ICE: Policing the Borders

, The American Lawyer

To combat the flow of undocumented aliens into America, immigration enforcement has gone local.

Starting in 2002, some city and state law enforcement officials began coordinating with federal immigration officials to check people’s residency status during routine police work. Through Section 287(g)—a previously unused part of the 1996 Immigration Reform and Immigrant Re-sponsibility Act—counties and municipalities have signed agreements with Immigration and Customs Enforcement (ICE) to receive federally funded training, access to immigration data-bases, and money for additional detention costs in exchange for monitoring the immigration status of people who are arrested or stopped by the police. But the policy has inspired litigation from immigrant advocates, who say it encourages racial profiling and wrongful detention.

Prior to 2002, when the Florida Department of Law Enforcement became the first local agency to authorize a 287(g) agreement, the program received little attention. “After 9/11, the Bush ad-ministration saw state and local law enforcement playing a larger role using this section of the law,” says Doris Meissner, commissioner at the Immigration and Naturalization Service under President Bill Clinton and now a senior fellow at the Migration Policy Institute in Washington, D.C. After its creation through the March 2003 merger of the U.S. Customs Service, the INS, and the Federal Protective Service, ICE boosted funding for 287(g). At $42 million today, the program’s annual budget has climbed 400 percent since 2006. Sixty-three localities in 18 states now receive 287(g) funding, helping boost deportations to 280,500 in 2007 from 150,000 in 2003. In Florida, deportations have doubled within the last year.

Under 287(g), “local authorities can help remove immigration criminals so they won’t be repeat offenders,” says ICE spokesperson Richard Rocha. Police have praised the program for helping move more than 70,000 illegal immigrants out of local jails and into federal custody since Janu-ary 2006. “It allows us to free up bed space for local criminals,” says Kevin Kuykendall, a lieu-tenant in the Los Angeles County sheriff’s department. In the three years that Los Angeles County has had an 287(g) agreement, Kuykendall notes, 20,000 inmates have had their immigra-tion status checked, and about 11,000 have been subsequently referred to ICE custody. (ICE does not keep specific numbers on how many of these individuals have been deported.)

But immigration and civil rights activists say loopholes ensnare legal immigrants. “It causes wrongful detention and deportation because county officials don’t know how to proceed with the immigration law,” says Ahilan Arulanantham, staff lawyer for the American Civil Liberties Un-ion of Southern California. Advocacy groups have sued to fight what they see as legal abuses caused by the outsourcing of federal immigration enforcement. Racial profiling has been the focus of several suits. In Decem-ber 2007, for instance, the ACLU and the Mexican American Legal Defense and Educational Fund filed a class action in federal district court in Phoenix, charging racial bias in 287(g) vehi-cle searches. Defendants include Maricopa County and its sheriff’s office. “The Maricopa County sheriff’s office used this policy as part of ‘crime suppression sweeps’ of Latinos without a constitutionally acceptable level of cause or suspicion,” says Peter Kozinets, of counsel at Step-toe & Johnson and lead counsel for the plaintiffs.

Another ACLU suit filed in California involves wrongful deportation. Earlier this year, the ACLU and Morrison & Foerster sued the U.S. Department of Homeland Security and the L.A. sheriff’s office on behalf of a mentally disabled U.S. citizen who was deported to Mexico last year after being arrested and wrongly identified as an illegal immigrant. The suit seeks damages and additional monitoring of 287(g) programs. In other instances—not all of which have resulted in litigation—individuals were wrongfully detained because they had the same name as illegal immigrants.

Despite the backlash, ICE officials say the program successfully multiplies the agency’s reach. In March, ICE announced a pilot program called the Secure Communities Initiative to allow po-lice officers to screen all foreign-born nationals using the Department of Homeland Security’s fingerprinting databases. Civil rights advocates say they are already monitoring the new policy.