MPI Report: 287(g) Programs Favor Broad Brush Over Targeted Enforcement

The Migration Policy Institute (MPI), a non-partisan immigration think tank in Washington, recently released a study of a controversial immigration enforcement program commonly known by the section of the Immigration and Nationality Act that authorizes it – section 287(g). Under section 287(g), state and local jurisdictions can enter into partnerships with U.S. Immigration and Customs Enforcement (ICE) that empower state and local police to enforce federal immigration law: “to screen people for immigration status, issue detainers to hold them on immigration violations until the federal government takes custody, and generate the charges that begin the process of their removal from the United States.” (See Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, by Randy Capps, Marc R. Rosenblum, Cristina Rodríguez, and Muzaffar Chishti, Migration Policy Institute, Jan.2011, PDF, 1.7MB.)

These federal partnerships with state and local law enforcement were first authorized in 1996, but have become increasingly controversial in recent years, assailed by critics who say this leads to racial profiling and other broad-brush enforcement tactics. In the early months of the Obama administration, federal immigration officials promised to reexamine the 287(g) program, and ensure it was being used in a more efficient and targeted manner, to catch and deport dangerous criminals and others who threaten our public safety and national security. After examining ICE data on the 287(g) program, and conducting site visits and interviews with 287(g) administrators and other stakeholders in several states, MPI concludes that the 287(g) program functions only partly as advertised, with only half of its activity directed against serious offenders, and the other half against low-priority offenders arrested for misdemeanor and traffic offenses.

According to MPI, 90 percent of the 287(g) program is run using the “jail model, in which officials screen for immigration status and issue detainers when booking arrestees into jails on criminal (i.e., nonimmigration) charges.” The problem with this, says MPI, is essentially one of quality control: arrests are made by local police without any federal supervision, and immigration screening takes place during booking at the jailhouse. This opens the door to racial profiling and arrests made on flimsy pretexts, especially in communities that favor “universal” enforcement, where 287(g) immigration detainers are used more broadly, to clear out any and all immigration offenders – even those arrested for minor traffic infractions – not just dangerous criminals.

Another problem, MPI points out, is the wide variability in implementation of 287(g) programs across the country; in fiscal year 2010, for example, Las Vegas placed most of its immigration detainers – 70 percent – on felons and other dangerous criminals, while other jurisdictions, such as Cobb County, GA and Frederick County, MD, placed about 80 percent of their detainers on traffic offenders and other low-level violators under a universal enforcement policy, applied to “every unauthorized immigrant booked into jail or encountered during policing operations.”

MPI found that universal enforcement strategies had several adverse effects in the communities that use them:

“Our study respondents reported impacts on immigrants similar to those cited in reviews by others of the 287(g) program, including avoidance of public places, changes in driving behavior, fear and mistrust of authorities, and reluctance to report crimes. Respondents also reported racial profiling, but we did not investigate these claims due to data limitations. Downstream federal detention costs can be significant in universal enforcement jurisdictions, with ICE detainees averaging 81 days in detention at a cost of $60 per day in Georgia, for example.”

What to do? Among other things, MPI recommends that ICE terminate 287(g) agreements “with jurisdictions that operate universal models and do not focus on serious criminals, as well as with jurisdictions where evidence of racial profiling or other civil-rights violations emerges.”

More generally, MPI advocates using the 287(g) program in a targeted manner to find, arrest, and remove serious criminal aliens, not a catch-all dragnet that fills the jails with minor offenders and ties up scarce enforcement resources on low-level, low-priority cases.

It is an open question whether MPI’s recommendations will be implemented. As the report suggests, the incoherence of the 287(g) policy – which is split between targeted and universal-enforcement models – mirrors the unresolved political disagreements that still bedevil Congressional attempts to find common ground on immigration issues. In any case, if our goal is the consistent application of federal law, 287(g) seems an unlikely way to get there.