March 2, 2006

March 2, 2006 | Executive Memorandum on Department of Homeland Security

Section 287(g) Is the Right Answer for State and Local Immigration Enforcement



State and local law enforcement have an important role to play in federal immigration investigations. Section 287(g) of the Immigration and Nationality Act (INA) provides the legal authority for state and local enforcement to investigate, detain, and arrest aliens on civil and crimi­nal grounds. Any comprehensive border and immigration security legislation by Congress should include provisions for strengthen­ing and expanding programs authorized under §287(g).

Comprehensive Reform Needed. Any effective solution for reducing illegal border crossings and the unlawful population in the United States must address all three aspects of the problem: internal enforcement of immigration laws, international cooperation, and border security. Internal enforce­ment and international cooperation are essential to reducing and deterring the flood of illegal entrants into the United States, making the challenge of securing America's borders affordable and achiev­able. Nothing less than a comprehensive reform will do.

This reform must include restoring the integrity of U.S. immigration laws. The federal enforcement agencies lack the capacity to pursue aggressively all immigration violations that represent serious crim­inal and national security threats, much less effec­tively deter any who wish to defy U.S. immigration laws. The Department of Homeland Security (DHS) does not even have enough resources to deport criminal aliens released from prisons. Fur­thermore, effective domestic counterterrorism operations and interstate criminal investigations require close cooperation of fed­eral, state, and local investigators.

State and local governments need to provide more support, but it must be balanced with equally compelling priorities. Any participation should:

Respect federalism,

Safeguard the liberties and rights of U.S. persons,

Not impose huge unfunded mandates on state and local governments,

Contribute to reducing the unlawfully present population in the United States and deter illegal entry,

Help to combat transnational threats and vio­lent and organized criminal offenders, and

Strengthen community policing, facilitating greater cooperation between law enforcement and communities.

At the very least, in the normal course of crimi­nal investigations, state and local law enforcement should neither ignore immigration law nor hesitate to cooperate with federal immigration officials. In the case of counterterrorism and violent and orga­nized crime, more concerted effort is needed.

The Right Answer. A program that can meet all of these essential requirements already exists. Sec­tion 287(g) of the INA allows the DHS and state and local governments to enter into assistance compacts. Both sides must agree on the scope and intent of the program before it is implemented, which gives states and local communities the flexi­bility to shape the programs to meet their needs. State and local law officers governed by a §287(g) agreement must receive adequate training and operate under the direction of federal authorities. In return, they receive full federal authority to enforce immigration law, thereby shifting liability to the federal government and providing the offic­ers with additional immunity when enforcing fed­eral laws.

A §287(g) pilot program with the State of Flor­ida could serve as a national model. Florida spe­cifically limits its officers' civil immigration enforcement to situations in which they are part of a security or counterterrorism operation that is supervised by Immigration and Customs Enforce­ment (ICE) officers. The Florida program outlines the criteria for selecting the participating officers, including U.S. citizenship, three years of law enforcement experience, and at least an associate's degree. Selected officers receive intensive training and must pass a final competency exam. The pro­gram also establishes ways for people to file griev­ances against the program and its officers. The Florida initiative demonstrates how to craft a pro­gram that meets federal as well as state and local needs.

Building a National Program. As part of a com­prehensive border and immigration reform pack­age, Congress should build on the §287(g) pilot program by requiring the DHS to:

Appoint a national spokesperson (a respected and prominent former state or local govern­ment or law enforcement official) to promote the program;

Draft a strategy for implementing §287(g) nationwide;

Create a national center for lessons learned and best practices; and

Report to Congress each year on the progress of the program.

Congress should also:

Allow states and cities to use homeland secu­rity grants to pay for their participation, includ­ing overtime costs for state and local law enforcement agents assisting in federal immi­gration enforcement investigations;

Provide ICE with sufficient funds to train and supervise up to 5,000 state and local law enforcement officers nationwide over the next two years; and

Require that any participating state or local government must have a stakeholder engage­ment plan that briefs local communities on the scope and intent of the program and solicits community engagement and involvement in community policing.

Conclusion. Section 287(g) provides protection to states and their law officers while requiring that well-trained officers conduct immigration investiga­tions. It also allows states and local governments to tailor programs to meet their unique circumstances and requirements. Any comprehensive border and immigration security legislation should strengthen and expand programs authorized under §287(g).

James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Pol­icy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation. Melanie Youell contributed writ­ing and research to this article.

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow