Mixed results from local crackdowns

APRIL 29, 2010

By JT LONG

An uneasy partnership that includes local police and sheriff officers in enforcement of immigration laws, may not be working as planned, according to a new report from the Department of Homeland Security Office of Inspector General. According to the March 2010 report, Immigration and Customs Enforcement did not institute controls to promote effective program operations or address related risks, leading to concerns about civil rights and civil liberties.

Known as 287(g)s for the section of the Immigration and Nationality Act, Immigrations and Customs Enforcement (ICE) pledged to train and supervise state and local law enforcement agencies if they would help identify, detain and process at least some of the estimated 12 million illegal immigrants in the country – 3 million of whom may call California home.

The Legislature endowed the Secretary of Homeland Security with the power to delegate immigration enforcement to local government in 1996 through the Illegal Immigration Reform and Immigrant Responsibility Act. No agreements were enacted, however, until after the September 11, 2001 terrorist attacks when the Florida Dept. of Law Enforcement signed up a task force to be cross-deputized. By 2009, 66 agencies from 23 states had agreements in place covering 833 active officers.

Enforcement in Action

The local immigration enforcement agreements come in two forms. The Jail Enforcement Model requires officers to identify “removable aliens” in detention facilities charged with an offence and process them for ICE action. This is the type of program San Bernardino Sheriff’s Department put in place in 2006. San Bernardino is one of four agencies in California with current agreements in place. Los Angeles, Orange and Riverside also operate under the Jail Enforcement Model. “It has worked very well,” said San Bernardino Sheriff’s Department Public Information Officer Jodi Miller. She had read the shortcomings mentioned in the report, but said the county’s experience has been very positive.

The nine ICE-trained officers in the Southern California county of over 2 million increase the efficiency of immigration checks during criminal bookings. When a red flag such as an out-of-country birth is listed on an intake form, officers can immediately investigate for possible detention and eventual transfer to ICE for deportation.

According to ICE records, in 2008 alone, San Bernardino County interviewed 3,720 suspected criminals and placed 2,359 on a list for ICE supervisors to consider detaining for possible deportation after they serve their sentences.

Funding for incarceration has also been a challenge for local government. Reimbursement levels from the federal government for State Criminal Alien Assistance Programs (SCAAP) to pay for jailing illegal immigrants convicted of crimes varies from year to year. In 2010, California expects to receive $90 million to cover an estimated $1 billion in costs. This despite the celebrity governor’s trip to Washington to appeal to congress to “fulfill its obligation to control the borders” (or pay for the cost of having uncontrolled borders).

Community INSing

The other 287(g) arrangement, known as the Task Force Model, calls on officers, during their regular duties, to identify and process “removable aliens.” Police and sheriff’s officers are authorized to question aliens as to their immigration status and removability, serve warrants for immigration violations, and issue immigration detainers for state and local detention facilities to hold aliens for a short time after completing their sentence.

The Department of Homeland Security report found that implementation of the Task Force Model varies widely. Some programs are structured around a specific criminal task force with an ICE-led hierarchy. Other task force operations stress a primary focus on violations of state laws such as identity theft and identity fraud, for which access to immigration information is beneficial. Still other task force operations include officers in patrol vehicles who use immigration authorities following traffic stops or domestic violence issues. “Each of these operations is associated with different levels of vulnerability to civil rights violations that may require distinct approaches to supervision,” the report concluded.

ICE officials responded that they agreed with the need to ensure consistency in the program and pointed to a new agreement template enacted last year. However, the report writers saw the “flexibility to address any specific issue” language built into the new agreement as a continuing problem. “This flexibility does not provide assurances that variances in 287(g) operating protocols will be consistently addressed,” the response to ICE’s response said.

The street enforcement model particularly concerns Art Venegas, former City of Sacramento police chief and project director of the law Enforcement Engagement Initiative at the Washington, D.C.-based Police Foundation Executive Research Forum. “Local law enforcement should not be in the business of immigration enforcement,” said Venegas. “It is not good for community safety.”

Venegas said trust and community involvement are the cornerstone of building safe neighborhoods. He worries that fear of deportation — for themselves or loved ones — could disincline those in the minority community to come forward with tips or to testify in criminal cases.

The Police Foundation issued a paper in 2009 entitled “The Role of Local Police: Striking a Balance Between Immigration Enforcement and Civil Liberties.” It acknowledged the difficult position local authorities find themselves in when it comes to enforcing immigration law. “Police executives have felt torn between a desire to be helpful and cooperative with federal immigration authorities and a concern that their participation in immigration enforcement efforts will undo the gains they have achieved through community oriented policing practices, which are directed at gaining the trust and cooperation of immigrant communities.”

Training Inconsistencies

Furthermore, Venegas said cross-training local police officers to do immigration work just isn’t practical. “Next to the tax code, [immigration] is one of the most confusing bodies of law,” Venegas said. “We don’t ask immigration agents to respond to traffic calls, we shouldn’t have to do their job.”

Inconsistent training was another shortcoming noted in the Homeland Security Report. New 287(g) officers receive a fraction of the civil rights law training immigration enforcement officers receive. Levels of ongoing training also varies widely from jurisdiction to jurisdiction. “287(g) officers exercise their authorities in community settings and need a thorough understanding of Fourth Amendment protections, including when it is appropriate to consider race or national origin when making a stop or determining whether to question an individual,” the report stated.

ICE is now requiring completion of an annual “Use of Race” Virtual University course for local agents, but report authors said the course didn’t achieve the appropriate coverage in civil rights laws to protect the public.

 Weighing Civil Liberties

A lack of consistency in addressing civil rights and civil liberties was also identified as a major community concern. In a 2009 report, the Government Accountability Office found that community members in more than half of the 29 participating cities it contacted expressed concerns that the use of 287(g) authority would lead to racial profiling and intimidation by law enforcement officials.

Others charged that the ICE exacerbated existing profiling problems by entering into agreements with agencies that have checkered civil rights records. Two agencies currently enrolled in the program were defendants in past racial profiling lawsuits that they settled by agreeing to collect extensive data on their officers’ contacts with the public during traffic stops, and adopt policies to protect the community against future racial profiling. Another jurisdiction is the subject of an ongoing racial profiling lawsuit related to 287(g) program activities — a lawsuit alleging physical abuse of a detained alien and a DOJ investigation into alleged discriminatory police practices, unconstitutional searches and seizures and national origin discrimination.

One recommendation was to consider information concerning civil rights complaints of applicant jurisdictions before signing agreements.

Funding

The shared immigration enforcement program has grown significantly in resources over the years, according to the report. In 2006, $5 million was allocated for the program. That number grew to $54.1 million in 2009 and could reach $68 million in 2010.

The funding is strictly for administrative, oversight and training costs however, not for reimbursing local agencies for their time dedicated to enforcement. That shortcoming was noted in the Police Foundation Executive Research Forum report. “Police are also concerned about the impact of local law enforcement of immigration law on already strained state and local resources, and particularly on the ability of local law enforcement to maintain its core mission of protecting communities and promoting public safety.”

Benefits Noted

The Department of Homeland Security study saw upsides to the program, too. The agreements infused manpower into the immigration enforcement effort. In 2008 alone, local law enforcement officers working in the program identified 33,381 aliens who were deported. That represented 9.5 percent of all ICE removals that year.

Study authors also acknowledged that cross-deputization allowed local law enforcement more latitude to investigate violent crimes, human smuggling, gang and organized crime activity, narcotics smuggling and money laundering.