National Immigration Forum

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New 287(g) Agreements Mean Nothing Without Strict Oversight

October 15, 2009 - Posted by Maurice Belanger

Arpaio demonstration


On July 10, the Department of Homeland Security announced that it had developed a new, standardized 287(g) Memorandum of Agreement (MOA), in which state and local police officers are trained to enforce immigration law.  The agency said that it would require all 66 law enforcement agencies that had signed an MOA to re-sign the new standardized agreement.  That process was supposed to have been completed by today. 


In theory, 287(g) agreements (named for the section of immigration law giving DHS the authority to enter into agreements with state and local enforcement agencies) are meant to identify and remove immigrants who represent a threat to public safety.  For example, the press release announcing the new agreement stated,


“The new MOA aligns 287(g) local operations with major ICE [Immigration and Customs Enforcement] enforcement priorities—specifically, the identification and removal of criminal aliens.”


That sounds good, and so does another claim made in the press release.


“To address concerns that individuals may be arrested for minor offenses as a guise to initiate removal proceedings, the new agreement explains that participating local law enforcement agencies are required to pursue all criminal charges that originally caused the offender to be taken into custody.”


In other words, police would not simply be able to arrest people on some pretense and immediately turn them over to ICE if it is determined that they were not in the country legally.  Police agencies would have to first prosecute the individual for whatever was the original infraction that led to the arrest—a process that would significantly raise the cost to agencies that may be using race as the basis for stopping people in the first place.


Unfortunately, the actual language of the new agreement appears to be more flexible.


“The AGENCY is expected to pursue to completion all criminal charges that caused the alien to be taken into custody and over which the AGENCY has jurisdiction.”


“ICE will assume custody of an alien 1) who has been convicted of a State, local or Federal offense only after being informed by the alien’s custodian that such alien has concluded service of any sentence of incarceration; 2) who has prior criminal convictions and when immigration detention is required by statute; and 3) when the ICE Detention and Removal Field Office Director or his designee decides on a case-by-case basis to assume custody of an alien who does not meet the above criteria.” (Emphasis added.)


The ACLU lists in this press release other weaknesses of the new MOA.


The new MOA will not end the controversy surrounding the 287(g) program.  The controversy has been generated because there have been police agencies and individuals within police agencies who have used powers provided by 287(g) to round up Latinos, get them into the jails, and check their immigration status. 


Example number one is the Maricopa County (Arizona) Sheriff’s office led by Sheriff Joe Arpaio.  After review of the Maricopa County 287(g) agreement, ICE took away the Sheriff Department’s authority to use 287(g) on the streets, limiting the agreement to apply only to persons in jail.  In a recent radio interview (as reported in the Phoenix New Times), Arpaio announced that his behavior—which is now the subject of a Justice Department investigation and hundreds of lawsuits—would not change.


“I don't need the feds to do my crime suppression to opt to arrest illegals. I can do it without the federal authority, and I'm going to continue to do it. It makes no difference. It helps us. Because I don't have to do all the paperwork for the feds, number one. And number two, I won't be under their umbrella, their guidance. So I will operate the same way, nothing is going to change."


For agencies like the Maricopa County Sherriff’s Office, 287(g) enables individual law enforcement officers who are inclined to act on their prejudices to do so.  When the head of such an agency publicly says he will continue violating the plain language of the agreement, and DHS goes ahead and signs a new agreement with that agency, it will only encourage other agencies so inclined to flaunt the rules. 


Even if there comes a time when the implementation of 287(g) programs are actually subjected to some oversight and bad actors are stripped of their powers, there are other programs fostering cooperation between ICE and local law enforcement that can lead to the same problems of racial profiling and undermining of trust in the police.  (These programs are listed and explained in this Forum backgrounder.)


For example, the Secure Communities program gives local enforcement agencies the ability to check the fingerprints of arrestees against FBI and DHS databases. If the fingerprints match a database record, ICE is automatically notified.  The problem is, even if the program is applied equally to all who are in the local jail, there may be large disparities among different groups in who is arrested in the first place.  As we noted in a previous post, the Warren Institute on Race, Ethnicity & Diversity recently released a report showing how in one town in Texas, discretionary arrests of Latinos increased dramatically once local police had 24-hour access to ICE.  (The Warren Institute studied the Criminal Alien Program, but the same sorts of problems arise in the 287(g) and Secure Communities programs.) 


This racial profiling has undermined public safety in communities where state and local authorities have decided to pursue such cooperation with immigration authorities. This problem was noted in a recent Police Foundation report, which concluded that the benefits of the 287(g) program do not outweigh the costs.


“[The majority of police executives participating in the report] were concerned that public safety would suffer because of destroyed trust and cooperation with immigrant communities. Participation in the 287(g) program, or at least the media coverage and fear generated by it, would undermine years of community-policing efforts, which in turn would compromise public safety. … [P]olice leaders were concerned about racial profiling and litigation costs: if state and local law enforcement officers engage in racial profiling, violate federal civil rights laws, or violate state and local law defining the scope of police authority, 287(g) agreements will not protect them from liability.”


Some of the agencies that currently have 287(g) agreements will not renew them for a variety of reasons.  The erosion of public trust is one reason the Framingham, Massachusetts, Police Department will not renew.  As Framingham Police Chief Steven Carl told the Boston Globe,


“It doesn’t benefit the Police Department to engage in deportation and immigration enforcement. … We’re done. I told them to come get the computers.’’


Photo from Flickr user Katerkate.

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