On Friday, July 9, the Obama Administration announced plans to
revise the Memorandums of Agreement (MOAs) that are negotiated
under section 287(g) of the Immigration and Naturalization Act
(INA). The section 287(g) program is designed to allow state and
local law enforcement agencies to enforce federal immigration laws.
For participating cities and states, this program is a critical
tool for enforcing America's immigration laws, because it has
become a force multiplier for the under-resourced Immigration and
Customs Enforcement (ICE).
The MOA changes, however, undercut the motivation of
jurisdictions to participate in the program by forcing prosecutors
and law enforcement to prosecute illegal immigrants for the
underlying crime instead of simply processing them for removal.
Furthermore, they limit the ability of law enforcement officers to
check immigration status to that of only minor offenses.
Essentially, without saying so, they gut the force-multiplier
purpose of 287(g). These changes are driven entirely by political
special interests and are not representative of the positive
contribution section 287(g) makes toward enforcing immigration
laws. The Obama Administration should not move forward with these
changes, and it should instead promote the expansion of section
287(g) and similar programs.
Section 287(g)
In 1996, Congress created section 287(g) programs as an
amendment to the INA. For six years, ICE failed to use the powers
authorized in section 287(g). Starting in 2002, ICE started
allowing state and local law enforcement agencies to enter into
MOAs.
Under section 287(g), law enforcement entities entered into
agreements with ICE in order to "act in the stead of ICE agents by
processing illegal aliens for removal." Before officers could
participate, state and local law enforcement would sign MOAs with
ICE and undergo a five-week training course, background check, and
mandatory certifications.
Section 287(g) was a solid improvement in terms of enforcing
immigration laws. Before it was created, a state and local law
enforcement officer who apprehended an individual who could not
demonstrate legal presence in the U.S. would simply notify ICE and
wait for them to come and get the individual. In practice, this
meant most illegal immigrants went free and immigration laws were
not enforced.
In the seven years since ICE started using section 287(g),
roughly 66 state and local agencies have entered into MOAs
resulting in roughly 1,000 law enforcement officers being
"deputized" to enforce federal immigration law. Even more
importantly, over 120,000 individuals have been identified as
illegal immigrants under the program.
Changes to the MOAs
Section 287(g) has experienced great success. This program and
other ICE ACCESS programs help fight crime, getting gang leaders
and other serious criminals off of the streets and, if they are
illegal, removed from the United States.
But in the last year, groups such as the ACLU and other
pro-illegal immigration groups, as well as a U.S. Government
Accountability Office report, have claimed that section 287(g)
programs encourage racial profiling and have other undesirable
consequences. Their accusations, however, are not supported by real
data or proof that such actions were occurring. In reality,
opponents of section 287(g) have often been groups that are in
favor of less immigration enforcement.
On July 9, the Obama Administration caved to these demands. It
announced plans to make the MOAs "more uniform." The changes
announced go to the heart of the program and will disrupt any real
attempt to enforce the law, including:
- Forcing local law enforcement agencies to pursue all
criminal charges. The new MOAs would require law enforcement to
prosecute an offender found to be illegal for all initial offenses
for which he/she was taken into custody. In practice, and for good
reason, law enforcement would often start removal proceedings if
they found someone to be illegal instead of going through a costly
and lengthy criminal process that would end in the same result.
Requiring criminal prosecution will be a severe drain on the
resources of the local jurisdictions--and for no legitimate reason.
In accordance with America's long-standing commitment to
federalism, the Obama Administration should respect the decisions
of state and local governments and cease any attempt to micromanage
them.
- Limiting actions to minor offenses. The new MOAs would
attempt to limit the use of immigration checks to those arrested
for "major" offenses. But most illegal immigrants who commit crimes
commit misdemeanors, not felonies. Given that one of the 9/11
hijackers, Mohammad Atta, was pulled over in a traffic stop (a
minor offense) two days before the 9/11 attacks, there is a
significant benefit to checking the immigration status of all
individuals who are arrested. Had the officer inquired about
Atta, he may have found that Atta was in the country
illegally and may well have prevented his participation in the
attacks.
- Questioning the credibility of state and local law
enforcement. The announced changes insinuate that ICE should do
more to prescribe how section 287(g) participants should use their
authority. But Americans trust law enforcement officers to enforce
U.S. criminal laws--trust that should be granted to those enforcing
U.S. immigration laws as well. Making law enforcement feel like
their decisions are questioned will only dissuade them from
participating. In light of the new MOAs, a pattern seems to be
emerging that indicates the Obama Administration does not trust the
professionalism and legality of state and local law enforcement
agencies.
The Wrong Approach
American simply cannot afford to lose section 287(g). Although
not a panacea in itself to America's illegal immigration problem,
it is one of the most useful and efficient tools that can be used
to curtail illegal immigration. Any workable section 287(g) program
must 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 enforcements; and
preserves this highly valuable program. A better way forward would
include the following:
- Allocate more money. Officials have cited a shortage of
resources as a reason behind the perceived lack of oversight. And
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 resource shortages and expand the
program.
- Institute flexible performance measures. While it is
important to have metrics to gauge program success, doing so should
not involve a one-size-fits-all approach--and uniformity is not
necessary as long as the jurisdictions are acting within the
Constitution. One of the easiest ways to track progress is to
better define the data reporting process. This data will help ICE
to see progress of section 287(g)--progress that should be reported
to Congress annually.
It seems illogical to begin dismantling ICE on the same day 11
new jurisdictions are being added to the program. The only viable
outcome that will result from the changes to the MOAs is that few,
if any, state and local law enforcement agencies will participate
in the program. This is death by stealth and too-clever-by-half
inside the Beltway tradecraft. If the Obama Administration wants to
end the section 287(g) program, it should make its case--in an open
and transparent fashion--to Congress and the American taxpayers.
Otherwise, the Obama Administration should rethink its choice to
revise the MOAs and ensure that state and local law enforcement
retain the flexibility needed to make decisions without federal
mandates and second-guessing.
Jena
Baker McNeill is Policy Analyst for 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. Matt A. Mayer
is a Visiting Fellow at The Heritage Foundation, President and
Chief Executive Officer of Provisum Strategies LLC and an Adjunct
Professor at Ohio State University. He has served as Counselor to
the Deputy Secretary and Acting Executive Director for the Office
of Grants and Training in the U.S. Department of Homeland
Security.