287(g) & Secured Communities Effective Programs or Discriminatory Practices

287(g) Delegation of Immigration Enforcement to Local Law Enforcement Agencies

History of 287(g) 1996 – IIRIRA created the program Not used because of fears that the local law enforcement would discriminate against immigrants 2001 – Local law enforcement show interest in participating in 287(g) programs Currently 73 local law enforcement agencies have programs, with 1,000 trained officers. 30 more agencies are on a waiting list. Over 79,000 people have been identified as undocumented – Human rights organizations lobbied the Obama administration to end the program

287(g)’s Goals To increase ICE’s enforcement capabilities To identify and remove dangerous immigrants Both goals are accomplished by using local law enforcement to investigate, arrest, detain and transport criminal immigrants.

3 Types of 287(g) Programs 1. Correctional 31 of 67 agencies, additional 12 use a joint correctional/task force program 2. Highway Patrol Only 3 agencies 3. Task Force/Investigative 24 of 67 agencies, additional 12 use a joint correctional/task force program

Correctional Programs Programs in county jails that identify immigrants with criminal convictions or arrests Example Maricopa County, AZ Harris County, TZ Los Angeles County, CA

Highway Patrol Programs Programs that stop people for traffic offenses and/or suspected smuggling Jurisdictions Colorado Department of Safety Alabama State Police Georgia Department of Safety

Task Force/Investigative Programs Program of officers specially trained in immigration law that work with other officers to investigate crimes Anti-Terrorist Units Examples Florida Department of Law Enforcement Floating Alien Criminal Units Examples Beaufort County, SC Collier County, FL Prince William County, VA

Proponent’s Perspective Increasing ICE’s ability to identify and remove dangerous immigrants Programs driven by the needs of local law enforcement

Criticisms ICE has failed to define program’s objectives or the extent of the officers’ authority, or supervise local agencies. Local law enforcement agencies use 287(g) to discriminate against immigrant populations, especially Latino communities. Example – racial profiling in Maricopa County, AZ Programs target immigrants with minor convictions. Immigrants experience unwarranted and prolonged detention. Immigrant communities are afraid to report crimes because they see local law enforcement as part of ICE.

Secured Communities Another Collaboration between ICE and Local Law Enforcement

Secured Communities’ Purpose 3 Purposes 1. Identify criminal aliens through modernized information sharing 2. Prioritize enforcement actions to ensure apprehension and removal of dangerous aliens 3. Transform criminal alien enforcement processes and systems to achieve lasting results

Identification Upon arrest and booking, local law enforcement enter an immigrant’s fingerprints into the FBI and ICE databases to learn about the person’s criminal and immigration history. If the arrested immigrant has a record of an immigration violation, ICE and local law enforcement are immediately notified and can issue a detainer for the person. A detainer is an ICE request to be notified by the arresting agency before the arrested individual is released.

Prioritization of Crimes 3 Levels of Crimes Level 1 – individuals with convictions for major drug offenses, murder, manslaughter, rape, robbery, and kidnapping Level 2 – individuals convicted of minor drug offenses, burglary, fraud, money laundering, and traffic offenses Level 3 – individuals convicted of other offenses, including resisting an officer

Prioritization Continued “ICE will focus its efforts on the most dangerous criminal aliens currently charged with, or previously convicted of, the most serious criminal offenses. ICE will give priority to those offenses including, crimes involving national security, homicide, kidnapping, assault, robbery, sex offenses, and narcotics violations carrying sentences of more than one years.” Secured Communities Fact Sheet, Sept. 1, 2009

Transformation Unlike 287(g), Secured Communities does not require a MOA between ICE and local law enforcement. No local law enforcement officers are deputized ICE has technological presence in local prisons and jails, no physical presence

Criticisms Human rights groups argue that Secured Communities do not fix the problems of 287(g); they compound them. Unnecessary or prolonged detention Racial profiling and pretexual arrests No complaint mechanism No oversight or transparency No data

Unnecessary or Prolonged Detention Program is focused on identifying immigrants at the arrest stage not the conviction stage. Immigrants may be detained longer as a result. Once detainer is imposed, an individual cannot be released on bail or recognizance, or because completion of sentence or dismissal of charges. It is harder for an individual to contest the criminal charges. Although detainers are just requests, jails treat them a requirement and will not release the individual. Undocumented immigrant will remain in jail until ICE takes action. Detainer is supposed to be for 48 hours, but ICE violate the time limit and the individual stays in prolonged detention.

Racial Profiling & Pretexual Arrests 2 Concerns 1. Racial Profiling - Police officers may have an incentive or ability to arrest people based on race and ethnicity 2. Pretextual Arrests - Police officers may arrest people with suspected immigration violations While little data is available on the implementation of Secured Communities, the Warren Institute’s September 2009 report of ICE’s Criminal Alien Program discovered a dramatic increase of discretionary arrests of Latinos for petty offenses.

No Complaint Mechanism ICE does not provide for a complaint or redress procedure for individuals erroneously arrested, identified by DHS databases, or detained by DHS.

No Oversight or Transparency Although Secured Communities is new, the program may suffer the lack of ICE oversight of 287(g) programs. No regulations on the implementation of Secured Communities exist. DHS fact sheets and press releases do not mention any requirements for data collection, audits, or oversight.

No Accurate Data Because of no requirements for data collection, no one knows about the implementation or effectiveness of Secured Communities. Local jurisdictions can participate in multiple programs (287(g), CAP, and Secured Communities). When a detainer is issued for an arrested immigrant, it is hard to determine which program produced the detainer. To determine the effectiveness of and any possible discrimination from, the following are needed: o Statistics on the crimes for which immigrants are arrested o Disposition of the underlying criminal case o Nationality and ethnicity of the arrested immigrants are needed.

The Chilling Effect of 287(g) & Secured Communities: Fact or Myth Local law enforcement and the Center for Immigration Studies (CIS) reports that Latino communities statistically report crimes at the same levels as non-Latino communities. However, local law enforcement and CIS have not surveyed to members of Latino and other immigrant communities to see if Secured Communities and 287(g) programs produce a chilling effect on immigrants. Immigrants may not trust local law enforcement because they see local law enforcement as ICE Conclusion – Without a culturally sensitive survey of members of immigrant communities on how they perceive both types of programs, proponents and opponents will not know if a chilling effect exists.

For More Information January 2009 GAO Report American Immigration Council - Immigration Policy Center American Immigrant Lawyer’s Association ACLU Human Rights Watch National Immigration Law Center Warren Institute, UC Berkeley School of Law

Lisa Johnson-Firth, Esq. Principal Immigration & Human Rights Law Firm, PLLC 9119 Church Street Manassas VA