Who Should Have the Power to Regulate Immigration?

For more than 100 years of U.S. history, the power to regulate immigration was considered an exclusively federal power. But in recent years there has been a gradual devolution of immigration enforcement authority from the federal government to states and localities. A milestone in that trend occurred in 1996, when Congress added a new provision, Section 287(g), to the Immigration and Nationality Act, our basic federal immigration law.

The provision allows state and local law enforcement officers to directly enforce immigration laws through formal agreements with U.S. Immigration and Customs Enforcement (ICE). Now operating in 72 jurisdictions across the country, the 287(g) program allows local and state officers to screen people for immigration violations, issue detainers to hold them until ICE takes custody, and generate the paperwork that initiates the process of their removal from the United States. The program operates after people are booked into jail in some jurisdictions and when officers are out on patrol duty in others.

At the Migration Policy Institute we recently concluded a yearlong study [download pdf] assessing the goals, implementation, enforcement outcomes, costs, and community impacts of 287(g). Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement is based on new data obtained from ICE and on-site visits to seven jurisdictions where the program is operational. We interviewed over 100 people—from senior national ICE officials to program supervisors in local offices, state and local police officers, advocates on both sides of the immigration enforcement issue, state and local elected officials, community and religious leaders, immigration and civil rights lawyers, business leaders, educators, health and social service providers, and foreign country consular officials.

Context

The 287(g) program has gone through an interesting evolution. The federal government signed the first agreement in 2002 with the state of Florida, an agreement that focused on apprehending would-be terrorists in the wake of the September 11, 2001 attacks. By the end of 2005, only three agreements were signed, and by 2006, only eight. These agreements were narrowly focused on specific groups of high interest criminals or specific criminal activity.

Things changed in 2007, when 26 new agreements were signed that year, followed by 28 in 2008. Not only did the number increase dramatically, the nature of these agreements changed. They followed the same boilerplate language with less emphasis on prioritizing more serious crimes and began to be perceived by local jurisdictions as instruments to pick up as many unauthorized immigrants as possible.

When the Obama administration took office, speculation was widespread that the program would be terminated. The U.S. Government Accountability Office, the Department of Homeland Security’s Office of Inspector General, and advocates around the country had issued reports criticizing the program. However, in July of 2009 not only was the program continued, it was expanded to 11 new jurisdictions.

The decision to continue the program came with a requirement that all jurisdictions—new and existing—sign a standardized agreement. The agreement specifies that the program should focus first and foremost on people committing felonies. Thus, there was reason to believe that the program had come full circle to its original focus on serious criminal offenses.

What We Found

Our study found that in fact only about half of people detained and removed though the 287(g) program have committed serious criminal offenses; the other half committed misdemeanors or traffic violations. More importantly, the focus on the program varies substantially from place to place. Local priorities, often driven by the politics of immigrant exclusion, govern the outcomes—and ICE tolerates the variation.

In a continuum, some jurisdictions use a more “targeted” approach to focus on felons and other dangerous criminals, while others adopt a more “universal” approach to remove as many unauthorized immigrants (and removable legal immigrants) as they encounter. The universal jurisdictions typically arrest a disproportionate share of traffic violators (over half in some places), and experience the most pronounced adverse community impact.

Evidence of adverse impacts includes loss of Hispanic noncitizen population, incidences of racial profiling, mistrust of the police, and withdrawal from public places. Jurisdictions that follow a more universal approach are heavily concentrated in the Southeast, particularly in Georgia, North Carolina, South Carolina, and Tennessee.

What We Recommend

The 287(g) program, properly implemented, can be a useful tool for the federal enforcement efforts. For that to happen, ICE must take ownership and control of the program, implement stated national priorities, and not allow localities to impose their own agendas. The program should be targeted to remove felons and other dangerous criminal offenders; it should not focus primarily on traffic offenders.

To remove the incentive for racial profiling and pretexual arrests, 287(g) officers should only place immigration detainers after conviction for a crime. The federal government should investigate allegations of racial profiling and rescind contracts with jurisdictions that practice it. And ICE and local law enforcement agencies should do a far better job in their outreach to local communities and in gaining their input through advisory roles.

Muzaffar Chishti is co-author, along with Randy Capps, Mark R. Rosenblum, and Cristina Rodriguez, of Delegation and Divergence: A Study of the 287(g) State and Local Immigration Enforcement, published by the Migration Policy Institute.