ACLU Demands Disclosure Of New Parameters Immigration Enforcement Program

Federal 287(g) Initiative Results In Illegal Profiling And Threatens Public Safety

WASHINGTON – The American Civil Liberties Union filed a Freedom of Information Act request Tuesday for new documents governing the continued delegation to state and local law enforcement agencies of federal immigration enforcement authority. The fundamentally flawed program has been associated with serious civil rights abuses and public safety concerns.

Secretary Janet Napolitano announced Friday that the Department of Homeland Security had developed a new standardized Memorandum of Agreement (MOA) for use when it delegates immigration enforcement authority to specific agencies under Section 287(g) of the Immigration and Nationality Act. She also announced that DHS had entered into new MOAs with 11 additional law enforcement agencies. However, DHS refused requests by journalists and the public to release the 11 recently-signed MOAs and the new standardized agreement, even though DHS routinely made 287(g) MOAs public under the Bush administration.

“No amount of tinkering with the 287(g) program is likely to solve the fact that it threatens public safety and undermines the basic guarantee of equal treatment by increasing profiling of people who look or sound ‘foreign,’” said Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project. “Still, DHS’s refusal to disclose these new documents is a disappointing and legally unsupportable step back from with Bush administration practice and makes it impossible to fully evaluate the changes to this highly controversial program. DHS should immediately release the documents we have requested.”

The ACLU has long sought to end the 287(g) agreements between DHS and state or local agencies that are, by design, fundamentally flawed. The 287(g) agreements have encouraged illegal racial profiling and civil rights abuses as well as the mistaken and unlawful detention and deportation of U.S. citizens and permanent residents, as reflected in a series of lawsuits, all while diverting scarce resources from traditional local law enforcement functions.

“Enforcement of immigration law, like tax law, belongs exclusively to the federal government. One body of immigration law governs the entire country; those laws are written and passed by Congress and should be enforced by federal law enforcement, not by local and state police,” said Joanne Lin, ACLU Legislative Counsel. “There is a specialized federal agency to focus on immigration enforcement – DHS – just as there is a specialized federal agency to focus on tax compliance and enforcement – the IRS. State and local police do not pull drivers over for tax law violations; likewise they should not pull drivers over for immigration law violations. The 287(g) program has proven to be a failure -- resulting in rampant illegal profiling by local police under the cloak of federal immigration enforcement power. DHS needs to terminate, not tweak, the 287(g) program.”

This past April, the Police Foundation, a leading nonpartisan, research and training nonprofit dedicated to improving public safety, reported that many sheriffs and police chiefs across the country disapprove of the local immigration enforcement program. According to the Police Foundation study, law enforcement executives believe that “immigration enforcement by local police undermines their core public safety mission, diverts scarce resources, increases their exposure to liability and litigation, and exacerbates fear in communities already distrustful of police.”

In recent months, Congress held two oversight hearings and heard from U.S. citizens who have been profiled and detained by local police acting under 287(g) programs. In addition to charges of 287(g) program “mismanagement” by the Government Accountability Office, the DHS Inspector General has undertaken an audit of the 287(g) program and the Department of Justice has launched a civil rights investigation into the Maricopa County Sheriff’s Office, which has an extensive 287(g) program.

In February, a federal court decided that a class action lawsuit, Ortega Melendres v. Arpaio, could proceed against Sheriff Joe Arpaio. In that case, the ACLU is co-counsel for Latino plaintiffs who were subjected to racial profiling and police misconduct by the Sheriff’s Office in Maricopa County, Arizona, a jurisdiction with the most aggressive 287(g) program in the country. In another case, the ACLU has sued on behalf of Pedro Guzman, a U.S. citizen born in California, who was illegally deported under Los Angeles County Sheriff Office’s 287(g) program. These cases are still pending.

“If the Department of Homeland Security cannot recognize failure when everyone else involved sees it, Congress should exercise its oversight and monitoring responsibilities to end the 287(g) program,” added Lin. “Minor modifications are not enough to fix this fundamentally flawed program.”

The ACLU’s FOIA request can be found at: http://www.aclu.org/immigrants/gen/40308lgl20090714.html

For the DHS release about the revamped and expanded 287 (g) program, go to http://www.dhs.gov/ynews/releases/pr_1247246453625.shtm

For ACLU's submitted testimony on 287 (g) program, go to:
http://www.aclu.org/immigrants/gen/39062leg20090304.html

For ACLU report on racial and ethnic profiling in America, go to

http://www.aclu.org/intlhumanrights/racialjustice/40055pub20090629.html

For more information about the Ortega Melendres v. Arpaio case, go to http://www.aclu.org/immigrants/gen/35998lgl20080716.html#attach

For more details about the Guzman case, go to

http://www.aclu-sc.org/releases/view/102796