cuba, was a partner in the law firm of O'Melveny and Myers. He also served as the US Attorney for the Central District of California. USCIS, part of DHS, is responsible for processing applications for immigrant and nonimmigrant status; adjudicating refugee, asylee, and naturalization petitions; and granting work authorization.
Immigration from Mexico. Mexican immigration to the United States has decreased dramatically in the past year, according to a new Pew Hispanic Center (PHC) report. Between March 2008 and March 2009, an estimated 175,000 Mexican immigrants entered the United States — the lowest number in the past 10 years. At the same time, PHC found no evidence of large numbers of Mexican immigrants leaving the United States. PHC estimated that 443,000 Mexican immigrants left the United States between February 2008 and February 2009, roughly the same number of immigrants who left the previous year.
E-Verify Bill. Representative Heath Shuler (D-NC) reintroduced the Secure America through Verification and Enforcement (SAVE) Act, which would require all US employers to enroll in the federal E-Verify employment verification system within the next four years. E-Verify allows employers to check whether new employees are authorized to work by checking their biographic information against government databases. Currently, approximately 137,000 employers use the program. Critics of E-Verify say that errors in the government's databases lead to the wrongful termination of legal workers.
TPS for Somalis. US Citizenship and Immigration Services (USCIS) will extend Temporary Protected Status (TPS) for nationals of Somalia by an additional 18 months, until March 17, 2011. The government first granted TPS to Somali nationals in 1991 and redesignated the country for TPS in 2001. DHS grants TPS to foreign nationals from designated countries who are unable to return home because of extraordinary and temporary conditions, such as an armed conflict or environmental disaster. TPS recipients receive permission to work in the United States and protection against deportation.
Asylum for Victims of Domestic Violence. In its response to a case pending before the Board of Immigration Appeals, the Obama administration noted in a filing that it may be possible for a woman who fears return to her home country because of domestic violence to qualify for asylum. The opinion marks a direct reversal of the Bush administration's position, which held that victims of domestic violence were not eligible for asylum. To win asylum in the United States, an applicant must show past persecution or a well-founded fear of future persecution on the basis of race, ethnicity, religion, political opinion, or membership in a particular social group.
Hospital in Deported Immigrant Case. A Florida jury found that a local hospital did not act in an unreasonable or unwarranted manner when it privately repatriated an unauthorized immigrant back to Guatemala in 2003. Luis Jimenez spent three years at Martin Memorial Hospital in Stuart, Florida, after he suffered severe brain damage in a car accident. Because Jimenez lacked health insurance, Martin Memorial paid an estimated $1.5 million for Jimenez's care. The case gained national attention when the New York Times published a report on hospital repatriations in August 2008.
Ruling for Denied Visa Applicant. The US Court of Appeals for the Second Circuit has ruled that a federal court can review a consular officer's decision to deny a visitor visa to Tariq Ramadan, a Swiss Muslim scholar. Ramadan's visa was denied because of his financial contribution to a charity associated with Hamas, which the US government has designated a terrorist organization. The court ruled that Ramadan should have been afforded an opportunity to present evidence that he was unaware that a terrorist organization received his charitable contribution. The academic institution that brought the lawsuit has claimed that its first amendment rights to hear Ramadan's views were violated when he was denied his visa.
E-Passports for Visa Waiver Countries. Certain foreign nationals presenting emergency passports for admission to the United States will not be allowed into the country if they do not possess electronic "E-passports" that contain integrated computer chips and digital photos. The new rule, which went into effect July 1, affects nationals of the 35 countries participating in the Visa Waiver Program (VWP). Under the 2002 Enhanced Border Security Visa Entry Reform Act, a visitor from a VWP country must present an E-passport to gain admission if his or her passport was issued after October 26, 2006. Prior to July 2009, however, the Department of State exempted visitors from VWP countries who held emergency passports.
State and Local Policy Beat in Brief
Health Care for Immigrants in Massachusetts. The Massachusetts state legislature voted to restore $40 million in funding for legal immigrants who sign up for state subsidized health insurance. Immigrant advocates lobbied for restoration of the program after the state legislature voted to cut funding in response to a growing state deficit. In 2006, Massachusetts passed a law requiring all residents to sign up for health insurance and offering state subsidized insurance to low-income residents.
In-state Tuition in Texas. Texas Attorney General Greg Abbott has issued an opinion stating that it is unclear whether a Texas law that allows some unauthorized immigrants to pay in-state tuition at state colleges violates federal law. Texas is one of 10 states that offers in-state tuition to certain unauthorized immigrants. In September 2008, a California appeals court ruled that a similar law in California violated federal law. The California Supreme Court has agreed to hear an appeal in the case.
New Jersey Supreme Court on Legal Immigrants and Deportation. The New Jersey Supreme Court overturned the conviction of a lawful permanent resident who argued he was never informed of the immigration consequences of pleading guilty to a state aggravated felony charge. Under US immigration law, legal immigrants who plead guilty to aggravated felonies are barred from almost all possible remedies against deportation. Aggravated felonies include murder, rape, and sexual abuse of a minor, as well as some drug crimes and certain crimes related to firearm possession. The decision requires New Jersey to better inform immigrants of the consequences of pleading guilty to an aggravated felony.
Albany, NY, Law on Police and Immigrants. Albany's city council approved a measure that instructs the city police and public safety workers not to question individuals about their immigration status if they pose no threat to the community. Proponents of the measure said it would foster a better relationship between the police and immigrant communities. Critics argued the measure would turn Albany into a "sanctuary city" where immigration laws are not enforced.