The U.S. Department of Homeland Security is changing its controversial 287(g) program to encourage local law enforcement agencies, including those in Durham and Wake counties, to focus their energies on processing "criminal illegal aliens" for deportation, not those accused of petty crimes. However, the federal directive stops short of guaranteeing such deportations won't happen.
The 287(g) program—and a separate initiative, Secure Communities, which faces similar questions about its transparency and purpose—was the subject of a Spanish-language forum in Durham last week. While Durham Police Chief José Lopez calmed some immigrant advocates' fears about the department's enforcement of 287 (g), Durham Sheriff's Deputy Major Paul Martin could not answer basic questions about his office's involvement in federal programs.
A voluntary program, 287(g) was created to deport illegal immigrants accused of serious crimes. However, the GAO found earlier this year that some agencies have used the program to process people for minor crimes, such as speeding. (Download the report, "Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration Laws," PDF, 800 KB.)
In response, Homeland Security announced this month that all local law enforcement agencies must sign a new universal Memorandum of Agreement (MOA) (PDF, 92 KB) with the federal government. Unlike the old agreements, the new MOA will specify the program's purpose as "identifying and processing for removal criminal aliens who pose a threat to public safety or danger to the community."
"Those who are in this country, who are in gangs and involved in crime—they are not a part of our community," Chief Lopez told a group of about 150 people at El Centro Hispano. "When we ID someone from this community who's involved in crime, we can take him out of this community."
Eight North Carolina sheriff's departments and Durham police participate in 287(g).
In Wake County, 287(g) officers don't check a suspect's immigration status until he or she has been booked into jail; this is known as a "detention program."
However, the Durham police department employs one 287(g) "task force officer," who can investigate major crimes and arrest suspects solely on immigration charges as long as a "reasonable suspicion exists to believe the alien is or was involved in criminal activity" in the past. The new MOA specifies that task force programs must first notify ICE.
"In many cases, it's a person we don't want in this community, not for the crime for which he has been arrested, but for activities he has been involved in—narcotics, gang-related activities," Lopez explained.
While it appears that the Durham police's task force version of 287(g) is vulnerable to abuse, the number of arrests doesn't bear that out. Since the program was implemented 18 months ago, Lopez said, city police have processed 59 defendants, 50 of whom have been deported.
"From what we've been able to see, it appears that the 287(g) program in Durham is one of the small handful that are actually implementing the program the way Congress intended, which is to deport criminal aliens," said Marty Rosenbluth, attorney for the Southern Coalition for Social Justice. "Whereas, everywhere else it seems to be a program to deport people accused of minor offenses."
By contrast, Wake County—which employs 13 officers who are deputized through the 287(g) detention program—has processed for deportation more than 2,000 inmates in its jail over the past year. Records provided by Wake County indicate that from January to June 2009, inmates processed through 287(g) have been charged with five times as many misdemeanors and minor traffic violations (PDF, 2.1 MB) as felonies and felony traffic violations.
Earlier this year, the GAO found the program's mandate to deport illegal immigrants involved in serious crime, like drug smuggling and sex-related offenses, was not clearly stated in program materials. The report also found, in many cases, the program had almost no transparency or oversight.
The new MOA addresses communication failures and adds a clause specifically barring racial profiling, which was not addressed in previous MOAs. It also prevents law-enforcement agencies enrolled in the detention program from dropping criminal charges against potential illegal immigrants. (However, because of its involvement in the task force program, Durham police are not bound by that requirement.)
In a press release, Homeland Security explained that the new mandate is intended to prevent officers from arresting suspected illegal immigrants as a "guise" to place them into deportation proceedings.
However, the new MOA merely encourages agencies to focus on more serious crimes and does not explicitly bar agencies from deporting undocumented immigrants accused of minor offenses.
"They're not offering any guarantees whatsoever that people picked up for minor violations are not going to be put into deportation hearings," Rosenbluth said.
At the forum, Lopez acknowledged that even if someone is found not guilty of a crime that prompted him or her to be detained, ICE can decide to deport that person based on his or her immigration status.
Meanwhile, Major Martin, on hand to answer questions about Secure Communities, denied the program even existed in Durham County. Under Secure Communities, ICE decides when to process for deportation illegal immigrants accused of crimes and held in county jails.
"The sheriff has not signed any formal agreement with ICE, or anyone, for 287(g) or Secure Communities," Martin said in English.
Yet, according to Homeland Security and the N.C. Sheriff's Association, Durham County is a member of Secure Communities. When the Indy called Martin to ask about the discrepancy, he said, "Maybe they're confused with Durham City because they have 287(g)."
He added: "We have not signed anything to indicate that we are part of Secure Communities. I can't locate it anywhere."
Tony Queen, director of special projects for the N.C. Sheriff's Association, provided one explanation for Martin's confusion: "You don't have to formally sign any kind of agreement to be a Secure Community," he told the Indy. "That's just additional information that becomes available to you."
When pressed, Martin again denied his office was participating in the program. Homeland Security spokesperson Matt Chandler, however, confirmed that Durham County had voluntarily enrolled in the program.
Rosenbluth said Martin may be technically correct in his answer, but the fact that he doesn't know of Durham County's enrollment is "telling."
"This is one of the problems of Secure Communities—it's just going to hit in all these places, and people are going to be completely unaware of its consequences," Rosenbluth said.