Increasing Federal/Local "Interoperability"

(Sixth in the 12-part BorderLines series "Aliens, Crime, and Drugs: Making the Connection." Since 2006 ICE has assiduously also sought to involve local law enforcement directly in the enforcement of immigration law. It has instituted this cooperation mostly through 287 (g) agreements, although increasingly it is relying on integrated immigration and criminal databases to extend immigration enforcement to the town and county level. ICE’s 287(g) program, like most current criminal alien initiatives, can be traced back to the 1996 criminalization of immigration law. A 1996 amendment to section 287(g) of the Immigration and Naturalization Act allows federal immigration agents to train local police and jailors in the enforcement of immigration law. Although authorized in 1996, in 2002 there were only two 287 (g) agreements. Today, there are 67 of these agreements between ICE and local police, with dozens of other police and sheriff departments waiting for training. Almost all these agreements have been signed in the past few years with the consolidation of ICE’s conceptual and operational focus on criminal aliens. Through 287(g) and other criminal alien programs, ICE says that it’s facilitating the “interoperability” of federal and local agencies and the “cross-designation” of local police as immigration agents. The 287(g) programs have led to widespread concerns about racial profiling, reduced community trust, inadequate prioritization of dangerous criminals, and misplaced law enforcement resources. These problems were highlighted in a January 2009 report by the U.S. Government Accountability Office titled Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws. A March 2008 report by Justice Strategies, Local Democracy on ICE, also pointed to the broader problem of mixing immigration law and criminal law. In their report, Aarti Shahani and Judith Greene warned:

“287(g) represents the fusion of two separate systems of law enforcement power. Once in place, it can lead to further entanglement of these powers as state and local politicians jump into the campaign to “crackdown” on immigrants. But civil immigration and criminal law are fundamentally incompatible. The grey area between civil and criminal law creates a situation ripe for abuse. The Constitution’s protections against arrest without probable cause, indefinite detention, trial without counsel, double jeopardy, and self-incrimination, as well as the statute of limitations, do not apply equally (or in some cases at all) in the civil immigration context.”