Thoughts on 287(g)
Candidates in the current election have mentioned that Lewisville must enroll our officers in the Immigration and Customs Enforcement’s (ICE) 287(g) program in order to keep our city safe. Unfortunately, little is discussed on what 287 (g) actually is, what it entails, and how it would impact Lewisville.
287(g) allows law enforcement agencies (LEA) — under ICE supervision—to perform the following immigration functions:
- The power and authority to interrogate any person believed to be an alien as to his right to be or remain in the United States and to process for immigration violations those individuals who are convicted of State or Federal felony(emphasis ours) offenses.
This first authority is tempered with the clause that ‘Participating LEA personnel are not authorized to perform immigration officer functions except when working under the supervision of an ICE officer, or when acting pursuant to the guidance provided by an ICE agent. Participating LEA personnel shall give timely notice to the ICE supervisory officer within 24 hours of any detainer issued under the authorities set forth…’
Rough translation- Lewisville 287 (g) officers can question anyone ‘believed’ to be an alien (with all the bear traps entailed from racial profiling) and can begin processing for deportation felony offenders.
The key here is ‘felony’. Whether you like the government’s stance on this or not the facts are that crossing the border illegally the first time is a misdemeanor and does not fall under this enforcement. Repeated illegal crossings are a felony (8 U.S.C. 1325). The bottom line- Lewisville ICE certified officers can only enact their immigration powers when confronting a felony offender. In fact, ICE has routinely denied detention and deportation proceedings for Class C misdemeanors, which are typically traffic violations. ICE cites not enough resources.
- The power to arrest without warrant any alien entering or attempting to unlawfully enter the United States, or any alien in the United States, if the officer has reason to believe the alien to be arrested is in the United States in violation of the law and is likely to escape before a warrant can be obtained.
Now this authorization has a few more teeth. Unfortunately, it has the same limitation based on the guidelines set forth by ICE- anything under a Class B misdemeanor will not be enforced by the federal government, and Lewisville does not have the legal authority to deport, so illegal aliens arrested on anything under a Class B misdemeanor are let free regardless of whether 287 (g) is in place or not. For the record, the vast majority of traffic stops are Class C.
- The power and authority to serve warrants of arrest for immigration violations pursuant to 8 C.F.R. 287.5(e)(3).
In other words, serve a warrant that has in all likelihood come from ICE and been delivered to our department for service. Now, this one is an opinion, however, in my view this removes our officers from handling day to day crime enforcement on the streets of Lewisville and turns them into an outsourced warrant service for immigration enforcement. In addition should the city be asked, we would have to provide office space and resources for ICE agents at our cost- an additional outsourcing of resources that our federal taxes are supposed to be paying for. ICE proudly states that they receive 5.9 Billion a year in funding, and yet they still need us to pay more.
The next two powers add more paperwork for processing illegal aliens, which should be handled by immigration, not additional law enforcement capability. I think most would agree that paperwork does not improve citizen safety or police presence as a deterrent. If you’ve gotten this far, just hold on, there is an alternative.
- The power and authority to administer oaths and to take and consider evidence, to complete required criminal alien processing, including fingerprinting, photographing, and interviewing of aliens, as well as the preparation of affidavits and the taking of sworn statements for ICE supervisory review.
- The power and authority to prepare charging documents including the preparation of a Notice to Appear application or other charging document, as appropriate, for the signature of an ICE officer for aliens in categories established by ICE supervisors.
- The power and authority to detain and transport arrested aliens to ICE-approved detention facilities.
One final note about the powers if 287(g)- “Participating LEA personnel are not authorized to perform immigration officer functions except when working under the supervision of an ICE officer, or when acting pursuant to the guidance provided by an ICE agent.” Also- “Participating LEA personnel shall give timely notice to the ICE supervisory officer within 24 hours of any detainer issued under the authorities set forth in this MOA.” Which means- “you have these powers but we have to be notified ASAP”. This is not a program that runs itself.
So, with that out of the way, in exchange for these powers, the federal government does ask for something in return (aside from the aforementioned processing, paperwork, and ability to search an ICE database). The federal government will askLewisville to pay salary, benefits and expenses for the 4 or 5 weeks of training, depending on the program, each officer would go through. Of course that would also mean probable overtime since our staff would be reduced for the period of time we were training officers. We also mentioned that ICE could request office space, supplies and vehicle use for ICE programs at our expense.
ICE trained officers can also be used in regional or state wide enforcement campaigns. Think of sting operations to break smuggling rings, or gang sweeps and you’ll have the picture. This would most likely mean our officers would not be in Lewisville for these types of operations since they’re much more likely to happen near the border where ICE has more resources to bring to bear and there is a larger concentration of felony activity.
In addition, Lewisville’s jail can be used to hold criminal illegal immigrants until deported. Once in custody, the federal government pays “a reasonable fee” to Lewisville for detention. Historically, this is less than the daily incarceration cost.
Finally, Lewisville would be “responsible to bear the costs of participating LEA personnel with regard to property or personnel expenses incurred by reason of death, injury, or incidents giving rise to liability.” This transfers all liability and most of the costs of immigration enforcement to Lewisville.
In short- 287(g) was a program written by the federal government to use local law enforcement to handle the processing and paperwork of felony illegal immigration issues and transfer some of the financial burden of our broken immigration policies away from the federal government.
Since 1996 (when the law was enacted), there have been 67 Memoranda of Agreement across the country. Of those,Texas has 3 MOA’s- Carrollton PD and Harris County Sheriff’s Office are “Jail Enforcement Officers” while Farmers branch has a “Task Force Officer” agreement. All 3 were joined in 2008. In addition to this seemingly small uptake of the program by local enforcement, the Government Accounting Office reported on March 4, 2009 to Congress that, “The program lacks several other key controls.” It has no documentation on their objective (to address serious criminal activity committed by removable aliens), “no consistent articulation on how to use 287(g) authority” (hence lawsuits), no guidance on how ICE supervisors are to interact with 287(g) agents, and no tracking information on MOA’s before 2007 (only 8 of these exist out of the 67).
So what alternative do we have to enforce the laws? Isn’t this better than nothing? We have to DO SOMETHING!
We could use ICE ACCESS and CAP.
ICE ACCESS and the Criminal Alien Program check anyone arrested against ICE databases with a phone call to an ICE agent. If the criminal is here illegally; once processed for breaking the law, they are sent to an ICE detention facility until deported. The only difference is our police make a phone call instead of check a database.
No liability, no expense, no reduction in police presence. Illegal offenders removed if convicted of a Class B misdemeanor or higher.
The best part of ICE ACCESS and CAP? Lewisville has used it to remove over 600 illegal criminals in 2008.
There are other ideas on enforcement that can and should be explored that may accelerate the way we deal with illegal immigration, unfortunately, 287(g) is an expensive way to get what we already get from our federal immigration enforcement system.
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