March 6, 2009 | WebMemo on Department of Homeland Security
On March 4, the House Homeland Security Committee held a hearing on a GAO report related to oversight of 287(g), a program granting Immigrations and Customs Enforcement (ICE) the ability to train state and local police to enforce federal immigration laws. GAO emphasized the need for such increased oversight to better define the role of ICE and state and local law enforcement.
Additional oversight, however, should be flexible and implemented in a way that respects the Constitution and existing laws; recognizes the professionalism, experience, and know-how of state and local law enforcement; and preserves this highly valuable program.
Prior to 287(g), ICE and state and local law enforcement struggled to enforce America's immigration laws. Not only was ICE overwhelmed, but state and local law enforcement felt nervous about engaging in enforcement activities based on the false perception that immigration enforcement was the federal government's duty. When a state or local law enforcement officer did apprehend an individual who could not demonstrate legal presence in the U.S., the officer would simply notify ICE and wait for them to come and get the individual. In practice, this meant many illegals went free and immigration laws were not enforced.
Section 287(g) helps address this problem by letting ICE enter into agreements with state and local law enforcement, granting them the ability to access ICE databases and "act in the stead of ICE agents by processing illegal aliens for removal." Participating officers go through a background check, attend an extensive training course, and pass mandatory certifications. The program is important for the following reasons:
The GAO Report
The GAO report emphasized that ICE had not done enough to explain the objectives and procedures for the 287(g) program. For instance, GAO was concerned that ICE officials had not communicated to participants the main objective of the 287(g) program. The report proposes that the program's objective should be to only address serious criminal activity and that officers who check the immigration status of those committing minor offenses are in violation of the spirit of the program. But GAO admits that such an objective is not required in the statute or the legislative history, and the law does not prevent 287(g) participants from inquiring into the immigration status of those apprehended for minor offenses.
The fallacy of the GAO's suggested objective could not be clearer than in the example of Mohammad Atta. Atta, one of the September 11 hijackers, was pulled over in a minor traffic stop two days before the 9/11 attacks. Under GAO's proposed objectives, because Atta's traffic offense was minor, it would not have warranted an inquiry into his immigration status. But had the officer inquired into his immigration status--even though it was only a minor offense--they would have found he was in the country illegally and could have prevented his participation in the attacks, or perhaps prevented 9/11 all together.
The report also cites fears that the program decreases reporting of crimes (by those fearing questions about their immigration status) and that an officer could engage in racial profiling. Undoubtedly, these programs need to be used in a way that safeguards the liberties and rights of U.S. citizens; however, the GAO offered no statistics to demonstrate that such potential abuse was a reality. In fact, 27 out of the 29 participants had instituted community outreach efforts to ease these concerns--from newspaper articles to TV spots and public meetings.
The worst outcome of this report would be for Congress and DHS to micromanage the 287(g) program to the point that it becomes worthless. Refining may be necessary on certain elements of the program, but large scale reorganization, massive oversight mechanisms, or cessation of the program are not necessary. Consequently, Congress and DHS should:
The 287(g) Program's Valuable Role
Congress should recognize the valuable role 287(g) plays in keeping America safe, combating illegal immigration, and engaging state and local governments--and ensure that it and ICE create an environment that encourages the growth and expansion of 287(g) and other similar programs.
Jena Baker McNeill is Policy Analyst for Homeland Security and Diem Nguyen is a Research Assistant 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.