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.
Immigration Disarray
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:
- It protects the homeland. Using ICE databases,
participants can identify serious criminals and arrest them. For
example, Alabama state troops were able to apprehend and identify a
Laotian citizen who was "a registered sex offender and a previously
deported Mexican citizen who was originally convicted of drug
trafficking." The 287(g) program also contributes to the security
of the homeland by helping to identify and apprehend immigration
law violators who pose a threat to U.S. security.
- It engages the state and local government. The
Constitution recognizes that the federal government has the duty to
"provide for the common defense" and create naturalization laws.
However, this in no way precludes the ability of state and local
governments to enforce federal laws or enact and enforce their own
laws. And the Tenth Amendment's concept of federalism leaves areas
unregulated by federal or state law to the people. As long as state
and local governments operate within the parameters of the
Constitution and federal law, their sovereign authority to look
after their citizens should not be questioned.
- It tackles illegal immigration. There are approximately
11 million illegal immigrants in the United States. These
individuals often fail to pay taxes and strain government services,
thereby placing a particularly large burden on state and local
governments, which usually end up footing the bill. The 287(g)
program helps to restore rule of law by taking action against those
who break the law and enter the U.S. illegally.
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.
Avoiding Micromanagement
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:
- Define the objective broadly. The GAO report rightly
recognizes the need to have an objective. However, the report's
objective should recognize the constitutional ability of the states
to enforce laws and be flexible enough to represent the program's
diverse participation. The best objective in this instance is the
most simple: to enforce the immigration laws of the United States.
Such enforcement should not be predicated on whether an individual
is committing a serious crime or a minor crime.
- Let law enforcement do its job. The GAO emphasizes that
ICE should do more to prescribe how 287(g) participants should use
their authority. But Americans trust law enforcement officers to do
their jobs enforcing U.S. criminal laws--trust that should be
granted to those enforcing U.S. immigration laws as well.
Micromanaging immigration enforcement officers' decision-making
process could dissuade them from participating. ICE should instead
look for ways to be supportive of law enforcement. One example
would be to allow states and cities to use homeland security grants
to pay for their 287(g) participation, including overtime costs for
state and local law enforcement agents assisting in immigration
enforcement investigations.
- Allocate more money. Officials cited a shortage of
resources as a reason behind the perceived lack of oversight. But
the report emphasizes that ICE has taken strides to align its
resources in a way that saves money. For example, it has reduced a
backlog of applications and addressed equipment delays and
problems. But given the tremendous benefits, Congress should
allocate more funding to these programs in order to address these
resources shortages and expand the program.
- Institute flexible performance measures. The GAO report
cited a lack of performance metrics as one of the 287(g) program's
ongoing problems. While it is important to have metrics to gauge
program success, doing so should not involve a one-size-fits-all
approach. One of the easiest ways to track progress is to better
define the data reporting process. GAO emphasized that the law
requires participants to track data, but ICE had not defined how to
collect and report the information. This data will help ICE to see
progress--progress that should be reported to Congress
annually.
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.