DHS Secretary Janet Napolitano is tentatively scheduled to testify before the United States Senate Judiciary Committee about DHS immigration enforcement policies on May 6, 2009. Given Secretary Napolitano’s novel interpretations of federal law, the Heritage Foundation will be posting a series of questions (and suggested answers) for the Secretary.
Questions for Napolitano: # 1, The Future of State and Local Immigration Enforcement
In numerous public statements over the last four months, Obama Administration officials have made comments that appear to question the importance of and use of state and local law enforcement to help reduce America’s illegal immigration problem. Does the Obama Administration fully support the use of section 287(g) and does it remain committed to other ICE Access programs?
Beginning in 2002, ICE began partnering with local law enforcement agencies under a cross-designation program authorized by Section 287(g) of the Immigration and Nationality Act. This program allows local law enforcement officers to enforce immigration laws. In a 287(g) partnership, a memorandum of agreement (MOA) between ICE and the local law enforcement agency outlines the authority given to the local officers. ICE agents closely monitor activities under the 287(g) program, and localities are required to report any immigration-related enforcement work to ICE supervisors. Participating law enforcement officers are also required to attend a four-week training course and must meet basic requirements, including U.S. citizenship and a minimum of two years of work experience.
In the past several years, the cross-designation program has been extremely popular with state and local law enforcement agencies. ICE has 67 active MOAs and has received many additional requests for 287(g) partnerships. The recent Government Accountability Office report correctly identified some issues with the 287(g) program, but it also failed to recognize the constitutional ability of the states to enforce laws. Americans trust law enforcement officers to do their jobs enforcing U.S. criminal laws–trust that should be granted to those enforcing U.S. immigration laws as well. Micromanaging immigration enforcement officers’ decision-making process could dissuade them from participating. ICE also launched a program called: ICE Agreements of Cooperation in Communities to Enhance Safety and Security (ICE ACCESS), which was created to provide a menu of different programs that allow the federal government to partner with and support local law enforcement officers in enforcing customs and immigration laws, from border taskforces to document fraud efforts.
Cooperation with local law enforcement has drawn accusations that local police departments are overzealously enforcing immigration laws, targeting anybody who “looks and sounds” foreign. These claims are not a fair representation of the enforcement effort. The MOAs between ICE and local agencies specifically prohibit local officers from arresting people solely on the suspicion of being an illegal immigrant. For an arrest to be made, a person must first be stopped and held for breaking another state law. A traffic stop, such as for speeding, does not warrant a criminal arrest and cannot result in an arrest for an immigration violation
The Obama Administration, through Secretary Napolitano should says that it continues to support both 287(g) and ICE ACCESS programs so that our 1.1 million state and local law enforcement personnel can lend a hand in gaining control of our illegal immigration problem.
For more information on Heritage’s work on 287(g) and ICE ACCESS Programs check out Jena Baker McNeill’s WebMemo, Enforcing Immigration Laws: State and Local Assistance Needed.