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ICE Program Shifts Immigration Costs, Abuses

New America Media, Commentary, By Aarti Shahani and Judith Greene Posted: Feb 26, 2009

We can make a person disappear, a high-level ICE official told the audience at the 2008 Police Foundation conference. Jaws dropped. ICE is the Homeland Security agency in charge of deporting immigrants from the nations interior. The spokesman was alluding to ICEs extraordinary powers under civil immigration law. Although civil sounds less serious than criminal, civil immigration law has fewer constitutional protections than criminal law. Civil immigration arrests can happen without probable cause of a crime; the arrestee faces trial without a public defender; and theres no statute of limitations.

Through the 287(g) program, ICE is fusing civil immigration and criminal law. 287(g), a tiny law passed in 1996, enables any public servant to receive civil immigration powers. The work is purely voluntary. The statute forbids the feds to pay the locals. It also makes the feds responsible to supervise and direct all local activities.

In 2005, ICE began enlisting criminal law enforcement agents from traffic cops to jail guards into its frontlines. Early critics charged that turning police into deportation patrol would result in racial profiling, and make immigrant victims afraid to call 911. ICE justified 287(g) as an urgent public safety program. ICE is the largest investigative arm of Homeland Security. 287(g)-deputized officers would gain necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering. ICE assured that, The 287(g) program is not designed to allow state and local agencies to perform random street operationsIt does not impact traffic offenses such as driving without a license unless the offense leads to an arrest.

Reality tells a different story. Justice Strategies, a non-partisan criminal justice institute, investigated the 287(g) program. We found that ICE didnt target crime hot spots. Of the 63 states and localities that ICE deputized by summer 2008, 61 percent had lower crime rates than the national average. Meanwhile 87 percent saw their Latino populations grow faster than the national average. The public safety program is more closely related to race than to crime.

The 287(g) program amounts to a state and local bailout of the federal governments failed immigration enforcement business. This ICE program does not pay police salaries; it shifts civil detention costs to local governments. Prince William County, Virginia spent $5 million more in local tax monies than anticipated for the first year of its 287(g) program. The county had to raise property taxes and cut police and fire safety budgets to compensate. In Morris County, New Jersey, a Republican sheriff estimated that the program would cost $1.3 million and ICE would not reimburse the county for any start up costs, such as personnel and facility expenses. His county board rejected the program. Local officials nationwide have rejected 287(g) because it does not serve public safety or generate income, leaving the feds to partner with more zealous and politically-motivated officers.

ICEs choice of partners is peculiar. The Missouri State Highway Patrol, deputized in 2008, is an agency whose core mandate is to enforce traffic laws. In Butler County, Ohio, ICE extended immigration arrest powers to the sheriff after he campaigned on an anti-immigrant platform.

The most famous 287(g) partner is Sheriff Joe Arpaio of Maricopa County, Arizona. ICE gave him the largest and most powerful agreement, after his office was ordered to pay $43 million in death and abuse lawsuits. He has been nationally criticized for street sweeps of day laborers and racial profiling. He told us about the added-value of 287(g): When we stop a car for probable cause, we take the other passengers too. Last week, Sheriff Joe marched his 287(g) arrestees into Tent City, a notoriously mismanaged jail under the blazing desert sun. Yet ICE, by law required to supervise and direct all 287(g) activity, maintains that the sheriff has not violated the contract.

Sheriff Arpaio is not a one-man show. 287(g) set off other efforts in Arizona to crackdown on immigrants. The state legislature renamed the anti-gang taskforce into the gang and immigration taskforce, and pumped tax monies into local immigration enforcement.

In Phoenix, the fusion of civil immigration and criminal law has wreaked havoc in the criminal justice system. Under a new state law that denies bail to immigrants for most crimes, judicial officers who are neutral arbiters in the courts criminal process have become investigators of possible immigration violations. The first state-level trafficking law in U.S. history has been perverted, as prosecutors charge the victims of trafficking as co-conspirators in the act of smuggling. The overburdened courts and jails have swelled with immigrants who are in no sense a danger to public safety.

In this moment of economic crisis, we cant afford to let this specious public safety program continue. In 2006, Congress gave the 287(g) program its first budget line of $5 million, and continued that level of funding through fiscal year 2008. Monies were intended for ICE expenses only. Yet through 2008, ICE overspent at least $50 million in program costs. Today 287(g) is the largest Homeland Security program for state and local law enforcement.

The Obama Administration should terminate the 287(g) program. 287(g) was destined to fail, and it has failed. It was created on the faulty assumption that civil and criminal law enforcement are compatible. But just imagine if the IRS, another federal civil agency, started deputizing police to check the tax returns of every driver, and arrest anyone with an imperfect 1040. Citizens would be furious at such waste of public safety resources. Yet under 287(g), people are jailed when their civil immigration status is in question. The General Accounting Office should investigate how the program operated nationwide. 287(g) is critical data in the project of reforming ICE.

Aarti Shahani is the lead author of the report Local Democracy on Ice. Judith Greene is Justice Strategies Director of Tides Center that produced the report.

Related Articles:

Sheriff Joe Arpaio Marches Immigrants Through Public Square

ICE Immigration Raids Waste Time and Money

Immigration Activists Battle Harsh Laws Across U.S.

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