Report: U.S. Immigration Enforcement Program Leading to Deportation of Low Level Offenders

Jerry Gonzalez (left) and Randy Capps speaking at the Migration Policy Institute panel on the 287(g) program

Jerry Gonzalez (left) and Randy Capps speaking at the Migration Policy Institute panel on the 287(g) program. (Photo: Erwin De Leon)

WASHINGTON – A federal program that is supposed to target serious criminals often leads to the deportation of low level offenders, according to a report issued by the Migration Policy Institute (MPI) this week.

The 287(g) program lets local and state officers detain immigrants who are arrested for non-immigration offenses and transfer them to U.S. Immigration and Customs Enforcement (ICE).  According to the agency’s web site, “ICE has 287(g) agreements with 71 law enforcement agencies in 25 states.”

The authors of the report discovered that despite public statements by the Obama administration that the program is primarily targeted at identifying and removing people the federal government has identified as its top enforcement priorities – those who represent security threats, have committed serious crimes, or have accumulated multiple immigration violations – about half of 287(g) activity involves mainly undocumented immigrants arrested for misdemeanors or traffic offenses.

The report acknowledges that the 287(g) program has been a highly visible and controversial initiative. Nonetheless, the authors believe that if done correctly, it could work to remove serious criminals as originally intended. “The program amplifies ICE’s enforcement capacity and can be implemented in a targeted fashion with limited negative community impact,” they wrote.

This can be achieved, they say,  if ICE takes steps to ensure 287(g) functions consistently across jurisdictions and that only serious criminals are deported.

Based on data obtained from ICE and site visits to seven 287(g) jurisdictions in California, Colorado, Georgia, Maryland, Nevada and Virginia, the researchers determined that implementation of the program varies from jurisdiction to jurisdiction. At one end is a more “universal” approach where local officers use the program as a means to remove as many immigrants as possible regardless of offenses.  At the other end are law enforcement agents who only target individuals accused of the most serious offenses.

There are three different models of the 287(g) program. In the first model, officers conduct inquiries about an individual’s immigration status after they have been booked in jail, and then communicate with ICE. If an inmate’s immigration status is in question they can be transferred to ICE custody.

The second model allows officers in the field to ask individuals about their immigration status and issue ICE detainers. Officers have the power to issue arrest warrants for immigration violations and execute search warrants.

The third model is a hybrid. In Frederick County, Maryland, for example, officers in the field may initiate immigration processing but then transfer people suspected of being removable to 287(g) jail officers who complete the immigration screening and ICE paperwork requirements.

At a panel discussion on the report on Monday in Washington D.C., Randy Capps, MPI Senior Policy Analyst and co-author of the report said that state and local partners set priorities and determine how the 287(g) program will be enforced. ICE supervisors in turn, tend to support their partners’ priorities.

Jurisdictions that have a more universal approach are concentrated in the Southeast and have had a negative impact on immigrant communities, Capps said.  Latino populations fell after the 287(g) program was instituted in some areas, while the Latino population increased in neighboring counties. Prince William County, Virginia, for instance, witnessed a 23 percent decline while the neighboring county of Fairfax experienced an increase.

Capps added that the 287(g) program can result in pushing immigrants into the shadows of society, and that immigrants have expressed fear and mistrust of police and a reluctance to report crimes.

Jerry Gonzalez, Executive Director of the Georgia Association of Latino Elected Officials and a panelist at the event, related how Georgia has become “the second worst state in the country when it comes to creating a hostile environment for Latinos or immigrants, second only to Arizona,” in large part due to the implementation of 287(g). Gonzalez said that the state legislature passed anti-immigrant legislation in 2006 which “attempted to create an attrition through enforcement policy objective” and paved the way for participation in the program.

On the other hand, in Las Vegas, the program has been implemented in a targeted fashion, such that more than half of undocumented immigrants detained were arrested for serious, Level 1 crimes.  Captain LeRoy Kirkegard of the Las Vegas Metropolitan Police Department (LVMPD) stressed that “we did our homework” before signing an agreement with the federal government.  The LVMPD set a rigorous vetting process for officers assigned to the program, holds regular meetings with ICE officers to talk about challenges and concerns, as well as town halls with members of immigrant communities, and has a mandate for transparency. Kirkegard emphasized that the LVMPD does not arrest on immigration status and that they have established a priority system that aims to remove violent offenders only.

Even Gonzalez conceded that the program, “in its intent should be commended to ensure that there is a removal process for people that commit serious crimes in our country.”

Despite criticism of the program it looks like 287(g) is here to stay, without reform.  Capps mused at the end of the discussion, “given that it’s unlikely we’re going to have comprehensive immigration reform soon,” the 287(g) program and others like it “may become the de facto U.S. immigration policy with regard to the unauthorized population.”

You can follow Erwin on Twitter at @ErwindeLeon and read his blog Conversations.

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