Signs of Change in Immigration Enforcement Policies Emerging From DHS
By Muzaffar Chishti and Claire Bergeron
Migration Policy Institute
March 16, 2009
US Immigration and Customs Enforcement (ICE) will issue new rules governing the sometimes controversial Section 287(g) agreements between the federal government and state and local law enforcement agencies, following recent criticism of the program from the Government Accountability Office (GAO).
The new guidelines, which will be issued within the next few months, are expected to direct state and local law enforcement agencies participating in the program to primarily target immigrants with criminal convictions rather than ordinary immigration-status violators.
Advocates are interpreting the development as a sign that the Obama administration is open to reviewing some of the immigration enforcement initiatives implemented under the Bush administration.
Congress created the 287(g) program in 1996, through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The program allows the federal government to enter into written agreements with state and local law enforcement agencies under which local officers are deputized to enforce certain aspects of federal immigration law. To date, the federal government has signed 67 agreements.
Law enforcement officers from participating agencies receive training from ICE and are authorized to inquire into the immigration status of individuals they come into contact with during the normal course of law enforcement operations.
Since 287(g) agreements take different forms, law enforcement agencies differ in the ways in which they utilize the program. Some law enforcement agencies participating in the program use their 287(g) authority to obtain immigration-status information only about individuals convicted of felonies. Others have used the program to inquire into the immigration status of individuals arrested for minor crimes or for violations such as traffic offenses.
Although the law authorizing section 287(g) partnerships was enacted in 1996, the first such partnership was not entered into until 2002, with the state of Florida. Since then, the program has grown significantly, and nearly 1,000 state and local law enforcement officers were participating as of year's end.
Between January 2006 and November 2008, the 287(g) partnerships were responsible for the arrest of 79,000 suspected immigration-status violators, most of whom were placed in deportation proceedings.
In congressional testimony before the House Homeland Security Committee and in a report issued earlier this month, GAO criticized several aspects of the 287(g) program.
Specifically, GAO concluded the program lacks a coherent set of objectives and suffers from inadequate ICE supervision, guidance, and detailed record keeping. While some congressional Democrats have criticized aspects of the program, Republican lawmakers at the hearing strongly defended the 287(g) agreements and called for their expanded use.
Though media reports on 287(g) have generally focused on the use of the program in Maricopa County, Arizona, where Sheriff Joe Arpaio has been accused of overly aggressive immigration enforcement and his department now faces a Justice Department investigation, several recent reports have criticized the program more broadly.
In addition, major police organizations, including the International Association of Chiefs of Police (IACP) and the Major Cities Chiefs (MCC), have also expressed caution over the implementation of 287(g). They say the program can divert limited resources away from public safety concerns and undermine the relationship between the police and members of the immigrant community. Because of those concerns, several localities that explored the possibility of entering into a 287(g) partnership ultimately decided against it.
Proponents of the 287(g) agreements praise the program as a valuable force multiplier for federal immigration enforcement agents, and say it deters crime and has led to the removal of repeat offenders from local communities.
Responding to criticism of the program, ICE officials have announced the agency soon will issue a new performance plan that will lay out specific program objectives and outline how and under what circumstances state and local law enforcement agencies will be permitted to use 287(g) authority.
ICE concurred with all of the recommendations in GAO's recent report, including the suggestion that the memoranda of agreement between the federal government and its state and local partners make explicit the extent of ICE supervision of the section 287(g) programs and specify what types of data state and local law enforcement agencies should be reporting.
ICE's decision to review the section 287(g) program comes amid a broader Department of Homeland Security (DHS) review of other enforcement initiatives. For example, Homeland Security Secretary Janet Napolitano ordered a review of a recent ICE raid in Bellingham, Washington, which was the first such worksite enforcement operation since the Obama administration took office. During his campaign, President Barack Obama criticized worksite enforcement raids, which he said were generally "ineffective."
ICE officials have also revised the policies governing the National Fugitive Operations Program, directing fugitive operations teams to prioritize finding and detaining unauthorized immigrants with outstanding deportation orders and criminal backgrounds.
The program came under media and congressional scrutiny after reports found that beginning in 2006, each fugitive operations team was directed to arrest 1,000 unauthorized immigrants each year without considering whether those arrested had criminal convictions or prior deportation orders. According to media reports, ICE altered its guidelines in February so as to no longer require teams to meet an annual quota of 1,000 arrests.
Stimulus Plan Adds Restrictions to H-1B Visa Program But Leaves out E-Verify
Concerns over H-1B foreign workers and the use of the federal E-Verify database figured prominently in the debate over the new administration's $787 billion economic stimulus package.
The bill President Obama signed into law on February 17, 2009, requires financial institutions receiving federal bailout money to prioritize the hiring of US workers over foreign workers who come to the United States on H-1B visas. The law states that businesses receiving money under the stimulus package's Troubled Assets Relief Program (TARP) will be subject to the rules that currently govern H-1B-dependent employers.
Businesses deemed H-1B dependent, a definition that encompasses businesses where more than 15 percent of employees are H-1B visa holders, must first certify that they actively recruited US workers before being able to petition for additional H-1B visas.
Bank of America recently became the first US bank to withdraw job offers made to foreign MBA students graduating from US business schools this summer, citing the H-1B restrictions in the bailout package as the reason.
The H-1B visa category allows US employers to sponsor high-skilled foreign-born workers for up to six years. While employers in recent years have lobbied Congress for an increase in the annual allotment of H-1B visas, the program has come under some criticism amid the current economic downturn.
Critics argue that bringing in H-1B workers displaces US workers, a stance that proponents say ignores unmet labor-market needs and possible job creation resulting from bringing in such workers.
Under current law, 58,200 H-1B visas are allocated each fiscal year, with an additional 20,000 visas reserved for applicants who have received advanced degrees at US universities.
In recent years, the demand for H-1B visas has far exceeded the annual quota. In April 2008, US Citizenship and Immigration Services (USCIS) received 163,000 H-1B applications.
With the US economy in a downward spiral, some experts believe employers will file fewer H-1B petitions when the April 1 filing date arrives although still more than enough to meet the annual quota.
While the H-1B provision made it into the final version of the economic stimulus bill, another immigration measure, regarding the use of the federal E-Verify electronic employment verification database, was kept out.
The provision would have required employers seeking stimulus money to enroll in the E-Verify program, which allows employers to check whether new employees are authorized to work in the United States by entering employees' biographical information into an online database.
The program, which had been scheduled to expire on March 6, received a short-term reauthorization from Congress as part of a $410 billion appropriations bill that President Obama signed March 11.
The legislation only reauthorizes E-Verify through September 30, however — well short of the five-year reauthorization that had been included in the economic stimulus bill — assuring that the debate over E-Verify will most certainly resume in the fall.
Policy Beat in Brief
Military Recruitment of Temporary Visa Holders.
A new pilot program launched by the US Department of Defense will allow temporary visa holders in the United States to join the US armed forces for the first time since the Vietnam War. Currently, only US citizens and lawful permanent residents are eligible to join the military. Under the program, certain temporary visa holders with medical expertise or needed language skills will be eligible to join the US military so long as they have lived in the United States for a minimum of two years and have no criminal record. Proponents say the pilot program will help the military fill shortages among medical professionals and language experts. Temporary visa holders who join the military will immediately qualify to apply for US citizenship as a result of a 2002 executive order issued by President George W. Bush.
Supreme Court Reversal of Negusie Decision.
The US Supreme Court ruled that a former Eritrean prison guard who was forced to persecute others is not automatically barred from receiving asylum because of the Immigration and Nationality Act's (INA) "persecutor bar." INA states that an immigrant is not eligible to obtain asylum if he or she "participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." Lawyers for Daniel Negusie argued he should not have been denied asylum as he was forced to persecute others under duress. The Board of Immigration Appeals (BIA) and the US Court of Appeals for the 5th Circuit ruled against Negusie, finding irrelevant the fact that he was forced into committing acts of persecution. In reversing the decision, the Supreme Court ruled that INA was ambiguous on the issue and asked BIA to reconsider the case.
Surge in Mexican Asylum Seekers.
The number of people seeking asylum from Mexico has increased substantially in recent years, according to USCIS officials. A total of 2,231 Mexican nationals applied for asylum in the United States in fiscal year 2008, up more than 60 percent from the 1,366 Mexican applicants who sought asylum in 2006. To be granted asylum, applicants must show they were persecuted or have a well-founded fear of future persecution. Federal immigration officials attribute the recent surge in asylum applications to Mexico's increased drug violence and criminal activity. Media reports also detail the increase in Mexican police officers and law enforcement officials seeking asylum in the United States, based on their fear of being targeted by gang members.
Haitians and Temporary Protected Status.
Immigrant advocates and several members of Congress are lobbying Homeland Security Secretary Janet Napolitano to grant temporary protected status (TPS) to an estimated 30,000 unauthorized Haitian immigrants scheduled to be deported to storm-ravaged Haiti. The US government may designate nationals of certain countries for protection from removal because of armed conflict, environmental disasters, or other extenuating circumstances in their native countries. Haitian community advocates have argued that Haitians in the United States are eligible for TPS because recent hurricanes and political turmoil in Haiti make it unsafe for unauthorized immigrants to be returned to Haiti. Several South Florida members of Congress pressed the Haitians' case during a March 10 meeting with Napolitano, with DHS saying no decisions had been made on the TPS request.
Uniting American Families Act.
A new bill would allow US citizens and lawful permanent residents to file immigration petitions for same-sex "permanent partners." Under the Immigration and Nationality Act (INA), a US citizen or permanent resident can petition for his or her spouse to receive a green card. The bill, titled the Uniting American Families Act and introduced by Representative Jerrold Nadler (D-NY), would extend immigration benefits to a citizen or resident's permanent partner, defined as an adult who is in a committed, intimate relationship with another adult, is financially interdependent with the other person, is not married or in a permanent partnership with anyone else, and is unable to contract with his or her partner in a marriage recognized under INA. Senator Patrick Leahy (D-VT) has introduced a companion bill in the Senate.
State and Local Policy Beat in Brief
Texas Licensing Law.
Texas Attorney General Greg Abbott informed Texas lawmakers that if the state of Texas were to adopt a law modeled after the Legal Arizona Workers Act, the law would probably withstand constitutional challenges. The Arizona law, which took effect in January 2008, requires all employers in Arizona to enroll in the federal E-Verify program and to punish businesses found to have "knowingly" hired unauthorized workers by revoking their business licenses. Supporters of a Texas bill modeled after the Legal Arizona Workers Act say such a law would penalize unscrupulous employers who violate federal immigration law. Critics have said the law would force employers to relocate outside of the state, cause workers to leave Texas, and impact the local economy.
New Jersey Supreme Court Immigration Case.
The New Jersey Supreme Court will hear a case on whether a judge can set a significantly higher bail for an unauthorized immigrant subject to an ICE detainer. In January 2009, a trial judge raised Manuel Fajardo-Santos's original $75,000 bail to $300,000 after a local prosecutor expressed concerns that the federal government could deport Fajardo-Santos before the state had the opportunity to bring him to trial since ICE already had a "detainer" on him. The New Jersey State Appellate Division overturned the bail increase, ruling that an ICE detainer alone was not sufficient justification for such a dramatic bail increase. The New Jersey Supreme Court will now reexamine the appellate court's decision.
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