Anti Terrorism Tool or Legalized Racial Profiling


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Section 287(g) of the Immigration and Nationality Act (INA) (1952) is designed to be a force multiplier in the enforcement of immigration laws by allowing designated state and local law enforcement agencies to perform immigration law enforcement functions. While designed to make enforcement of immigration laws more efficient, the policy has become a topic for national debate and caused concern that it prompts racial profiling and is driving a wedge between local law enforcement and the minority communities.

Section 287(g) of the Immigration and Nationality Act: Anti-Terrorism Tool or

Legalized Racial Profiling

The Immigration and Nationality Act (INA) (1952) is the United States' core legislation for immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) (1996) added language to the INA designed to be a force multiplier for the U.S. Immigration and Naturalization Service, the predecessor of the U.S. Immigration and Customs Enforcement Agency (ICE). The section, Performance of Immigration Officer Functions by State Officers and Employees, has become more commonly known by its statute identifier, "Section 287(g) (1996)." While designed to make enforcement of immigration laws more efficient, it has become a topic for national debate and has caused concern amongst some that it prompts racial profiling and is driving a wedge between local law enforcement and the minority communities.

The U.S. Department of Homeland Security (DHS) has enacted policies recognizing that the federal government lacks the capability to singlehandedly respond to the modern threats that this country faces. Terrorism and criminal activity are most effectively combated through a multiagency / multi-authority approach that encompasses federal, state, and local resources, skills, and expertise (Office of Public Affairs, U.S. Department of Homeland Security, 2006). Since 9/11, state and local public safety agencies have begun assuming roles typically left to federal oversight. State and local agencies are nearly always first on the scene when there is an incident or attack that has national implications. In addition, since they are active in our communities on a daily basis they are more likely to encounter potential or future threats prior an actual attack occurring. As such, it is also likely they will encounter foreign-born criminals and immigration violators who may pose a threat to national security or public safety during the course of daily duties.

In order to combat the growing problem of immigration violations, legislation was adopted that would allow federal law enforcement agencies to tap into the pool of resources in our state and local police departments. The IIRAIRA added language to the INA designed to be a force multiplier for the federal immigration enforcement agencies. The section of code titled, Performance of Immigration Officer Functions by State Officers and Employees, authorizes the Secretary of DHS to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Understanding, provided that the local law enforcement officers receive appropriate training and functions under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers (U.S. Immigration and Customs Enforcement, 2007). This section of code has become more commonly known by its statute identifier, "Section 287(g)." While the law has been in place since 1996, it was seldom utilized until after September 2001 when the lines between federal, state, and local agencies became more permeable.

While the benefits to the federal law enforcement agencies of having more "boots on the ground" are readily apparent, many state and local law enforcement agencies have also seized upon this potential as it was seen as a way to provide them additional resources and latitude to pursue immigration related investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering (U.S. Immigration and Customs Enforcement, 2007). An example of the outcomes can be gleaned from Prince William County, Virginia, who first signed onto the program in 2008. Within one year, its police and sheriff departments detained more than 1,000 illegal immigrants who were deported or are awaiting deportation after serving their sentences on unrelated criminal charges (Green, 2008). In an interview with Erica Green of Northwestern University (2008), Corey Stewart, chairman of the Prince William Board of County Supervisors stated, "There's no question that this program has done two things: it's made the community safer from crime and it's improved the living conditions in the community. In 2007 when we started this process, we began to notice that illegal immigrants in schools and in the community began to leave the county." While Stewart can certainly document positive changes in some aspects of his community, the research does not answer the question of where this large influx of detainees are being housed or where those that moved out of his county have gone. The probability exists they are dealing with overcrowded detention areas and a large emigration into neighboring counties and towns.

While the potential for benefits to law enforcement have been documented, not all believe these are positive outcomes. The Immigration & Human Rights Policy Clinic, of the University of North Carolina at Chapel Hill, has pointed out several critical issues with the administration of the program. Their report highlights that a negative outcome is reluctance among immigrants to contact police if they themselves are victims or witnesses of crimes. These crime victims face the very real possibility of being jailed or deported as a result of immigration law violations. Additionally, the group reports that there research shows there are growing concerns in the Hispanic community that law enforcement officers are targeting anyone that "looks illegal" for minor offenses in order to verify their residency status (2009). The group also points out that some of the country's major cities chiefs of police, to include onetime chief of the Los Angeles Police Department, William Bratton, have argued, "that 287(g) undermines public safety... Police officers can't fight crimes when communities they serve fear and avoid them (2009)." The American Civil Liberties Union (ACLU) has also gone on record of opposing the program and has taken the position that agreements between localities and ICE should be suspended pending further review. The organization has cited numerous studies by civil rights study groups indicating that while the goal of the law is to empower state and local law enforcement to act as immigration officials when faced with dangerous criminals or terrorists, it has instead "created a climate of racial profiling and community insecurity (2009)."

While the claims of university officials and the ACLU might be dismissed as a result of the sources having a predisposition toward the liberal argument, the Department of Homeland Security's Inspector General has affirmed some of these same concerns. The Inspector General recently released an audit report highlighting 33 shortcomings of the program, 32 of which were confirmed and acknowledged as issues by ICE. The report states that outsourcing immigration enforcement to state and local law enforcement agencies that are ill-trained with respects to immigration law and poorly supervised by ICE creates problematic outcomes. The report highlights issues ranging from lacking training, the potential for racial profiling, lacking data collection and reporting requirements, and management issues as a result of the officers operating outside of the control of ICE. In addition, the report points out that statistically speaking "fewer than 10 percent of a sample of captured offenders had committed serious crimes, and almost half had no connection at all to violence, drugs, or property crimes (Skinner, 2010)."

In response to the Inspector General's report, the New York Times Editorial Board echoed many of these same concerns and concluded that they "are skeptical that the 287(g) program can ever be fixed." They related that in their opinion, "the returns are too low and the costs - in abuses and undermining law enforcement - are too high to make it worth trying." The felt Homeland Security Department should pull the plug on 287(g) (2010). Here again, editorial boards tend to be biased toward liberal positions, but it is undeniable that sources such as the New York Times have immense distribution capabilities and do affect public opinion. Their positions must be considered by policy makers.

The United States finds its foundation in the guidelines provided by the Declaration of Independence. Core to this document is the concept that "…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness (1776)." These guidelines were subsequently codified in the Bill of Rights of the U.S. Constitution. While the Performance of Immigration Officer Functions by State Officers and Employees section of the INA was designed to make enforcement of immigration laws more efficient, it has¸ based on the evidence presented, become a divisive topic and too fraught with the potential for bad outcomes to be maintained. State and local law enforcement agencies must maintain as their primary responsibility to "protect and serve" the community their employees have taken an oath to defend. That community includes all people that call it home, regardless of race or ethnicity. They cannot adequately accomplish this core goal if certain segments of the population are segregated from the whole as a result of their lineage. While the argument can and has been made that these people are violating the law, and as such should not be entitled to the protections and privileges set forth in the Constitution, this argument is just plain Un-American. Immigrants founded this country. People looking for freedom and a better life for themselves and their families have continued this practice for over 400 years. It was these past immigrants that built the extraordinary nation we have today. Unfortunately, it is the descendants of these same immigrants that are currently fueling the anti-immigration debate in this country. Immigrants from Latin America are merely the latest wave of newcomers to our shores. We should as a nation control and document the flow of immigrants into the country, but that does not mean we close the door to immigration or ruthlessly hunt down immigrants once they are here. We should make them productive, tax paying members of the society, not outcasts forced to choose a life of crime to support their families. If it is the will of the people and the intent of Congress to continue to label immigrants as criminals, then state and local law enforcement agencies must resist the urge to become active agents in the prosecution of these people. To do so, even with the best of intentions, would undoubtedly prompt racial profiling and drive a wedge between local law enforcement and the minority communities we are sworn to protect and serve.

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