Immigration enforcement and law enforcement have historically been separate government functions. Even at the federal level, there was little intersection between criminal law enforcement and immigration law enforcement, although until 2003 they were both housed in the Department of Justice.
In the wake of Sept. 11, there has also been increasing collaboration between federal immigration agencies and local law enforcement agencies. The legislative authority for cross-designation of local police as immigration agents, however, came in 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which added Section 287 (g) to the Immigration and Nationality Act. IIRIRA, passed by the new Republican majority in Congress, reflected the rise of an immigrant backlash movement in the country and accumulating support for conservative immigration reform.
There was little support, however, for the cross-designation authority of the 287 (g) amendment within the legacy Immigration & Naturalization Service. It was not until 2002 that the first 287(g) agreement was signed and not until 2005 that the program was widely promoted by DHS.
Since its creation in 2003 ICE has promoted what it calls “law enforcement partnership” using the post-Sept. 11 ideological framework of national security. In its 2006 fact sheet on Law Enforcement Partnership and Section 287 (g), ICE made this national security argument for federal/local cooperation in immigration enforcement:
“Terrorism and criminal activity are most effectively combated through a
multiagency/ multi-authority approach that encompasses federal, state and local
resources, skills and expertise. State and local law enforcement play a critical
role in protecting our homeland security because they are often the first
responders on the scene when there is an incident or attack against the United
States. During the course of daily duties, they will often encounter
foreign-born criminals and immigration violators who pose a threat to national
security or public safety.”
The administration and DHS are also stepping up federal/local cooperation in the new border security initiative that puts local police in close cooperation with ICE and especially the Border Patrol. Latching onto the concern about the possibility of spillover violence from Mexico, Secure Communities has added the drug war and border security to ICE’s evolving justifications for increased federal/local cooperation.
Program chief David Venturella recently told the House Appropriations Committee’s subcommittee on homeland security:
“We have made the southwest border area a top priority because of the recent surge in criminal gang activity and drug related violence along the border. And while we have already deployed to many locations in that region, we will expedite the
deployment to even more locations in those border communities as part of the
Secretary’s border security initiative.”
In the last few years ICE has deemphasized its national security mission as the central justification for its increased cooperation with local law enforcement agencies while pumping up the new community security justification. It continues to argue for the wisdom of a multiagency/mulit-authority approach that brings immigration and criminal law enforcement agencies together, while ignoring any public safety downside from such an approach.
Unlike some other ICE programs, especially the notorious 287 (g) program, which involve local law enforcement forces in immigration enforcement, the Secure Communities program is less vulnerable to racial and ethnic profiling. All those arrested and booked by participating communities will have their identities checked by DHS.
While cases of profiling in the Secure Communities will likely be less frequent, the new system does not preclude the possibility that local police arrest individuals primarily to have them processed by DHS. Without effective internal regulations, it remains possible that police will arrest and book individuals merely as a way to have them checked against the DHS database.
Suspecting that an individual is an illegal immigrant, a police officer could arrest an individual under flimsy charges. That person may not face any criminal justice consequences, but if determined by a DHS database to have reentered the country illegally or overstayed a visa, then there would likely be severe immigration consequences of a false arrest.
The merger of immigration law enforcement and criminal law enforcement in Secure Communities is likely to undermine community trust in local police. It is likely that community members will be more hesitant to report crimes if they know that in addition to the criminal consequences (jail time or probation) there will also be immigration consequences (detention and removal).
A neighbor or a wife might be reluctant to call the police to stop an escalating family conflict if they knew that they were also involving immigration police. Not only might the offending person be booked in the local jail to stop the conflict, but that person, possibly the family’s source of income, might also be deported, thereby forever breaking up the family.
Policy Recommendations:
The arrest, detention, and removal of immigrants who do constitute a serious threat to national and community security are legitimate government functions. If communities understood that this was not only the stated goal of Secure Communities but also its practice, there would be less reason to fear that the program will erode community trust in local police. Community members would understand that only the most dangerous criminals will face immigration consequences when arrested on criminal charges.
If community security rather than wide-net immigration enforcement is indeed the objective of Secure Communities, ICE needs to overhaul the program. It needs to assure local police and communities that only the most dangerous illegal immigrants will be subject of the program’s identification and removal systems.
When enforcing immigration law, DHS should use its newly developed databases and the cross-checking capabilities, but extending these systems in local law enforcement without narrow and regulated targeting guidelines is unwarranted. Secretary Napolitano should halt the implementation of the wide-net Secure Communities program, and Congress should withhold funding until ICE establishes regulations to ensure that the program is more narrowly focused on dangerous criminal aliens.
It is also time for Congress to revisit its 1996 authorization for federal/local cooperation in law enforcement and immigration enforcement. The abuses associated with the 287 (g) program should prod Congress and ICE to review not only that program but all ICE and Border Patrol programs that systematically mix immigration and criminal law enforcement. The federal/local cooperation model spearheaded by the 287 (g) program is moving quickly ahead in the Secure Communities program without any close review by DHS or Congress.
With little oversight and no systemic overview, DHS is rapidly merging immigration enforcement with criminal law enforcement at all levels of government. This extension of immigration enforcement has been variously driven by fear politics about national security, community security, and most recently border security. It’s now time to provide this examination of rationale and impact of the dangerously expansive interpretation of DHS’s mission in immigration enforcement.
Next: The Criminal Alien Problem
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