An assault on 287(g)

Published on December 28th, 2011

According to ICE.gov, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 287(g) which allows designated state officers and employees to perform immigration officer functions after entering into a Memorandum of Agreement (MOA) with the Immigration and Customs Enforcement Agency (ICE).  The MOA defines the scope and limitations of the delegation of authority.  ICE supervises the designated officers when they exercise their immigration duties.

The cross-designation between ICE and state and local patrol officers, detectives, investigators and correctional officers allows these local and state officers necessary resources and latitude to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering. In addition, participating entities are eligible for increased resources and support in more remote geographical locations.

The MOA must be signed by the ICE deputy director, and the governor, a senior political entity, or the head of the local agency.

The amendment was signed into law by Bill Clinton in 1996 and the first state to utilize 287 (g) was Florida in 2002.

In the approach to the 2012 elections, the Supreme Court has decided to hear challenges from the Justice Department and other groups about the constitutionality of Arizona's SB1070 law.  SB1070 requires police officers to check the immigration status of someone that they arrest or stop who they reasonably suspect are in the US illegally.  Along with this case lies the fate of other states' similar legislation.  The Justice Department objects to the states' performing a function it sees as reserved for the federal government.

However, as is apparent above, the 287 (g) program grants local law enforcement officials the authority to perform ICE functions under ICE's supervision and according to ICE's terms.  The partnership merely provides additional "arms" for ICE to perform its duties.  Perhaps, it is not the authority of local law enforcement officials to perform immigration functions, possibly it is the success of the program.

In November of this year, Nashville, Tennessee authorities "encountered a citizen of Mexico, who had previously been removed, subsequent to an arrest by the Metropolitan Nashville Police Department in November 2010 for possession with intent to sell a controlled substance and sale of a controlled substance, to wit: Heroin. His removal order was reinstated.  He is currently in ICE custody pending removal from the United States."

In October, Loudoun County Virginia's Sheriff’s Office 287(g) task force officers encountered a citizen and national of El Salvador in the company of known gang members, subsequent to his arrest on alcohol related charges.  Database checks revealed that the male was previously ordered deported by an immigration judge and failed to depart the United States.  The male is a self-admitted associate of the criminal street gang Mara Salvatrucha (MS-13).  He is currently in ICE custody pending removal from the United States.

In September, in Maricopa County Arizona, 287(g) designated immigration officers at the Mesa Police Department Detention holding facility encountered a citizen and national of El Salvador, who after being interviewed, was determined to be an alien unlawfully present in the United States.  The individual was arrested on charges of failure to show a driver’s license or ID.  Further investigation revealed that the individual was a fugitive with an outstanding warrant of removal pending since August 2006.  A detainer was placed on the individual, and he was later transferred to ICE custody pending removal.

The use of the 287 (g) program not only benefits the US but also other countries.  In Las Vegas, Nevada in July, the Police Department jail enforcement officers encountered a citizen and national of Colombia after he was arrested on charges of forgery and burglary. A systems check revealed that the individual has three prior removals from the United States. In December 2010, he was convicted of illegal re-entry after deportation and sentenced to 30 months in prison.  On Aug. 4, the ICE Liaison Fugitive Division was notified of a possible INTERPOL warrant. System checks revealed the individual had four positive INTERPOL warrants related to major con artist activities issued from the following countries: Berne, Switzerland; London, U.K.; Dublin, Ireland; and Ottawa, Canada.  Washington INTERPOL contacted the other INTERPOL offices to determine if there was an interest to extradite him. Responses are still pending.  He is detained on criminal charges at the Clark County Detention Center in Las Vegas under the highest security level.

The challenges to the lawsuit which give rise to the Supreme Court case do not mention the 287 (g) program by name but clearly seek to invalidate such an effective piece of legislation for immigration enforcement.

References & resources:

Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act

Arizona Illegal-Immigration Legislation Given U.S. Supreme Court Review

287 (g) Success Stories

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