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EXAMINING 287(G): THE ROLE OF STATE AND 

LOCAL LAW ENFORCEMENT IN IMMIGRATION LAW 

HEARING 

BEFORE THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MARCH 4, 2009 

Serial No. 111–3 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 
(II) 

COMMITTEE ON HOMELAND SECURITY 

BENNIE G. THOMPSON, Mississippi, Chairman 

LORETTA SANCHEZ, California 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

HENRY CUELLAR, Texas 

CHRISTOPHER P. CARNEY, Pennsylvania 

YVETTE D. CLARKE, New York 

LAURA RICHARDSON, California 

ANN KIRKPATRICK, Arizona 

BEN RAY LUJA ́ N, New Mexico 

BILL PASCRELL, JR., New Jersey 

EMANUEL CLEAVER, Missouri 

AL GREEN, Texas 

JAMES A. HIMES, Connecticut 

MARY JO KILROY, Ohio 

ERIC J.J. MASSA, New York 

DINA TITUS, Nevada 

VACANCY

PETER T. KING, New York 

LAMAR SMITH, Texas 

MARK E. SOUDER, Indiana 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

MICHAEL T. MCCAUL, Texas 

CHARLES W. DENT, Pennsylvania 

GUS M. BILIRAKIS, Florida 

PAUL C. BROUN, Georgia 

CANDICE S. MILLER, Michigan 

PETE OLSON, Texas 

ANH ‘‘JOSEPH’’ CAO, Louisiana 

STEVE AUSTRIA, Ohio 

I. LANIER AVANT, Staff Director 

ROSALINE COHEN, Chief Counsel 

MICHAEL TWINCHEK, Chief Clerk 

ROBERT O’CONNOR, Minority Staff Director 
(III) 

C O N T E N T S 

Page 

STATEMENTS

The Honorable Bennie G. Thompson, a Representative in Congress From 

the State of Mississippi, and Chairman, Committee on Homeland Security .. 1 

The Honorable Mark E. Souder, a Representative in Congress From the 

State of Indiana: 

Oral Statement ..................................................................................................... 2 

Prepared Statement ............................................................................................. 4 

The Honorable Emanuel Cleaver, a Representative in Congress From the 

State of Missouri: 

Prepared Statement ............................................................................................. 5 

The Honorable Lamar Smith, a Representative in Congress From the State 

of Texas: 

Prepared Statement ............................................................................................. 5 

The Honorable Gus M. Bilirakis, a Representative in Congress From the 

State of Florida: 

Prepared Statement ............................................................................................. 6 

WITNESSES

Mr. William F. Riley, Acting Director, Office of State and Local Coordination, 

U.S. Immigration and Customs Enforcement, Department of Homeland Security: 

Oral Statement ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Richard M. Stana, Director, Homeland Security and Justice Issues, Government Accountability Office: 

Oral Statement ..................................................................................................... 14 

Prepared Statement ............................................................................................. 16 

Mr. Charles A. Jenkins, Sheriff, Frederick County, State of Maryland: 

Oral Statement ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Mr. J. Thomas Manger, Chief, Montgomery County Police Department, State 

of Maryland: 

Oral Statement ..................................................................................................... 26 

Prepared Statement ............................................................................................. 27 

Mr. Muzaffar A. Chishti, Director, NYU School of Law Office, Migration 

Policy Institute: 

Oral Statement ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

FOR THE RECORD

Gary D. Leatherman, Noble County Sheriff: 

Document, Submitted by the Honorable Mark E. Souder ................................ 47 

The Honorable Ed Pastor, a Representative in Congress From the State 

of Arizona: 

Letter ..................................................................................................................... 77 

Wade Henderson, President and Chief Executive Officer, Leadership Conference on Civil Rights, and Margaret Huang, Executive Director, Rights 

Working Group: 

Joint Statement .................................................................................................... 78 
Page

IV 

Harold L. Hurtt, Chief of Police, Houston, Texas: 

Letter, Submitted by the Honorable Sheila Jackson Lee ................................. 81 

The Immigration Policy Center, a Division of the American Immigration 

Law Foundation: 

Statement ............................................................................................................. 82 

The American Immigration Lawyers Association, the National Immigration 

Forum, and the National Immigrant Justice Center: 

Joint Statement .................................................................................................... 84 

APPENDIX

Questions From Chairman Bennie G. Thompson ................................................. 93 
(1) 

EXAMINING 287(G): THE ROLE OF STATE AND 

LOCAL LAW ENFORCEMENT IN IMMIGRATION LAW 

Wednesday, March 4, 2009 

U.S. HOUSE OF REPRESENTATIVES, 

COMMITTEE ON HOMELAND SECURITY, 

Washington, DC. 

The committee met, pursuant to call, at 2:02 p.m., in Room 311, 

Cannon House Office Building, Hon. Bennie G. Thompson [Chairman of the committee] presiding. 

Present: Representatives Thompson, Sanchez, DeFazio, Jackson 

Lee, Cuellar, Carney, Clarke, Richardson, Kirkpatrick, Luja ́n, 

Cleaver, Green, Kilroy, Massa, Titus, Smith, Souder, Lundgren, 

Rogers, McCaul, Dent, Bilirakis, Broun, Olson, Cao, and Austria. 

Also present: Representatives Bartlett and Edwards. 

Chairman THOMPSON [presiding]. The Committee on Homeland 

Security will come to order. I would like to ask unanimous consent 

to allow Representative Edwards and Bartlett to sit in on the hearing for the purpose of introducing their respective witness. 

Without objection. 

The committee is meeting today to receive testimony on ‘‘Examining 287(g): The Role of State and Local Law Enforcement in Immigration Law.’’ I want to thank the witnesses for appearing today 

to provide testimony on the 287(g) program, which has been around 

since 1996 but has experienced a remarkable surge in popularity 

in recent years. 

According to Immigration and Customs Enforcement, the main 

goal of the program is to increase the safety and security of our 

communities by apprehending and removing undocumented criminal aliens who are involved in violent and serious crimes. According to ICE, the local sheriffs and police officers would work with 

ICE to identify, locate, and apprehend these dangerous people. 

The 287(g) program, as intended, would achieve two parallel 

goals. No. 1, participating jurisdictions would have dangerous people removed from their communities. No. 2, the Federal Government would have a force multiplier to enhance efforts to remove 

dangerous aliens from the country. 

In theory, it seems like a good idea and a good deal for everyone 

involved. In fact, many jurisdictions have bought into the promise 

of this program as evidenced by the surge in popularity over the 

last 2 years. Participation has grown from 29 programs in 2006 in 

13 States to 67 programs in 23 States today. There is even a waiting list to join. Forty-two State and local law jurisdictions are on 
2 

the waiting list. As the popularity of this program has grown, so 

has funding. In the last 3 years, the 287(g) program’s budget has 

increased from $5 million to nearly $60 million. 

Like everyone else, I applaud the growth of successful programs. 

But the record is incomplete, at best, as to whether or not this program is a success. For instance, in 2008, it was credited with resulting in the removal of 29,000 people. Its budget for fiscal year 

2008 was just under $40 million. To determine whether that was 

a prudent way to spend the taxpayers’ money, we would need to 

know whether the people removed were dangerous aliens. Unfortunately, we do not know the critical piece of information. 

We cannot answer this basic question because, as we will hear 

from the Government Accountability Office, ICE does not require 

that specific data be collected, does not require that specific information be reported and does not have any performance measures. 

Without objective data, we cannot evaluate the effectiveness of this 

program nor can we determine whether better results could be 

achieved by other means such as increasing the number of ICE 

agents. 

While I do not know whether 287(g) is an effective program, I do 

know that it is a program that has been accused of racial profiling. 

That accusation should concern all of us. Effective law enforcement 

and discrimination cannot coexist. Our communities must be safe 

and our Nation must be secure. We will only achieve that goal by 

making sure that our efforts are strategic and tailored. Popularity 

cannot be a replacement for documented performance and constitutional principles. 

I look forward to hearing testimony from our distinguished panel. 

The Chair now recognizes our Ranking Member, Mr. Souder, sitting in for Mr. King, from Indiana, for an opening statement. 

Mr. SOUDER. Thank you very much, Mr. Chairman. 

This is an important hearing on a cornerstone Department of 

Homeland Security law enforcement information sharing program. 

While the 287(g) program was slow to start—the law was enacted 

in 1996, the first agreement signed in 2002 after the 9/11 terrorist 

attacks—a major vote did not occur until 2007. There are clear 

benefits for the jurisdictions who volunteer for this program. They 

get access to immigration status information, a direct link to ICE 

to identify and remove aliens in the custody of local law enforcement, deterrent for aliens to commit crimes and engage in gang activity in the community, the ability to remove aliens from jail, saving space and money. 

Under this program, officers undergo federally sponsored training, receive equipment, and most importantly, have access to information. This allows them to accurately check the immigration status of the aliens they encounter during their day-to-day activity 

such as arresting an individual for narcotics violations, driving 

without a license or drunk driving, investigating a violent crime or 

booking an individual into a correctional facility. All of these things 

are in fact crimes in addition to the illegal status. 

ICE depends on data provided by local law enforcement. Illegal 

immigration investigations are similar to counter-narcotics in that 

a significant amount of data is necessary to connect the dots and 

find systems of smuggling. For the entire Nation as well as for for-
3 

eign assignments, ICE has 6,000 agents and 6,000 detention and 

removal officers. ICE resources are stretched thin. For ICE to tackle the large smuggling networks, they rely on partnerships with 

State and local law enforcement and correctional facilities—by the 

way, just like we do in narcotics and HIDAS. 

ICE has 67 active agreements and 25 applications pending. Unfortunately, ICE has also denied many requests from jurisdictions 

wanting to participate in the 287(g) program. There is clearly interest among State and local law enforcement to—including in my 

own congressional district—to partner with ICE as a means to enhance community safety and bolster national security. My biggest 

frustration is that ICE, under both Republican and Democratic administrations, has not done enough to support the program. 

In October 2007 after hearing from several sheriffs in my district 

about their concerns with illegal immigration, criminal aliens in 

particular, I organized an immigration law enforcement roundtable. 

The event was attended by ICE and 25 representatives from across 

Indiana and parts of western Ohio, including sheriffs, prosecutors, 

and jailors. 

Allen County Sheriff Fries is from the largest county in my district—350,000 people. He has applied to participate in 287(g) and 

was told that ICE did not have the resources to support the request. Even if he did the training, they wouldn’t have any DRO 

agents to remove people that were arrested. 

At the time of the roundtable, most of the law enforcement jurisdictions present were encouraged that ICE had a person dedicated 

to transporting illegal aliens from their jails who had been arrested 

for other crimes to Federal detention facilities. Shortly after, however, this arrangement fell apart, as the individual assigned was 

involved in an accident, and his replacement was sent on another 

assignment. 

It is my understanding that this situation still has not been corrected in Indiana. As recently as February 9, Sheriff Fries reported 

that there are at least 200 illegal aliens housed in my home county’s jail for various crimes, costing the taxpayers $40 a day. Sheriff 

Fries would prefer to turn them over to ICE for removal from the 

country, but ICE cannot or will not provide anyone to transport 

them. He and the taxpayers of Indiana and other sheriffs from my 

district are ranging between frustrated to angry that the Federal 

Government refuses to execute their obligations and commitments 

to follow through on their part. 

I am looking forward to this hearing from ICE about this situation and the future of the 287(g) program. I would like to especially 

thank Sheriff Jenkins from Frederick County, Maryland, for being 

here. I am interested in hearing about 287(g) and how it works in 

your jurisdiction. I also appreciate the work of GAO in producing 

a report on 287(g) and offering several common-sense suggestions 

that should improve the program management. 

Thank you to the other witnesses as well, and I look forward to 

your testimony. 

Thank you, Mr. Chairman. 

[The statement of Hon. Souder follows:] 
4 

PREPARED STATEMENT OF THE HONORABLE MARK E. SOUDER

MARCH 4, 2009 

Thank you, Mr. Chairman. This is an important hearing on a cornerstone DHS 

law enforcement information sharing program. 

While the 287(g) program was slow to start—the law was enacted in 1996; the 

first agreement was signed in 2002 after the 9/11 terrorist attacks—major growth 

did not occur until 2007. 

There are clear benefits for the jurisdictions who volunteer for this program: 

• Access to immigration status information; 

• Direct link to ICE to identify and remove aliens in the custody of local law enforcement; 

• Deterrant for aliens to commit crimes and engage in gang activity in the community; 

• Ability to remove aliens from jails—saving space and money. 

Under this program, officers undergo Federally-sponsored training, receive equipment, and most importantly have access to information. This allows them to check 

the immigration status of aliens they encounter during their day-to-day activities, 

such as arresting an individual driving without a license or drunk driving, investigating a violent crime, and booking an individual into a correctional facility. 

ICE depends on data provided by local law enforcement. Illegal immigration investigations are similar to counternarcotics in that a significant amount of data is 

necessary to connect the dots and find systems of smuggling. For the entire Nation, 

as well as foreign assignments, ICE has 6,000 agents and 6,000 detention officers. 

ICE resources are stretched thin. For ICE to tackle the large smuggling networks, 

they rely on partnerships with State and local law enforcement and correctional facilities. 

ICE has 67 active agreements and 25 applications pending. Unfortunately, ICE 

has also denied many requests from jurisdictions wanting to participate in the 

287(g) program. There is clearly interest among State and local law enforcement to, 

including in my own Congressional district—to partner with ICE as a means to enhance community safety and bolster national security. 

My biggest frustration is that ICE—under both Republican and Democratic administrations—has not done enough to support the program. In October 2007, after 

hearing from several Sheriffs in my district about their concerns with illegal immigration, criminal aliens in particular, I organized an Immigration Law Enforcement 

Roundtable. The event was attended by ICE and 25 representatives from across Indiana and parts of Western Ohio, including sheriffs, prosecutors, and jailers. 

One Sheriff from my District who wanted to participate in 287(g) was told ICE 

did not have the resources to support the request. At the time of the Roundtable, 

most of the law enforcement jurisdictions present were encouraged that ICE has a 

person dedicating to transporting illegal aliens from their jails to Federal detention 

facilities. Shortly after, however, this arrangement fell apart as the individual assigned was involved in an accident and his replacement was sent on another assignment. It is my understanding that this situation still has not been corrected. 

As recently as February 9, a Sheriff reported that there are at least 200 illegal 

aliens housed in his county jail for various crimes, costing the taxpayers $40 per 

day. The Sheriff would prefer to turn them over to ICE for removal from this country, but ICE cannot or will not provide anyone to transport them. 

I am looking forward to hearing from ICE about this situation and the future of 

the 287(g) program. I would like to especially thank Sheriff Jenkins from Frederick 

County, Maryland for being here; I am interested in hearing about how the 287(g) 

program works in your jurisdiction. I also appreciate the work of the GAO in producing a report on 287(g) and offering several common-sense suggestions that 

should improve the program management. Thank you to the other witnesses as well. 

I look forward to the testimony. 

Thank you Mr. Chairman. 

Chairman THOMPSON. Thank you very much, Mr. Ranking Member. 

Other Members of the committee are reminded that, under committee rules, opening statements may be submitted for the record. 

[The statements of Hons. Cleaver, Smith, and Bilirakis follow:] 
5 

PREPARED STATEMENT OF THE HONORABLE EMANUEL CLEAVER

MARCH 4, 2009 

Chairman Thompson, Ranking Member King: I look forward to hearing testimony 

today about the 287(g) program. This section was added to the Immigration and Nationality Act by Illegal Immigration Reform and Immigrant Responsibility Act of 

1996, and allows the Federal Government through Immigration and Customs Enforcement to work with State and local authorities to carry out immigration enforcement. The objective of the 287(g) program is to address serious criminal activity 

committed by removable aliens. 

I am concerned, however, with a number of the recent findings of the GAO report 

entitled ‘‘Immigration Enforcement: Controls over Program Authorizing State and 

Local Enforcement of Federal Immigrations Laws Should Be Strengthened.’’ The report notes that ICE officials have not properly documented their program objectives 

in memorandums of agreement with local law enforcement agencies. This has resulted in agencies removing aliens for ‘‘minor offenses, such as speeding, carrying 

an open container, and urinating in public.’’ I hardly believe that these minor offenses should be considered on par with the level of serious criminal activity that 

was intended with the enactment of this program. 

I am further concerned that lack of ICE supervision and failure to provide clear 

objectives has given local law enforcement agents far too much leeway. I am troubled by reports in Arizona of raids by the county sheriff. I am even more troubled 

by the report of a Nashville woman, who while 9 months pregnant, was arrested 

on a minor traffic violation, and forced to give birth while in custody. While I am 

grateful for the community protection provided by local law enforcement officials, I 

am eager today to question these witnesses, and assess whether immigration enforcement is best left in the hands of ICE officials. 

PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH

MARCH 4, 2009 

The 287(g) program was created in the ‘‘Illegal Immigration Control and Immigrant Responsibility Act of 1996,’’ which I co-authored. That legislation has reduced 

illegal immigration and helped ensure the integrity of America’s legal immigration 

system. 

The 287(g) program allows DHS to enter into an agreement with a State or locality so that State and local law enforcement officers can assist in the investigation, 

apprehension and detention of illegal aliens. It is a voluntary program. 

In recent years, the annual number of jurisdictions participating has risen dramatically—from one in 2002 to 67 currently. And DHS cannot keep up with the increased demand. In fiscal year 2007, ICE received 69 new applications. I understand 

that some of those applicants may not have been good candidates for the 287(g) program, but according to ICE, the vast majority were rejected because of limited funding. 

The 287(g) program is effective because it allows State and local law enforcement 

officials to augment immigration enforcement. In September 2006, Corey Stewart, 

the Chairman of the Prince William County, VA Board of Supervisors testified, that 

the 287(g) agreement enabled his county in just 3 months to prevent 111 criminal 

aliens from returning to the streets of Prince William County. In the over 2 years 

since then, Prince William County has continued its success with the 287(g) program. 

And there are stories like Prince William County’s all over the country. According 

to ICE, ‘‘since January 2006, the 287(g) program is credited with identifying more 

than 79,000 individuals, mostly in jails, who are suspected of being in the country 

illegally.’’ And more than 950 officers have been trained and certified through the 

program. 

State and local law enforcement officials have the inherent authority to assist in 

the enforcement of immigration laws should they choose to do so. 

When we wrote the bill that created section 287(g), our goal was to help local law 

enforcement officials reduce the crime committed by illegal immigrants. Law enforcement officials believe that this voluntary program works. 

The Government Accountability Office has suggested some ways that ICE could 

improve the 287(g) program. 

One issue the GAO addresses is that ICE states the purpose of the program is 

to ‘‘enhance the safety and security of communities by addressing serious criminal 

activity committed by removable aliens.’’ This statement is being touted by those 
6 

who oppose the program as a reason to stop State and local law enforcement officers 

from arresting illegal immigrants who have committed minor offenses. 

Let me assure you, as the co-author of the legislation enacting the 287(g) program, it was not our intent that the program would only be used to address ‘‘serious 

criminal activity.’’ 287(g) was created to let State and local law enforcement officials 

help enforce all Federal immigration laws and to remove illegal immigrants from 

the streets. 

State and local law enforcement agencies are successfully using 287(g) authority 

to make communities safer. Those who are serious about public safety should not 

only support the program, but also call for its expansion. 

PREPARED STATEMENT OF THE HONORABLE GUS M. BILIRAKIS

I am keenly interested in ensuring that all homeland security programs in general, and this one in particular, are operating as efficiently and effectively as possible. I welcome the GAO’s constructive comments and encourage Immigration and 

Customs Enforcement (ICE) to continue its efforts to strengthen management controls over the program. 

I strongly support the 287(g) program and believe that it is an invaluable tool to 

help enhance our ability to deter illegal immigration and detect criminals and others who may wish to do us harm. 

This program provides an additional tool to help local law enforcement protect 

their communities by identifying illegal aliens who commit crimes and ensuring 

they are removed from the country and not in a position to commit subsequent 

crimes in the future. I believe it would be short-sighted to allow current management challenges in the program to deter us from expanding and maximizing its immigration enforcement benefits. 

Chairman THOMPSON. I now welcome our panel of witnesses. Our 

first witness, Mr. William Riley, is acting director of the Office of 

State and Local Coordination at Immigration and Customs Enforcement, which administers the 287(g) program. 

Our second witness is Mr. Richard Stana, director of Homeland 

Security and Justice Issues at the Government Accountability Office. During his 33-year career at GAO, Mr. Stana has directed reviews on a wide variety of complex military and domestic issues. 

I will yield to the gentleman from Maryland, Mr. Bartlett, to introduce our third witness. 

Mr. BARTLETT. Thank you very much, Mr. Chairman, and thank 

you for the opportunity to come here to introduce Sheriff Chuck 

Jenkins. Not only is Chuck a long-time friend, he is a really great 

sheriff and a truly great American. He is also a pioneer. He is one 

of the first in the general region and the first and only law enforcement officer in Maryland cooperating with ICE to identify and deport illegal aliens who are also felons. Thank you very much for 

having him here as a witness. 

Chairman THOMPSON. Thank you very much. 

I will also yield to the young lady from Maryland to introduce 

the next witness. 

Ms. Edwards. 

Ms. EDWARDS. Thank you, Mr. Chairman, and it is my great 

pleasure to introduce to the committee today Chief J. Thomas Manger of the Montgomery County Police Department, which is one of 

the largest police departments in our State. One of the things that 

you will find about Chief Manger is he understands the important 

balance that needs to be struck in communities. You will hear his 

insight and innovation and the creativity with which he has led the 

Montgomery County Police Department as it takes on these important challenges of immigration in a very diverse community. So I 
7 

thank you for inviting him here today. I know that, as I have, you 

will have a lot to learn from Chief Manger. Thank you. 

Chairman THOMPSON. Thank you. Thank both of you for your introductory remarks. 

Our final witness is Mr. Chishti. 

Director of Migration Policy Institute Office at New York University School of Law. His work focuses on U.S. immigration policy, 

the intersection of labor and immigration law, civil liberties and 

local and State enforcement of immigration laws. 

Welcome to all our witnesses. 

Without objection, the witnesses’ full statement will be inserted 

in the record. 

Mr. Riley, I now recognize you to summarize your statement for 

5 minutes. 

STATEMENT OF WILLIAM F. RILEY, ACTING DIRECTOR, OFFICE OF STATE AND LOCAL COORDINATION, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF 

HOMELAND SECURITY 

Mr. RILEY. Thank you. 

Chairman THOMPSON. Congressman Souder and distinguished 

Members of this committee, thank you for the opportunity to testify 

before you today about U.S. Immigration and Customs Enforcement management and oversight of the 287(g) delegation of authority program, which allows State and local law enforcement agencies 

to partner with ICE to enforce our Nation’s immigration laws. 

My name is William Riley, and for the past 5 months I have 

served as the acting executive director for the ICE Office of State 

and Local Coordination, which is responsible for the management 

and oversight of the 287(g) program. I am pleased to discuss with 

you today the partnerships ICE has in place with State and local 

law enforcement agencies through the 287(g) program and also to 

discuss the General Accountability Office’s recommendations to improve management of the program. 

As a result of community concern associated with illegal migration and the public safety threat posed by criminal aliens, there 

has been increased interest in the 287(g) program, and it has become one of the primary tools requested by State and local law enforcement agencies as they address their immigration enforcement 

concerns. A review of the current state of the 287(g) program reveals that, as of February 2009, almost 1,000 law enforcement officers have been trained pursuant to 67 signed memoranda of agreement in 23 States. 

As of February 2009, ICE’s 287(g) cross-designated partners have 

encountered over 90,000 aliens who were identified for removal 

from the United States. It should be noted that 90 percent or 60 

of the 67 MOAs were signed in fiscal year 2007 and 2008. ICE 

looks forward to entering into additional agreements with our State 

and local partners and will focus future expansion on the jail enforcement model. 

I would like to take this opportunity to discuss ICE’s response to 

GAO’s report, ‘‘Immigration Enforcement: Better Controls Needed 

Over Program Authorizing State and Local Enforcement of Federal 

Immigration Laws.’’ First, let me note that ICE welcomed GAO’s 
8 

review of the 287(g) program. Although still in its infancy, as ICE 

has expanded the program, it has not only seen an increase in public interest but increased scrutiny as well. 

To ensure the program is operating in the most efficient manner, 

ICE developed a review of the draft copy of the GAO report that 

contains five recommendations. ICE concurs with all the recommendations and in some areas had already begun addressing 

the recommendations before the GAO study was completed. 

Before addressing ICE’s response to GAO’s recommendations, I 

would like to point out that soon after her confirmation as Secretary of Homeland Security, Secretary Napolitano issued a wideranging action directive on immigration and border security. The 

directive requires specific department offices and components to 

work together and with State and local partners to review and assess current plans and policies in this area. 

Secretary Napolitano is looking for metrics of success, gaps in 

service and resources, partnerships with State and local governments and other Federal agencies, as well as other suggestions for 

reforms, restructuring and consolidation where needed. Included in 

that directive is a review of the current 287(g) program. 

With that in mind, in a response to the GAO recommendations, 

ICE has begun the process of redrafting the template that is used 

to form 287(g) agreements. Once redrafted, the template will be 

submitted to DHS headquarters for comment and approval. Upon 

being approved, this template will incorporate many of the recommendations made by GAO. 

For example, the MOAs will include the nature and extent of supervisory activities ICE officers are expected to carry out as part 

of their responsibilities in overseeing the implementation of the 

287(g) program. The MOAs will outline how and under what circumstances 287(g) authority is to be used by State and local law 

enforcement officers and participating agencies. 

Also to be incorporated in each MOA are ICE’s detention priorities. These priorities ensure that ICE’s finite detention space is 

used to detain aliens who pose the greatest risk to the public. Sunset dates will be incorporated into all MOAs to ensure regular review and modification as needed. ICE will also specify the program 

information and data that each agency is expected to collect regarding the implementation of the 287(g) program and how this information is to be reported. 

The Office of State and Local Coordination is working to create 

system enhancements to ENFORCE, which is the DHS’s primary 

administrative arrest booking case management system, that will 

allow ICE to classify the types of aliens 287(g)-trained officers are 

encountering and the severity of their crimes. This data will be 

used by ICE to evaluate whether or not our 287(g) partnerships 

function in accord using resources with ICE priorities and to ensure that the continuation of an agreement is in the best interest 

of ICE. 

In closing, it is critically important to note, as pointed out in 

GAO’s report, many benefits have been realized by the agencies 

participating in the 287(g) program. Program participants reported 

to GAO a reduction in crime, the removal of repeat offenders and 

other safety benefits. 
9 

I am proud of the partnerships ICE has formed with 287(g)- 

trained State and local law enforcement officers. These partnerships are essential to ICE in carrying out its mission of deterring 

criminal activity and threats to national security and public safety 

throughout the United States. While ICE has expanded the 287(g) 

program rapidly and its internal management controls can be improved, I believe that we have a strong framework in place to effectuate improvements, and I look forward to the challenges that lie 

ahead. 

Again, I thank the committee for its support of ICE and our critical mission. I would be happy to answer any questions you might 

have at this time. 

[The statement of Mr. Riley follows:] 

PREPARED STATEMENT OF WILLIAM F. RILEY

MARCH 4, 2009 

Chairman Thompson, Ranking Member King and distinguished Members of the 

committee. Thank you for the opportunity to testify before you today about U.S. Immigration and Customs Enforcement’s (ICE) management and oversight of the 

287(g) delegation of authority program, which allows State and local law enforcement agencies (LEA) to partner with ICE to enforce our Nation’s immigration laws. 

ICE is the Department of Homeland Security’s (DHS) largest investigative agency 

with responsibility for investigations having a nexus to the border and within the 

interior of the United States. I am pleased to discuss with you today the partnerships ICE has in place with State and local LEAs through the 287(g) delegation of 

authority program and the Government Accountability Office’s (GAO) recommendations to improve management of the program. 

ICE’s homeland security mission readily acknowledges the critical role that State 

and local law enforcement have in our country’s broad homeland security strategy. 

ICE’s State and local partners are frequently our Nation’s first responders. They 

often encounter foreign-born criminals and immigration violators who threaten national security and public safety during the course of their daily duties. To ensure 

that foreign nationals cannot exploit any perceived vulnerability, ICE partners with 

State and local LEAs through a variety of arrangements, including the 287(g) Program, which increases the overall effectiveness of the entire law enforcement community’s ability to protect our homeland. 

BACKGROUND AND RAPID GROWTH OF THE 287(g) PROGRAM

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), effective September 30, 1996, added Section 287(g) to the Immigration and Nationality 

Act (INA), which authorized the Attorney General, now the Secretary of Homeland 

Security, to designate State and local law enforcement officers to act as Federal immigration officers. Through Memoranda of Agreement (MOA), specially trained 

State and local law enforcement officers perform immigration enforcement duties 

only under the supervision of ICE agents and officers. 

These agreements allow ICE to utilize State and local officers as force multipliers 

in both task forces and detention facilities. Agencies participating under the Task 

Force Officer (TFO) model work under the supervision of the ICE Office of Investigations personnel. These TFOs focus on criminal activity involving gangs, identity 

and benefit fraud, human and narcotics smuggling and trafficking. TFOs assist ICE 

with both long-term investigations and large-scale enforcement activities. ICE’s enforcement efforts have benefited greatly from the synergy created by the fusion of 

Federal immigration authority with the State and local law enforcement authority 

vested in these cross-trained officers. For example: • In fiscal year 2008, the Northwest Arkansas Immigration and Criminal Apprehension Task Force (ICAT), a 287(g) task force, participated in the investigation 

of the Acambaro Mexican Restaurant and Garcia’s Distributor, Inc. This investigation that involved harboring of aliens resulted in the execution of six search 

warrants, four arrest warrants, and a seizure warrant for 15 bank accounts. 

These warrants led to the arrest of 19 foreign nationals and the seizure of nine 

vehicles and approximately $114,000 in U.S. currency. In addition to the seizures, ICE filed verified complaints of forfeiture on 11 real properties in Northwest Arkansas valued at more than $3.5 million. 
10 

1Please see Attachment 1 for a list of all 67 agreements. 

Agencies participating in the 287(g) Program’s Jail Enforcement Officer (JEO) 

model partner with ICE in detention facilities under the supervision of the ICE Office of Detention and Removal Operation personnel. Cross-designated officers expand the reach of ICE’s Criminal Alien Program (CAP). The intersection of the CAP 

and 287(g) programs further ICE’s efforts to identify aliens charged with and/or convicted of crimes who are incarcerated within State and local facilities. Furthermore, 

the program helps to ensure that criminal aliens are not released into the community by assisting with the identification of removable aliens during the booking process and then assisting ICE with the processing of those identified aliens for removal. 

The following exemplifies how these partnerships have expanded ICE’s presence 

in State and local jails: 

• On September 30, 2008, officers assigned to the Wake County (North Carolina) 

Sheriff’s Office 287(g) Program identified, interviewed, and placed detainers on 

five individuals who were arrested and charged with murder and accessory after 

the fact to murder. It was determined that all five individuals were illegally 

present in the United States, and are being held in connection with the murder 

of a 26-year-old individual from Raleigh, North Carolina. The five individuals 

will be processed for removal proceedings and, upon completion of any criminal 

sentence served, they will be transferred to ICE for removal. 

To place the great strides ICE has made with the 287(g) Program in context, it 

is necessary to examine how the program began. The first 287(g) agreement was executed under the former Immigration and Naturalization Service (INS) in the aftermath of the 9/11 attacks. After Florida law enforcement officials became increasingly concerned about the number of terrorism-related investigations in Florida, 

many of which involved foreign nationals, Florida officials approached the former 

INS seeking participation in the 287(g) Program. Thus, the first 287(g) agreement 

was executed with the Florida Department of Law Enforcement (FDLE) in 2002, 

which resulted in the creation of seven Regional Domestic Security Task Forces that 

were established in the State of Florida. Thereafter, 35 officers assigned to these 

regional task forces participated in, and graduated from, the 287(g) training program. Since the inception of that agreement, ICE has trained and certified an additional 23 officers under the FDLE MOA. 

As I noted earlier, ICE partnered with State and local law enforcement agencies 

to address the vulnerabilities discovered in the aftermath of the 9/11 attacks. However, our work is not done. To fulfill its homeland security and public safety mission, ICE has carefully expanded the 287(g) Program to increase ICE’s ability to 

identify and remove criminal aliens from the United States. 

As a result of community concern associated with illegal migration and the public 

safety threat posed by criminal aliens, there has been increased interest in the 

287(g) Program. A review of the current state of the 287(g) Program reveals that, 

as of February 2009, a total of 951 law enforcement officers have been trained pursuant to 67 signed MOA’s in 23 States.1 As the below chart illustrates, ICE has seen 

a dramatic rise in 287(g) Program participation and interest during fiscal years 

2007 and 2008. 

As of February 2009, ICE’s 287(g) cross-designated partners, operating under 67 

MOAs, have encountered over 90,000 aliens who were screened for removability. We 

have seen positive results from the current 287(g) Program. For example, the 29 

287(g) LEA partners selected for review during the GAO audit encountered 43,000 

aliens. The work conducted by the same 29 participants during fiscal year 2008 resulted in 34,000 aliens being detained by ICE. Of the 34,000 detained, approxi-
11 

mately 41 percent were placed in removal proceedings and approximately 44 percent 

agreed to voluntarily depart the United States. 

As ICE has expanded the 287(g) Program, it has become one of the primary tools 

requested by State and local LEAs as they address their immigration enforcement 

concerns. While ICE acknowledges the effectiveness of a multi-agency, multi-authority approach to protect public safety, ICE is not always in a position to grant all 

the requests for participation in the 287(g) Program. Further, careful study of the 

requirements of each LEA revealed that participation in the 287(g) Program was not 

always the best fit for every State and local LEA. 

Accordingly, we created the ICE Agreements of Cooperation in Communities to 

Enhance Safety and Security (ICE ACCESS) umbrella program in fall 2007 to assist 

State and local LEAs that are not enrolled in the 287(g) Program. ICE ACCESS programs allow ICE personnel to collaborate with their local law enforcement peers to 

address specific local challenges and provide solutions and alternatives tailored to 

each community’s needs. ICE ACCESS facilitates partnerships between ICE and 

State and local LEAs to target criminal aliens, document and immigration benefit 

fraud, human trafficking, fugitive aliens, narcotics smuggling, and money laundering. 

ICE OVERSIGHT OF THE 287(g) PROGRAM

The ICE Office of State and Local Coordination (OSLC) was established in December 2007, and is responsible for the management and oversight of the 287(g) Program. OSLC has implemented the following practices and procedures to ensure that 

ICE is adequately overseeing the program: 

• Prior to attending training, all 287(g) candidates must complete a background 

questionnaire. The questionnaire requires the submission of fingerprints, a personal history questionnaire, and the candidate’s disciplinary history. ICE’s Office of Professional Responsibility conducts a background check and determines 

each officer’s suitability to participate in the 287(g) Program. 

• Officers cleared to participate in the 287(g) Program must complete a multiweek training program conducted by the ICE Office of Training and Development. To successfully complete the program, all officers must pass each examination with a minimum score of 70 percent. If an officer fails to attain a 70 

percent rating on any examination, the officer is provided a single opportunity 

to review the curriculum and re-take a similar examination. Only one remediation examination is permitted during the entire course. Failure to achieve a 

70 percent on any two examinations results in the automatic disqualification of 

the candidate. 

• Upon successful completion of the training, officers are granted the authority 

to carry out immigration enforcement functions. 287(g) designated officers are 

only permitted to exercise immigration enforcement consistent with the parameters outlined in the Memorandum of Agreement (MOA) executed between ICE 

and the officer’s LEA. Each MOA includes a section that requires that any immigration enforcement activities be supervised and directed by ICE supervisory 

agents and officers. Cross-designated officers are not authorized to perform immigration functions except when working under the supervision of ICE. If a 

State or local officer violates the MOA, ICE may suspend or terminate an individual officer’s participation in the program. Additionally, at any time deemed 

necessary, ICE may suspend or terminate the MOA with the LEA. 

• To ensure that the LEA and the supervising ICE component operate in compliance with the terms in the MOA, OSLC and Office of Professional Responsibility have developed a vigorous inspection program to audit 287(g) agreements. 

These inspections are conducted by the Office of Professional Responsibility, 

which provides OSLC and ICE senior management with an assessment regarding the performance of the MOA. 

• To ensure cross-designated officers’ training remains current, additional training is available to the officers through eight different courses available through 

ICE’s on-line Virtual University. These courses were developed to ensure that 

State and local officers are informed of new developments in immigration law 

and policy. 

COMMENTS ON GAO REPORT

I would like to take this opportunity to discuss ICE’s response to the Government 

Accountability Office (GAO) report, Immigration Enforcement: Better Controls Needed Over Program Authorizing State and Local Enforcement of Federal Immigration 

Laws. First, let me note that ICE welcomed GAO’s review of the 287(g) Program. 

Although still in its infancy, as ICE has expanded the program, it has not only seen 
12 

2 ENFORCE is the primary administrative arrest and booking case management system for 

DHS. 

an increase in public interest, but increased scrutiny as well. To ensure the program 

is operating in the most efficient manner, ICE reviewed the draft copy of the report 

that contained five recommendations. ICE concurs with all of the recommendations 

and, in some areas, had already begun addressing the recommendations before the 

GAO study was completed. 

Before addressing ICE’s response to GAO’s recommendations, I would like to point 

out that soon after her confirmation as Secretary of Homeland Security, Secretary 

Napolitano issued a wide-ranging action directive on immigration and border security. The directive requires specific Department offices and components to work together and with State and local partners to review and assess current plans and 

policies in this area. 

Secretary Napolitano is looking for metrics of success, gaps in service and resources, partnerships with State and local governments and other Federal agencies 

as well as other suggestions for reforms, restructuring and consolidation where 

needed. Included in that directive is a review of the current 287(g) Program. With 

that in mind and in response to the GAO recommendations, ICE has begun the 

process of redrafting the template that is used to form 287(g) agreements. Once redrafted, the template will be submitted to DHS headquarters for comment and approval. Upon being approved, this template will incorporate many of the recommendations made by GAO. For example: 

1. The MOAs will include the nature and extent of supervisory activities ICE 

officers are expected to carry out as part of their responsibilities in overseeing 

the implementation of the 287(g) Program; 

2. Communicating that information to both ICE officers and State and local participating agencies; 

3. The MOAs will outline how and under what circumstances 287(g) authority 

is to be used by State and local law enforcement officers in participating agencies; 

4. Also incorporated in each MOA are ICE’s detention priorities. These priorities 

ensure that ICE’s finite detention space is used to detain the aliens who pose 

the greatest risk to the public. Specifically, the following list reflects the categories of aliens that are a priority for detention, with the highest priority being 

Level 1 criminal aliens. The following priorities will be listed in all MOAs: 

• Level 1—Individuals who have been convicted of major drug offenses and/or 

violent offenses such as murder, manslaughter, rape, robbery, and kidnapping; • Level 2—Individuals who have been convicted of minor drug offenses and/or 

mainly property offenses such as burglary, larceny, fraud and money laundering; and, • Level 3—Individuals who have been convicted of other offenses. 

5. ‘‘Sunset’’ dates will be incorporated into all MOAs to ensure regular review 

and modification as needed; and, 

6. ICE will also specify the program information or data that each agency is 

expected to collect regarding their implementation of the 287(g) Program and 

how this information is to be reported. 

Furthermore, all 287(g) partners are required to use the ENFORCE 2 system to 

ensure that ICE has all relevant data with which to monitor the operation of each 

287(g) MOA. However, ICE recognizes that in its current state, ENFORCE has limited capabilities to capture the criminal history of each alien processed. 

OSLC is working to create system enhancements to ENFORCE that will allow 

ICE to classify the types of aliens 287(g) trained officers are encountering. Specifically, ICE will require that the program participants populate mandatory ENFORCE data fields concerning the type of criminal activity the alien has engaged 

in. Violent crimes, crimes against property, narcotics violations, traffic driving under 

the influence (DUI) related violations and non-DUI related traffic violations will all 

be captured. Furthermore, there will be fields within ENFORCE concerning the severity of crimes broken down by felonies, misdemeanors or civil violations. This data 

will be used by ICE to evaluate whether or not our 287(g) partnerships function in 

accord using resources with ICE priorities and to ensure that the continuation of 

an agreement is in the best interest of ICE. 

Additionally, pursuant to the 2009 Consolidated Security, Disaster Assistance, 

and Continuing Appropriations Act of 2009, the DHS Office of Inspector General 

will be reviewing the 287(g) Program to ensure that none of the funds provided to 

the 287(g) Program are being used where the terms of the 287(g) agreements have 

been violated. 
13 

CONCLUSION

In closing, it is critically important to note, as pointed out in GAO’s report, many 

benefits have been realized by the agencies participating in the 287(g) Program. 

Program participants reported to GAO a reduction in crime, the removal of repeat 

offenders and other safety benefits. The cost savings associated with crime reduction 

are not being easily quantified, but there has undoubtedly been a positive impact 

on many communities. I am proud of the partnerships ICE has formed with 287(g)- 

trained State and local law enforcement officers. These partnerships are essential 

to ICE carrying out its mission of deterring criminal alien activity and threats to 

national security and public safety throughout the United States. While ICE has expanded the 287(g) Program rapidly and its internal management controls can be improved, I believe that we have a strong framework in place to effectuate improvements, and I look forward to the challenges that lay ahead. 

Again, I thank the committee for its support of ICE and our critical mission. I 

would be happy to answer any questions you might have at this time. 

ATTACHMENT 1 

State MOA—Name MOA—Type Signed—Date 

AL .... AL State Police ...................................... Task Force ............. 9/10/2003 

AL .... Etowah County Sheriff’s Office ............ Detention ............... 7/8/2008 

AR .... Benton County Sheriff’s Office ............. Detention/Task 

Force.

9/26/2007 

AR .... City of Springdale Police Department Task Force ............. 9/26/2007 

AR .... Rogers Police Department .................... Task Force ............. 9/25/2007 

AR .... Washington County Sheriff’s Office AR Detention/Task 

Force.

9/26/2007 

AZ .... AZ Department of Corrections ............. Detention ............... 9/16/2005 

AZ .... AZ Department of Public Safety .......... Task Force ............. 4/15/2007 

AZ .... City of Phoenix Police Department ...... Task Force ............. 3/10/2008 

AZ .... Maricopa County Sheriff’s Office ......... Detention/Task 

Force.

2/7/2007 

AZ .... Pima County Sheriff’s Office ................ Detention/Task 

Force.

3/10/2008 

AZ .... Pinal County Sheriff’s Office ................ Detention/Task 

Force.

3/10/2008 

AZ .... Yavapai County Sheriff’s Office ........... Detention/Task 

Force.

3/10/2008 

CA .... Los Angeles County Sheriff’s Office ..... Detention ............... 2/1/2005 

CA .... Orange County Sheriff’s Office ............. Detention ............... 11/2/2006 

CA .... Riverside County Sheriff’s Office ......... Detention ............... 4/28/2006 

CA .... San Bernardino County Sheriff’s Office.Detention ............... 10/19/2005 

CO .... CO Department of Public Safety .......... Task Force ............. 3/29/2007 

CO .... El Paso County Sheriff’s Office ............ Detention ............... 5/17/2007 

FL .... Bay County Sheriff’s Office .................. Task Force ............. 6/15/2008 

FL .... Brevard County Sheriff’s Office ........... Detention ............... 8/13/2008 

FL .... Collier County Sheriff’s Office .............. Detention/Task 

Force.

8/6/2007 

FL .... FL Department of Law Enforcement ... Task Force ............. 7/2/2002 

FL .... Jacksonville Sheriff’s Office .................. Detention ............... 7/8/2008 

FL .... Manatee County Sheriff’s Office .......... Detention ............... 7/8/2008 

GA .... Cobb County Sheriff’s Office ................ Detention ............... 2/13/2007 

GA .... GA Department of Public Safety .......... Task Force ............. 7/27/2007 

GA .... Hall County Sheriff’s Office .................. Detention/Task 

Force.

2/29/2008 

GA .... Whitfield County Sheriff’s Office ......... Detention ............... 2/4/2008 

MA ... Barnstable County Sheriff’s Office ...... Detention ............... 8/25/2007 

MA ... Framingham Police Department .......... Task Force ............. 8/14/2007 

MA ... MA Department of Corrections ............ Detention ............... 3/26/2007 

MD ... Frederick County Sheriff’s Office ......... Detention/Task 

Force.

2/6/2008 

MN ... MN Department of Public Safety ......... Task Force ............. 9/22/2008 

MO ... MO State Highway Patrol .................... Task Force ............. 6/25/2008 

NC ... Alamance County Sheriff’s Office ........ Detention ............... 1/10/2007 

NC ... Cabarrus County Sheriff’s Office ......... Detention ............... 8/2/2007 
14 

State MOA—Name MOA—Type Signed—Date 

NC ... Cumberland County Sheriff’s Office .... Detention ............... 6/25/2008 

NC ... Durham Police Department .................. Task Force ............. 2/1/2008 

NC ... Gaston County Sheriff’s Office ............. Detention ............... 2/22/2007 

NC ... Henderson County Sheriff’s Office ....... Detention ............... 6/25/2008 

NC ... Mecklenburg County Sheriff’s Office ... Detention ............... 2/27/2006 

NC ... Wake County Sheriff’s Office ............... Detention ............... 6/25/2008 

NH ... Hudson City Police Department .......... Task Force ............. 5/5/2007 

NJ .... Hudson County Department of Corrections.Detention ............... 8/11/2008 

NM ... NM Department of Corrections ............ Detention ............... 9/17/2007 

NV ... Las Vegas Metropolitan Police Dept .... Detention ............... 9/8/2008 

OH ... Butler County Sheriff’s Office .............. Detention/Task 

Force.

2/5/2008 

OK ... Tulsa County Sheriff’s Office ............... Detention/Task 

Force.

8/6/2007 

SC .... Beaufort County Sheriff’s Office .......... Task Force ............. 6/25/2008 

SC .... York County Sheriff’s Office ................. Detention ............... 10/16/2007 

TN .... Davidson County Sheriff’s Office ......... Detention ............... 2/21/2007 

TN .... TN Department of Safety ..................... Task Force ............. 6/25/2008 

TX .... Carrollton Police Department .............. Detention ............... 8/12/2008 

TX .... Farmers Branch Police Dept. ............... Task Force ............. 7/8/2008 

TX .... Harris County Sheriff’s Office .............. Detention ............... 7/20/2008 

UT .... Washington County Sheriff’s Office UT Detention ............... 9/22/2008 

UT .... Weber County Sheriff’s Office .............. Detention ............... 9/22/2008 

VA .... City of Manassas Police Department ... Task Force ............. 3/5/2008 

VA .... Herndon Police Department ................. Task Force ............. 3/21/2007 

VA .... Loudoun County Sheriff’s Office .......... Task Force ............. 6/25/2008 

VA .... Manassas Park Police Department ...... Task Force ............. 3/10/2008 

VA .... Prince William County Police Department.Task Force ............. 2/26/2008 

VA .... Prince William County Sheriff’s Office Task Force ............. 2/26/2008 

VA .... Prince William-Manassas Adult Detention Center.Detention ............... 7/9/2007 

VA .... Rockingham County Sheriff’s Office .... Detention/Task 

Force.

4/25/2007 

VA .... Shenandoah County Sheriff’s Office .... Detention/Task 

Force.

5/10/2007 

Chairman THOMPSON. Thank you very much for your testimony. 

Mr. Stana, I now recognize you to summarize your statement for 

5 minutes. 

STATEMENT OF RICHARD M. STANA, DIRECTOR, HOMELAND 

SECURITY AND JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. STANA. Okay, thank you, Chairman Thompson, Mr. Souder, 

Members of the committee. 

As you know, section 287(g) of the INA authorizes ICE to enter 

into written agreements that allow State or local law enforcement 

agencies to perform at their own expense and under the supervision of ICE officers certain functions of an immigration officer, including searching selected Federal databases and conducting interviews to identify criminals who are in the country illegally. My prepared statement is based on our report that was released today on 

the management controls ICE has in place to govern the 287(g) 

program implementation and the resources, benefits, and concerns 

reported by participating agencies. 

In sum, we found that ICE had some controls to govern the program, such as MOAs with participating agencies as well as background checks and training for officers participating in the pro-
15 

gram. But the program lacked other key controls, which make it 

difficult for ICE to ensure that it is operating as intended. I would 

like to highlight four areas. 

First, the program lacked documented program objectives to help 

ensure that participants work toward a consistent purpose. ICE officials stated that the objective of the program is to address serious 

crime, such as drug trafficking and violent crimes committed by removable aliens. However, ICE has not documented this objective in 

MOAs or key program materials. In absence of a clear objective, at 

least four of 29 program participants we reviewed used 287(g) authority to process individuals for minor crimes, such as speeding or 

carrying open containers of alcohol, which is contrary to what ICE 

said is the program objective. 

Second, ICE has not consistently articulated in program-related 

documents how participating agencies are to use their 287(g) program authority. While all 29 MOAs we reviewed contain language 

that authorizes a State or local officer to interrogate any person believed to be an alien as to his right to remain in the country, none 

of them mentioned that ICE’s position is that the 287(g) authority 

should be used in connection with an arrest. We found differing interpretations by participants about the scope of 287(g) authority, 

such as permitting officers to go to people’s houses to question 

them about immigration status. Further, although processing individuals for possible removal is to be conducted in connection with 

a conviction of a State or Federal felony offense, this issue is not 

mentioned in seven of the 29 MOAs we reviewed. 

Third, although by law, State and local officials are to use 287(g) 

authority under the supervision of ICE officials, ICE has not described the nature and extent of supervision it is to exercise over 

participating agencies. This has led to wide variation in the nature 

and extent of ICE’s activities. ICE officials in one location told us 

they provided no direct supervision. In another location, we were 

told they provided frontline support for the program. At two other 

locations, they described their supervisory activities as overseeing 

training and ensuring that computer systems are working properly. 

At another location, they described their supervisory activity as reviewing files for completeness and accuracy. 

For their part, the majority of State and local officials we contacted said that ICE supervision was good. But others said they did 

not receive adequate or direct supervision or that ICE supervisors 

were either unresponsive or not available. ICE officials in headquarters noted that the level of ICE supervision provided to participating agencies has varied due to a shortage of supervisory resources. 

Finally, ICE states in the MOAs signed 2007 or later that participating agencies are responsible for tracking and reporting data 

to ICE. But those MOAs did not define what data should be 

tracked or how it should be collected and reported. We found considerable confusion among participating jurisdictions regarding 

whether they had a data tracking and reporting requirement, what 

type of data should be tracked and reported and what format they 

should use in reporting data to ICE. 

Turning now to program resources, in fiscal years 2006 through 

2008, ICE received about $60 million to train, supervise, and equip 
16 

1 Under section 101(a)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3), the 

term ‘‘alien’’ means any person not a citizen or national of the United States. It does not include 

foreign nationals who have become U.S. citizens. 2Pub. L. No. 104–208, div. C, § 133, 110 Stat. 3009–546, 3009–563 to 64. 3The change to the Immigration and Nationality Act is codified in 8 U.S.C. § 1357(g). 

program participants. As of last month, ICE reported enrolling 67 

agencies and training 951 State and local enforcement officers. 

They had 42 additional requests for participation, as has been mentioned. In six of the 42, their participation has been approved pending the approval of the MOA. 

According to fiscal year 2008 data provided by ICE, for 25 of the 

29 program performance participants we reviewed, about 43,000 

aliens had been arrested pursuant to the program, and of those 

ICE detained about 34,000. Program benefits reported by participants include a reduction in crime, the removal of repeat offenders 

and other public safety improvements. However, over half the 29 

agencies we contacted reported concerns from community members, 

including concerns that the use of program authority would lead to 

racial profiling and intimidation by law enforcement officials. 

We made several recommendations to strengthen internal controls for the program to address the deficiencies we identified and 

to help ensure the program operates as intended. DHS and ICE 

concurred with each of our recommendations and reported plans 

and steps taken to address them. 

In closing, the 287(g) program can be an important tool for ICE 

and participating jurisdictions to use to enforce our Nation’s immigration laws. Controversy can arise when jurisdictions misunderstand the limits of their authority. ICE fails to provide appropriate 

guidance and supervision. This underscores the need for ICE to ensure that effective control mechanisms exist to govern the 287(g) 

program. 

This concludes my oral statement, and I would be happy to answer any questions that Members may have. 

[The statement of Mr. Stana follows:] 

PREPARED STATEMENT OF RICHARD M. STANA

MARCH 4, 2009 

Mr. Chairman and Members of the committee: I am pleased to be here today to 

discuss the Department of Homeland Security’s (DHS) U.S. Immigration and Customs Enforcement’s (ICE) management of the 287(g) program. Recent reports indicate that the total population of unauthorized aliens residing in the United States 

is about 12 million.1 Some of these aliens have committed one or more crimes, although the exact number of aliens that have committed crimes is unknown. Some 

crimes are serious and pose a threat to the security and safety of communities. ICE 

does not have the agents or the detention space that would be required to address 

all criminal activity committed by unauthorized aliens. Thus, State and local law 

enforcement officers play a critical role in protecting our homeland because, during 

the course of their daily duties, they may encounter foreign-national criminals and 

immigration violators who pose a threat to national security or public safety. On 

September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility 

Act was enacted and added section 287(g) to the Immigration and Nationality Act.2

This section authorizes the Federal Government to enter into agreements with State 

and local law enforcement agencies, and to train selected State and local officers to 

perform certain functions of an immigration officer—under the supervision of ICE 

officers—including searching selected Federal databases and conducting interviews 

to assist in the identification of those individuals in the country illegally.3 The first 
17 

4GAO, Immigration Enforcement: Better Controls Needed Over Program Authorizing State and 

Local Enforcement of Federal Immigration Laws, GAO–09–109 (Washington, DC: January 2009). 5GAO, Standards for Internal Control in the Federal Government, GAO/AIMD–00–21.3.1 

(Washington, DC: November 1999); and GAO, Executive Guide: Effectively Implementing the 

Government Performance and Results Act, GAO/GGD–96–118 (Washington, DC: June 1996). Additional program management standards we reviewed are reflected in the Project Management 

Institute’s The Standard for Program Management (©2006). 

such agreement under the statute was signed in 2002, and as of February 2009, 67 

State and local agencies were participating in this program. 

My statement today is based on our January 30, 2009, report regarding the program including selected updates made in February 2009.4 Like the report, this 

statement addresses: (1) The extent to which Immigration and Customs Enforcement has designed controls to govern 287(g) program implementation; and, (2) how 

program resources are being used and the activities, benefits, and concerns reported 

by participating agencies. To do this work, we interviewed officials from both ICE 

and participating agencies regarding program implementation, resources, and results. We also reviewed memorandums of agreement (MOA) between ICE and the 

29 law enforcement agencies participating in the program as of September 1, 2007, 

that are intended to outline the activities, resources, authorities, and reports expected of each agency. We also compared the controls ICE designed to govern implementation of the 287(g) program with criteria in GAO’s Standards for Internal Control in the Federal Government, the Government Performance and Results Act 

(GPRA), and the Project Management Institute’s Standard for Program Management.5 More detailed information on our scope and methodology appears in the January 30, 2009 report. In February 2009, we also obtained updated information from 

ICE regarding the number of law enforcement agencies participating in the 287(g) 

program as well as the number of additional law enforcement agencies being considered for participation in the program. We conducted our work in accordance with 

generally accepted government auditing standards. 

In summary, ICE has designed some management controls, such as MOAs with 

participating agencies and background checks of officers applying to participate in 

the program, to govern 287(g) program implementation. However, the program lacks 

other key internal controls. Specifically, program objectives have not been documented in any program-related materials, guidance on how and when to use program authority is inconsistent, guidance on how ICE officials are to supervise officers from participating agencies has not been developed, data that participating 

agencies are to track and report to ICE has not been defined, and performance 

measures to track and evaluate progress toward meeting program objectives have 

not been developed. Taken together, the lack of internal controls makes it difficult 

for ICE to ensure that the program is operating as intended. ICE and participating 

agencies used program resources mainly for personnel, training, and equipment, and 

participating agencies reported activities and benefits, such as a reduction in crime 

and the removal of repeat offenders. However, officials from more than half of the 

29 State and local law enforcement agencies we reviewed reported concerns members of their communities expressed about the use of 287(g) authority for minor violations and/or about racial profiling. We made several recommendations to strengthen internal controls for the 287(g) program to help ensure that the program operates 

as intended. DHS concurred with our recommendations and reported plans and 

steps taken to address them. 

ICE LACKS KEY INTERNAL CONTROLS FOR IMPLEMENTATION OF THE 287(g) PROGRAM

ICE has designed some management controls to govern 287(g) program implementation, such as MOAs with participating agencies that identify the roles and responsibilities of each party, background checks of officers applying to participate in the 

program, and a 4-week training course with mandatory course examinations for participating officers. However, the program lacks several other key controls. For example: 

• Program Objectives.—While ICE officials have stated that the main objective of 

the 287(g) program is to enhance the safety and security of communities by addressing serious criminal activity committed by removable aliens, they have not 

documented this objective in program-related materials consistent with internal 

control standards. As a result, some participating agencies are using their 

287(g) authority to process for removal aliens who have committed minor offenses, such as speeding, carrying an open container of alcohol, and urinating 

in public. None of these crimes fall into the category of serious criminal activity 

that ICE officials described to us as the type of crime the 287(g) program is expected to pursue. While participating agencies are not prohibited from seeking 
18 

6While law enforcement officers without 287(g) designation are not prohibited from contacting 

ICE to get information on the immigration status and identity of aliens suspected, arrested, or 

convicted of criminal activity, the statutory authority of an ICE officer to interrogate individuals 

as to their immigration status is one of the Federal immigration enforcement functions specifically delegated to State and local officers who are certified to perform this function under the 

287(g) program. 

the assistance of ICE for aliens arrested for minor offenses, if all the participating agencies sought assistance to remove aliens for such minor offenses, ICE 

would not have detention space to detain all of the aliens referred to them. 

ICE’s Office of Detention and Removal strategic plan calls for using the limited 

detention bed space available for those aliens that pose the greatest threat to 

the public until more alternative detention methods are available. • Use of Program Authority.—ICE has not consistently articulated in program-related documents how participating agencies are to use their 287(g) authority. 

For example, according to ICE officials and other ICE documentation, 287(g) authority is to be used in connection with an arrest for a State offense; however, 

the signed agreement that lays out the 287(g) authority for participating agencies does not address when the authority is to be used. While all 29 MOAs we 

reviewed contained language that authorizes a State or local officer to interrogate any person believed to be an alien as to his right to be or remain in the 

United States, none of them mentioned that an arrest should precede use of 

287(g) program authority.6 Furthermore, the processing of individuals for possible removal is to be in connection with a conviction of a State or Federal felony offense. However, this circumstance is not mentioned in 7 of the 29 MOAs 

we reviewed, resulting in implementation guidance that is not consistent across 

the 29 participating agencies. A potential consequence of not having documented program objectives is misuse of authority. Internal control standards 

state that Government programs should ensure that significant events are authorized and executed only by persons acting within the scope of their authority. 

Defining and consistently communicating how this authority is to be used would 

help ICE ensure that immigration enforcement activities undertaken by participating agencies are in accordance with ICE policies and program objectives. 

• Supervision of Participating Agencies.—Although the law requires that State 

and local officials use 287(g) authority under the supervision of ICE officials, 

ICE has not described in internal or external guidance the nature and extent 

of supervision it is to exercise over participating agencies’ implementation of the 

program. This has led to wide variation in the perception of the nature and extent of supervisory responsibility among ICE field officials and officials from 23 

of the 29 participating agencies that had implemented the program and provided information to us on ICE supervision. For example, one ICE official said 

ICE provides no direct supervision over the local law enforcement officers in the 

287(g) program in their area of responsibility. Conversely, another ICE official 

characterized ICE supervisors as providing frontline support for the 287(g) program. ICE officials at two additional offices described their supervisory activities as overseeing training and ensuring that computer systems are working 

properly. ICE officials at another field office described their supervisory activities as reviewing files for completeness and accuracy. Officials from 14 of the 

23 agencies that had implemented the program were pleased with ICE’s supervision of the 287(g) trained officers. Officials from another four law enforcement 

agencies characterized ICE’s supervision as fair, adequate, or provided on an asneeded basis. Officials from three agencies said they did not receive direct ICE 

supervision or that supervision was not provided daily, which an official from 

one of these agencies felt was necessary to assist with the constant changes in 

requirements for processing of paperwork. Officials from two law enforcement 

agencies said ICE supervisors were either unresponsive or not available. ICE 

officials in headquarters noted that the level of ICE supervision provided to participating agencies has varied due to a shortage of supervisory resources. Internal control standards require an agency’s organizational structure to define key 

areas of authority and responsibility. Given the rapid growth of the program, 

defining the nature and extent of ICE’s supervision would strengthen ICE’s assurance that management’s directives are being carried out. 

• Tracking and Reporting Data.—MOAs that were signed before 2007 did not contain a requirement to track and report data on program implementation. For 

the MOAs signed in 2007 and after, ICE included a provision stating that participating agencies are responsible for tracking and reporting data to ICE. However, in these MOAs, ICE did not define what data should be tracked or how 

it should be collected and reported. Of the 29 jurisdictions we reviewed, 9 MOAs 
19 

7 In general, performance measures are indicators, statistics, or metrics used to gauge program performance. 8 8GAO/GGD–96–118. 

9 ICE provided data for 25 of the 29 participating agencies we reviewed. ICE also provided 

data for four other participating agencies, but we do not report them as they were not within 

the scope of our review. We used the data provided by ICE for illustrative purposes only and 

not to draw conclusions about the 287(g) program. 10 A voluntary removal (called voluntary departure) occurs when an alien is allowed to depart 

the country at his or her own expense (escorted by ICE) in lieu of formal removal proceedings 

or prior to completion of such proceedings. 

were signed prior to 2007 and 20 were signed in 2007 or later. Regardless of 

when the MOAs were signed, our interviews with officials from the 29 participating jurisdictions indicated confusion regarding whether they had a data 

tracking and reporting requirement, what type of data should be tracked and 

reported, and what format they should use in reporting data to ICE. Internal 

control standards call for pertinent information to be recorded and communicated to management in a form and within a time frame that enables management to carry out internal control and other responsibilities. Communicating 

to participating agencies what data is to be collected and how it should be gathered and reported would help ensure that ICE management has the information 

needed to determine whether the program is achieving its objectives. 

• Performance Measures.—ICE has not developed performance measures for the 

287(g) program to track and evaluate the progress toward attaining the program’s objectives.7 GPRA requires that agencies clearly define their missions, 

measure their performance against the goals they have set, and report on how 

well they are doing in attaining those goals.8 Measuring performance allows organizations to track the progress they are making toward their goals and gives 

managers critical information on which to base decisions for improving their 

programs. ICE officials stated that they are in the process of developing performance measures, but have not provided any documentation or a time frame 

for when they expect to complete the development of these measures. ICE officials also stated that developing measures for the program will be difficult because each State and local partnership agreement is unique, making it challenging to develop measures that would be applicable for all participating agencies. Nonetheless, standard practices for program and project management call 

for specific desired outcomes or results to be conceptualized and defined in the 

planning process as part of a road map, along with the appropriate projects 

needed to achieve those results and milestones. Without a plan for the development of performance measures, including milestones for their completion, ICE 

lacks a roadmap for how this project will be achieved. 

PROGRAM RESOURCES ARE USED FOR TRAINING, SUPERVISION, AND EQUIPMENT; 

BENEFITS AND CONCERNS ARE REPORTED BY ICE AND PARTICIPATING AGENCIES

ICE and participating agencies used program resources mainly for personnel, 

training, and equipment, and participating agencies reported activities, benefits, 

and concerns stemming from the program. For fiscal years 2006 through 2008, ICE 

received about $60 million to provide training, supervision, computers, and other 

equipment for participating agencies. State and local participants provided officers, 

office space, and other expenses not reimbursed by ICE, such as office supplies and 

vehicles. 

ICE and State and local participating agencies cite a range of benefits associated 

with the 287(g) partnership. For example, as of February 2009, ICE reported enrolling 67 agencies and training 951 State and local law enforcement officers. At that 

time, ICE had 42 additional requests for participation in the 287(g) program, and 

6 of the 42 have been approved pending approval of an MOA. According to data provided by ICE for 25 of the 29 program participants we reviewed, during fiscal year 

2008, about 43,000 aliens had been arrested pursuant to the program.9 Based on 

the data provided, individual agency participant results ranged from about 13,000 

arrests in one location, to no arrests in two locations. Of those 43,000 aliens arrested pursuant to the 287(g) authority, ICE detained about 34,000, placed about 

14,000 of those detained (41 percent) in removal proceedings, and arranged for 

about 15,000 of those detained (44 percent) to be voluntarily removed.10 The remaining 5,000 (15 percent) arrested aliens detained by ICE were either given a humanitarian release, sent to a Federal or State prison to serve a sentence for a felony 
20 

11 Individuals arrested on administrative charges who may be sole caregivers or who have 

other humanitarian concerns, including those with serious medical conditions that require special attention, pregnant women, nursing mothers, parents who are the sole caretakers of minor 

children or disabled or seriously ill relatives, and parents who are needed to support their 

spouses in caring for sick or special needs children or relatives, may be released by ICE. As 

appropriate, if ICE is provided with new information regarding a humanitarian condition after 

an arrestee has been processed and detained, ICE may consider the possibility of release on humanitarian grounds based on such information. In general, aliens given a humanitarian release 

or not taken into custody due to limited detention space receive a notice to appear in immigration court at a later date for removal proceedings. Removable aliens serving a sentence in Federal State prison are to be processed for removal at the end of their sentences. 

offense, or not taken into ICE custody given the minor nature of the underlying offense and limited availability of the Federal Government’s detention space.11

Participating agencies cited benefits of the program including a reduction in crime 

and the removal of repeat offenders. However, more than half of the 29 State and 

local law enforcement agencies we reviewed reported concerns community members 

expressed about the 287(g) program, including concerns that law enforcement officers in the 287(g) program would be deporting removable aliens pursuant to minor 

traffic violations (e.g., speeding) and concerns about racial profiling. 

We made several recommendations to strengthen internal controls for the 287(g) 

program to help ensure the program operates as intended. Specifically, we recommended that ICE: (1) Document the objective of the 287(g) program for participants; (2) clarify when the 287(g) authority is authorized for use by State and local 

law enforcement officers; (3) document the nature and extent of supervisory activities ICE officers are expected to carry out as part of their responsibilities in overseeing the implementation of the 287(g) program; (4) specify the program information or data that each agency is expected to collect regarding their implementation 

of the 287(g) program and how this information is to be reported; and, (5) establish 

a plan, including a time frame, for the development of performance measures for 

the 287(g) program. DHS concurred with each of our recommendations and reported 

plans and steps taken to address them. 

Mr. Chairman and Members of the committee, this concludes my statement. I 

would be pleased to respond to any questions you or other Members of the committee may have. 

Chairman THOMPSON. Thank you very much. 

Sheriff JENKINS. I now recognize you to summarize your statement for 5 minutes. 

STATEMENT OF CHARLES A. JENKINS, SHERIFF, FREDERICK 

COUNTY, STATE OF MARYLAND 

Sheriff JENKINS. Good afternoon, Mr. Chairman, distinguished 

committee Members. I am Charles A. Jenkins, sheriff, Frederick 

County, Maryland, your neighbor to the north. 

I moved forward to the 287 program in 2007 for two reasons: No. 

1, national security, specifically the identification of individuals encountered through arrest and investigations that may be a potential terrorist threat inside of our borders; No. 2, the enormous increase in crime throughout the United States, to include this region, which can be tied directly to the unchecked flow of illegal immigrants through our southern borders with Mexico. 

The agreement for participation was signed in late 2007. ICE 

provided training for 26 Frederick County Sheriff’s Office personnel: 16 correctional officers and 10 sworn law enforcement deputies. Frederick County currently participates in both arms of the 

287 program. The detention center program was implemented on 

April 11, 2008, and the law enforcement task force program was 

implemented on August 1, 2008. 

In Frederick County, everyone arrested by our agency and all 

other local and State agencies in the county are screened and identified through the detention program to determine their legal pres-
21 

ence, their alienage or legal status in the United States. Persons 

arrested, charged and convicted for violent and serious crimes, 

crimes of moral turpitude and serious arrestable driving offenses 

are not released back onto the streets of our community to commit 

even more serious crimes or to cause the horrific crashes and driving events that we have seen across our country. 

Those identified as being in the United States illegally are prosecuted locally, serve time on the State/local charges as appropriate, 

then placed into the removal proceedings. The first arrest and detainer filed under 287(g) was arrested for driving intoxicated at two 

times the legal limit in his blood through a school zone during 

school hours. Since April 11, 2008—and these are some stats I 

think are very important—the following arrests reflect the effectiveness and significance of the 287 program in Frederick County, 

Maryland. 

Frederick County has lodged detainers on 337 arrestees identified through the program with 309 of those placed into removal 

proceedings. The program has allowed us to identify and place into 

removal proceedings nine members of the notoriously violent gangs, 

MS–13 and 18th Street, originally out of El Salvador, now thriving 

on this side of the coast. Also among those arrested and identified 

were a Nicaraguan military-trained sniper and a Salvadorian guerilla trained in knife fighting. 

Some of the most serious offenses in which criminal aliens have 

been arrested are attempted second-degree murder, second-degree 

rape, armed robbery, child abuse, burglary. Over the past 2 years, 

all of the largest multi-kilo narcotics investigations and seizures by 

our narcotics task force for both cocaine and marijuana have involved the arrest of illegal criminal aliens and the trafficking of 

those drugs in Frederick County. Several cases involve the drugs 

being brought directly from the border States. 

I will strongly argue that national security is at risk by the increased organized street crimes we are seeing now in our communities. It is in this light that the argument is made—and I will 

make it—that national security and fighting that crime are one 

and the same. 

Human trafficking is yet another element of the organized crime 

we are seeing. Immigrants themselves are victimized. The bleeding 

of our borders and the crime associated is in fact terrorism. It is 

also recognized that the face of terrorism has changed. It is no 

longer identified by one face, one profile, one country of origin, or 

one ethnic group. 

Our law enforcement task force deputies work not as a separate 

unit but as criminal investigator, as narcotics investigators, patrol 

deputies, now trained in the investigation and identification of 

fraudulent documents, now able to identify criminal aliens. They 

work closely under the direct supervision of an ICE agent or supervisor. We have also worked on an ICE gang surge unit. 

As far as the relationship, the working relationship between ICE 

and Frederick County has been outstanding from day 1. We work 

at the direction of ICE supervisors who have trusted our welltrained people to effectively run the program with direct supervision when needed and availability when we need them. This 

speaks well to the training program and the oversight. I would be 
22 

remiss if I said that at times ICE—their manpower is strained, 

they are understaffed, and they need additional manpower. As a 

sheriff and a participant in the program, I would fully support additional manpower and resources for the 287 program. 

I educated the county about what we were going to do from the 

start. From the outset, I made the public aware of my intentions 

and the reasons why. It was well publicized in the local media. I 

have attended many organizational and community meetings 

where this program has been brought up and discussed at length. 

The facts were explained and the rumors were dispelled and the 

false information was set aside. Again, I listen to the citizens of 

Frederick County in moving forward with this program. 

The negative criticism—yes. Overall, public support of and comment about this program has been overwhelmingly positive. Estimates of local public support in Frederick County are as high as 

90 percent. There are opponents who have criticized our involvement in the program and have made false assertions and claims. 

CASA de Maryland, the ACLU, the local chapter of the NAACP 

have all voiced opposition, but they should be behind this. This is 

not about profiling; this is not about discrimination. 

A couple of points: There have been absolutely no complaints of 

profiling or discrimination based on ethnicity since the implementation of the program. The program has not harmed police-immigrant community relations. The program has not been a huge additional cost to the citizens of Frederick County. I would argue that 

the cost of doing nothing is enormous. All other costs are paid for 

through the program funding. There has been no special immigration enforcement unit created in our office. 

Chairman THOMPSON. Sheriff, we don’t like to stop folk with 

badges on, because you might have a weapon too, but—— 

Sheriff JENKINS. Could I—— 

Chairman THOMPSON. If you could summarize—— 

Sheriff JENKINS. Okay, I will summarize in closing. In the 10 

months since the 287 program was implemented, I can show you 

with statistics, with proof, that it has been an overwhelming success. We have been cited as a model agency in the program. 

The citizens of this country are clearly frustrated. I would respectfully urge the committee to expand the resources and oversight for the program. 

Mr. Chairman, committee Members, Americans are angered, 

they are tired, they are frustrated. We are dying on American soil. 

I urge you to listen to them. There is a role for local law enforcement in the enforcement of the immigration laws of America. 

Thank you. 

[The statement of Mr. Jenkins follows:] 

PREPARED STATEMENT OF CHARLES A. JENKINS

INTRODUCTION

Frederick County, Maryland is located approximately 60 miles northwest of 

Washington, DC, with a population of approximately 230,000. Frederick County has 

a very strong agricultural industry base, also bio-science, and light manufacturing 

industry. The Frederick County Sheriff’s Office is a full-service law enforcement 

agency with primary law enforcement responsibility outside of the municipalities, 

also responsible for the operations of the courthouse and adult detention center. 
23 

The city of Frederick is currently the second-largest city in the State of Maryland. 

As recent as late 2008, Frederick County has been identified as one of the top five 

counties in the United States in terms of seeing increases of immigrants moving 

into the community, a significant number here illegally. 

Elected as Sheriff in November 2006, I had researched this program extensively 

and the reasons for seeking participation were two-fold: 

(1) National security, specifically the identification of individuals encountered 

through arrests and investigations, which may be a potential terrorist threat inside of our borders. 

(2) The enormous increase in crime throughout the United States, to include 

this region which can be tied directly to the unchecked flow of illegal immigrants through our southern borders with Mexico. 

Federal, State, and local law enforcement agencies across the country know and 

have attributed much of the increase in violent crime and drug trafficking to the 

rapid growth of trans-national gangs and organized crime tied to drug cartels outside of our borders. 

GENERAL OVERVIEW OF 287(g) PROGRAM IN FREDERICK COUNTY

With executive authority as Sheriff, my agency applied for participation the DHS/ 

ICE 287(g) Delegation of Authority Program in early 2007. The agreement for participation was signed in late 2007. ICE provided training for 26 Frederick County 

Sheriff Office personnel, 16 Correctional Officers and 10 sworn law enforcement deputies. The 4 weeks of intensive training was conducted by ICE in February 2008, 

hosted at the Frederick County Law Enforcement Center. 

Frederick County currently participates with both arms of the 287(g) Program, 

the detention center program and the law enforcement/task force program. The detention center program was implemented on April 11, 2008, and the law enforcement/task force program was implemented on August 1, 2008. 

Through the 287(g) Program, Frederick County Sheriff’s Deputies and Correctional Officers are authorized to act as immigration officers in the enforcement of 

the United States Immigration Laws, in effect a force multiplier for DHS/ICE. I 

view this as critical that State/local law enforcement participate with DHS/ICE in 

accomplishing the overall mission of enforcing the immigration laws in accordance 

existing Federal laws and the removal of criminal illegal aliens. 

As a valuable tool to law enforcement in fighting crime, I would urge every law 

enforcement executive, both police chiefs and sheriffs, to request participation into 

the program. In Frederick County, everyone arrested by all other local and State 

agencies, are screened and identified through the detention program, to determine 

their legal presence or status in the United States. 

Persons arrested, charged, and convicted for violent and serious crimes, crimes of 

moral turpitude, and serious driving offenses are not released back onto the streets 

of our community to commit even more serious crimes, or to cause the horrific 

crashes and driving events that have victimized our communities. 

To dispute the detractors and arguments that many arrestees in driving offense 

arrests, are eventually identified, detained, and removed through the program, 

criminal background checks show criminal records of serious and violent crimes. 

Those identified as being in the United States illegally are prosecuted locally; serve 

time on the State/local charges as appropriate, then placed into removal proceedings. The first arrest and detainer filed under the 287(g) Program was arrested 

for driving intoxicated, through a school zone, during school hours of operation. 

RESULTS OF THE PROGRAM/STATISTICS OF SIGNIFICANT INTEREST

Since April 11, 2008, the following statistics on arrest reflect the effectiveness and 

significance of the 287(g) Program in Frederick County, Maryland: 

• Frederick County has lodged detainers on 337 arrestees identified through the 

program as being in the United States illegally, with 309 of those placed into 

removal proceedings. 

• The program has allowed us to identify and place into removal proceedings 9 

members of the notoriously violent gangs MS–13 and 18th Street, originally out 

of El Salvador, now thriving across the United States. Also, among those arrested and identified were a Nicaraguan military trained sniper and a Salvadorian guerilla fighter trained in knife fighting. 

• Some of the most serious offenses in which criminal aliens have been arrested 

as offenders and identified include: Attempted 2nd Degree Murder, 2nd Degree 

Rape, Armed Robbery, 1st Degree Assault, Child Abuse, Burglary, and Possessing Counterfeit U.S. Currency. 
24 

• Over the past 2 years, all of the largest (multi-kilo) narcotics investigations and 

seizures by our Frederick County Narcotics Task Force, for both cocaine and 

marijuana, have involved the arrests of illegal criminal aliens and the trafficking of those illegal drugs in Frederick County. Several cases have involved 

drugs being trafficked directly from the southern Border States. 

CRIME AND NATIONAL SECURITY

It can be strongly argued that national security is at risk by the increased organized street crimes we are seeing in our communities. It is in this light that the 

argument is made that national security and fighting that crime are one in the 

same, with the increases of violent crime spilling across our borders, controlled by 

the corruption and power of the Mexican drug cartels, driven by trans-national and 

organized street gangs. Human trafficking is yet another element of the organized 

crime we are seeing. 

The bleeding of our borders and the crime associated is in fact terrorism. Terrorists and criminals are able to easily exploit our immigration system because of our 

vulnerable borders and by utilizing fraudulent identification. They seek to operate 

and remain in the United States under the radar of the Federal Government. 

The 287(g) Program in this regard is a strong and effective tool in safeguarding 

our national security at our borders. It is also recognized that the face of terrorism 

has changed dramatically across the globe and that it can no longer be identified 

by just one face, one profile, country of origin, or ethnic group. 

This valuable program can be of enormous assistance to local law enforcement in 

the identification of suspects who may be looking to target soft targets and critical 

infrastructure on our soil. 

Our law enforcement/task force deputies work within the authority of the 287(g) 

Program as an extension of their routine law enforcement duties. Those deputies include criminal investigators, narcotics investigators, and patrol deputies, now 

trained in the investigation and identification of fraudulent documents, now able to 

identify criminal aliens in the process of investigating street crimes. They have 

worked under the direct supervision of ICE on a gang surge effort. 

RELATIONSHIP WITH ICE

The working relationship between ICE and the Frederick County Sheriff’s Office 

has been outstanding from day 1. We have worked at the direction of ICE supervisors who trust our well trained personnel to effectively run the program with direct supervision when needed, and constant availability and response to assist and 

answer questions. This speaks well to the training program. 

ICE special agents, supervisors, extending to the director level in both the investigations side and detention programs have worked to assure that this program and 

our participation have been effective and seamless. I am fortunate to have an ICE 

Special Agent working in-house on a very routine basis. 

I would be remiss if I did not acknowledge that at times, DHS/ICE is understaffed 

and in need of additional manpower. 

Recognizing the magnitude of their mission in the 287(g) Immigration Enforcement Program, I would strongly encourage an expansion of the program and the appropriate increase in field agents and supervisory personnel to support the number 

of law enforcement agencies who want to participate. 

As a Sheriff and as a participant in this program, I would fully support additional 

manpower and resources for the 287(g) Program, given that many agencies have 

shown the value and effectiveness of the program. 

COMMUNITY EDUCATION ABOUT THE PROGRAM

In listening and hearing the frustrations and concerns of the citizens of Frederick 

County, I went forward in seeking this program. From the outset I made the public 

aware of my intentions to move the agency forward into this program. It was wellpublicized in the local media, to include local radio, the newspapers, and local television when interested. 

In addition, I have attended many organizational and community meetings where 

this program has been brought up and discussed at length, to explain the facts and 

value of the program and to dispel rumors and false information. Again, I listened 

to the citizens of this county in moving forward with participation in this program. 

In educating the public the focus has been to make people aware that everyone 

taken into the detention center is screened, asked the same questions to determine 

legal status, and are processed in the identical manner. 
25 

DISPELLING THE NEGATIVE CRITICISM OF THE 287(g) PROGRAM

Overall, public support of and comment about this program has been overwhelmingly positive. It is very clear by way of phone calls, emails, letters, letters to the 

local paper, and radio call-ins, that the vast majority of the citizens of this county 

are in favor of this illegal immigration enforcement initiative. Estimates of local 

public support are as high as 90 percent. 

Many residents of neighboring counties also voice their approval of this effort in 

Frederick County. 

I have received many calls from naturalized citizens and legal immigrants who 

are offended at those who violate the laws entering this country illegally and have 

been given a free pass while breaking State and local laws, to remain in this country illegally. 

There are detractors that have criticized our involvement in the program, and 

have made false assertions and claims of discrimination and profiling. CASA de 

Maryland, the ACLU, and the local chapter of the NAACP has voiced opposition, 

citing profiling, discrimination, and creating distrust within the local immigrant 

communities. Those same organizations and detractors also cited the exorbitant 

costs of the program to the citizens of this county. These claims have been proven 

to be false. 

• There have been absolutely NO complaints of profiling or discrimination based 

on ethnicity since the implementation of the 287(g) Program. 

• The program has NOT harmed police/immigrant community relations, and has 

not created fear or distrust of law enforcement. This is all rhetorical, with no 

real basis. Any existing fear or distrust of law enforcement is generally cultural 

based, as most countries where immigrants originate from do have corrupt governments, corrupt and abusive law enforcement, which is all they have been exposed to in their lives. This is simply not true. 

• This program has NOT been a huge cost to the citizens of Frederick County. 

The training was hosted at no cost, other than the normal salaries of those 

FCSO deputies and officers attending. The database access, computers, hardware, IT lines, and other tie-in and technical expenses were paid for through 

ICE program funding, not local taxpayer dollars. 

• Other program expenses such as travel, medical expenses for detainees, and detention housing expenses are covered by and reimbursement by DHS/ICE 

through program funding. 

• There is NO special Immigration Enforcement Unit created in the FCSO as a 

result of this program. All of our enforcement efforts in the detention program 

and the law enforcement/task force program are an extension of the current duties of the personnel trained in the program. 

CLOSING STATEMENT

In the almost 10 months since the 287(g) Program was implemented in Frederick 

County, the results have clearly shown it to be an overwhelming success. The Frederick County Sheriff’s Office has been cited as a model agency in this partnership 

with DHS/ICE. Clearly, the program has become an effective tool in fighting crime, 

keeping criminal aliens from being set free on the streets of our communities, and 

being placed into removal proceedings and returned to their home countries. 

Testifying here today, I strongly believe I am representing the voice of America. 

The citizens of United States clearly are frustrated with the problems associated 

with illegal immigration including the crime, national security risks, and the associated economic effects. 

Detractors and opponents of the 287(g) Immigration Enforcement Program will 

say they want nothing done. With everything currently at stake, doing nothing is 

NOT an option. I would respectfully urge this committee to expand the resources 

for this program and to encourage law enforcement across the entire United States 

to participate in this partnership with DHS/ICE. 

Chairman THOMPSON. Thank you. 

For the membership of the committee, we will hear one other 

witness. We will recess at that point. We will have four votes, and 

we will reconvene right after those four votes. 

Chief Manger for 5 minutes. 
26 

STATEMENT OF J. THOMAS MANGER, CHIEF, MONTGOMERY 

COUNTY POLICE DEPARTMENT, STATE OF MARYLAND 

Chief MANGER. Mr. Chairman, distinguished Members of the 

committee, I am Tom Manger, chief of police of Montgomery County, Maryland, and chairman of the Major Cities Chiefs’ Legislative 

Committee. The Major Cities Chiefs Association represents the 56 

largest police departments in the United States. 

Each one of these 56 police chiefs is dealing every day with the 

issues of undocumented residents and the crime committed by a 

fraction of these residents. Nowhere is this challenge more acute 

than in this country’s largest urban settings. Local governments 

have, by necessity, had to react and respond to the growing number 

of challenges caused by an increasing population of undocumented 

residents. 

Municipalities have chosen a range of approaches. Some are 

proud to be called sanctuary jurisdictions, where not only does local 

law enforcement not inquire about anyone’s immigration status, 

some jurisdictions don’t honor nor serve warrants from ICE. On the 

other end of the spectrum, some jurisdictions have adopted policies 

that prohibit government services going to undocumented individuals and have elected to participate in the Federal 287(g) training. 

Most jurisdictions have adopted policies somewhere between the 

two approaches I just described. 

The overwhelming majority of major city police agencies have 

elected not to participate in 287(g) training. In fact, the last figures 

I have seen indicate that over 95 percent of police and sheriffs’ departments in the United States have elected not to participate in 

the 287(g) training. 

But I think it is important to make two points here. One, I am 

not trying to be critical of those agencies that do participate. It just 

would not work in most large, urban jurisdictions. We believe that 

there would be—we also believe that there should be strong cooperation and coordination with all of our Federal law enforcement 

partners, including ICE. 

So why have the Nation’s largest police agencies elected not to 

participate in 287(g)? First, it undermines the trust and cooperation with immigrant communities that are essential elements of 

community policing. We need to have strong policies that take into 

full account the realities of local law enforcement. One of those realities is that public safety increases when people have trust and 

confidence in their police department. Consequently, unreported 

crime goes down. 

Another reality is that immigrants, both documented and undocumented, are more likely to be victims of crimes than are U.S. 

citizens. Delivering fair and consistent police service to all crime 

victims has to be a priority. 

A second reason that most jurisdictions are not taking the 287(g) 

training is that local agencies do not possess adequate resources to 

enforce these laws in addition to the added responsibility of homeland security. Enforcing Federal law is an unfunded mandate that 

most agencies just cannot afford to do. 

Third, immigration laws are very complex, and the training required to understand them would significantly detract from the 

core mission of the local police to create safe communities. Prior to 
27 

just a few years ago, enforcing immigration law was solely a Federal responsibility. It was a specialty, like the IRS and tax law. If 

the Federal Government comes to the conclusion someday that too 

many people are tax evaders, will the solution be to authorize local 

police to enforce tax laws? This is contrary to our mission. 

That said, working cooperatively with our Federal partners is essential for public safety. Using the IRS again as an example, when 

we make a case against an individual as a major narcotics distributor, notifying and working closely with the IRS is the effective 

thing to do. In the same way, working closely with ICE on human 

trafficking cases, gang investigations, fraudulent document cases is 

a proven crime-fighting technique. 

Montgomery County Corrections sends a list of all foreign-born 

inmates to ICE once a week. In addition, my police officers and detectives notify ICE on every violent crime arrest that we make. But 

the bottom line is this: Local law enforcement needs to work closely 

and effectively with our Federal partners, but we cannot do their 

job for them. 

The Major Cities Chiefs have sent a clear and consistent message 

to each attorney general for the past 8 years. That message is: No. 

1, secure our borders; it has to be a top priority. No. 2, remove civil 

immigration detainers from the NCIC database. In August 2003, 

Attorney General John Ashcroft put these civil warrants in a national database that had previously been for criminal warrants. 

Our current attorney general can remedy this with the stroke of a 

pen. No. 3, consulting and involving local police agencies when developing any immigration initiative is imperative if that initiative 

is to involve local law enforcement. 

Thank you. 

[The statement of Mr. Manger follows:] 

PREPARED STATEMENT OF J. THOMAS MANGER

ENFORCEMENT OF IMMIGRATION LAWS BY LOCAL POLICE AGENCIES

A. STATEMENT OF ISSUE

Illegal immigration is a problem that vases our Nation and society as a whole and 

one that must be dealt with at the national level. It is absolutely critical that our 

country develop a consistent unified national plan to deal with immigration and this 

plan must include the critical component of securing our borders to prevent illegal 

entry into the United States. 

Since the horrendous attacks of September 11, 2001, local law enforcement has 

been called upon to do its part in protecting the Nation from future terrorist attacks. The response of local law enforcement to the call to protect the homeland has 

been tremendous. Today, local police agencies stand as the first line of defense here 

at home to prevent future attacks. Local law enforcement’s unending efforts include 

providing additional training and equipment to officers, increasing communication 

and coordination with Federal agencies, gathering, assessing and sharing intelligence, modifying patrol methods and increasing security for potential targets such 

as power plants, airports, monuments, ports, and other critical facilities and infrastructure. Much of these efforts have been at a high cost to local budgets and resources. 

The Federal Government and others have also called upon local police agencies 

to become involved in the enforcement of Federal immigration laws as part of the 

effort to protect the Nation. This issue has been a topic of great debate in the law 

enforcement community since September 11. The call for local enforcement of Federal immigration laws has become more prominent during the debate over proposed 

immigration reform at the national level. 

Major city police departments have a long undeniable history of working with 

Federal law enforcement agencies to address crime in the United States, whether 
28 

committed by citizens, visitors, and/or illegal immigrants. Local police agencies have 

not turned a blind eye to crimes related to illegal immigration. They have worked 

and continue to work daily with Federal agencies whenever possible and to the extent allowable under state criminal law enforcement authority to address crimes 

such as human trafficking and gang violence, which have a nexus with illegal immigration. 

How local agencies respond to the call to enforce immigration laws could fundamentally change the way they police and serve their communities. Local enforcement of Federal immigration laws raises many daunting and complex legal, 

logistical and resource issues for local agencies and the diverse communities they 

serve. Some in local law enforcement would embrace immigration enforcement as 

a means of addressing the violation of law represented by illegal immigration across 

our borders. Many others recognize the obstacles, pitfalls, dangers and negative consequences to local policing that would be caused by immigration enforcement at the 

local level. 

It is important for Major Cities Chiefs [MCC] as a leader and representative of 

the local law enforcement community to develop consensus on this important subject. The purpose of this position statement is to evaluate and address the impact 

and potential consequences of local enforcement of Federal immigration laws and to 

highlight steps that, if taken, might allow local agencies to become involved in immigration enforcement. It is hoped that this statement will help to draw attention 

to the concerns of local law enforcement and provide a basis upon which to discuss 

and shape any future national policy on this issue. In this regard it is absolutely 

critical that MCC be involved in all phases of this debate from developing this official position statement to demanding input and involvement in the development of 

any national initiatives. 

B. OVERVIEW OF IMMIGRATION AND IMMIGRANT STATUS

The Federal Government has the clear authority and responsibility over immigration and the enforcement of immigration laws. With this authority, the Federal Government has enacted laws, such as the Immigration and Naturalization Act (INA), 

that regulate a person’s entry into the United States, his or her ability to remain 

in the country, and numerous other aspects of immigration. The Federal Government has given Federal agencies such as Immigration and Customs Enforcement 

[ICE] the specific authority to investigate a person’s immigration status and deport 

individuals who have no legal status or authority to be in the United States. 

Under the current immigration laws there exist various immigration-status classifications. The immigration status of any particular person can vary greatly. The 

most common status classifications include the following: 

(1) Legal Immigrants are citizens of other countries who have been granted a 

visa that allows them to live and work permanently in the United States and 

to become naturalized U.S. citizens. Once here, they receive a card, commonly 

referred to as a ‘‘green card’’ from the Federal Government indicating they are 

permanent residents. Some legal immigrants are refugees who fear persecution 

based on race, religion, nationality, membership in a particular social group, or 

political opinion in their home countries. Refugees are resettled every year in 

the United States after their requests for asylum have been reviewed and 

granted. 

(2) Nonimmigrant Visa Holders are persons who are granted temporary entry 

into the United States for a specific purpose, such as visiting, working, or studying. The United States has 25 types of nonimmigrant visas, including A1 visas 

for Ambassadors, B2 visas for tourists, P1 visas for foreign sports stars who 

play on U.S. teams and TN visas for Canadians and Mexicans entering the 

United States to work under NAFTA. Visa Holders are allowed to stay in the 

United States as long as they meet the terms of their status. 

(3) Illegal Immigrants are citizens of other countries who have entered or remained in the United States without permission and without any legal status. 

Most illegal immigrants cross a land or sea border without being inspected by 

an immigration officer. Some persons fall into illegal status simply by violating 

the terms of a legal entry document or visa. 

(4) Absconders are persons who entered the United States legally but have since 

violated the conditions of their visa and who have had a removal, deportation, 

or exclusion hearing before an immigration judge and are under a final order 

of deportation and have not left the United States. 
29 

C. CONCERNS WITH LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS

Local police agencies must balance any decision to enforce Federal immigration 

laws with their daily mission of protecting and serving diverse communities, while 

taking into account: Limited resources; the complexity of immigration laws; limitations on authority to enforce; risk of civil liability for immigration enforcement activities and the clear need to foster the trust and cooperation from the public including members of immigrant communities. 

(1) Undermine Trust and Cooperation of Immigrant Communities 

Major urban areas throughout the Nation are comprised of significant immigrant 

communities. In some areas the immigrant community reaches 50 percent–60 percent of the local population. Local agencies are charged with protecting these diverse 

populations with communities of both legal and illegal immigrants. The reality is 

that undocumented immigrants are a significant part of the local populations that 

major police agencies must protect, serve and police. 

Local agencies have worked very hard to build trust and a spirit of cooperation 

with immigrant groups through community-based policing and outreach programs 

and specialized officers who work with immigrant groups. Local agencies have a 

clear need to foster trust and cooperation with everyone in these immigrant communities. Assistance and cooperation from immigrant communities is especially important when an immigrant—whether documents or undocumented—is the victim of or 

witness to a crime. These persons must be encouraged to file reports and come forward with information. Their cooperation is needed to prevent and solve crimes and 

maintain public order, safety, and security in the whole community. Local police 

contacts in immigrant communities are important as well in the area of intelligencegathering to prevent future terroristic attacks and to strengthen homeland security. 

Immigration enforcement by local police would likely negatively affect and undermine the level of trust and cooperation between local police and immigrant communities. If the undocumented immigrant’s primary concern is that he/she will be deported or subjected to an immigration-status investigation, then the individual will 

not come forward and provide needed assistance and cooperation. Distrust and fear 

of contacting or assisting the police would develop among legal immigrants as well. 

Undoubtedly legal immigrants would avoid contact with the police for fear that they 

themselves or undocumented family members or friends may become subject to immigration enforcement. Without assurances that contact with the police would not 

result in purely civil immigration-enforcement action, the hard-won trust, communication, and cooperation from the immigrant community would disappear. Such a 

divide between the local police and immigrant groups would result in increased 

crime against immigrants and in the broader community, create a class of silent victims, and eliminate the potential for assistance from immigrants in solving crimes 

or preventing future terroristic acts. 

(2) Lack of Resources 

The budgets and resources of local police agencies are not unlimited. Local police 

agencies struggle every year to find the resources to police and serve their respective communities. Since the events of September 11, local agencies have taken on 

the added duty of serving as the first line of defense and response to terrorist attacks for our country. These efforts on the local level to deter and prevent another 

terrorist attack and to be prepared to respond to the aftermath of an attack have 

stretched local resources even further. Since the creation of the Homeland Security 

Department, Federal funding for major city police departments has been greatly reduced. Local agencies have also had to take on more responsibilities in areas that 

have traditionally been handled by the FBI, whose investigative resources are now 

more focused on counter-terrorism efforts. Local agencies are forced to fill the gap 

left by the shift of Federal resources away from investigating white-collar crimes 

and bank robberies, areas traditionally handled by Federal agencies. 

Enforcement of Federal immigration laws would be a burden that most major police agencies would not be able to bear under current resource levels. The cost in 

terms of personnel, facilities and equipment necessary for local agencies to address 

the 8–12 million illegal immigrants currently living in the United States would be 

overwhelming. The Federal Government, which has primary authority to enforce immigration laws, has itself failed to provide the tremendous amount of resources necessary to accomplish such enforcement to its own agencies specifically charged with 

that responsibility. Local communities and agencies have even fewer resources to 

devote to such an effort than does the Federal Government, given all the numerous 

other demands on local police departments. 

Local police agencies must meet their existing policing and homeland-security duties and can not even begin to consider taking on the added burden of immigration 
30 

enforcement until Federal assistance and funding are in place to support such enforcement. Current calls for local police agencies to enforce immigration come with 

no clear statement or guarantee to provide adequate Federal funding. Local agencies 

also fear that the call for local enforcement of immigration laws signals the beginning of a trend toward local police agencies being asked to enter other areas of Federal regulation or enforcement. 

(3) Complexity of Federal Immigration Law 

Federal immigration laws are extremely complicated in that they involve both 

civil and criminal aspects. The Federal Government and its designated agencies 

such as ICE and the Department of Justice have clear authority and responsibility 

to regulate and enforce immigration laws. It is these Federal agencies who have the 

authority to determine if a person will be criminally prosecuted for his/her violations 

of immigration laws or be dealt with through a civil-deportation process. Based on 

their authority, training, experience and resources available to them, these Federal 

agencies and the Federal courts are in the best position to determine whether or 

not a person has entered or remained in the country in violation of Federal regulations and the applicability of criminal sanctions. 

Immigration violations are different from the typical criminal offenses that patrol 

officers face every day on their local beats. The law enforcement activities of local 

police officers revolve around crimes such as murder, assaults, narcotics, robberies, 

burglaries, domestic violence, traffic violations and the myriad of other criminal 

matters they handle on a regular basis. The specific immigration status of any particular person can vary greatly and whether the person is in fact in violation of the 

complex Federal immigration regulations would be very difficult if not almost impossible for the average patrol officer to determine. At this time local police agencies 

are ill-equipped in terms of training, experience, and resources to delve into the 

complicated area of immigration enforcement. 

(4) Lack of Local Authority and State Law Limitations of Authority 

The Federal Government has clear authority over immigration and immigration 

enforcement. Federal law does not require the States or local police agencies to enforce immigration laws nor does it give the States or local agencies the clear authority to act in the area of immigration. 

Laws in their respective States define the authority of local police officers. The 

authority of local police officers to act to enforce against criminal acts is clear and 

well established. Federal immigration laws, however, include both civil and criminal 

process to address immigration violations. It is within the authority of Federal agencies such as ICE and the Department of Justice to determine if an immigration violation will be dealt with as a criminal matter or through a civil process. Given the 

complexity of the immigration laws, it would be difficult for local police agencies to 

determine if a particular violation would result in criminal charges or purely civil 

proceedings and regulation. This duality in immigration law creates a gap in authority for local police officers who generally are limited to acting only in criminal 

matters. 

In addition, State laws may restrict a local police officer’s authority to act even 

in criminal matters in such a way that it would prevent or hinder the officer’s ability to investigate, arrest, or detain a person for immigration violations alone. Federal agents are specifically authorized to stop persons and conduct investigations as 

to immigration status without a warrant. Local police officers may be constrained 

by local laws that deal with their general police powers such as the ability to arrest 

without a warrant, lengths of detention, and prohibitions against racial profiling. 

An example of this conflict between the civil nature of immigration enforcement 

and the established criminal authority of local police exists in the Federal initiative 

of placing civil immigration detainer notices on the NCIC system. The NCIC system 

had previously been used only to notify law enforcement of strictly criminal warrants and/or criminal matters. The civil detainers being placed on this system by 

Federal agencies notify local officers that the detainers are civil in nature by including a warning that local officers should not act upon the detainers unless permitted 

by the laws of their State. This initiative has created confusion due to the fact that 

these civil detainers do not fall within the clear criminal-enforcement authority of 

local police agencies and in fact lays a trap for unwary officers who believe them 

to be valid criminal warrants or detainers. 

(5) Risk of Civil Liability 

In the past, local law enforcement agencies have faced civil litigation and liability 

for their involvement in immigration enforcement. For example, the Katy, Texas, 

Police Department participated in an immigration raid with Federal agents in 1994. 

A total of 80 individuals who were detained by the police were later determined to 
31 

be either citizens or legal immigrants with permission to be in the country. The 

Katy Police Department faced suits from these individuals and eventually settled 

their claims out of court. 

Because local agencies currently lack clear authority to enforce immigration laws, 

are limited in their ability to arrest without a warrant, are prohibited from racial 

profiling and lack the training and experience to enforce complex Federal immigration laws, it is more likely that local police agencies will face the risk of civil liability and litigation if they chose to enforce Federal immigration laws. 

D. MCC’S NINE-POINT POSITION STATEMENT

Based upon a review, evaluation, and deliberation regarding the important and 

complex issue of local enforcement of Federal immigration laws, the members of 

MCC, who are the 56 Chief Executive Officers of police departments located within 

a metropolitan area of more than 1.5 million population and which employ more 

than 1,000 law enforcement officers, hereby set forth our consensus-position statement, which is comprised of nine crucial components. 

(1) Secure the Borders 

Illegal immigration is a national issue and the Federal Government should first 

act to secure the national borders to prevent illegal entry into the United States. 

We support further and adequate funding of the Federal agencies responsible for 

border security and immigration enforcement so they can accomplish this goal. We 

also support consideration of all possible solutions including construction of border 

fences where appropriate, use of surveillance technologies, and increases in the 

number of border-patrol agents. Only when the Federal Government takes the necessary steps to close the revolving door that exists at our national borders will it 

be possible for local police agencies to even begin to consider dedicating limited local 

resources to immigration enforcement. 

(2) Enforce Laws Prohibiting the Hiring of Illegal Immigrants 

The Federal Government and its agencies should vigorously enforce existing immigration laws prohibiting employers from hiring illegal immigrants. Enforcement 

and prosecution of employers who illegally seek out and hire undocumented immigrants or turn a blind eye to the undocumented status of their employees will help 

to eliminate one of the major incentives for illegal immigration. 

(3) Consult and Involve Local Police Agencies in Decision-Making 

Major Cities Chiefs and other representatives of the local law enforcement community such as the International Association of Chiefs of Police and local district 

attorneys and prosecutors should be consulted and brought in at the beginning of 

any process to develop a national initiative to involve local police agencies in the 

enforcement of Federal immigration laws. The inclusion of local law enforcement at 

every level of development would utilize their perspective and experience in local 

policing, address their concerns and likely result in a better program that would be 

more effectively implemented. 

(4) Completely Voluntary 

Any initiative to involve local police agencies in the enforcement of immigration 

laws should be completely voluntary. The decisions related to how local law enforcement agencies allocate their resources, direct their work force, and define the duties 

of their employees to best serve and protect their communities should be left in the 

control of State and local governments. The decision to enter this area of enforcement should be left to the local government and not mandates or forced upon them 

by the Federal Government through the threat of sanctions or the withholding of 

existing police assistance funding. 

(5) Incentive-Based Approach with Full Federal Funding 

Any initiative to involve local police agencies in the enforcement of immigration 

laws should be an incentive-based approach with full Federal funding to provide the 

necessary resources to the local agencies that choose to enforce immigration laws. 

Federal funds should be available to participating local agencies to cover the costs 

associated with enforcement such as expenditures on equipment and technology, 

training and educational programs, and costs of housing, caring for, and transporting immigrants prior to their release to Federal authorities. 

(6) No Reduction or Shifting of Current Assistance Funding 

The funding of any initiative to involve local police agencies in the enforcement 

of immigration laws should not be at the detriment or reduction directly or indirectly of any current Federal funding or programs focused on assisting local police 
32 

agencies with local policing or homeland security activities. Local police agencies are 

currently working on strained budgets and limited resources to meet local policing 

needs and strengthening homeland security and in fact need increased funding and 

grant assistance in these areas. Merely shifting or diverting Federal funding currently available for local policing and homeland security activities to any new immigration enforcement initiative would only result in a detrimental net loss of total 

resources available to local police agencies to police their neighborhoods and 

strengthen homeland security. 

(7) Clarification of Authority and Limitation of Liability 

The authority of local police agencies and their officers to become involved in the 

enforcement of immigration laws should be clearly stated and defined. The statement of authority should also establish liability protection and an immunity shield 

for police officers and police agencies that take part in immigration enforcement as 

authorized by clear Federal legislation. 

(8) Removal of Civil Immigration Detainers From the NCIC System 

Until the borders are secured and vigorous enforcement against employers who 

hire illegal immigrants has taken place and the concerns regarding lack of authority 

and confusion over the authority of local agencies to enforce immigration laws and 

the risk of civil liabilities are adequately addressed, MCC strongly requests that the 

Federal agencies cease placing civil-immigration detainers on NCIC and remove any 

existing civil detainers currently on the system. The integrity of the system as a 

notice system for criminal warrants and/or criminal matters must be maintained. 

The inclusion of civil detainers on the system has created confusion for local police 

agencies and subjected them to possible liability for exceeding their authority by arresting a person upon the basis of a mere civil detainer. 

MCC would encourage the Federal agencies to seek Federal criminal warrants for 

any person they have charged criminally with violations of immigration laws and 

to submit those criminal warrants on the NCIC system so the warrants can be acted 

upon by local police officers within their established criminal-enforcement authority 

and training. 

(9) Commitment of Continued Enforcement Against Criminal Violators Regardless of 

Immigration Status 

MCC member agencies are united in their commitment to continue arresting anyone who violates the criminal laws of their jurisdictions regardless of the immigration status of the perpetrator. Those immigrants—documented and/or undocumented—who commit criminal acts will find no safe harbor or sanctuary from their 

criminal violations of the law within any major city but will instead face the full 

force of criminal prosecution. 

Chairman THOMPSON. Thank you, Chief. 

As previously indicated, we will recess. There are only three 

votes rather than four. Shortly after the three votes, we will reconvene. 

[Recess.] 

Chairman THOMPSON. We would like to reconvene our recessed 

meeting. We have one witness left to offer testimony. 

Mr. Chishti, I now recognize you to summarize your statement 

for 5 minutes. 

STATEMENT OF MUZAFFAR A. CHISHTI, DIRECTOR, NYU 

SCHOOL OF LAW OFFICE, MIGRATION POLICY INSTITUTE 

Mr. CHISHTI. My written testimony has been submitted. I will 

just highlight three major areas that I have covered in the testimony. One is sort of the evolution of these agreements. The second 

is about their accountability and supervision. The third is what 

costs and public policy issues does this program raise. 

The first point we understand from these memoranda of understanding—we have been studying them at MPI for the last few 

months—is their recent dramatic growth and their concentration. 

As we know, the 1996 law provided for the enactment of these 
33 

agreements. None were signed until 2002. At the start of 2007, 

there were eight agreements in effect. In 2007, however, 26 agreements were signed, and 28 more in the last year. 

The program’s growth, therefore, has not only been dramatic and 

recent, it has also been concentrated. Of the current 67 agreements 

under this program, 42 are in the South-Central region of the country. What is striking, Mr. Chairman, is the majority of these agreements—37 of them—are in the Southeast. There has been a rapid 

growth, we know, in that part of the country about recent immigrants and foreign-born population. We also know that a good 

chunk of that may be unauthorized. But we cannot ignore the fact 

also that this is a region of the country that comes with a troubled 

legacy of civil rights violation and racial profiling. 

The second point I want to make is sort of remarkably—you 

know, evolution of the purposes of these programs. If you look at 

the legislative history of 287(g), the Congressman who introduced 

it on the floor of the House said that what he meant to be covered 

by these agreements were what we today would call a fugitive 

alien. In the Florida first agreement that was signed, it was supposed to cover terrorist suspects. 

But beginning in 2005, you heard senior ICE officials coming before subcommittees of this committee assuring that these MOUs 

will be focused on issues of high criminal target and high criminal 

activity. In fact, if you look at all the ICE public material on this, 

it is targeted on criminal aliens. 

But beginning in 2006, the focus of the program started shifting. 

No longer did these programs target criminal aliens, but rather at 

least some agencies were by this point seeking to apprehend as 

many unauthorized immigrants as possible. Thus the focus appears 

to have shifted from dangerousness of targeted immigrants to raw 

numbers. 

The issues of supervision and guidance, I think, have been very 

well covered by the GAO report. They raise very serious concerns; 

I won’t repeat them here. 

The last point I want to make from the testimony that we offered 

is that there are obviously very important issues of cost and policy 

that these agreements raise. Mr. Chairman, we live in a world of 

limited resources. The core function of law enforcement agencies is 

to protect the public and keep the community safe. Deviation from 

that core function must be done for a compelling reason and be 

done with caution. 

Focusing on terrorists, on dangerous fugitives, or serious criminals can be a high priority of local community; however, when that 

focus is lost and ordinary civil immigration violators become the 

target, there is a significant societal cost. The issues of ethnic 

profiling, the racial profiling, and the impact on community policing we heard so well today from Chief Manger, and therefore I 

won’t repeat it. 

But the last point on the cost I want to mention is immigration 

laws are complex and ever-changing, as the two police organizations, the MCC and IACP have mentioned, that they obviously 

come with significant costs of racial profiling and community policing. But the most important ultimately may be the Federal Government’s ability to dictate and establish a coherent national immigra-
34 

1Doris Meissner and Donald Kerwin, ‘‘DHS and Immigration: Taking Stock and Correcting 

Course,’’ (Washington, DC: Migration Policy Institute, 2009), pg. 48–50, http:// 

www.migrationpolicy.org/pubs/DHSlFeb09.pdf. 2Margot Mendelson, Shayna Strom, and Michael Wishnie, ‘‘Collateral Damage: An Examination of ICE’s Fugitive Operations Program,’’ (Washington, DC: Migration Policy Institute, 2009), 

http://www.migrationpolicy.org/pubs/NFOPlFeb09.pdf. 

tion enforcement policy. Because of the need to respond to the demands of the applicants of the 287(g) program, ICE has lost a great 

deal of initiative as to where and when and how to deploy enforcement resources. So instead of these agreements advancing a coherent national immigration policy—are likely to advance the political 

mandates at the local level. 

So for these reasons we are making a few recommendations. We 

are asking that the expansion of the program be put on hold to permit a thorough review of this program and its design. We would 

like this committee to hold hearings in those jurisdictions which 

have these programs and which chose not to have these programs. 

We believe that if Congress chooses to continue this program, in 

the future you must articulate specific, meaningful programmatic 

objectives for this program. If the program has to be continued, the 

committee should examine clearly the possibility of limiting it to 

jail programs for serious criminal offenses. We should also suggest 

that Congress should make it clear that law enforcement agencies 

that—if they consistently exceed the authority of the MOAs, those 

MOAs should be terminated. 

Thank you very much. 

[The statement of Mr. Chishti follows:] 

PREPARED STATEMENT OF MUZAFFAR A. CHISHTI

MARCH 4, 2009 

Mister Chairman and distinguished Members of the committee: My name is 

Muzaffar Chishti, and I am the Director of the Migration Policy Institute’s Office 

at New York University School of Law. Thank you for inviting me to testify before 

your committee on ‘‘Examining 287(g): The Role of State and Local Law Enforcement in Immigration Law.’’ 

INTRODUCTION

The Migration Policy Institute (MPI) is a non-partisan, non-profit think tank that 

studies migration and the management of migration systems worldwide, and one of 

its key areas of focus is U.S. immigration policy. Last month, MPI issued a report 

which called on the Federal Government to reassert its authority and willingness 

to enforce immigration law, while recognizing the discrete co-operative role that 

States and localities could play in important Federal enforcement efforts.1 MPI also 

recently issued a report on the National Fugitive Operations Program,2 another 

component of the interior enforcement strategy of U.S. Immigration and Customs 

Enforcement (ICE). In that report, we concluded that the fugitive operations program had strayed far from its initial mandate and ICE’s core priorities, and issued 

a series of recommendations to restore integrity and bring efficacy to the program. 

We are currently engaged in an in-depth study of the 287(g) program; we have been 

studying the 67 Memoranda of Agreement (MOA) that the Federal Government has 

signed with various State and local government agencies for immigration-related enforcement. As part of that work, we are collecting data and will be doing site visits 

over the next several months in preparation for a comprehensive report expected to 

be released later this year. Among other things, we are seeking to understand the 

character, implementation, and impacts of the 287(g) agreements. The latter include 

their costs and benefits to national, State, and local law enforcement and to local 

communities. What follows are some preliminary conclusions based primarily on our 

examination of the MOAs themselves and publicly available data. 
35 

3Floor statement of Rep. Tom Latham, (R–IA), 142 Congressional Record, H2475–01, *H2477, 

1996. 

I. TWO YEARS OF DRAMATIC, REGIONALIZED GROWTH

The 287(g) program was created as part of the Illegal Immigration Reform and 

Immigrant Responsibility Act (IIRIRA) of 1996. The first agreement under the provision was not signed until 2002 by the State of Florida. Growth in the program 

remained measured for the next 5 years, but the last 2 years have seen dramatic 

growth in the number of 287(g) agreements. 

At the beginning of 2007, there were eight agreements in effect, including six 

‘‘jailhouse’’ agreements whereby cross-deputized local incarceration officers perform 

immigration functions exclusively with respect to individuals already detained on 

State criminal charges. In 2007, however, 26 agreements were signed, and another 

28 were added the following year. The agreements signed in 2007 and 2008 were 

not confined to the jails, but also included the Task Force model in which 287(g)- 

authorized officers perform immigration-related enforcement on the streets, and the 

‘‘hybrid’’ model, which entails both the Task Force and jailhouse components. Jailhouse agreements comprise the majority of the 67 agreements currently in force. 

(Figure 1 in the Appendix section summarizes the growth of 287(g) agreements by 

year and type.) 

While the 287(g) program encompasses law enforcement agencies at the State, 

county, and local levels, counties comprise approximately two-thirds of all program 

participants. The Task Force model is predominant in State and city law enforcement agencies, while nearly all of the counties have either the jail or hybrid model. 

(See Figure 2 for MOAs by jurisdiction and type.) 

The 287(g) program’s growth has been regionally concentrated. Of the 67 agreements, 42 are in the South, 17 are in the West, five in the Northeast and three in 

the Midwest. ICE has confirmed that there are approximately 80 applications pending to join the 287(g) program. About two-thirds of the pending applications are 

from jurisdictions in the South, according to ICE. 

II. MISSION DRIFT: THE EVOLVING PURPOSE OF SECTION 287(g) 

One critical threshold issue immediately apparent in our study of the 287(g) program is that its ostensible purpose has undergone a dramatic evolution from the 

time it was added to the Immigration and Nationality Act (INA) in 1996 to the 

present day. Initially conceived with a narrow mandate, the program has undergone 

at least two major transformations. The first, following the Sept. 11, 2001 attacks, 

sought to utilize the program as a tool to fight terrorism and promote public safety. 

The second transformation, which occurred around 2006, made the program a 

broader, more generalized immigration enforcement program. The program’s rapid 

expansion has been accompanied by an apparent shift in mission. These changes 

suggest the need for closer supervision of on-going 287(g)-related operations, more 

extensive training of State and local law enforcement officers in the often complex 

arena of immigration law, and clear, publicly released guidelines for participating 

agencies. 

1996: Legislative History 

The primary legislative sponsor of the amendment that added the 287(g) program 

to the INA, Representative Tom Latham (R–IA), explained during the House floor 

debate that it was intended to ‘‘allow State and local law enforcement agencies to 

enter into voluntary agreements with the Justice Department to give them the authority to seek, apprehend and detain those illegal aliens who are subject to an 

order of deportation.’’3 Thus, as initially conceived, the program was to focus on noncitizens to whom ICE now refers as ‘‘fugitive aliens’’ and who were previously referred to by the Immigration and Naturalization Service (INS) as ‘‘absconders.’’ 

1998: Salt Lake Debate 

Although the first MOA was not signed until 2002, the Salt Lake City Council 

came close to enacting a 287(g) agreement just 2 years after IIRIRA’s passage because of a shortage of INS officers in the area. As a result of the shortage, unauthorized immigrants subject to INS detainers were nonetheless released by local law enforcement because there were not sufficient Federal personnel to transport the indi-
36 

4Statement of Aaron Kennard, Salt Lake County Sheriff, to the House Judiciary Committee, 

Subcommittee on Immigration and Claims, Problems Related to Criminal Aliens in the State of 

Utah, 105th Cong., 2d sess., July 27, 1998, pg. 14–15. 5 Ibid., Statement of Mary Callaghan, Commissioner, Salt Lake County Commission, pg. 6. 

6 Ibid., Statement of Aaron Kennard, Salt Lake County Sheriff, pg. 15. 

7Shawn Foster, ‘‘SLC Council Says No to Cross-Deputization,’’ Salt Lake Tribune, September 

2, 1998. 8Statement of Mark F. Dubina, Special Agent Supervisor, Tampa Bay Regional Operations 

Center, Florida Department of Law Enforcement, Regional Domestic Security Task Force Supervisor, before the House Committee on Homeland Security, Subcommittee on Management, Integration and Oversight, The 287(g) Program: Ensuring the Integrity of America’s Border Security 

System Through Federal-State Partnerships, 109th Cong., 1st sess., July 27, 2005), pg. 17. 9 Ibid., Statement of Major Charles E. Andrews, Chief, Administrative Division, Alabama Department of Public Safety, pg. 20. 10 Ibid., Statement of Paul M. Kilcoyne, Deputy Assistant Director, Office of Investigations, 

ICE. 11Testimony of Jim Pendergraph, Sheriff of Mecklenburg County, North Carolina, before the 

House Committee on Government Reform, Subcommittee on Criminal Justice, Drug Policy and 

Human Resources, Empowering Local Law Enforcement to Combat Illegal Immigration, 109th 

Cong., 2nd sess., August 25, 2006. 12 Ibid., Statement of Kenneth A. Smith, Special Agent in Charge, Atlanta, Georgia, Office of 

Investigations, ICE, pg. 35 

viduals to a facility in Las Vegas or Denver, and the local police had neither the 

space to continue to hold them nor the authority to convey them across State lines.4

This scenario frustrated local law enforcement and led Salt Lake City and County 

to explore the possibility of signing a Memorandum of Understanding, or MOU as 

the agreements were then called, so that its officers could gain ‘‘the authority 

to . . . assist the INS in transporting that person across State lines to an INS 

holding facility in Denver or Las Vegas.’’5 Both the County Commission and Sheriff 

emphasized that this was the sole purpose of seeking the MOU; as the latter put 

it, ‘‘I have no intention of cross-deputizing my deputies so they can enforce the INS 

laws. I have enough to do in Salt Lake County with the local laws. I have no intention of my people arresting people for illegal status.’’6 Ultimately, however, Salt 

Lake did not pursue the MOA because of strong public concerns about the potential 

for racial profiling.7

2002–2005: Florida, Alabama and the Los Angeles County Sheriff’s Department 

The first 287(g) agreement was ultimately signed by the State of Florida in 2002. 

The officers trained under the new agreement were members of the Regional Domestic Security Task Forces created to address perceived shortcomings in the 

State’s ability to combat terrorism after the Sept. 11 terrorist attacks.8 In 2003, the 

State of Alabama entered an MOA to address particular problems it was experiencing with fraudulent documents being presented to secure drivers’ licenses.9

In July 2005, when only three agreements were in force, a House Homeland Security Committee Subcommittee held a hearing on the 287(g) program. Paul M. 

Kilcoyne, Deputy Assistant Director of ICE’s Office of Investigations, assured the 

subcommittee that the program would remain ‘‘focused on criminal organizations, 

those individuals who pose a threat to the border security,’’ and not ‘‘the landscape 

architect that had the broken headlight.’’10 At the time, a 287(g) agreement had recently been instituted in Los Angeles County, where custody assistants in the county jails were trained to check the immigration status of inmates after they had been 

convicted of a crime. Mr. Kilcoyne emphasized the importance of maintaining ‘‘a 

very focused approach’’ to the 287(g) program in order to make the best use of limited fiscal and managerial resources. For precisely this reason, the subcommittee 

was told that the 287(g) program would expand only into State and local jails. 

2006: A Shift in Focus 

By September 2006, the program had expanded into four additional jails, bringing 

to seven the total number of agreements. The focus of the program—or at least the 

manner in which it was being employed by some law enforcement agencies—had 

shifted further. No longer did 287(g) officers focus solely on targeting criminal 

aliens; rather, at least some law enforcement agencies were, by this point, seeking 

to apprehend as many unauthorized immigrants as possible on the belief that all 

unauthorized immigrants are more likely to commit crimes and in response to perceived fiscal burdens placed on public services by immigrants to new immigrant-receiving communities.11

The Special Agent in Charge of the Atlanta ICE Office of Investigations, Kenneth 

Smith, stated that while it could help identify criminal aliens, ‘‘the real beauty of 

the program’’ is that it guaranteed that every person who enters a jail that has an 

MOA is screened for civil immigration law violations.12 Mr. Smith acknowledged 
37 

13 Ibid. 14 Ibid., pg. 29. 15 Ibid., pg. 49. 16 Ibid., pg. 70. 17 Ibid. 18Delegation of Immigration Authority, Section 287(g), Immigration and Nationality Act, September 6, 2007. 19 E.g., Am. Compl. ¶¶ 22–23, Melendres, et al. v. Arpaio, et al., No. 07–02513 (D. Ariz. filed 

July 16, 2008). 20 E.g., Delegation of Immigration Authority, Section 287(g), Immigration and Nationality Act, 

August 18, 2008; ‘‘The ICE 287(g) Program: A Law Enforcement Partnership,’’ (November 19, 

2008); Section 287(g), Immigration and Nationality Act, ‘‘Frequently Asked Questions,’’ (last 

modified February 20, 2009), http://www.ice.gov/partners/287g/Section287glfaq.htm. 21 ‘‘The ICE 287(g) Program: A Law Enforcement Partnership,’’ (November 19, 2008). 

that this ‘‘would not have necessarily a huge impact on the criminal system,’’ but 

that ‘‘it certainly would on our detention and removal capabilities.’’13 Mr. Smith 

speculated that the Mecklenburg County approach was a ‘‘model that... will be 

mirrored in jurisdictions around the country.’’14

At the time, Mecklenburg County was the only jurisdiction in North Carolina with 

an MOA, and its sheriff, Jim Pendergraph, reported that the agreement had permitted his officers to identify a large number of civil immigration law violators. ICE 

Detention and Removal Operations, the sheriff said, was ‘‘overwhelmed by the numbers we are generating for removal in Mecklenburg County alone,’’15 and ‘‘they’ve 

had to reassign ICE agents to deal with the numbers that we’re seeing.’’16 In so 

doing, he also foreshadowed significant problems relating to ICE supervision and 

the 287(g) program’s interference with Federal immigration priority-setting and initiative. According to Sheriff Pendergraph, his office had generated so many removal 

cases for ICE that: 

‘‘They can’t support many more because they are flooded with work. I don’t know 

where the resources are going once they’re appropriated in Washington but they’re 

not getting to the local field offices because they can’t handle what they have now. 

If more sheriffs in this State got on-board then there would be no ICE agents to 

deal with what they normally do.’’17

Since 2006, seven other North Carolina counties have signed MOAs—all of which 

use largely the same language as the Mecklenburg County MOA (there are reportedly an additional 16 jurisdictions in the State with applications pending). In fact, 

from the beginning of 2007 to the present day, all or virtually all of the 54 MOAs 

signed in this period seem to be based on the same template, and thus not designed 

to reflect the targeted needs or priorities of each participating agency. 

ICE’s Statements About the Program’s Purpose 

ICE’s own 287(g) documents also suggest that the program has gone beyond its 

initial purpose, which ICE has consistently described as combating serious crime 

committed by immigrants. According to a 2007 ICE Fact Sheet, the program is 

aimed at ‘‘violent crimes, human smuggling, gang/organized crime activity, sexualrelated offenses, narcotics smuggling and money laundering.’’18 The fact sheet went 

on to clarify that ‘‘[t]he 287 (g) programs is not designed to allow State and local 

agencies to perform random street operations. It is not designed to impact issues 

such as excessive occupancy and day laborer activities.’’ This 2007 Fact Sheet was 

even used as evidence that a particular law enforcement agency had exceeded the 

authority conveyed by the MOA.19 Later versions of the 287(g) Fact Sheet have not 

contained similar language concerning the objectives or limitations of the program.20

Arrest Statistics 

According to ICE, law enforcement agencies participating in the 287(g) program 

were responsible for approximately 79,000 arrests of suspected immigration law violators from January 2006 through November 2008.21 However, it is not known how 

many of those arrested posed national security or public safety threats because ICE 

has not set forth priority categories with respect to the 287(g) program and has not 

released any information to date beyond the raw number of arrests. The statistics, 

however, indicate that the program has departed from the earlier risk-based approach to immigration enforcement articulated by the Department of Homeland Security (DHS). 

By way of illustration, under the first MOA signed, the State of Florida devoted 

35 officers to high-value targets—in particular those who posed threats to national 

security. In the first 36 months that the MOA was in operation, those officers made 

approximately 165 arrests (i.e., fewer than five arrests a month, or slightly less than 

one arrest per seven deputized officers per month). The second MOA, through which 
38 

22 Hearing, supra note 8, at 16. 23 Nicholas C. Stern, ‘‘Sheriff Updates County on ICE Action,’’ Frederick News-Post, October 

17, 2008. 24Michael Barret, ‘‘Officers Decide When to Arrest, But for Immigrant Community Decision 

Can Lead to Deportation,’’ Gaston Gazette, July 7, 2008; Aarti Shahani and Judith Green, Local 

Democracy on ICE, (New York: Justice Strategies, 2009), http://www.justicestrategies.org/sites/ 

default/files/JS-Democracy-On-Ice.pdf. 25Lindsay Haddix, Immigration and Crime in North Carolina: Beyond the Rhetoric, (Chapel 

Hill, NC: Department of City and Regional Planning, UNC Chapel Hill, 2008). 

21 members of the Alabama State Police were trained, resulted in approximately 

200 arrests in the first 21 months—fewer than 10 arrests a month, or about one 

arrest per two officers per month.22 In contrast, in the last 3 years, each law enforcement agency has arrested, on average, roughly 100 immigrants a month, suggesting a shift in emphasis from high-priority targets to volume of arrests. Though 

the removal of unauthorized immigrants is clearly within ICE’s mandate, there are 

less costly, less disruptive and more efficient ways of accomplishing that. 

III. COSTS TO THE SYSTEM

It appears that the rapid expansion of the 287(g) program imposes considerable 

costs—both tangible and intangible—on the entire immigration enforcement system. 

I will focus here on four. 

Subordination of Federal Immigration Enforcement Priorities 

The 287(g) program threatens the ability of DHS and ICE to set a coherent immigration enforcement agenda at the national level. Because of the need to respond 

to the demands of the 287(g) program and its State and local partners, the Federal 

Government has lost initiative with respect to where, how, and when to deploy enforcement resources. Instead, operations have been initiated by 287(g) law enforcement agencies, most of which are led by elected sheriffs who may be using their 

MOAs for local purposes not necessarily consistent with the overall needs of the region or country. Even law enforcement agencies with the best intentions are primarily concerned with their own communities. 

Under some circumstances, law enforcement agencies entering into 287(g) agreements can have an incentive to detain large numbers of immigrants. After the initial arrest and processing by the 287(g) partner, the Federal Government bears the 

full cost for virtually every other step in the enforcement process, including detention, prosecution, adjudication and removal. In fact, with regard to law enforcement 

agencies reimbursed by the Federal Government for holding immigration detainees 

through an Inter-Governmental Service Agreement (IGSA), there are strong financial incentives to make as many arrests as possible. For example, under the IGSA 

between ICE and the Frederick County, Maryland Sheriff’s Office—which also has 

a 287(g) MOA—the county is reimbursed $83 a day for holding an immigration detainee. However, according to Frederick County Sheriff Charles Jenkins, it costs the 

county $7 a day to feed and house a detainee.23 The difference between the reimbursement rate and the actual cost represents pure profit, and can be an incentive 

for over-enforcement—particularly in the current economic climate. At least 22 

287(g) partners also have IGSAs providing reimbursement for housing immigration 

detainees. 

Immigration enforcement priorities must be set at the Federal level. Only from 

a national perspective can all of the relevant factors and resource levels be taken 

into account. This permits a much more efficient allocation of resources on a systemwide basis and avoids expending a great deal of Federal resources on individuals 

who pose neither a threat to public safety nor national security. Although ICE has 

not released comprehensive arrest statistics on the 287(g) program, independent 

data obtained by journalists suggest that significant resources are expended to remove unauthorized immigrants who are guilty only of traffic violations. In Frederick 

County, Maryland, for example, more than half of the first 300 suspected immigration law violators charged under its MOA were arrested for driving without a license. Likewise, data from Gaston, North Carolina reveals that 95 percent of State 

charges filed against 287(g) arrestees were for misdemeanors; 60 percent were for 

traffic violations that were not DWIs.24 In Mecklenburg County, 2,321 unauthorized 

immigrants were placed in removal proceedings in 2007. Data shows that fewer 

than 5 percent of the charges against these individuals were felonies.25 By yielding 

such a high rate of relatively low-priority civil immigration arrests, MOAs compromise DHS’ ability to set the immigration enforcement agenda. 
39 

26Pre-hearing questionnaire by Julie Myers, DHS Assistant Secretary nominee, submitted to 

the Senate Committee on Homeland Security and Governmental Affairs, 110th Cong., 1st sess., 

July 26, 2007. 27 International Association of Chiefs of Police, Police Chiefs Guide to Immigration Issues, July 

2007, 13. 28Paloma Esquivel, ‘‘Suit Filed Over Disabled U.S. Citizen’s Deportation Ordeal,’’ Los Angeles 

Times, February 28, 2008. 29 Hearing, supra note 8, at 11. 

Fiscal Costs 

Although ICE has not publicly released information about the total fiscal cost of 

the 287(g) program, statements by agency administrators indicate it is substantial. 

Former ICE Assistant Secretary Julie Myers testified in July 2007 that it costs 

slightly more than $17.5 million in the first year of an MOA to implement the program.26 This figure included ‘‘startup and first-year maintenance costs consisting of 

such items as detention, removal and bed space management, IT infrastructure and 

maintenance, [Office of Investigations]/[Detention and Removal Operations] personnel and support positions, training, transportation and other elements,’’ and was 

based on a law enforcement agency with 20 trained officers that made 240 arrests 

in the first year. Assuming that this figure has remained fairly constant, the first 

year of the 67 MOAs currently in force would constitute an expenditure of more 

than $1.1 billion. 

It is important to note that this $1.1 billion estimate includes only the front end 

of the removal process. This estimate does not include immigration court prosecution expenses such as the salaries for ICE attorneys, immigration judges and support personnel; maintenance and overhead expenses for their offices; etc.—as well 

as similar expenses for appeals to the Board of Immigration Appeals and U.S. 

Courts of Appeals. 

The program’s substantial apparent costs reinforce the need for it to advance 

DHS’ overall enforcement priorities. 

Community Impact 

Given the complexity of immigration law and the apparent paucity of supervision 

and training offered to agents under the current 287(g) program, harmful errors and 

even racially motivated law enforcement tactics may be inevitable. Whereas regular 

ICE agents receive 5 months of training in the intricacies of immigration law, 287(g) 

officers receive 4 weeks of ICE training. Furthermore, because immigration enforcement is not the primary job of local law enforcement agents, they do not accumulate 

the experience and expertise of ICE agents. Noting that immigration law is intricate, voluminous, and distinct, the International Association of Chiefs of Police 

(IACP) has expressed concern that local law enforcement agents acting under 287(g) 

agreements will violate the unique standards and constitutional requirements surrounding immigration enforcement: ‘‘What constitutes ‘probable cause’ in immigration matters may not be easy to discern.’’27 Indeed, evidence shows that 287(g)-authorized officers purporting to enforce immigration law have illegally detained and 

even deported U.S. citizens.28

Community Policing 

The core functions of law enforcement officers are to protect the public and keep 

communities safe. By deputizing State and local law enforcement officials to enforce 

civil immigration law, the 287(g) program may detract from officers’ ability to fulfill 

their core mission in addition to diverting scarce local law enforcement resources to 

general immigration enforcement. 

In 2005, an IACP representative testified before this committee that local enforcement of civil immigration laws ‘‘would likely have a chilling effect on both legal and 

illegal aliens reporting criminal activity or assisting police in criminal investigations’’ and could thereby ‘‘diminish the ability of law enforcement agencies to effectively police their communities and protect the public they serve.’’29 IACP and the 

Major Cities Chiefs (MCC) both have publicly expressed concern that 287(g) agreements weaken their capacity to police their communities. 

Fear and distrust of law enforcement agencies have broad reverberations. Immigrant victims of crime are less likely to seek police assistance and therefore more 

vulnerable. Immigrant women facing domestic violence may not report or seek protection from abuse out of fear that they, their partners or their relatives will be deported. Likewise, witnesses to street crime and violence may not come forth with 

valuable evidence and testimony. With respect to national security and counterterrorism, DHS has long emphasized the necessity for all individuals to report information and intelligence to law enforcement agencies. The underlying message is clear: 
40 

30Mendelson, Strom and Wishnie, Collateral Damage: An Examination of ICE’s Fugitive Operations Program. 31 INA § 287(g)(5), 8 U.S.C. § 1357(g)(5). 32 Hearing, supra note 8, at 16. 

building safe communities requires that all residents feel safe turning to and cooperating with law enforcement. 

Furthermore, as a recent MPI study of the National Fugitive Operations Program 

demonstrates,30 failure to abide by strict priorities in immigration enforcement inevitably blurs the distinction between immigrants who are unlawfully present and 

those convicted of violent crimes. The 287(g) agreements, as they have been applied, 

potentially collapse the important distinction between civil immigration violations 

and criminal offenses by affecting all individuals, citizen or non-citizen, suspected 

of being unauthorized immigrants. In so doing, these agreements send a message 

to the public that immigrants are criminals—thus, reinforcing harmful stereotypes. 

IV. THE LACK OF GUIDANCE, SUPERVISION AND ACCOUNTABILITY

The statutory authorization for the 287(g) program requires that: 

‘‘With respect to each officer or employee of a state or political subdivision who is 

authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, 

the duration of the authority of the individual, and the position of the agency of the 

Attorney General who is required to supervise and direct the individual, shall be 

set forth in a written agreement between the Attorney General and the state or political subdivision.’’31

Although the MOAs generally set forth the powers and authorities that may be 

wielded by the deputized officers, they are far from comprehensive; indeed, those 

written in the last 2 years seem to be mostly boilerplate. Of particular concern, the 

MOAs do not articulate any overall objectives for the program or provide guidance 

as to when the law enforcement agencies should exercise their immigration enforcement powers. These newer agreements simply state that the intent of the agreeing 

parties (ICE and the law enforcement agency) is either that the MOA will ‘‘enable 

[the law enforcement agency] to identify and process immigration violators’’ or ‘‘result in enhanced capacity to deal with immigration violators.’’ Such vague statements of intent are less likely to constrain abuses and direct resources to high national enforcement priorities. 

This absence of objectives and guidance has essentially authorized participating 

law enforcement agencies to employ their 287(g) authority as they wish. Inevitably, 

this has led to widely divergent applications of the newly acquired powers, as well 

as many of the highest-profile abuses of the program. The wide discretion afforded 

law enforcement agencies is accompanied by questionable and uneven supervision 

and insufficient accountability measures. 

Lack of Guidance Regarding Immigration Enforcement Functions 

While some of the MOAs state that the participating officers ‘‘will exercise their 

immigration-related authorities during the course of criminal investigations,’’ the 

language offers little concrete direction. Nowhere do the MOAs prohibit the officers 

from using their authorities outside of criminal investigations or set forth consequences if they do. Thus, law enforcement agencies are basically free to use their 

287(g) powers at their discretion, including during non-criminal investigations, such 

as routine traffic stops. 

The jailhouse MOAs do little more to curb unbridled officer discretion. One reason 

is that the jail agreements are no longer confined to the post-conviction stage of 

criminal proceedings, as the first one was. Instead, the immigration functions are 

frequently, if not always, performed as to every inmate booked in the facility, including those detained on arrestable traffic offenses and even civil contempt, at the 

time of initial intake. 

Inadequate Supervision 

The requirement that ICE ‘‘supervise’’ participating law enforcement agencies is 

so vague as to render the statutory language virtually meaningless. To our knowledge, ICE has issued no guidelines, regulations, or protocols with respect to the nature of its supervision, how frequently it must take place or which ICE office must 

provide it. Because of the differentiated regional concentration for the 287(g) agreements, some regional ICE offices have a greater supervision responsibility than others. (See Figure 3 in the Appendix section.) 

ICE and its partners have emphasized the importance of close supervision over 

participating 287(g) partners. Florida Task Force Supervisor Mark Dubina testified 
41 

32 Hearing, supra note 8, at 16. 

to a subcommittee of this committee that ‘‘[i]n all cases, the ICE team leader to the 

[task force], the [State law enforcement] special agent supervisor and the local ICE 

immigration supervisor must agree on a decision to arrest or detain a person, pursuant to 287(g) authority.’’32

In practice, however, the boilerplate MOA states only that ‘‘activities conducted 

by the participating law enforcement agency personnel will be supervised and directed by ICE supervisory officers.’’ In sharp contrast to Mr. Dubina’s description 

of joint deliberation in advance of arrests, most MOAs require only that participating personnel ‘‘shall give notice to the ICE supervisory officer as soon as practicable after, and in all cases within 24 hours of, any detainer issued.’’ Only five 

of the 67 MOAs set forth specific circumstances in which 287(g) partners must notify ICE of their actions. And, even then, the language is retrospective: law enforcement agencies, for example, are to contact ICE immediately in the event of ‘‘death 

or injury of an alien(s).’’ 

Inadequate Accountability Measures 

At a minimum, a program that does not constrain its State and local partners 

from deviating from their traditional role and shifts immigration enforcement authority away from Federal officials requires careful recordkeeping and close review. 

However, the 287(g) program entails few mechanisms for accountability, transparency or public scrutiny. Most MOAs do not contain requirements or guidelines 

about the nature of the data that law enforcement agencies should collect. Likewise, 

ICE has released no information about processes or protocols by which it audits or 

reviews its 287(g) partners and the data they collect. 

Given the magnitude of the program’s authority, one would expect strict and 

transparent procedures by which individuals can report inappropriate or problematic experiences with law enforcement agencies functioning in their immigration enforcement capacity. To the contrary, however, the complaint procedures set forth in 

MOAs are vague and boilerplate. 

V. CONCLUSION AND RECOMMENDATIONS

We live in a world of choices, with limited law enforcement resources. In general, 

when law enforcement agencies go beyond their core mission, we must be sure of 

the purpose and objectives for the departure. Law enforcement agencies already face 

myriad competing pressures and priorities. They are over-stretched and under-funded: trends that will no doubt worsen under the current economic conditions. The 

287(g) program necessarily requires officers to spend time on activities beyond their 

core functions. With this new responsibility come risks and costs for the participating law enforcement agencies, the Federal Government and communities across 

the country. 

When conceived by Congress in 1996, the 287(g) program was to be narrowly 

aimed at training local and State law enforcement officers to arrest unauthorized 

immigrants already subject to outstanding warrants of deportation (i.e. ‘‘fugitive 

aliens’’). Eight years later, the first 287(g) agreement, signed by the State of Florida, 

was not focused on fugitive aliens, but rather tailored to the counter-terrorism objectives of Florida’s Regional Domestic Security Task Forces. Had the 287(g) program 

remained confined to either of these initial purposes—fugitive aliens, as envisioned 

by Congress, or counter-terrorism, as embodied in the first agreement with the 

State of Florida—perhaps it would be a success today and prove to be a good model 

for a force multiplier in Federal immigration enforcement. 

But much has changed in the interim years. The program has grown to include 

nearly 1,000 officers at 67 law enforcement agencies in 23 States, with most of that 

expansion happening in just the last 2 years. 

Because of the growth of the 287(g) program over a short period of time, its potential to distract from the Federal Government’s important efforts to enact a coherent 

national immigration policy, and its potential costs to communities, we therefore 

make the following recommendations: 

1. Expansion of the program should be put on hold to permit a thorough review 

and potential redesign.—Congress or DHS should impose a moratorium on new 

287(g) agreements while a broad, in-depth, empirically based study is undertaken to evaluate cost effectiveness and community impact. 

2. The committee should hold field hearings on the 287(g) program.—I would encourage the committee to consider today’s hearing a starting point to further examination of the program by holding field hearings in communities that have 

MOAs as well as those that have chosen not to pursue an agreement. 
42 

3. If Congress chooses to continue the 287(g) program, it should enumerate specific and meaningful programmatic objectives with clear reporting requirements.—The program would benefit from coherent, transparent objectives that 

fit logically into the overall DHS enforcement priorities. With respect to its fugitive operations, ICE has set forth priority categories in which individuals posing 

a threat to national security are specifically identified as most important. ICE 

should adopt a similar set of publicly articulated priorities for 287(g) operations. 

Local law enforcement agencies should be required to regularly report arrest 

data, with specific indication of the individuals’ priority levels. As part of that 

process, 287(g)-authorized agencies should also record and report the violation 

for which each individual was arrested as well as the individual’s race and 

country of origin. 

4. If the 287(g) program is continued, the committee should examine whether it 

should be confined to the jailhouse model and whether only those convicted of 

serious crimes should be screened for civil immigration violations. 

5. All existing agreements should be reviewed to determine how well they advance Federal objectives, how efficaciously they allocate resources, and whether 

they are sufficiently cost-effective.—Agreements that do not advance DHS’ objectives or suffer from other problems of management or oversight should be modified or terminated. 

6. Congress should make clear any law enforcement agency that consistently exceeds its authority shall have its MOA terminated.—All MOAs should also undergo a mandatory, periodic review to monitor compliance. 

7. The basic MOA itself should ensure sufficient training and supervision by ICE 

and include clear reporting and accountability measures. Moreover, processes 

should be included that require law enforcement agencies to seek the input of affected communities. 

VI. APPENDICES

FIGURE 1.—TYPES OF 287(g) MOAS SIGNED BY YEAR 

Year 

Jailhouse 

Agreements 

Task 

Force 

Agreements 

Hybrid 

Jailhouse/ 

Task 

Force 

Agreements 

Total 

2002 ...................................................... ................ 1 ................ 1 

2003 ...................................................... ................ 1 ................ 1 

2004 ...................................................... ................ ................ ................ 0 

2005 ...................................................... 3 ................ ................ 3 

2006 ...................................................... 3 ................ ................ 3 

2007 ...................................................... 11 9 6 26 

2008 ...................................................... 14 13 6 28 

TOTAL ...................................... 31 24 12 67 

FIGURE 2.—TYPES OF 287(g) MOAS BY JURISDICTION TYPE 

Year 

Jailhouse 

Agreements 

Task 

Force 

Agreements 

Hybrid 

Jailhouse/ 

Task 

Force 

Agreements 

Total 

STATE .................................................. 4 8 0 12 

COUNTY .............................................. 25 6 12 43 

CITY ..................................................... 2 10 0 12 

TOTAL ...................................... 31 24 12 67 
43 

FIGURE 3.—SUPERVISING ICE OFFICES AND SUPERVISED LAW 

ENFORCEMENT AGENCIES 

Location of Supervising Office 

Number of 

Agencies 

Supervised 

Avg. 

Distance 

to Agency 

(Miles) 

Atlanta, GA ................................................................................. 13 219 

New Orleans, LA ........................................................................ 8 544 

Phoenix, AZ ................................................................................. 7 42 

Fairfax, VA .................................................................................. 7 25 

Charlotte, NC .............................................................................. 5 64 

Los Angeles, CA .......................................................................... 4 45 

Miami, FL .................................................................................... 4 313 

Tampa, FL ................................................................................... 4 194 

Fort Smith, AR ........................................................................... 4 70 

Boston, MA .................................................................................. 4 44 

Dallas, TX .................................................................................... 4 75 

Chairman THOMPSON. Thank you for your testimony as well as 

each of you before our last witness. 

I remind each Member that he or she will have 5 minutes to 

question the panel. 

I will now recognize myself for questions. 

Mr. Riley, you have heard Mr. Stana testify that ICE presently 

has no performance measures or program goals. Do you agree with 

that statement? 

Mr. RILEY. Yes, that is an accurate statement. 

Chairman THOMPSON. If that is correct, how do we determine 

success or failure within the 287(g) program? 

Mr. RILEY. Right now, the Office of State and Local Coordination 

that I am overseeing recently finished a draft of a strategic plan 

that is currently being vetted through ICE right now. That strategic plan is going to have baseline performance measures for 

which ICE can then project the success of agreements that are currently in place and future agreements. I would also like to note 

that Secretary Napolitano on January 30 issued an action directive 

to ICE specifically for a full review of the 287(g) program, and part 

of that program is for us to start getting performance measures by 

which we can judge the success of all the agreements that we have 

in place. 

Chairman THOMPSON. So let me be absolutely clear with the testimony. At this point, you have said that there are no real measurements in place, but you plan to do that. 

Mr. RILEY. Right, the measures that we have tracked for the past 

few years, as I did testify, that 90 percent of the agreements we 

have in place were entered into in the past 3 years. The measures 

that we had been tracking were the number of State and local officers that have been trained, the number of individuals identified 

by 287(g)-trained officers that were identified for removal via the 

memoranda of agreement and the number of agreements that we 

have entered. 

Chairman THOMPSON. Thank you. 

Mr. Stana, did GAO make any suggestions as to how ICE could 

determine success or failure within the 287(g) program? 

Mr. STANA. Not anything specific in the report, and this is because—first before you articulate what your performance measures 
44 

are, you have to articulate what the objective of the program was. 

Since there was some variation depending on which document you 

looked to as to what the intent of the program was, it is hard to 

create a measure. 

But assuming that one measure might be to address serious 

crime by removable aliens, one measure might be, for example, the 

percentage of serious criminal activity reduction in a jurisdiction 

participating in 287(g) or if, say, 90 percent of the arrests under 

the program were for crimes that are considered serious criminal 

activity. Those might be two. 

But again, the fundamental underpinning of having performance 

measures is to have a more wide-reaching control mechanism and 

a control structure that you are trying to measure success against. 

That is also something that ICE said they are going to be working 

on. 

Chairman THOMPSON. Thank you. 

Mr. Riley, can you provide this committee with the last 2 fiscal 

years’ arrest statistics under the 287(g) program? After providing 

that information, can you provide us ICE’s definition of serious 

crime? 

Mr. RILEY. The statistics I will have to get back to the committee 

on. Serious crime—I don’t know if we have a specific definition for 

that, but what I will say is that over the past few years, ICE has 

been enhancing its database systems, one of which is ENFORCE, 

which is DHS’s administrative arrest booking system. Both Customs and Border Protection, USCIS, and ICE use this system. 

What we plan to do is have a short-term fix in the next few 

months that will allow us to better track those types of data. Specifically we are going to be requiring that the State and local 

287(g)-trained officers populate additional fields that are going to 

be added to ENFORCE, specifically that will track if the individual 

was charged with a felony, misdemeanor or non-driving—— 

Chairman THOMPSON. So we don’t have a measurement or identifier for serious crime? 

Mr. RILEY. ICE doesn’t have a definition that I know of for serious crime. We have aggravated felon, felon, and misdemeanor. 

Chairman THOMPSON. Mr. Stana, I guess what I am trying to figure out is if we have a memorandum of agreement between ICE 

and a unit of Government as an objective to stop and apprehend 

serious crime but we can’t define what a serious crime is, how can 

we measure anything? 

Mr. STANA. Well, that is a really good question. I think—DRO, 

the Detention Removal Office, does have definitions of serious 

crime, and they might list things such as drug traffickers or sex 

crimes, things like that. They put that information out to participating jurisdictions with the idea—and I think Mr. Souder alluded 

to this. ICE isn’t going to come and pick up or doesn’t have the 

space to deal with people who fall below a certain threshold. 

It is not that they don’t understand and aren’t sensitive to the 

need to respond to other types of crime; it is just that there are not 

enough resources, and they try to—if you look at the statistics that 

ICE has, you will see that—I think it was about 43,000 people were 

arrested under this program, about 34,000 of which, and this is for 

the 29 jurisdictions we studied, were accepted by ICE, meaning 
45 

there were about 9,000 that they didn’t take presumably because 

it was too low a threshold for them to take them. 

Of the 34,000 that were taken, it is interesting to see how they 

were dealt with jurisdiction by jurisdiction. Some of the large feeder jurisdictions, one in particular, Maricopa County, about threequarters were V.R.—voluntary removal—indicating it probably 

wasn’t a serious crime that they were arrested for, but they were 

removed from the country nonetheless. I am not arguing that they 

shouldn’t have been if they are out of status here, but I am concerned about the focus of the program. 

Chairman THOMPSON. Thank you. 

I yield to the Ranking Member for questions. 

Mr. SOUDER. First, let me say to Mr. Stana, I appreciate your 

thoroughness, and we all agree pretty much on the recommendations that—I wanted to ask Mr. Riley, is anybody forced into this 

program who doesn’t voluntarily want to join? Because if so they 

should resign so that I can have some of my sheriffs who want to 

voluntarily join. 

Mr. RILEY. No, Congressman, it is a completely voluntary program. 

Mr. SOUDER. Because there was some implication here that—for 

example, who are other people to decide whether an elected sheriff 

who is voluntarily joining the program is doing what he thinks reduces his law enforcement most—his problems? Because he is elected by the people; he is subject to reelection by the people. If he 

makes a decision the best way to reduce my crime is by ‘‘X’’, it is 

a tad arrogant of other people to decide that that should be otherwise. Now, if it is Federal money, there can be guidelines. But 

there was an implication here that one group has a better judgment as to what their pressure is than another group, and that 

should be up to elected officials. 

I am also concerned—I was relieved to here that basically the big 

city police chiefs—I was disappointed to hear you get to selectively 

decide which laws of the United States you are going to enforce 

and which ones are unfunded mandates and not. I was relieved to 

hear that you still consider narcotics laws, which are Federal, an 

unfunded mandate on local police that will still be enforced by most 

jurisdictions. 

Because in fact these things are partnerships. What is local 

crime is also Federal crime. It is often the Federal law to go across 

State lines, and I am a little nervous about this implication that, 

oh, well, we are going to pick and choose which Federal laws to enforce. 

We are running into this in medicinal marijuana as well. We already had a civil war over whose jurisdiction supersedes. It is not 

a question of local authority to decide which laws they are going 

to enforce. 

Also the 10-day or once a week that you fax to ICE—most people 

are released within 48 hours. We will lose most before they could 

do a background check. I just wanted to get those things on the 

record. 

I have also some additional concerns about the ability of ICE— 

because really the No. 1 challenge here is they don’t have enough 

money to do all the different missions. That is how you wind up 
46 

targeting. As Mr. Stana just referred, as I did earlier, when we had 

this meeting in Indiana, one of the prosecutors, ClaraMary 

Winebrenner from DeKalb County—she has got about 45,000 people—said, okay, you are saying you will only take him if I get a 

conviction, because most prosecutors are having to plea bargain because they have to make the same decisions too. 

Most marijuana convictions in the United States for possession 

aren’t for possession; it is that they are plea-bargaining through, 

making tradeoffs of where they do prosecution for dealing. You 

don’t get a marijuana possession unless you have a plea bargain 

basically. But the same thing is true in many of the illegals that 

they have in the sense of they are showing up as misdemeanors because they are plea-bargaining them because they don’t have time 

to go through all this process and that they were told by ICE that 

if they got the conviction for a felony they would be deported, but 

they are still there. 

One of my direct questions related to my district to Mr. Riley is 

when will we have a DRO person in Indiana, where we have people 

who have been meth dealers, cocaine dealers, spouse abusers, that 

in Allen County I think they have 40-some felony in addition to 

others who have plea-bargain negotiated—when are we going to get 

somebody in Indiana to do the removal? 

Mr. RILEY. I am going to have to take your question back to the 

operational components within ICE to address your concerns and 

get back to you on that. 

Mr. SOUDER. All right, thank you, sir. Forgive me, but we have 

been frustrated. I have asked to insert into the record a three-page 

memo I got this morning from Sheriff Leatherman from Noble 

County, who has been raising this to me for 4 years. He has got 

158 who had felony processes who weren’t picked up in a county 

of 45,000 people. It has been very frustrating. 

Now, the other thing I don’t quite understand is that at the border, because you can’t use ICE agents—we are having them do immigration issues. They are trained, a lot of them in narcotics and 

financial-type thing, and then we have DRO, but sometimes they 

are having to move agents over to do DRO work. Why isn’t this 

contracted out with Wackenhut or people like that like it is done 

around the border? Because it is just a matter of taking people out. 

You don’t need trained agents. 

Mr. RILEY. I am going to have to consult with the Office of Detention and Removal to formulate an answer for you. 

Mr. SOUDER. Because one of the frustrations here is that if we 

have cost pressures—and it would seem best to try to figure out a 

way once decisions are made that this person clearly has been convicted—they are out of status—because part of the problem with 

local police unless they get in this progress, they make judgments 

based on their driver’s license but don’t have any way to verify 

whether they are unless they get in this program, unless they have 

a fingerprint system. So it has been very frustrating, that in Indiana there is a lot of frustration with the process. So I yield back. 

Chairman THOMPSON. Thank you very much. If the gentleman 

will provide minority or majority counsel a copy of the information, 

we will insert it after it is shared with everyone. 

[The information follows:] 
47 

DOCUMENT SUBMITTED FOR THE RECORD BY THE HONORABLE MARK E. SOUDER
48 
49 

Chairman THOMPSON. The Chair now recognizes other Members 

for questions they may wish to ask the witnesses. In accordance 

with our committee rules, I will recognize Members who are 

present at the start of the hearing based on seniority on the committee, alternating between majority and minority. Those Members 

coming in later will be recognized in the order of their arrival. 

The Chair now recognizes the gentlelady from California for 5 

minutes. 

Ms. SANCHEZ. Thank you, Mr. Chairman, and thank you for calling what I think is a very important hearing. Out in Orange County, California, we have some jurisdictions where my police chiefs 

don’t want to do 287(g), and we have others where we have actually implemented the program. In my district in particular, which 

is a heavily immigrant district of all sorts of people from all different types of countries, for some of the reasons given in the testimony by Chief Manger, they don’t want to have this program because they need the information from the community on real criminals and crimes going on in their district. 

My concern, and it has been reiterated by the written testimony 

of Mr. Stana—and you have a lot of stamina, Mr. Stana, to be before our committee so often on so many of these issues; it is great— 

is that the objectives and the standards and the overall policies of 

the program are really not communicated effectively in the MOAs 

and in other program-related material. 
50 

So my question is to Mr. Riley. How do local officials know what 

the penalties for noncompliance will be if they are not really clearly 

communicated in the materials and information that are provided 

to them? 

Mr. RILEY. All the agreements, I will start off, can be terminated 

by either party at any time. As far as the severity of it, ICE initiated a study last year, a review of all the existing memoranda of 

agreement by ICE’s Office of Professional Responsibility. 

Ms. SANCHEZ. Have any been terminated by ICE? 

Mr. RILEY. No, they have not. OPR to date is projected to do 20 

reviews this year and they completed four last year. The increase 

was based on an appropriation in the 2009, so we are projecting 

that within the next few years, all of the existing agreements will 

have been reviewed by the Office of Professional Responsibility. 

Ms. SANCHEZ. But yet in reading the testimony of Mr. Stana or 

the report of Mr. Stana, it was really quite evident given all the 

different agencies he had spoken to, a majority of them didn’t understand what the responsibilities were under the MOAs. 

Mr. RILEY. I believe that is why Secretary Napolitano issued an 

action directive for a full review of the program. In addition to updating our template MOA that we will use for future agreements, 

which take into account a lot of the GAO recommendations and 

also other lessons that ICE has learned through the various different evolutions of the MOAs we have created over the past few 

years, we are also reviewing all existing MOAs, especially earlier 

ones to ensure that these directives and the priorities of the program are better spelled out. 

Ms. SANCHEZ. What type of oversight do you think is really needed from ICE agents in order to have a good and effective program 

on the ground? I will ask that of the whole membership up there. 

Mr. RILEY. I believe—— 

Ms. SANCHEZ. What type of supervision is required? Because in 

reading the report from Mr. Stana, I mean, supervision was all 

over the place. There were some ICE agents who thought all they 

had to do was keep the computer program going. There were others 

who never showed up and did any of that. There were others who 

thought 25 percent of the time should be toward it. 

Mr. RILEY. Early on, a lot of the MOAs, and as GAO noted, did 

not specify the specific duties. ICE is working to fix those duties 

but still retain the flexibility because the agreements are unique in 

nature. Each one is different. Some range from programs that may 

only encounter a dozen apprehensions a month to some that encounter hundreds per month. 

You know, to have an exact template with that is difficult because it does vary between the different programs. We are looking 

at instituting SOPs specifically formulated with the field office and 

in conjunction with ICE’s review of the 287(g) program to specify 

exactly what we see as the supervisor needs for each of these individual programs. That is something we hope to achieve in the near 

future. 

Sheriff JENKINS. Congressman, I would like to comment to that. 

I think a lot of this goes back to what I said in my statement about 

the intensive—the quality of the training, No. 1, the intensity of 

the training and the quality of the people that you put into the pro-
51 

gram as an agency. What we found—that early on, yes, we needed 

constant supervision, constant oversight and as, you know, you 

learn as you go. It is like anything else. As we moved forward and 

that ICE felt comfortable in the way we were implementing the 

program and moving forward, the less we had the need for daily 

supervision. 

So again, like I said before, they are there when we need them, 

but, you know, and again, every arrest we make, there is an agent 

who looks at the A-files, they inspect the paperwork, so it is a work 

in progress. But I think it goes back to the quality of the original 

oversight and the training. 

Ms. SANCHEZ. Mr. Stana. 

Mr. STANA. You know, this is a controversial and even a polarizing program, and so I think it requires sort of an extra measure 

of supervision. It starts with articulating what you want out of the 

program, collecting performance data, visiting the program periodically and sometimes unannounced to understand what is going on. 

You know, about half of the jurisdictions told us they were just 

fine with the supervision. But when you peeled that back a little 

bit and asked them why they were fine with it, they would say because they leave me alone; they don’t come around. I agree to some 

extent that this is a program that is a work in progress, and that 

might have been true for the first 10. But we are up to number 67 

now. We ought to know now what we want out of these jurisdictions in this program. 

This is a problem that needs to have—you know, the criminal 

alien problem needs to have some help and some resolution and 

some control. This population is like any other population; there 

are bad people in it, and we have to identify the bad people and 

we have to deal with them. But if we spend a lot of time on people 

who aren’t bad, there are other programs to deal with that. 

These are resources that we want to devote to the worst of the 

worst. That is what Assistant Secretary Myers said a year ago. 

That is what ICE’s informal guidance says. But it is just not articulated and not understood by the program participants in all cases. 

Ms. SANCHEZ. Mr. Chairman, I would just like to put on the 

record that it also is very dependent—and what the sheriff said 

about what type of person you put to do this type of program. For 

example, in one of the jurisdictions that I have without the program, I had a particular officer who was picking people up on normal traffic stops, putting them in his police car, driving them down 

about an hour and a half to the border, to the secondary border 

area we had, and dropping them off to INS agents. So this type of 

officer, I mean, obviously just doesn’t want anybody that looks, in 

this particular case, Mexican, in my opinion, in my city. 

So it is very important to understand who is going into the program, that we have MOAs that articulate what the program and 

what the objectives are and what the measurement is and that we 

have good oversight, as I think Mr. Stana said, if we are going to 

continue with these types of programs. 

Sheriff JENKINS. Could I make a comment to Mr. Stana’s comment? You know, when we talk about what is the worst of the 

worst. Well, is a person who is driving drunk through a school zone 

during the daytime with a violent criminal past any worse or less 
52 

a bad person than a drug dealer? How do you measure who are the 

worst of the worst? 

Chairman THOMPSON. We will resolve that issue too. That is one 

of the issues for the program, and if you had an MOU that was definitive enough, a lot of those questions would not be left to the individual, but they would be quite specific. I think that is where this 

hearing is moving us. 

Ms. SANCHEZ. Thank you, Mr. Chairman, for the time. 

Chairman THOMPSON. Thank you very much. 

The gentleman from Alabama, Mr. Rogers, is recognized for 5 

minutes. 

Mr. ROGERS. Thank you, Mr. Chairman. 

Sheriff Jenkins, I think the answer to your question is it depends 

on if it is your kids in that schoolyard. 

I want to ask Mr. Riley, this program—the Alabama Department 

of Public Safety has been involved since the beginning. It was one 

of, I believe, three States that had participation in the ICE program starting in 2003, and it has been incredibly popular. I get 

feedback regularly from State troopers about how much they appreciate it and how they want more access to it. 

Can you, Mr. Riley, tell me a little bit about how you think this 

task force model works in Alabama and why we aren’t hearing 

more of that kind of feedback from these other States? 

Mr. RILEY. Yes, the Alabama model, as you said, was one of the 

first ones. It was the first model where it was the actual State patrol that was using it. Recently did a review of that MOA, and one 

of the findings that we found was that the troopers acknowledged 

that they wanted additional training on our ENFORCE database 

system, and we created a specialized training class specifically for 

the troopers. I believe we trained 15 of them to go back as a trainthe-trainer to show them, you know, how the database system has 

changed since they went through. I think most of those troopers 

went through 4 or 5 years ago, and they hadn’t had refresher training. 

So that was an outtake of our review process, that that was a 

concern of OPR and a concern of the Alabama State Troopers, and 

we moved quickly to fix that. So I think it shows that is the kind 

of partnership we have, and I think it is a successful task force. 

Mr. ROGERS. To my knowledge, there has not been one alleged 

incident of profiling by the Alabama State Troopers since 2003 

when this program was initiated. Do you know anything different 

than that? 

Mr. RILEY. I don’t, and as part of the OPR’s review of the MOAs, 

although ICE doesn’t investigate civil rights violations, our Office 

of Professional Responsibility does check with the United States 

Attorney’s Office, the local Federal Bureau of Investigation and 

also the agencies’ internal affairs bureau to see if there were any 

allegations of racial profiling, and there weren’t any reflected in 

that report. 

Mr. ROGERS. Thank you, Mr. Riley. 

Mr. Stana, do you know of anything different, anything contrary 

with regard to the Alabama Public Safety Department and the involvement with 287(g)—any complaints or profiling? 
53 

Mr. STANA. No, I don’t. I will add that most of the organizations 

we spoke with were also positive about the program. It increased 

public safety. It dealt with recidivists. It performed a function that 

ICE didn’t have the resources to perform. 

The question isn’t: ‘‘Was it popular?’’ The question is: ‘‘Is it being 

put to best use?’’ With regard to Alabama or any other jurisdiction, 

there is a complaint process in the MOA. It is a little hazy as to 

what it is supposed to be about. We didn’t see any complaints in 

the files of any jurisdiction or in OPR about any jurisdiction that 

was filed. I don’t quite know how to reconcile that with media reports about problems with these programs in certain jurisdictions. 

But we didn’t find any in the ICE files. 

Mr. ROGERS. In your audit, did you—when you talked about the 

question is whether or not they are being put to best use, did you 

find any concerns like that in the Alabama program—— 

Mr. STANA. We didn’t look at any individual program, Alabama 

or otherwise, but, you know, there are always allegations in some 

jurisdictions that some people being deported weren’t really serious 

criminals. 

Mr. ROGERS. There are few programs that we put in place in 

Congress that I get as much positive feedback about as this 287(g) 

program, so it is very concerning to me when I hear you use words 

like controversial and polarizing to reference this program, because 

I don’t see that in my world. Can you tell me why I am wrong? 

Mr. STANA. I don’t think it is a matter of right or wrong. I think 

it is a matter of perception that we are reflecting in our report. Of 

the 29 jurisdictions we looked at in detail that were in place as of 

October 1, 2007, about half of them made that observation that the 

Hispanic communities in their jurisdictions were a little wary of 

the program. 

Now, some tried to overcome that wariness with public outreach, 

like the chief mentioned, trying to put some transparency to the 

program. We found one jurisdiction that found a woman who 

passed a bad check, found out her status, and she was out of status. Rather than deport her, they told her that that crime didn’t 

rise to the level they were really looking at in this program, sent 

her back to the community with the message that we are after people who are serious criminals, so tell your friends and—well, not 

accomplices—tell your friends and associates that it is okay to report crimes to us; you are not in danger if you are not a serious 

criminal. 

So I think it is a—you know, it is not disagreeing with you. It 

is a matter of how the program is being implemented and to what 

end. 

Mr. ROGERS. Well, it is being implemented very well in Alabama, 

and I don’t want anything that comes out of this hearing to disturb 

that. 

Thank you, Mr. Chairman. 

Chairman THOMPSON. Thank you. 

The Chair now recognizes the young lady from Texas for 5 minutes, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for 

holding this hearing, and let me acknowledge each and every one 
54 

of the witnesses as patriots and individuals who love this country, 

and we respect that. 

It is well to note that this Congress has a major responsibility, 

hopefully in the 111th Congress, to implement comprehensive immigration reform, which will then denote for all of us individuals 

who will either be able to access, if you will, legalization and others 

who are in fact bad actors. No one sitting on the Homeland Security Committee wants bad actors, potential terrorists, individuals 

who travel up the southern border or northern border that can integrate in our community and pose a serious threat. 

At the same time, we recognize that crime is on the rise and resources are precious. My position is that we should have comprehensive immigration reform. Our resources for crime fighting 

should go to crime fighting. Those individuals who are comfortable 

with this particular program, let them continue under the present 

or lessened funding, because I have constituents in my community 

who are crying because of crime that has no label of whether or not 

it has been immigrant or nonimmigrant; it is crime. 

That is what I see. Law enforcement on the local and State level 

is fighting the kind of crime that our neighbors are talking about 

that is not necessarily pointed to a traffic stopping of someone who 

happens to be non-status, possibly driving to their work. 

Now, let me just say this. There are problems with people who 

are non-status and driving without a license who are engaged in 

criminal activity. Frankly I believe the normal law enforcement can 

be as helpful if we provide them with more funding like cops on 

the beat. 

Let me acknowledge—I think it is Sheriff Jenkins—just to thank 

him for his work. This is not intended to indicate that the program 

in your community is not working or the program in Alabama is 

not working. 

But let me speak to—I am in an awkward location here; I can’t 

see the head of the national chiefs organization’s name. 

Chairman THOMPSON. Chief Manger. 

Ms. JACKSON LEE. Yes, Chief, let me pose a question to you, because I think you have a reasonable approach to that, because I 

frankly am from one of the large cities. My understanding is do you 

let any immigrant that may be detained go without—it seems that 

you provide a weekly report or a monthly report of individuals that 

are detained or picked up. Is that not true? 

Chief MANGER. That is true. Everyone we arrest we run a warrant check on so if there is any outstanding warrant from any organization, including ICE, we serve that warrant. Once a week, our 

corrections department sends a list of all foreign-born inmates to 

ICE. 

Ms. JACKSON LEE. In doing so, you believe that you are covering 

the responsibility, frankly, that you don’t represent yourself—I 

heard you say the word sanctuary; that has gotten to be an ugly 

word—but the point is you are engaged in law enforcement. If 

someone is in violation and if they happen to be out of status, you 

make sure that you follow through on providing the Federal Government with the information. 

Chief MANGER. That is correct. We allow ICE to do their job, yes. 
55 

Ms. JACKSON LEE. You also have indicated something very important. In large cities with multiple multicultural communities, it 

is very difficult to extract information on violent crimes or human 

trafficking when there is this sense of intimidation. Is that not 

true? 

Chief MANGER. That is true. In some of our most heavily populated immigrant communities, we know that there is a great deal 

of unreported crime that goes on, and in order to make those communities, those neighborhoods, safer, we need to have the trust and 

cooperation from the people that live there. 

Ms. JACKSON LEE. So showing up at a laundry with a raid and 

you have your uniform on, that would spill through the community 

and keep you from finding the MS–13 or anyone else that you 

might try to find. 

Chief MANGER. We believe that to be the case, yes, ma’am. 

Ms. JACKSON LEE. Let me ask the gentleman—I can’t see any 

names here, but this gentleman here. You have written in your testimony here—and I am sorry, what is the name? Mr. Chishti—because I can’t see from over here in this location. But in any event, 

you have indicated that Federal authorities need to focus on their 

Federal authorities or organizing this particular program. Would 

you comment on that and comment on the potential for racial 

profiling? 

Mr. Stana, in my last period I notice that your sentence says ICE 

lacks key internal controls for implementation of this program. I 

don’t think we have answered that. That is true, and we need to 

improve that. I would like you to comment. Would you comment on 

why you think the Federal Government needs to be more involved? 

Mr. CHISHTI. Thank you, well, this is a program written for the 

Federal Government. I mean, Congress wrote it so that enforcement mandate of the Federal Government could be helped by the 

assistance from local government. So it is intended to help improve 

the Federal enforcement immigration responsibility. Therefore, the 

agreements should be seen advancing that enforcement strategy. 

I think what we have seen increasingly is that, when given the 

limited resources that the DHS has for its enforcement, then you 

are confronted with a number of applications coming in. You therefore have to decide how to spend the resources of enforcement, and 

if you spend them on 287(g)’s programs, which don’t target criminal 

aliens but principally target regular, unauthorized workers—not 

that they should not be removed, but this is a very expensive program, targeted program. 

If it targets those at the expense of going at high-interest immigrants who may be committing crimes, are of terrorist interest, 

then I think it deviates from the real mission of the Federal enforcement function of the Government. So it doesn’t advance Federal enforcement policy actually; it advances the local political interest of the people who might be interested in applying for these. 

Now, the racial profiling was important because the training that 

these local cops and State cops get is obviously very limited. It is 

about 4 to 5 weeks. As you know, Congress submits a very complex 

field of law which constantly changes. The immigration agents who 

do this on a day-to-day basis have months of training, years of experience. 
56 

So when you have to go on the beat and determining that someone is undocumented, and in the absence of very rigorous training, 

and if you have to make those decisions in a very short period of 

time, you are inevitably going to use race or ethnicity as a proxy 

for someone’s illegal status. That is, I think, what the MCC and 

the police in the International Association of Chiefs of Police have 

consistently stated in their positions. It is that cost of doing racial 

profiling in their function of this new mandate that I think they 

have chosen not to do it. 

Ms. JACKSON LEE. Thank you, Mr. Chishti and Mr. Manger. 

I am sorry, Mr. Chairman, I didn’t see their names, Chief Manger and Mr. Chishti. Maybe Mr. Stana might be able to answer the 

question later. I posed a question to him. 

Chairman THOMPSON. That is good. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman THOMPSON. The gentlelady’s time has expired. 

I will now recognize the gentleman from Texas, Mr. Olson, for 5 

minutes. 

Mr. OLSON. Thank you very much, Mr. Chairman. Welcome to all 

the witnesses and thank you for all your service to our country and 

your local communities. 

Mr. Riley, I have a few questions for you. Last year the Houston 

Chronicle reported that ICE was releasing criminal aliens and putting them back on the street. Specifically the Chronicle said that 

ICE officials didn’t file paperwork to detain roughly 75 percent of 

more than 3,500 inmates who told jailors during the booking process that they were here in the United States illegally. Many of 

these illegal aliens were child molesters, rapists and drug dealers. 

A bipartisan group of the Houston congressional delegation met 

with ICE officials after the story broke and were told that funding 

from the fiscal year 2009 Homeland Security appropriations bill 

had helped fix some of the programs that this article highlighted 

by having Harris County deputies train in 287(g). How have these 

deputies helped ICE stop this problem in Houston? 

Mr. RILEY. 287(g)-trained deputies in Harris County. I will note 

that that is one of the largest programs we have now in terms of 

individuals identified for removal. That helped tremendously. They 

do the vast majority of the screening in Harris County and identify 

several hundred individuals per month alone just out of Harris 

County. To us it is definitely one of the successes of the program. 

Mr. OLSON. Great, so it does work in a large jurisdiction, in Harris County being the third most populous county in our Nation. It 

can work there if applied properly and—— 

Mr. RILEY [continuing]. Well there. 

Mr. OLSON. My other question for you is just regarding the backlog of funding. Is it deterring communities from entering the program at this time? I mean, can you—— 

Mr. RILEY. Backlog of—— 

Mr. OLSON. The backlog of funding for 287(g). Is that deterring 

communities from enrolling in the program? 

Mr. RILEY. No, we currently have approximately 42 requests 

pending. The slow process of reviewing the agreements—the reason 

why there has been a significant delay in the past year is that we 

were looking at enhancing the program, looking at, you know, 
57 

working with GAO in their audit and also internally had been 

working on additional measures to enhance the program, building 

performance measures and identifying those agreements where we 

feel that ICE’s priority is the best. 

So going back to the program only really having expanded dramatically in the past 2 years, it is a growing process, and that is 

why we do have a backlog. But we haven’t really seen much of a 

reduction. There has been a slight reduction in the number of requests, but we still have quite a few pending. 

Mr. OLSON. Okay, great. 

Thank you very much, Mr. Chairman. I yield back my time. 

Chairman THOMPSON. Thank you very much. 

Chair will now recognize Mr. Cuellar, the gentleman from Texas, 

for 5 minutes. 

Mr. CUELLAR. Thank you, Mr. Chairman. 

I would like to follow up on some of the questions the Chairman 

asked earlier today, more of a structural question I guess to Mr. 

Riley and Mr. Stana and anybody who wants to answer on that. 

If you know the answer, we can talk about this later. 

What is the mission of the program, No. 1? What are the goal 

or goals of the program? What are the specific outputs, performance measures, efficiencies, that is how much—you know, for every 

individual they have, for every deputy or police, how much does it 

cost to have that? I am sure every MOA is going to be a little different. Do you have those answers or would you prefer if we get 

together later with Mr. Stana to work that out? 

Mr. RILEY. I prefer later on because ICE is actually working with 

our, as I knew before—having a finalized, strategic plan, which will 

have our future performance measures and how we are going to extract them. So I think once that strategic plan is approved through 

ICE, it might be more productive time where we can sit down and 

look at those—— 

Mr. CUELLAR. Mr. Riley, believe it or not I am a supporter of the 

program if we have the right definitions as to what is a major offense, if we have the right performance measures, if we have the 

strategy, the right mission, the right goals on it. Because otherwise 

it is a good program—well, I don’t want to be judgmental. But a 

program with good intentions might turn bad. I think for the local 

officials, I think having that is important. So I take it that you are 

trying to finalize it but there is no strategic plan in place right 

now. 

Mr. RILEY. There is not. 

Mr. CUELLAR. Okay. 

Mr. RILEY. But we are, again, looking at our review process. One 

of the main areas of review is tying in, you know, the serious crime 

issue, looking at some of our other programs, such as Secure Communities and our Detention and Removal that have pre-existing 

definitions, tying ours to be similar so we have consistent definitions across our various programmatic areas. Once we have those, 

then bringing them back out to our partner agencies and showing 

them—these are ICE’s priorities and this is where we want to work 

within the MAOs. 
58 

Mr. CUELLAR. Would the Executive branch have a problem sharing with the committee the strategic plan before you finalize it with 

your partners, local partners? 

Mr. RILEY. I would have to review that through our legal advisor 

to come up with an answer for you on that, Congressman. 

Mr. CUELLAR. Mr. Chairman, I would like to ask the committee 

to officially request the—Mr. Riley—and again, we want to—it is 

not us vs. them; that is the theme we have been using. We want 

to work with you and make this better, but I would like to see the 

strategic plan before it becomes finalized. You know, Mr. Chairman, because you can have a program with good intentions, but if 

you don’t have the right strategy, the right goals, the right performance measures and what have, the outputs and the efficiencies, we might be talking about this a year from now on that. 

So I would like to at least have some sort of input, constructive 

input, on this. 

Chairman THOMPSON. If the gentleman will yield, I think we will 

share with the Secretary the committee’s interest in whatever plan, 

including all those items you have articulated just now. As well as, 

as you know, our oversight responsibility will allow us to at any 

point look at whatever the Department is doing. 

Mr. CUELLAR. Yes, and just, Mr. Riley, just, again, in the past 

there has been an us versus them. I want to emphasize it is us together as a team and certainly want to work with you on that part. 

Moving from that structural question, let me ask you a couple 

questions. Why is the Border Patrol, who has primary jurisdiction 

between the ports of entry and the first responders along with 

State and local, not part of this program? I know it is an ICE program, but any particular reason how they can get involved or 

whether they should get involved? 

Mr. RILEY. I am not sure why they are not involved. I mean, they 

are another agency, and I guess when ICE was formed, the 287(g) 

program came with ICE when Border Patrol was shifted under 

Customs and Border Protection. 

Mr. CUELLAR. Okay, because they do have the Sole Guardian 

Program, where they give money to the local folks, so—an issue 

that I think we will follow up a later time. 

The other thing I have—what about the Criminal Alien Program? How does that work along with this program? 

Mr. RILEY. The Criminal Alien Program is managed out of our 

Office of Detention and Removal, and it is one of many outreach 

programs with State and locals that ICE has under its ICE ACCESS umbrella. The Criminal Alien Program is ICE officers working in correctional facilities to identify the individuals that have 

been charged with crimes in the jails, lodging detainers on them, 

placing them into removal proceedings and attempting to ensure 

that they come into ICE custody prior to being released to the 

street. 

Mr. CUELLAR. Okay, last question—I have got about 24 seconds 

left. I guess, Mr. Chishti, you mentioned this. I am from the Southwest, from the border, right at the border. Why aren’t there many 

other programs, I mean other sheriffs’ or police departments, on 

the border, the Southwest border part of this program? Since that 

is the entry into the United States, at least the southern entry? 
59 

* The information referred to is included elsewhere in the hearing record. 

Mr. RILEY. I will have to check to see if any have requested, but 

primarily it is a voluntary program so if a sheriff or chief or the 

political entity overseeing that department does not want it, it is 

not something we go out and recruit heavily for. We wait for the 

request to come in to us. 

Mr. CUELLAR. I understand it is voluntary, but any—I mean, 

doesn’t that get you to think why there is not any more from the 

border part of it? 

Mr. RILEY. Yes, I don’t have an answer for that. 

Mr. CUELLAR. Thank you, Mr. Chairman. 

Chairman THOMPSON. Thank you very much. 

Chair would ask unanimous consent to include in the record Mr. 

Souder’s letter from Noble County, the letter from Congressman Ed 

Pastor, Leadership Conference on Civil Rights, Ms. Jackson Lee 

and the Immigrant Policy Center, without objection.* 

Chairman THOMPSON. Chair now recognizes gentleman from 

Louisiana, Mr. Cao, for 5 minutes. 

Mr. CAO. Thank you, Mr. Chairman, and thank you for the witnesses being here today. 

Based on what I have heard from the panel, it seems to me that 

ICE does not really have the capacity to arrest and detain and 

eventually deport the number of illegal immigrants here in the 

United States. Is that correct? 

Mr. RILEY. All individuals that may be subject to removal? 

Mr. CAO. That is correct. 

Mr. RILEY. Depending on those numbers, I doubt we would have 

that type of capacity. 

Mr. CAO. Based on the numbers that were estimated, it is approximately 12 million illegal immigrants. 

Mr. RILEY. I would have to extrapolate what the actual cost of 

all that is, but I have read studies where it would be in the multi, 

multibillions of dollars, which would far exceed the budget that we 

have. 

Mr. CAO. Now, is there a more efficient and effective proposal out 

there to address the issue of illegal immigration that you know of? 

Or can you propose a more—or maybe this question can be posted to Mr. Chishti or Mr. Stana, whether or not there is a more efficient, effective way to approach this problem that we have. 

Mr. STANA. Well, there are a number of approaches that are already outlined. Of course, the Border Patrol has been plussed up 

to over 18,000 agents now. That is one. The Secure Border Initiative is another. Those are, you might say, the line of scrimmage. 

In the interior, E-Verify would, you know, show some promise if 

we can, you know, work some of the bumps in the road out of it. 

But that needs some more debate I think. But that is really addressing the jobs magnet that brings most people in, but those are 

just a handful. There are many programs that address the problem, 

but those are just a couple. 

Mr. CHISHTI. As you know, Congressman, there have been a 

number of proposals issued; our institute has issued a proposal 

itself. I mean, first of all you have to deal with the present 12 million people, and it is hard to see anything to do other than ac-
60 

knowledge their presence and find a way for them to come out of 

the shadows and become part of the mainstream society, in some 

form legalize them toward eventual citizenship. 

But a second is that you have to recognize as to what causes undocumented population. Our analysis is that this—significantly the 

pro-factors, the demand and the labor market in the United 

States—and there are no legal channels for people to come which 

has been the outcome of our present immigration system, that our 

selection system now allows very few people to be able to come legally in our existing preference system, that we have expanded 

that system to allow people who now come illegally to come 

through legal channels. 

We have improved enforcement, and I think most of it has to be 

done at the workplace in a very smart way than we have been able 

to do so far, which respects people’s rights but at the same time 

gets us to the heart of why people come to the United States. 

Mr. CAO. Now, the 287(g) program allows the Federal Government to pay State and local law enforcement agencies money for 

detaining these Federal ‘‘inmates.’’ Is that correct? 

Mr. RILEY. No, not exactly. Our Detention and Removal branch 

enters into intergovernmental service agreements to reimburse 

them for individuals that are being detained in the local jail. It is 

not specifically 287(g), but ICE uses a lot of State and local facilities that can meet our standards and enter into a contractual 

agreement with them, but it is not specifically—there is 287(g) detention bed money, but it is not an authorization that is within 

287(g). 

Mr. CAO. Now, does this lead to certain abuse where possibly law 

enforcement agencies would just arrest and detain people in order 

just to get reimbursements from Federal Government? 

Mr. RILEY. We haven’t seen that. It is a reimbursement for the 

costs that they have encountered and used to detain prisoners that 

have been put into removal proceedings. 

Mr. CAO. Sheriff Jenkins. 

Sheriff JENKINS. I will address that. The answer is no, because 

we are involved in actually the 287(g) and the IGSA agreement, in 

which we are reimbursed. However, the vast majority of our reimbursement are for detainees that are brought into our facility by 

ICE because we do have bed space available. So it does not encourage or it doesn’t promote going out and profiling to fill bed space. 

Mr. CHISHTI. But Congressman, I am sure GAO will study it 

sometime. There is clearly disparity between how much the localities get reimbursed for housing these undocumented immigrants 

and how much the cost to get them—to actually house them. So I 

think that is the next plus for a number of these local communities 

which choose to detain them. 

Mr. CAO. Thank you very much. 

Chairman THOMPSON. Thank you very much. 

Sheriff, since you raised a question, for the record, how much 

does it cost you to keep a prisoner that Mr. Cao was talking about 

in your facility? 

Sheriff JENKINS. Well, there is a couple ways of looking at it; let 

me explain. I think right now at the State level, it is looked at as 

the cost of detaining any prisoner, anyone incarcerated, is $90- 
61 

some a day, say low $90’s. Now, yes, we do generate revenue off 

of the IGSA agreement. 

Looking at the operation of the detention center as a constant expense operationally, the constant expense in staffing, we do have 

available bed space, so we do actually, if you will, profit from the 

housing of detainees through the IGSA. The actual cost over and 

above the operational cost of the jail is roughly about $7 a day per 

detainee for a small amount of medical services plus the meals. 

You know, in effect we are generating revenue off of that program. 

Chairman THOMPSON. So it is costing you $7 per day for a person 

you detain and how much per day are you reimbursed? 

Sheriff JENKINS. I think our rate currently—about $87 a day or 

$83 a day. 

Chairman THOMPSON. Oh, okay. 

Sheriff JENKINS. Yes, but—— 

Please understand, that is only because we do have available jail 

space, bed space in our jail. If we didn’t have that, we couldn’t do 

that. We don’t create a problem of overcrowding because of the program. 

Chairman THOMPSON. Okay, does that help you, Mr. Cao, in 

terms of numbers? 

Mr. CAO. Thank you, Mr. Chairman. 

Chairman THOMPSON. Thank you. 

Will now recognize the gentleman from New Mexico for 5 minutes, Mr. Luja ́n? 

Mr. LUJA ́ N. Mr. Chairman, thank you very much. 

Mr. RILEY. I want to go back to some of the questions in and 

around the performance measures. I just want to ask the question 

again. Has ICE developed performance measures? Because I am 

not sure if I have heard yes or no completely. 

Mr. RILEY. For the 287(g) program, we have built performance 

measures into our strategic plan on the 287(g) program, they just 

have not been approved through ICE yet. So our goal is to not only 

have the strategic plan but also looking at the review of the program itself, tying future agreements better into ICE priorities and 

having them spelled out within the agreement. But we do have performance measures that are in draft form that we are trying to get 

completed. 

Mr. LUJA ́ N. Mr. Riley, when were those developed? 

Mr. RILEY. The strategic plan has been in development for approximately—at least the 5 months that I have been the acting director. 

Mr. LUJA ́ N. And—— 

Mr. RILEY. It started prior to that so a little longer than 5 

months. 

Mr. LUJA ́ N. Mr. Riley, when was the first time that we entered 

into an agreement with a local law enforcement agency in this program? 

Mr. RILEY. 2002. 

Mr. LUJA ́ N. So between 2002 and 2009, the beginning of the year, 

there have been no performance measures put together to be able 

to measure the success or failure of this program? 

Mr. RILEY. Other than any officers trained and individuals identified and agreements met, no, there haven’t been. 
62 

Mr. LUJA ́ N. So when there is discussion of success in this program or failures of this program, there hasn’t been anything identified that has been formalized yet to be able to measure that. 

Mr. RILEY. No, I don’t believe so. 

Mr. LUJA ́ N. Mr. Chairman, one of the questions I have also in 

this area is currently, and I think this was touched upon—what is 

the process if someone who is not necessarily well-trained in enforcing immigration law violates what we hope are the parameters 

of 287(g), for example if someone was improperly detained? 

Mr. RILEY. An individual officer’s authority can be revoked. We 

have policy in place that discusses the suspension and or revocation of an individual officer’s authority based on cause. The allegation is forwarded to ICE’s OPR, the matter is reviewed, and the authorization can be pulled unilaterally. 

In fact we recently had an instance where a 287(g) officer was 

charged with a serious off-duty crime, nothing to do with his duty, 

that the next day we revoked his authority and canceled his actions 

into our system. So there are policies in place to address the allegations and/or misconduct of 287(g) officers. 

Mr. LUJA ́ N. Mr. Riley, are you aware of any comprehensive audits or reviews of all of those that have been detained back to 

2002? Have they been reviewed to see if there were any that were 

detained that were not undocumented? 

Mr. RILEY. As part of OPR’s review of all the MOAs that is ongoing, they do spot checks on a certain percentage of alien trials 

that were created under the program. They review to ensure that 

the charging documents were prepared properly and also look to 

see if there were any complaints filed by any detainees against any 

287(g) and/or ICE officers. 

Mr. LUJA ́ N. Sheriff Jenkins, you made reference a little bit earlier that there was a certain number—it sounded like it was in the 

high 300’s—of arrests, but only of which 307 or so were actually— 

there were violations there. Could you refresh my memory with 

those numbers? 

Sheriff JENKINS. Yes, let me find that here. Bear with me for 1 

second—337 persons who were brought in through central booking 

who had committed, again, some type of crime or an arrestable 

traffic offense, booked through our central processing and then 

were determined to be illegal status; 309 of those persons were 

placed into removal proceedings. 

Mr. LUJA ́ N. Okay, Mr. Stana, one question that I have for you 

specifically is your report includes a trouble point that many agencies the GAO contacted noted concerns for community members 

that 287(g) could lead to racial profiling and intimidation. I come 

from a very diverse district in which this is something that we embrace and where we look forward to having strong relationships 

with our law enforcement, as the chief has described, where we are 

able to work closely with one another to go after and make sure 

that we are addressing those drug dealers and those that are committing serious crimes. What do you think of these concerns about 

intimidation and profiling that are being expressed, and how can 

we better work with our communities to address these specific concerns? 
63 

Mr. STANA. I would answer the question this way. There are fundamentally three different models that this program uses. One is 

the jail model, and that is when people come in and they are 

booked and then they check the status and most people, the vast 

majority of people have no problem with that. You have a felon or 

at least a very bad person who is arrested. They are brought before 

you; they did something wrong. 

Then there is what used to be the patrol model, and I believe 

ICE has stopped that one. But the patrol model enabled officers to, 

in the course of their normal patrol duties, to identify people who 

are out of status, supposedly in the course of arrest action. But 

some allege that this is not being done in the course of arrest action, that there are people who are arrested for minor traffic violations, cracked windshield or something like that—this is the allegation—and they felt that there was profiling going on. 

That model, I believe, is not in use anymore. It was now turned 

over into what is known as the task force model. These are supposed to be ICE-led task forces. I looked at the list and I don’t 

know if all of them are ICE-led. But this is to provide another 

measure of control where ICE is a partner among other agencies 

to work on, say, a drug case or a trafficking, human-trafficking 

case or something like that. Haven’t heard much noise about that 

one either. 

It was the patrol model that seemed to generate the most concern. Now, the issue is people feeling that they are maybe committing a crime—a crime is sort of a loose term—but a relatively 

minor infraction but that the officers were just waiting for them. 

Some of the allegations we had heard were corn vendors on the 

street, and they were brought in on charges that they didn’t comport with food and safety laws—or people with cracked taillights 

and someone who looks Hispanic. The people who raised the issues 

were people of Hispanic descent who happened to be U.S. citizens 

who were concerned about being pulled over too. So those were the 

kinds of complaints that we are, you know, we are aware of. 

Now, this is a program that set a rather high bar of serious 

crime that is supposed to be the target here. If you want to lower 

that bar, that is within the, you know—Congress hasn’t defined 

where the bar is, so ICE could reasonably define where that bar 

should be. If you want to lower it, that would be fine if they articulate that. But the cost is going to go up. The cost is going to go 

up in terms of detention space needed, officers needed to supervise 

and another cost very well may be what Chief Manger pointed out, 

a cost in are you going to get community cooperation in your pursuit to root out crime. 

Mr. LUJA ́ N. Thank you, and, Mr. Chairman, I know my time is 

expired here. But I would just go on to say, Mr. Chairman, that 

I completely agree with Ms. Jackson Lee that the answer and the 

solution to many of these problems is comprehensive immigration 

reform. I hope that, as we are doing our jobs to make sure that we 

are protecting our Nation against crime, that we do not lose sight 

that we are talking about real lives and real people with everything that we do and that we keep that in the back of the mind 

when we are making decisions going forward. 

Thank you very much, Mr. Chairman. 
64 

Chairman THOMPSON. Thank you. The gentleman’s time has expired. 

Now recognize the gentleman from Texas, Mr. Smith, for 5 minutes. 

Mr. SMITH. Thank you, Mr. Chairman. 

First of all, Mr. Stana, with the GAO, I want to thank you for 

your suggestions on how to improve the 287(g) program. I just 

want to emphasize something that you alluded to a while ago—and 

I say this because I was the House author of the 1996 immigration 

reform bill that included the 287(g) program—and that is that 

there is nothing in the legislation that limits the program to detaining those who have committed serious crimes. It sounds like to 

me you agree with that. 

In fact, the goal was not that at all. The goal was to really enable 

those local law enforcement authorities who wanted to, to enforce 

the immigration laws in whatever way they thought best, and that 

might or might not include those who had committed serious 

crimes. Some people, I think, are under the mistaken impression 

that somehow that is required by the legislation, and as you pointed out, that is really a decision made by the Government and individual situations. 

The other thing is I think clearly the program has been a success, in part because of the testimony of various law enforcement 

officials, like Sheriff Jenkins—and I have a question for you in just 

a minute—but also in part because of the dramatic increase in applications, so many applications by local law enforcement authorities, in fact, that the Federal Government can’t even keep up with 

approving those agreements. So clearly there is an interest in the 

program, which I think is to be commended. 

I also think, and I want to read here, and I don’t know if Mr. 

Riley got to it in his oral testimony or not, and I apologize for not 

being here at that point. I was on the floor. I am a Member of another committee, Judiciary Committee. We had bills on the floor. 

So I may have missed it if you said it. 

But I just want to make sure it is in the record, and this goes 

to the success of the program. It is critically important to note, as 

pointed out in GAO’s report, many benefits have been realized by 

the agencies participating in the 287(g) program. Program participants reported to GAO a reduction in crime, the removal of repeat 

offenders and other safety benefits. The cost savings associated 

with crime reduction are not being easily quantified, but there has 

undoubtedly been a positive impact on many communities. These 

partnerships are essential to ICE carrying out its mission of deterring criminal alien activity and threats to national security and 

public safety throughout the United States. 

That is a strong statement which I very much appreciated, but 

again I think it points to the success of the program. I would also 

say in fact that I consider 287(g) to really be a litmus test as to 

whether we are serious about enforcing immigration laws, whether 

we are serious about making our communities safer and whether 

we are serious about reducing illegal immigration. That is how important the program is. 

Mr. Stana, a few minutes ago, you mentioned that we have 

18,000 Border Patrol agents. Well, when you think that you have 
65 

to cover 24 hours a day, that means you divide by three of the 8- 

hour shifts; there is only 6,000 agents on duty at any one time. We 

have 4,000 miles of border north and south. That means we have 

only got three agents for every 2 miles of border. Believe me, that 

is not enough, and I don’t know of anybody who thinks that that 

is enough, but that is why we need programs such as 287(g) to augment our efforts to try to secure the border. 

Let me run through a couple of questions if I could. Sheriff Jenkins, I will begin with you. Thank you for being an example of how 

the program works. You suggest in your written testimony that we 

actually ought to expand the program. Is that correct? 

Sheriff JENKINS. That is correct, sir. 

Mr. SMITH. Why is that? 

Sheriff JENKINS. Well, again, I say—you look at the needs of the 

agencies or the requests of the number of agencies that want to get 

on board, and again I think there is a true role for the need and 

involvement of local law enforcement. The reason I say this is because if the resources were available to ICE to provide all the oversight and supervision that was needed, I think the program would 

be even more successful. 

Mr. SMITH. Okay, thank you, Sheriff Jenkins. 

Chief Manger, let me just ask you a question based upon what 

I read in your testimony. You said local police agencies must balance any decision to enforce Federal immigration laws with their 

daily mission of protecting and serving diverse communities and so 

forth. I know you have—feel pros and cons about 287(g), but it 

sounds like to me from your written statement, at least, that you 

believe that it should be up to the local law enforcement authorities 

whether they participate or not. Is that accurate? 

Chief MANGER. That is accurate, yes, sir. 

Mr. SMITH. Okay, that is helpful because I think what we all 

want to do is try to improve the program. In my judgment, I think 

we ought to expand it. I agree with Sheriff Jenkins in that regard—and make it, you know, improve it to the point where more 

and more communities want to use it. 

But the problem we have is that we need more personnel within 

the Department of Homeland Security so that we can get those 

agreements approved. I just think it is inexcusable to have local 

law enforcement authorities wanting to participate and not having 

the personnel in D.C. to approve those agreements. I hope we could 

rectify that. 

Madam Chairman, I will yield back. 

Ms. CLARKE [presiding]. Thank you very much. 

I will now recognize myself for 5 minutes. 

I wanted to thank Chairman Thompson and Mr. Souder for the 

opportunity to address our witnesses today. 

As a New Yorker, I am acutely aware that we are in a post9/11 world, and it is incredibly important that we protect our Nation from terrorist threats. In order to do so, it is important that 

we identify the bad actors, both documented and undocumented, 

residing within our borders. But unfortunately I think we are all 

stuck at a point where we recognize wherein our current immigration system is antiquated and is in urgent need of fundamental re-
66 

form. I am particularly concerned about the lack of internal controls, oversight and accountability in the 287(g) program. 

Let me just state that, as a second-generation American of immigrant parents and a representative of a congressional district with 

a substantial and diverse immigrant population, I am concerned 

about the potential this program poses for racial profiling and for 

the lack of trust and the hostility that it fosters between immigrant 

communities and law enforcement. As noted in both the testimonies of Chief J. Thomas Manger and MPI director, Mr. Chishti, 

even legal immigrants will cease to report crimes in a culture of 

fear and paranoia. 

So that sort of brings me to you, Sheriff Jenkins. I kind of found 

it interesting that in your conversation here, you said that your department has found a way to make—what is it, $80 per detainee? 

Is that what your reimbursement is per detainee? 

Sheriff JENKINS. Eighty-three dollars reimbursement. 

Ms. CLARKE. Okay, and that could be quite profitable particularly if your jurisdiction has additional bed space, couldn’t it? 

Sheriff JENKINS. I think it is a good use of bed space. 

Ms. CLARKE. Yes. 

Sheriff JENKINS. Again, look at helping the overall mission of 

ICE. 

Ms. CLARKE. Yes, okay. In terms of community policing, it is 

vital that every local police and sheriff’s department have a strong 

relationship with the community. Victims of crime and witnesses 

should be able to come forward and talk to the police freely without 

fear of being arrested or deported. I am concerned that participation in this program may negatively impact this important relationship. 

I wanted to ask if you believe that undocumented immigrants in 

your community who were victims of a crime or witness to a crime 

are reluctant to come forward because they fear of detention or deportation. 

Sheriff JENKINS. The answer is no, not for that reason. I think 

you will find—and I am going to go back to my experiences in 

working crime and criminal investigation is that the reluctance is 

a cultural thing. It is not an issue that you can tie to the immigration enforcement. I mean, there is typically a mistrust of police, 

Government and law enforcement in most of the rest of the world. 

We know that. So I think in a lot of cases it is cultural. I could 

tell you—— 

Ms. CLARKE. Could you go a little bit more into detail about what 

you mean when you say it is cultural? 

Sheriff JENKINS. Well, I mean, a lot of other countries in the 

world, let us face it, their police are corrupt. Their governments, 

in a lot of senses, are corrupt, and there is just a general mistrust 

of law enforcement, not necessarily in this country but other areas 

of the world, and not tied to one specific country. I mean, I think 

we know that. I mean, look at the law enforcement in South America, Central America. I mean, we all know what is going on below 

the borders. 

I will be very frank with you, I mean, let us face it. A lot of other 

countries people cannot trust law enforcement. I don’t think this 

program creates mistrust. We participate very strongly in commu-
67 

nity policing. We reach out to the Latino communities, all the immigrant communities. I have had calls, I have had letters from immigrants who are in this country illegally who frankly they believe 

in this program. 

Ms. CLARKE. Let me ask you something. If that is indeed your 

premise, then how do you become an effective crime fighter in an 

environment where we know that we would need the intelligence 

of individuals within our own community to avoid and avert really, 

really bad things from happening? 

Sheriff JENKINS. We do and we—— 

Ms. CLARKE. So I am just asking you, I mean, just the two responses just don’t jive. 

Sheriff JENKINS. Okay. 

Ms. CLARKE. You know, it—but they don’t jive. 

Sheriff JENKINS. There are mechanisms in this program to protect victims of crime. We make that very clear. I mean, just because you are a victim of a crime and you happen to be an immigrant doesn’t mean we won’t do everything absolutely within our 

power to protect you. 

Ms. CLARKE. Yes, okay, well, Mr. Jenkins, my time is running 

out and I am going to just end with one more question for you. 

Have you participated in any outreach efforts specifically designed 

to inform the community about the 287(g) authority? 

Sheriff JENKINS. Yes, I have. 

Ms. CLARKE. Could you just give us a little bit more detail on 

that? 

Sheriff JENKINS. I have made myself accessible to any community 

group. 

Ms. CLARKE. No, I said outreach not—— 

Sheriff JENKINS. Outreach, yes, yes. I have, again, from the onset 

of this program, I have let the community know where we were 

going to go, the reasons we were getting involved in this program 

and have taken an active posture in getting out and letting the 

community know. All segments of the community know what this 

program is. I have been very transparent about it. 

Ms. CLARKE. Okay, very well. 

Let me now acknowledge Mr. Dent. I believe you are next to— 

Mr. McCaul, just going by the list here, sir. 

Mr. MCCAUL. I thank the Chair. 

Ms. CLARKE. You are acknowledged for 5 minutes. 

Mr. MCCAUL. I thank the gentleman from Pennsylvania as well. 

There is an old expression: If it is not broken, don’t fix it. I think 

this has been a very successful program, and if anything we should 

look at expanding it in the Congress, not criticizing it. 

You know, after 9/11 we all talked about working together—Federal, State and local. I think that applies to this issue as well. Our 

local law enforcement are the eyes and ears. We talked about the 

patrol model. That is the model that picked up Tim McVeigh on the 

streets with a routine traffic stop. 

I think the American people are frustrated by the illegal immigration issue, but when they see illegal immigrants come into this 

country and commit crimes, they find that to be intolerable and unacceptable. They certainly do in my district. This program, in the 

Houston area, has been very successful. The only problem that I 
68 

have seen is that more local police departments want to participate 

in it that cannot qualify and that ICE does not have the resources 

that it needs to properly carry this out. 

I met in the Houston area with ICE with our smaller local police 

departments, and the ICE official literally pointed at me, as a 

Member of Congress, and said—as the local law enforcement officers are saying, ‘‘We want to do this. We want to participate. We 

need ICE to help us detain more of these illegals committing 

crimes in the United States.’’ The response from the ICE official 

was, he pointed at me and said, ‘‘Well, you are from the Congress. 

You need to help us.’’ I think he is right. 

I think that Congress needs to appropriate more money for this 

program to expand it. I think Congress needs to appropriate more 

money so that ICE can fully participate in this program, which I 

believe ICE cannot fully participate in this program given the limited resources available. 

So with that question and given that this is a voluntary program—we are not forcing any local police department to do this— 

but given that, I will throw my first question to Mr. Riley at DHS, 

in terms of—does ICE have the resources to fully participate in this 

program? 

Mr. RILEY. Currently with the workload we have, I believe we do. 

The Congress has been very generous in appropriating funds. The 

287(g) program receives over $54 million this current year, and 

that is up from zero 5 years ago. The growth has been dramatic 

in the past 2 years, and we have signed on 60 MOAs just in the 

past 2 fiscal years, and we have more in the pipeline. 

We started tracking the full cost expended upon the program as 

a result of GAO asking what the average cost per agreement was, 

and looking at that, and we have expanded that spreadsheet. GAO 

looked at 29; we have it expanded to all 67 now. So in the upcoming years we are going to be tracking what the full impact is as 

detention bed costs, space, personnel costs and things of that nature to get a better picture on what the average memorandum of 

agreement does cost. 

Mr. MCCAUL. Well, then, I would—Mr. Stana, is that your experience as well with your report? 

Mr. STANA. Well, the $60 million goes for computers and training 

mainly, some equipment, but not for people, not for bed space, not 

for ICE supervision. They are in short supply there. So to some extent, Mr. Riley is correct. On another plane, we might want to reexamine. 

I think the question people normally ask GAO is: ‘‘How well did 

they spend what they got?’’, not: ‘‘Do they need more?’’ But, you 

know, the fact that Mr. Souder can’t get in the program or his jurisdiction can’t get in the program and others are waiting would 

suggest that maybe the resource question ought to be revisited. 

Mr. MCCAUL. Well, and I agree with that. 

Mr. RILEY. I would love to invite you down to my district and you 

can talk to several local police departments that want to be in this 

program but cannot. The director of ICE in the Harris County area 

who has been very, I think—I commend him for being honest with 

me and very straightforward that they do need more resources. I 
69 

think that is an issue that we in this Congress should be focused 

on. I think it is a successful program. I think it deserves expansion. 

With that, I have 2 seconds left. I just want to ask Sheriff Jackson and Mr. Riley if—I would like to hear the successes of your 

model, Sheriff, and then also ask the question: Have there been 

any complaints filed regarding racial profiling both in Maryland 

and also, Mr. Riley, Nation-wide? 

Sheriff JENKINS. The answer is no. I have had no complaints or 

investigation—no complaints of racial profiling or discrimination as 

a result of the program. It has been a very successful program. I 

don’t quantify that with numbers. I look at how well we run the 

program in partnership with ICE. 

Mr. MCCAUL. I commend you for that. 

Mr. Riley, have you had any complaints regarding racial profiling 

pertaining to this program? 

Mr. RILEY. ICE does take the allegations that are out there very 

seriously, and I believe we have built several measures into it. Although we don’t audit the investigative agency for racial profiling, 

we do have a multilayered approach when looking at the issue. The 

way the agreements are established, there is a complaint process 

for any violation of the MOA, which is a complaint process through 

our Office of Professional Responsibility. 

The officers that are recommended for the training, we do background checks on those officers and look at pending disciplinary actions. As well as within the training, there are components of the 

287(g) training program that looks at racial profiling and civil 

rights issues. The officers are advised that now that they are Federal officers when exercising a 287(g) authority, that they are 

bound by the Department of Justice’s civil rights policies and procedures on racial profiling and use of race in law enforcement activities. 

Additionally, our OPR reviews, when they go out to the officers 

and review the MOAs, they do check with the racial civil rights entities, the U.S. Attorney’s Office and the FBI to ascertain if there 

are any pending racial or civil rights issues—— 

Mr. MCCAUL. Are there? My question is: Have there been any 

filed? 

Mr. RILEY. None of our OPR reports have reflected any—— 

Mr. MCCAUL. Thank you. 

Mr. RILEY [continuing]. With them. 

Ms. CLARKE. I now acknowledge the gentleman from Texas, Mr. 

Green, for short—for 5 minutes. 

Mr. GREEN. For a short 5 minutes. 

[Laughter.] 

Thank you, Madam Chair. 

Ms. CLARKE. The standard 5 minutes. 

Mr. GREEN. Thank you very much. I want to thank the witnesses 

as well. 

For edification purposes, permit me to share this with you. I 

have been in and out because we have another hearing in Financial 

Services, and it is quite important that I attend both of these hearings today. So I may have missed something that I will ask you to 

share, and I beg your indulgence because of my trying to split my 

time. 
70 

Let us start with some intelligence that I have received indicating that ICE officials reported to GAO that they are in the process of developing performance measures. Let us go to Mr. Stana. 

Is this true that ICE has been in touch with you and they are in 

the process of developing some performance standards? 

Mr. STANA. That is correct. Mr. Riley and his people are developing a strategic plan; embedded in the strategic plan are performance measures. We have not seen them. The strategic plan is still 

in draft form and I am not sure exactly when it is going to come 

out, but we will be looking to that plan—— 

Mr. GREEN. Well, that is a good segue into my next question. 

Have you been given any time table as to when you can expect this 

performance plan, if you will, or measure? 

Mr. STANA. Nothing specific. 

Mr. GREEN. Perhaps I should move now to ICE then and ask you 

the follow-up question. Is there a time frame within which the performance measures will be accorded GAO? 

Mr. RILEY. The plan is in final format and with our 287(g) review 

that we are conducting across the board. I don’t have a time frame. 

I can check on the status of where the strategic plan is and the 

performance measures and get back to you on the time frame. 

Mr. GREEN. Understanding that you do not have a time frame, 

is it fair to assume that it will be done within the next 6 months? 

Mr. RILEY. I believe so with the review that is being conducted 

at the direction of Secretary Napolitano; I believe we will have it 

done in the next 6 months. 

Mr. GREEN. Would it be done within the next 3 months? 

Mr. RILEY. That I can’t answer. I can get back to you on that 

when I have a chance to consult. 

Mr. GREEN. So within about 3 to 6 months—given that not 3 but 

possibly 6? I ask because, having gone through this on many occasions now, I have learned that time frames are important, and if 

we are going to have an efficacious program, we do need these performance standards. The best way to get to them is to have some 

horizon that we are looking to. So I am going to not necessarily say 

that I will hold you to it, but I will at least expect to see something 

in about 6 months, so that we can get a better handle on what we 

are doing. 

Next point is this: The MAOs generally do not provide details, 

according to my intelligence, as to what data should be collected or 

how the data should be collected and how the data should be reported to ICE. Is this true? 

Mr. RILEY. That is correct. 

Mr. GREEN. Given that some of this can become standard, why 

can we not standardize certain aspects of these MOAs so that we 

can have one that we can use generally speaking that we tweak for 

a given location? Is this possible? 

Mr. RILEY. That is our goal, and that is what we are doing right 

now is we have a draft, a new draft. We have gone through several 

evolutions of MOAs, and they have been templates and standardized and we have added to them over the years. The current one 

that we are putting together takes into account many of the GAO 

recommendations plus other areas that we wish to improve internally with our current review. 
71 

One of the measures is the data collection—and, for the record, 

that we have data that we extract out of our database system that 

the State and locals are required to put in. It is not spelled out in 

the MOA, but it is a seamless mission where we give instructions 

on what fields need to be filled out so that we just pull the data 

out directly. Even that system itself, the ENFORCE system, is 

being enhanced so that the data collection will be better to focus 

on the individual—— 

Mr. GREEN. My time is about to expire, so forgive me for interrupting. But I do have one final question. This is rather general 

and it will help me with many hearings of this type. Was there 

anything that prevented you from visiting with GAO prior to the 

implementation of the program and ascertaining what type of acid 

tests might be best used given what your mission was? Is there 

anything that prohibits this? 

Mr. RILEY. I am not sure if there is a prohibition from us consulting with GAO. 

Mr. GREEN. I only ask because we find ourselves after the fact 

making these kinds of adjustments that in many circumstances are 

based upon what I have seen now—this is my observation. Based 

upon my observations, we could have prevented this hearing possibly by having had a meeting with someone in GAO and your organization. This doesn’t just apply to you, so I am not finger-pointing. I am just trying to find a better way to do business and save 

money for the Government. 

Mr. STANA. You know, Mr. Green, from time to time, other organizations do engage us. We call them constructive engagements. 

They ask our counsel on certain things they are thinking about 

doing. In this case, if Mr. Riley and his people would like us to 

have a look at what they have drafted and provide any insights, 

we would be welcome to do that, but we haven’t been asked yet. 

Mr. GREEN. Seems like a fairly reasonable thing to do. 

I thank you, Madam Chair. By the way, you do look good in the 

seat. 

[Laughter.] 

Ms. CLARKE. Thank you very much. 

I would now like to acknowledge the gentleman from Pennsylvania for 5 minutes. 

Mr. DENT. Thank you, Madam Chair. 

Ms. CLARKE. Mr. Dent. 

Mr. DENT. Great to be here. 

Mr. Riley, good to see you again. 

Mr. RILEY. You too, Congressman. 

Mr. DENT. How did you get this job, by the way, can I ask? 

Mr. RILEY. All luck. 

[Laughter.] 

Mr. DENT. Why don’t you tell them what you did before you 

were—when I used to run into you up in my—— 

Mr. RILEY. Prior to my assignment here as the acting director of 

the State and local law enforcement, I was an assistant special 

agent in charge with ICE’s Office of Investigations in Philadelphia 

and worked with Congressman Dent on some significant community issues. 
72 

Mr. DENT. Interesting issues trying to help facilitate greater collaboration between my ICE and local law enforcement, if I recall. 

Mr. RILEY. Very ironic. 

Mr. DENT. Some interesting meetings. But it is great to see you 

again. 

I have a lot of questions. But, one, I just want to say, Mr. Riley, 

and I would be remiss if I didn’t ask you about a situation that just 

occurred in my district in the last few days. It was in, again, 

Northampton County where you had some experience. I had an individual enter the United States illegally and then got a green card 

when he married a U.S. citizen. The individual is now facing his 

sixth drunk driving charge—sixth. 

I guess my question is what does it take to pull the guy’s green 

card? He is operating under aliases, entered the country illegally— 

and send him packing. You know, I guess, you know, I mean, my 

constituents are asking. Does he have to kill somebody first before 

we get him out? Would there be any relevance for the 287(g) program in a case like this? 

Mr. RILEY. If the individual has a green card, is a lawful permanent resident, only a deportable criminal offense would render him 

removable. It has been a few months since I have reviewed some 

notices to appear and understanding the Pennsylvania statute, but 

not knowing what the exact conviction is for and the severity of it, 

I would have to, you know, if you want to forward the information, 

I—— 

Mr. DENT. I will get it to you, but the individual was convicted 

of drunk driving in 1993, 1994, 1996 and 2007 twice, just got 

picked up for a 0.23 and, you know, this has been on-going. There 

are aliases, improper or false aliases and that sort of thing. So that 

has kind of come up and I just wanted to raise that with you and 

look forward to working with you on that particular situation. 

I also wanted to mention, too, that—and I guess my next question is to Sheriff Jenkins. Can you tell me in this committee, you 

know, how many criminal aliens identified by your agency have 

been released and not deported because ICE has not had the resources to deport everybody? 

Sheriff JENKINS. To my knowledge, none—I mean, again—I am 

sorry, sir—to my knowledge, none. Again, when you look at the 

numbers of persons we filed detainers on—337—the number that 

were placed into removal proceedings—again I go back to the program has worked well for us. We have never been in the situation 

where the person was removable that it has not occurred. 

Mr. DENT. Okay, and, you know, we have a lot of situations, too, 

up where I live as you are well aware, Mr. Riley, but I just really 

would like to have further dialog with you on these issues because 

it is becoming a bigger issue. As you know, we have had some celebrated cases, which you have been familiar with. 

I guess finally, too, I just wanted to say that we have a lot of 

people, too, in this country—I am not sure what you folks can do 

about this, but I know there are about 139,000 people, Mr. Riley, 

in the United States from about eight countries who are awaiting 

removal orders but cannot be repatriated. I don’t know if you have 

any insight or thoughts on that particular issue. We have got legislation out here pending that would make it—we would like to hold 
73 

up visas from those countries where these individuals are from, 

places like India, China, Jamaica, Vietnam, Laos. I can go through 

the list of eight countries. I don’t know if anybody wants to respond. I picked on Mr. Riley, but maybe somebody else has some 

insight. 

Mr. STANA. Well, it has been several years, but we did some 

work on the Zabidas cases, which I think is what you are talking 

about, which was named after a Supreme Court decision. 

Mr. DENT. Yes, we can’t hold these people indefinitely—— 

Mr. STANA. Yes, and that is part of the problem. If I remember 

right, there needed to be more collaboration between States and 

Homeland Security and local jurisdictions to make sure that all the 

paperwork was right and all the appeals were exhausted, in concert with law but in an expeditious manner. But there are some— 

it is just a tough nut to crack. Laos—I can name the countries 

also—will not take them back. So they languish in the detention 

facility. 

Mr. DENT. At this time, I have no further questions. I just—— 

Mr. SOUDER. Will the gentleman yield—— 

Mr. DENT. I will yield to Mr. Souder. 

Mr. SOUDER. Sheriff Jenkins, does the Federal Government pay 

any of the salaries on your people who participate in 287(g)? 

Sheriff JENKINS. No, sir, they do not. 

Mr. SOUDER. I think it is really important to point out that when 

we are talking about control, that the salaries are paid just like in 

HIDA by the local law enforcement, and if we don’t include local 

law enforcement in the decision of what they are allowed to do, we 

won’t have a program, because the Federal Government is merely 

doing training. Anybody who is watching this today, listening to 

this, needs to understand Sheriff Jenkins is funding the program. 

The Federal Government only did the training. 

Sheriff JENKINS. Correct, sir. 

Mr. SOUDER. Thank you. 

Ms. CLARKE. It think it is also important to note that it is a voluntary program. 

The next person to give their questions at this time is the gentleman from Missouri, Mr. Cleaver. 

Mr. CLEAVER. Thank you, Madam Chair. 

I am apologetic as well. I am on the Financial Services Committee, and we are dealing with TARP, so we have been in and out. 

My colleague, Mr. Green, is accustomed to sitting by me in both 

committees. He will be lost without me so I will have to join him 

to create some comfort for him as soon as I can. 

But this is a very important subject. I just want to say I think 

some highly publicized cases like those that Mr. Dent, my colleague, mentioned are the kinds of things that really will irritate 

the American public. I think we have got to clean up our laws and 

figure out ways to address some of these issues because those are 

the things that are lifted up to anger the American public. 

But at the same time, I am also very concerned about xenophobia. I think in the aftermath of 9/11, there is a great deal of 

that. I think it would be very difficult for someone to dismiss the 

fact that that is the case. So I am concerned about that, and I 

know that, you know, the American public—Chief Jenkins, you 
74 

mentioned the fact that there was, you know, people, I guess, criticizing your program, 287(g) and your operation, but I do have to 

say that sometimes the public is wrong. You know, politicians 

aren’t supposed to say that, but it is a fact. 

I mean, as a little boy growing up in Texas, I can remember this 

Congress in these walls repeatedly refusing to pass a civil rights 

bill. The poll showed that they were doing what their constituents 

said. So I think we have to—I mean, we have to be really careful. 

I think we are the leaders who have to make sure that the xenophobia is not a part of what we push and fail from these hallowed 

walls. 

But I would like to move to Chief Thomas. Do you believe that 

287(g) creates tension between the police operation and immigrant 

community? 

Chief MANGER. You know, it is going to be different from jurisdiction to jurisdiction and I can speak for Montgomery County, where 

I police. I can tell you with the number of immigrants that we 

have, with the number of undocumented immigrants that we have, 

it would pose a difficult issue for us if that segment of the community saw us as ‘‘the immigration police.’’ Yes, it would be a problem. 

Mr. CLEAVER. Do you think that would spill over into—I mean, 

I think, you know, for sure in Latin America and in other places 

around the world that there is a fear of police and of authority. I 

think minorities and certainly immigrants may have that same 

paranoia, and so—I think someone mentioned it earlier. I think the 

Chair mentioned that we need some cooperation to adequately fight 

crime from all segments of the population. 

Mr. Chishti, do you believe that there is something we can do to 

tweak 287(g) that would make it workable but it not oppressive? 

Mr. CHISHTI. I think so, Congressman. I mean, there are clearly 

four or five things that you can do. First of all, you can insist that 

these agreements have a clear, narrow objective, because the limited resources—they must be spent on high target-of-interest criminal aliens, I think. No. 2 is that I think they must have very strict 

supervision. Right now, the supervisory language in these agreements is so vague that they make the statutory language essentially meaningless. 

They must also have very tight guidance as to when they are 

going to use the authority that they are given by the agreement. 

I think they should have very strict compliance procedures, and 

they should be monitored. Most importantly, we should have very 

important reporting requirements, which we don’t have now. 

We all talked about how many criminal aliens they are picking; 

we have no idea today how many criminal aliens have been picked 

as a result of these operations because the program doesn’t allow 

them to keep numbers like that. Then we must have a—from the 

local community here. I think if the local community buys into the 

program, it will be a success. Without that, it won’t be. 

Mr. CLEAVER. Well, thank you, Madam Chair. I apologize I have 

to go. Mr. Green needs me. 

[Laughter.] 

Ms. CLARKE. Thank you. I now call upon the gentleman from 

Florida for 5 minutes. 
75 

Mr. BILIRAKIS. Thank you, Madam Chairwoman, I appreciate it 

very much. 

I strongly support 287(g) and believe it is invaluable, too, to help 

enhance our ability to deter illegal immigration and detect criminals and others who may wish to do us harm. I believe it would 

be shortsighted to allow current management challenges in the program to deter us from expanding and maximizing its immigration 

enforcement benefits. 

I have a question for Sheriff Jenkins. Do you believe, as Sheriff 

Bob White in my district does, that legal, law-abiding immigrants 

are actually more afraid of the criminal aliens in their communities 

than they are of local law enforcement and that because they lack 

confidence in the ability of local law enforcement to keep these people off the streets, they are hesitant to cooperate with and trust 

local authorities? 

Sheriff JENKINS. Yes, I believe the local population—and I am 

speaking again for my jurisdiction. 

Mr. BILIRAKIS. Yes. 

Sheriff JENKINS. There is a fear among the resident community 

of the crime that is attributed to illegal aliens in this country. Now, 

I don’t think that they are frustrated with the efforts of police or 

law enforcement. The problem is enormous. This problem is not isolated to one jurisdiction, one State. It is an enormous problem from 

coast to coast. So I think overall, I think people are frustrated by 

the fact we can’t enforce the laws any more than what we do. 

Mr. BILIRAKIS. Thank you. 

I would like to yield 1 minute to Representative Dent. 

Mr. DENT. Thank you. 

Mr. Riley, just one other question I thought of as I was listening 

to the discussion. It is my understanding based on one of our last 

conversations that much of the resource allocation for removing 

people who are in this country illegally focuses in these areas: terrorists, human smugglers and criminals. Is that a fair assessment 

that they tend to get more attention in terms of your enforcement 

efforts at ICE? 

Mr. RILEY. Within the Office of Investigations, they pursue those 

areas, but our Office of Detention and Removal, one of the top focuses is the criminal alien population. 

Mr. DENT. Yes. 

Mr. RILEY. The criminal aliens in all the areas that we target 

them, both in our gang efforts, in our CAP program and things like 

that in 287(g). I would say criminal aliens is one of the top priorities of ICE. 

Mr. DENT. I yield back at this time. 

Mr. CHISHTI. Congressman, if I could—— 

One of the problems with the present program is that it allows 

us no way of knowing whether those priorities are being met. We 

have no idea how many terrorists have been picked up as a result, 

how many criminal aliens, how many drug traffickers. What we 

know is a large number of people are being picked up. So we have 

gone from quality to quantity in this program, which ultimately is 

the problem in terms of its long-term objectives. 

Mr. RILEY. Actually just to rebut that one issue that we do know 

that more than 90 percent of the individuals picked up in the 
76 

287(g) program were either picked up in a jail setting or had criminal histories. We are trying to tighten those numbers up because 

it may be higher and also so we can reflect what initial crimes they 

were charged with or convicted of. Our system doesn’t allow us to 

do it now, but by and large the vast majority of the 287(g) arrests 

were encountered in jail settings. 

Mr. BILIRAKIS. Thank you. I yield the balance of my time to Representative Souder. 

Mr. SOUDER. One of the challenges here, as Mr. Smith said, who 

wrote the bill, and I was in negotiations in my first term because 

our class was so big in the negotiations on the final immigration 

bill—this Congress did not specify that this was just supposed to 

be high-risk people or people who were violent. That is not there. 

In talking to—it may be a logical—if we are going to have restricted funding and different targets, that may be a logical outgrowth, but it is not a failure of ICE nor was it the intent of Congress to do that. 

It was part of an immigration bill, and 287(g) does not fund local 

law enforcement; 287(g) was to extend because we were not going 

to use ICE agents to do regular type of immigration work, and that 

the 287(g) was to extend and try to offer a program to people like 

Sheriff Jenkins who said, ‘‘Look, I will take my limited resources 

and put them into this program.’’ We will to some degree be changing the intent. 

Now, I talked to Assistant Secretary Myers in both categories. 

One is how do we, with limited funding, which I believe there 

should be more, target ICE, and do you do random investigations 

or you target bigger organizations? Then second, is there a goal 

that ideally we would pick up more high-risk people? Ideally we 

pick up that, but that is not the legislative purpose written or intent. 

Now, I think that there are suggestions now that this is going 

to be a limited program. How do we best use the funds? How do 

we work that through if Congress doesn’t pass more money? That 

is what we are debating here. 

But there needs to be a clear understanding that if we narrow 

it, in fact people like Sheriff Jenkins may withdraw. It is their 

money. It is really important for a program like this to not just be 

Washington top down, which is what we have run into in narcotics, 

and we have had this back and forth, because if you want local law 

enforcement in, you have to let them participate in the decision 

that says if I am going to put my resources in, what do I think my 

problem is in my district. 

In narcotics, they wouldn’t do meth. They said, ‘‘Oh, well, we will 

do cocaine; we are not going to do meth.’’ The sheriffs pulled out 

their funding. In this case, if they feel they have different types of 

crimes in their district, 287(g) was to allow some flexibility for illegal activity, not just the highest kind of violence. 

Yield back the rest of Mr. Bilirakis’—— 

Ms. CLARKE. Well, I want to thank the witnesses for their valuable testimony and their time today and the Members for their 

questions. The Members of the committee may have additional 

questions for you, and we will ask you to respond expeditiously in 

writing to those questions. 
77 

Without objection, I have letters and statements from several organizations commenting on the 287(g) program. I offer them for the 

record. Hearing no objections, so ordered. 

[The information referred to follows:] 
78 

JOINT STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, AND MARGARET HUANG, EXECUTIVE DIRECTOR, RIGHTS WORKING GROUP

MARCH 4, 2009 

Chairman Thompson, Ranking Member King, and Members of the committee: We 

are Wade Henderson, president & CEO of the Leadership Conference on Civil 

Rights (LCCR), and Margaret Huang, executive director of the Rights Working 

Group. Thank you for the opportunity to submit testimony for the record regarding 

today’s hearing on State/local enforcement of Federal immigration laws. 

As the Nation’s oldest, largest, and most diverse coalition of civil and human 

rights organizations, LCCR has long been concerned with the civil rights implications surrounding the use of Section 287(g) of the Immigration and Nationality Act 

(‘‘287(g)’’). LCCR was founded in 1950 by Arnold Aronson, A. Philip Randolph, and 

Roy Wilkins, and seeks to further the goal of equality under law through legislative 

advocacy and public education. LCCR consists of approximately 200 national organizations representing persons of color, women, children, organized labor, people with 

disabilities, older Americans, LGBT Americans, and major religious groups. 

Formed in the aftermath of September 11, the Rights Working Group (RWG) is 

a national coalition of more than 250 organizations representing civil liberties, national security, immigrant rights and human rights advocates. RWG seeks to restore 

due process and human rights protections that have eroded since 9/11, ensuring 

that the rights of all people in the United States are respected regardless of citizenship or immigration status, race, national origin, religion, or ethnicity. RWG is particularly concerned about the impact of 287(g) agreements on the civil liberties and 

human rights of communities of color. 

287(g) was passed in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), at a time when the Department of Justice recognized no inherent authority for State and local law enforcement to enforce Federal 
79 

1 United States Immigration and Customs Enforcement, Delegation of Immigration Authority: 

Section 287(g) Immigration and Nationality Act, Sept. 5, 2007, available at http://www.ice.gov/ 

pi/news/factsheets/070906factsheet287gprogover.htm. 2See generally Chapter ‘‘Local Democracy on ICE: Why State and Local Governments Have 

No Business in Federal Immigration Law Enforcement,’’ February 2009, http:// 

www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice-print.pdf. 3 ‘‘For example, during the month of May 2008, eighty-three percent of the immigrants arrested by Gaston County ICE authorized officers pursuant to the 287(g) program were charged 

with traffic violations. This pattern has continued as the program has been implemented 

throughout the State. The arrest data appears to indicate that Mecklenburg and Alamance 

Counties are typical in the targeting of Hispanics for traffic offenses for the purposes of a deportation policy.’’ The Policies and Politics of Local Immigration Enforcement Laws, February 2009, 

Pg. 29, http://acluofnc.org/files/287gpolicyreviewl0.pdf. 

immigration law. A 2002 opinion from the Department of Justice Office of Legal 

Counsel (OLC), however, reversed the earlier ruling and found that State and local 

police departments did have such an inherent authority. The use of Section 287(g), 

combined with the 2002 OLC opinion, has lead to rampant abuses of the authority 

granted to local law enforcement agencies. 

An ICE fact sheet describing the 287(g) program states that it is: 

‘‘not designed to allow State and local agencies to perform random street operations. 

It is not designed to impact issues such as excessive occupancy and day laborer 

activities . . . it is designed to identify individuals for potential removal, who pose 

a threat to public safety, as a result of an arrest and/or conviction for State crimes. 

It does not impact traffic offenses such as driving without a license unless the offense leads to an arrest... Officers can only use their 287(g) authority when dealing with persons suspected of committing State crimes and whose identity is in 

question or are suspected of being an illegal alien.’’1

When one looks closely at the implementation of 287(g) agreements, a few things 

become clear. First, despite the rhetoric that these programs are not intended to be 

used for traffic stops or to disrupt day laborer sites, the facts argue otherwise. The 

agreements have been used to set up traffic checkpoints in areas heavily populated 

by Latinos and engage in ‘‘crime suppression sweeps’’ of day laborer sites. Arrest 

records in localities that have 287(g) agreements show that a majority of the arrests 

result from traffic stops, not incident to serious criminal activity. Second, because 

it is impossible to ascertain a person’s legal status by his or her name, appearance, 

or way of speaking, 287(g) programs that focus on enforcing civil immigration law 

incentivize police to target members of the Latino community in a broad way, leading to racial profiling. Finally, the push to focus on civil immigration status has 

pulled limited law enforcement resources away from addressing criminal activity in 

their communities. 

Local enforcement of civil immigration laws under 287(g) agreements is a civil 

and human rights issue, not just an immigration issue. Although the program is 

promoted as one that allows local and State police to identify serious criminals who 

are non-citizens and facilitate their deportation once their sentence is completed, the 

reality of that program has been rampant racial profiling that has affected undocumented immigrants, legal residents and citizens. 

The reality is that police officers have interpreted this authority as allowing them 

to raid day laborer sites and use traffic stops to check people’s immigration status. 

Citizens have been detained after traffic stops based on their name and accent, or 

even for listening to Spanish music while standing outside a family business. Painting the program with a veneer of immigration enforcement does not accurately relay 

the nature of the program, nor does it cure the underlying violations. A recent Justice Strategies report entitled ‘‘Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement’’ found that 

287(g) agreements were being used in Maricopa County, AZ to do ‘‘crime suppressions sweeps’’ of day laborer sites.2 A report by the North Carolina ACLU and the 

University of North Carolina Chapel Hill Immigration and Human Rights Policy 

Clinic studying the implementation of 287(g) agreements in North Carolina found 

that a majority of arrests in several counties came as a result of traffic stops, not 

criminal acts.3

Racial profiling is an insidious violation of civil and human rights that can affect 

people in both public and private places—in their homes or at work, or while driving, flying or walking. Racial profiling by law enforcement instills fear and distrust 

among members of targeted communities, making them less likely to cooperate with 

criminal investigations or to seek police protection when victimized. Multiple studies 

have shown that when police focus on race, even as one of several predictive factors, 

they tend to pay less attention to actual criminal behavior. 
80 

4Department of Justice ‘‘Guidance Regarding the Use of Race By Federal Law Enforcement 

Agencies,’’ June 2003, http://www.usdoj.gov/crt/split/documents/Kguidancelonlrace.php. 5Major Cities Chiefs Immigration Committee Recommendations: For Enforcement of Immigration Laws by Local Police Agencies, Adopted June, 2006 http://www.majorcitieschiefs.org/ 

pdfpublic/mcclpositionlstatementlrevisedlcef.pdf. 

Racial profiling is defined as any use of race, religion, ethnicity, or national origin 

by law enforcement agents as a means of deciding who should be investigated, except where these characteristics are part of a specific suspect description. Under this 

definition, racial profiling doesn’t only occur when race is the sole criterion used by 

a law enforcement agent in determining whom to investigate. Such a definition 

would be far too narrow. 

Today, overt racism is roundly condemned whenever it comes to light, and it is 

rare for individuals to be targeted by law enforcement agents solely because of their 

race. However, race is often the decisive factor in guiding law enforcement decisions 

about whom to stop, search, or question. Selective enforcement based in part on race 

is no less pernicious or offensive to the principle of equal justice than is enforcement 

based solely on race. Indeed, because the first form of selective enforcement is more 

prevalent and more subtle than explicit racism, it may be more damaging to our 

constitutional fabric. 

According to the U.S. Constitution, Federal laws and guidelines, and international 

treaties, every person has the fundamental right to equal protection under the law, 

regardless of race, ethnicity, religion, or national origin. Two of these sources are 

the 14th Amendment of the Constitution and the Department of Justice’s ‘‘Guidance 

Regarding the Use of Race By Federal Law Enforcement Agencies.’’ The Equal Protection clause of the Constitution reads in part ‘‘... nor shall any State deprive 

any person of life, liberty, or property, without due process of law; nor deny to any 

person within its jurisdiction the equal protection of the laws.’’ The DOJ Guidance 

states unequivocally: 

‘‘In making routine or spontaneous law enforcement decisions, such as ordinary traffic stops, Federal law enforcement officers may not use race or ethnicity to any degree, except that officers may rely on race and ethnicity in a specific suspect description. This prohibition applies even where the use of race or ethnicity might otherwise be lawful.’’4

Implementation of 287(g) programs by local law enforcement have run afoul of 

both of these provisions, and many more. 

This is a dangerous trend that can inhibit effective law enforcement and ultimately can endanger the lives of all persons who depend on law enforcement for 

protection. When local law enforcement begins targeting people for their suspected 

immigration status and not criminal activity, the entire community suffers. Recommendations by the Major Cities Chiefs on local enforcement of Federal immigration law states in part: 

‘‘Immigration enforcement by local police would likely negatively effect and undermine the level of trust and cooperation between local police and immigrant communities. If the undocumented immigrant’s primary concern is that they will be deported or subjected to an immigration status investigation, then they will not come 

forward and provide needed assistance and cooperation. Distrust and fear of contacting or assisting the police would develop among legal immigrants as well. Undoubtedly legal immigrants would avoid contact with the police for fear that they 

themselves or undocumented family members or friends may become subject to immigration enforcement. Without assurances that contact with the police would not 

result in purely civil immigration enforcement action, the hard won trust, communication and cooperation from the immigrant community would disappear. Such a 

divide between the local police and immigrant groups would result in increased 

crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes 

or preventing future terroristic acts.’’5

The use of 287(g) agreements to target people based on their race has led to civil 

rights violations beyond the initial racial profiling. For example, Juana Villegas was 

pulled over in Nashville, TN, while driving back from a doctor’s appointment. She 

was 9 months pregnant and had her two other children in the car with her. Although the traffic violation would usually result in a citation, the police officer arrested her and took her to the police station on suspicion of being undocumented. 

Even though she was being held on a misdemeanor traffic violation and a civil immigration infraction, she was forced to give birth while shackled and in police cus-
81 

6Tennessee Immigrant and Refugee Rights Coalition, ‘‘Immigrant Mother Suffers at Hands 

of Nashville Law Enforcement,’’ July 14, 2008, available at http://www.tnimmigrant.org/ 

news.php?viewStory=153; see also, ‘‘Immigrant, Pregnant, Is Jailed Under Pact,’’ Julia Preston, 

New York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/20/us/ 

20immig.html?lr=1. 7Paloma Esquivel, ‘‘Suit Filed Over Disabled U.S. Citizen’s Deportation Ordeal,’’ Los Angles 

Times, February 28, 2008, available at http://articles.latimes.com/2008/feb/28/local/meguzman28. 

tody, then separated from her newborn and not allowed to nurse or use a breast 

pump for the next 2 days.6

These violations are not limited to immigrant communities; they also affect U.S. 

citizens. No case illustrates this better than that of Pedro Guzman, a U.S. citizen 

born in California who was deported to Mexico because an employee of the Los Angeles County Sheriff’s Office determined that Mr. Guzman was a Mexican national. 

Mr. Guzman, cognitively impaired and living with his mother prior to being deported, ended up being dumped in Mexico—a country where he had never lived— 

forced to eat out of trash cans and bathe in rivers for several months. His mother, 

also a U.S. citizen, took leave from her job to travel to Mexico to search for her son 

in jails and morgues. After he was located and allowed to reenter the United States, 

Mr. Guzman was so traumatized that he could not speak for some time. The illegal 

deportation of Mr. Guzman occurred pursuant to an INA § 287(g) MOA between Los 

Angeles County and ICE. Mr. Guzman and his mother have filed a lawsuit against 

ICE.7

In sum, the 287(g) agreements are not being implemented as advertised by ICE 

and, in fact, are violating the rights of both immigrants and U.S. citizens. The 

agreements have led to widespread profiling by local law enforcement, terrorized 

communities, and increased threats to public safety. LCCR and RWG strongly urge 

the Department of Homeland Security to: 

• Mandate a thorough independent review of current agreements and similar programs during which time no new INA § 287(g) agreements should be entered 

into; 

• Actively enforce anti-discrimination civil rights protections and implement policies and funding that support community policing and effective law enforcement; 

• Re-assert Federal authority over national immigration laws and policies and reject the authority of States and localities to enforce these Federal responsibilities; 

• Train State and local officials about their proper role in the enforcement of 

criminal laws related to immigration rather than civil immigration enforcement. 

Thank you again for the opportunity to express our views regarding today’s important hearing. We would be happy to answer any post-hearing follow-up questions 

you may have. 

LETTER FROM HAROLD L. HURTT, CHIEF OF POLICE, HOUSTON, TEXAS, SUBMITTED

BY THE HONORABLE SHEILA JACKSON LEE

MARCH 3, 2009. 

The Honorable Sheila Jackson Lee, 

U.S. House of Representatives, 2160 Rayburn Building, Washington, DC 20515. 

DEAR REP. JACKSON LEE: I have been advised that on Wednesday, March 4, the 

House Committee on Homeland Security will be conducting a hearing on the topic 

of ‘‘Examining 287(g): The Role of State and Local Law Enforcement in Immigration 

Law.’’ This is an important issue and I wanted to take a moment to provide you 

and the committee with my perspective this topic in advance of the committee hearing. As Police Chief of the City of Houston and a current member of the executive 

board and past president of Major Cities Chiefs, I have been involved in numerous 

discussions at both the national and local level on the topic of local law enforcement’s involvement in the enforcement of Federal immigration laws. In 2006 while 

I was president of Major Cities Chiefs, the organization evaluated and adopted nine 

specific recommendations concerning this issue. I have attached a copy of the recommendations for your reference. 

Illegal immigration is a problem that faces our Nation and society as a whole and 

one, which must be dealt with at the national level. It is absolutely critical that our 

country develop a consistent unified national plan to deal with immigration and this 

plan must first and foremost include the Federal Government taking the necessary 

steps to secure our borders to prevent illegal entry into the United States. 
82 

Secondly, Federal agencies such as Immigration and Customs Enforcement [ICE] 

and the Department of Justice who have the specific duty of enforcing immigration 

laws should be given adequate Federal resources to fulfill that duty. 

Local enforcement of Federal immigration laws raises many daunting and complex legal, logistical, and resource issues for local law enforcement, especially agencies such as the Houston Police Department which serves a large and diverse community. Local law enforcement agencies must balance the call for us to enforce Federal immigration laws with our primary mission of protecting our diverse communities from crimes such as murders, sexual assaults, drug trafficking, gang violence, 

robberies, and burglaries which are committed by and victimize citizens, legal immigrants, and illegal immigrants. Like other major cities, the City of Houston’s policies 

regarding enforcement of immigration laws takes into account our limited resources; 

the complexity of immigration laws; limitations on authority to enforce; risk of civil 

liability for immigration enforcement activities and the clear need to foster the trust 

and cooperation from the public including members of immigrant communities within our jurisdictions. 

The 287(g) programs appear more appropriate for law enforcement agencies which 

operate large jail facilities and in many jurisdictions it is often the county level 

agencies such as the county sheriff’s department which operate these facilities. The 

City of Houston transfers the majority of its prisoners to the Harris County Sheriff’s 

Department which is primarily responsible for incarcerating criminal defendants in 

Harris County, Texas where the city is located. The city’s jail facilities serve mainly 

as temporary holding locations until prisoners can be transferred to the county jail. 

Because of our current high level of cooperation with ICE cited below and the fact 

that the 287(g) programs have been used primarily to train local jailers, the Houston Police Department has not chosen or seen the need to take part in the 287(g) 

training programs. 

The Houston Police Department does and will continue to enforce against criminal 

violations occurring within our jurisdiction regardless of the perpetrator’s immigration status. Due to the issues mentioned above, the police department does not engage in the direct enforcement of Federal immigration laws; however, where possible and reasonable, we cooperate with and provide assistance to ICE, which has 

the primary and specific duty to enforce Federal immigration laws. We have given 

ICE full access to our jail facilities to conduct immigration and citizenship investigations. In addition, the department has developed procedures to hold persons who are 

subject to an immigration detainer issued by ICE. The department conducts a computer check of all arrested persons to determine if they are subject to an ICE detainer. If an ICE detainer exists, the person is held pursuant to ICE’s detention authority so that ICE can take custody of the person within a reasonable amount of 

time. 

I would conclude with my sincere hope that the committee’s hearings and work 

on immigration issues will move our country towards finding a comprehensive national response to the critical issue of illegal immigration. Thank you for your time 

and consideration. 

Sincerely, 

HAROLD L. HURTT, 

Chief of Police. 

STATEMENT OF THE IMMIGRATION POLICY CENTER, A DIVISION OF THE AMERICAN

IMMIGRATION LAW FOUNDATION

SUMMARY OF RECENT PUBLICATIONS ON 287(g) MEMORANDA OF UNDERSTANDING

Local Democracy on ICE: Why State and Local Governments Have No Business in 

Federal Immigration Law Enforcement, by Aarti Shahani and Judith Greene, Justice Strategies, February 2009. 

• The report points out that while some localities have claimed to need a partnership with ICE because of rising crime rates, an analysis of the jurisdictions with 

287(g) agreements and found that immigration rates are not associated with 

higher crime rates. According to Justice Strategies, 61 percent had a violent 

crime index lower than the national average, and 55 percent witnessed an overall decrease in violent crimes from 2000 to 2006. Furthermore, 61 percent had 

a property crime index lower than the national average, and 65 percent saw an 

overall decrease in property crimes from 2000 to 2006. 

• Justice Strategies looked at the factors that 287(g) jurisdictions have in common 

and found that 87 percent of the jurisdictions with 287(g) agreements had a 
83 

rate of Latino population growth higher than the national average. Furthermore, 62 percent of the local ICE partners were county sheriff departments. • According to Justice Strategies, there is very little ICE oversight of the 287(g) 

partnerships and ICE personnel do not lead or directly oversee 287(g) arrests. 

When faced with criticism that he had not followed the requirements of his 

MOA, Sheriff Joe Arpaio of Maricopa County, Arizona stated, ‘‘Do you think I’m 

going to report to the Federal Government? I don’t report to them.’’ 

The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program 

in North Carolina, by the ACLU of North Carolina Legal Foundation and the Immigration and Human Rights Policy Clinic at the University of North Carolina at 

Chapel Hill, February 2009. • The report found that, while the 287(g) partnership program with DHS was intended to target immigrants convicted of violent crimes, human smuggling, 

gang/organized crime activity, sexual-related offenses, narcotics smuggling, and 

money laundering, the Federal/local partnerships are actually being used to 

‘‘purge towns and cities of ‘unwelcome’ immigrants.’’ • During May 2008, 83 percent of the immigrants arrested by officers deputized 

to perform immigration enforcement duties in Gaston County, NC were charged 

with traffic violations. • The report pointed out that immigration is not associated with high crime rates. 

A 2008 comprehensive study of population growth and crime in North Carolina 

showed that between 1997 and 2006 the counties with the highest Hispanic 

population growth rates had the lowest violent and property crime rates. • The authors state that 287(g)’s have ‘‘created a climate of racial profiling and 

community insecurity’’ in communities across North Carolina. Law enforcement 

officials have stated time and time again that trust with immigrant communities is crucial to preventing and investigating crimes and leads to safer communities. Anecdotal evidence from North Carolina points to undocumented residents being less likely to contact law enforcement to report crimes. 

‘‘Reasonable Doubt,’’ the East Valley Tribune, July 2008. • This series of articles found that immigration-enforcement activities have been 

expensive, resulting in few key arrests and drawing law enforcement personnel 

away from investigating non-immigration-related crimes. Highlights from the 

series include: • The Sheriff’s Office created a $1.3 million deficit in just 3 months, much of it 

due to overtime. In order to staff the immigration team, Sheriff Arpaio pulled 

deputies off patrol beats and used them to staff the human-smuggling unit. Tactics include racial profiling, sweeps of Hispanic neighborhoods, and stops for 

minor traffic offenses. • While Sheriff Arpaio has diverted resources to immigration enforcement, response times to 911 calls have increased, arrest rates have dropped, and thousands of felony warrants have not been served. 

• Despite the time and energy spent on immigration enforcement, the Tribune 

found that MCSO has had little success building cases against violent immigrant offenders or those at the top of the smuggling rings. In 2006–2007, Maricopa County sheriff deputies arrested 578 illegal immigrants in the course of 

traffic stops, and of those, 498 faced a single charge of conspiracy to smuggle 

themselves. 

Mission Unaccomplished: The Misplaced Priorities of the Maricopa County Sheriff’s 

Office, by Clint Bolick, Goldwater Institute Scharf-Norton Center for Constitutional 

Litigation, December 2008. 

• The report documents how the Maricopa County Sheriff’s Office, under the leadership of Sheriff Arpaio, has failed to serve and protect his community. The 

Goldwater Institute found that, though the Maricopa County Sheriff’s Office 

(MCSO) budget has increased at four times the rate of the county’s population, 

violent crimes increased nearly 70 percent, and homicides increased 166 percent 

between 2004 and 2007. 

• The Goldwater Institute also found that MCSO has refused to share crime statistics and other data, and in 2007, the county had to pay $38,000 in legal fees 

to a newspaper for withholding press releases. Despite reporting a high crime 

clearance rate, MCSO reported that relatively few of the cleared cases—18 percent—ended with an arrest. In contrast, in Phoenix, 78 percent of cleared cases 

ended with an arrest. A high number of those cases cleared without an arrest 

correlate to MCSO’s use of an ‘‘exceptionally cleared’’ category. A case may be 

designated ‘‘exceptionally cleared’’ when a suspect is known and enough evidence exists to make an arrest, but circumstances beyond the control of law enforcement prevent an arrest. In some instances where cases were ‘‘exceptionally 

cleared’’ there is no evidence that an investigation took place at all. 
84 

1See, Spencer S. Hsu, ‘‘Arizona Sheriff Accused of Racial Profiling,’’ July 17, 2008, available 

at http://www.washingtonpost.com/wp-dyn/content/article/2008/07/16/ 

AR2008071602636.html. 2Daniel Gonzalez, ‘‘U.S. Citizens Claim Profiling, Join Lawsuit Against Sheriff Arpaio,’’ July 

17, 2008, available at http://www.azcentral.com/news/articles/2008/07/17/ 

20080717profiling0717.html. 3Tennessee Immigrant and Refugee Rights Coalition, ‘‘Immigrant Mother Suffers at Hands 

of Nashville Law Enforcement,’’ July 14, 2008, available at http://www.tnimmigrant.org/ 

news.php?viewStory=153; see also, ‘‘Immigrant, Pregnant, Is Jailed Under Pact,’’ Julia Preston, 

JOINT STATEMENT OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION, THE

NATIONAL IMMIGRATION FORUM, AND THE NATIONAL IMMIGRANT JUSTICE CENTER

STATE AND LOCAL ENFORCEMENT INCLUDING INA § 287(g) AND SECURE COMMUNITIES

A. ICE ACCESS AND INA § 287(g) 

Through the INA 287(g) program and other ICE ACCESS programs, the Federal 

Government has shifted its responsibility for enforcement of civil immigration laws 

to State and local police and other State and local agencies. It has—without meaningful oversight or review or statutory authority in many cases—encouraged immigration enforcement at the local level that has resulted in racial and ethnic profiling 

and the detention of U.S. citizens and permanent residents. 

The basic problem is this: in INA § 287(g) jurisdictions, State, or local police with 

minimal training (or, in the case of a ‘‘jail model,’’ no training) in immigration law 

are put on the street with a mandate to arrest ‘‘illegal aliens.’’ Local officials often 

make it a high political and policy priority that these arrests take place. Meanwhile, 

the Federal Government has not provided meaningful oversight. The predictable 

and inevitable result is that any person who looks or sounds ‘‘foreign’’ is more likely 

to be stopped by police, and more likely to be arrested (rather than warned, or cited, 

or simply let go) when stopped. Moreover, any other abuses that police commit when 

exercising INA § 287(g) authority are likely to go unreported and unpunished, given 

that many of the individuals they arrest are swiftly deported and have little access 

to counsel; that State or local officials may not exercise their ordinary oversight 

roles when their police are performing a ‘‘Federal’’ function; and that the Federal 

Government has not created effective oversight mechanisms. DHS should terminate 

INA § 287(g) Memoranda of Agreement (MOAs) with localities that have misused 

their limited authority. It should engage in meaningful oversight of the conduct of 

local law enforcement agencies both before and after an INA § 287(g) MOA is put 

in place. 

INA § 287(g) Agreements Have Contributed to Pervasive Racial Profiling by Local 

Law Enforcement 

In Maricopa County, Arizona Sheriff Arpaio and his deputies have engaged in a 

widespread pattern and practice of racial profiling in an illegal, improper, and unauthorized attempt to enforce Federal immigration laws against Latinos without regard for citizenship or valid immigration status. Claiming authority under the INA 

§ 287(g) MOA, Arpaio and his deputies in September 2007 launched a series of massive so-called ‘‘crime suppression sweeps’’ by utilizing deputies and volunteer ‘‘posse’’ 

members. Together they have targeted Latinos for investigation of immigration status, using pretextual and unfounded stops, racially motivated questioning, searches 

and other mistreatment, and arrests that are often baseless. In 2008, several U.S. 

citizens sued Sheriff Arpaio and Maricopa County for racial profiling and other racially and ethnically discriminatory treatment.1 One plaintiff, Manuel Nieto, a U.S. 

citizen, was grabbed and handcuffed by several Maricopa County deputies, his face 

pressed against his car and arms twisted behind his back. This took place in front 

of his family’s auto repair business. Mr. Nieto’s father ran out of the shop, told the 

deputies that he owned the shop, and that Mr. Nieto was his child and a U.S. citizen. The deputies then uncuffed Mr. Nieto and ran his identification through their 

computer system. 

David and Jessica Rodriguez are two other plaintiffs in the same lawsuit who 

have sued Sheriff Arpaio and Maricopa County for racial profiling.2 They were 

issued a traffic citation for failing to follow a road sign. The Rodriguezes were the 

only residents to receive a citation, even though deputies pulled over several other 

vehicles and gave oral warnings to the other drivers, all of which were Caucasian. 

In addition, the deputy demanded to see Mr. Rodriguez’s Social Security card, which 

has no bearing on his driving, but did not request Social Security information of the 

other drivers. 

In an example reported by the Tennessee Immigration and Refugee Coalition, a 

pregnant woman was detained after being stopped for a traffic violation.3 On July 
85 

New York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/20/us/ 

20immig.html?lr=1. 4Paloma Esquivel, ‘‘Suit Filed Over Disabled U.S. Citizen’s Deportation Ordeal,’’ Los Angles 

Times, February 28, 2008, available at http://articles.latimes.com/2008/feb/28/local/meguzman28. 

3, 2008, Juana Villegas was driving in Nashville when she was pulled over by a 

Berry Hill police officer for ‘‘careless driving.’’ Mrs. Villegas, 9 months pregnant, was 

forced to wait in her hot car with her three children for over an hour. Eventually, 

the children were allowed to leave with a family member without Villegas’s permission, and she was taken into custody. By the time Mrs. Villegas was released from 

the county jail 6 days later, she had gone through labor with a sheriff’s officer 

standing guard in her hospital room, where one of her feet was cuffed to the bed 

most of the time. County officers barred her from seeing or speaking with her husband. Up until an hour before the actual birth, Mrs. Villegas’s hand and foot remained shackled to the hospital bed. As she was taken back to the Davidson County 

jail, she was told that her baby would be given to her husband. Mrs. Villegas was 

never allowed to speak to her husband. On July 9, Mrs. Villegas appeared in court 

on the misdemeanor charge of driving without a license, and was sentenced to time 

served. She did not see her newborn again until the morning of July 10, after she 

was released from sheriff’s custody on her own recognizance. On August 15, 2008, 

the ‘‘careless driving’’ charge against Juana Villegas was dismissed in Berry Hill 

Municipal Court. Mrs. Villegas is still being processed for deportation as a result 

of the INA § 287(g) program. 

Legal service providers across the country report racial profiling cases in areas 

with INA § 287(g) programs. In York County, along the North Carolina and South 

Carolina border, deputies have abused the INA § 287(g) program to arrest Latinos 

for broken windshields or improper vehicle tags. Traffic offenses that ordinarily 

would lead to a citation and court summons are now resulting in criminal arrests. 

Only about 5 percent of the arrests of Latinos are for serious crimes. Since the implementation of the INA § 287(g) program in York County, relations between local 

law enforcement and the Latino communities have deteriorated, and the county jail 

population has exploded. Longtime residents of York County describe the situation 

as ‘‘out of control.’’ 

U.S. Citizens Have Been Illegally Detained, and In One Case Deported, Under the 

Auspices of INA § 287(g) Agreements 

The practice of deputizing State and local police to enforce Federal immigration 

laws has proven to be highly ineffective and dangerous. No case illustrates this better than that of Pedro Guzman, a U.S. citizen born in California who was deported 

to Mexico because an employee of the Los Angeles County Sheriff’s Office determined that Mr. Guzman was a Mexican national. Mr. Guzman, cognitively impaired 

and living with his mother prior to being deported, ended up being dumped in Mexico—a country where he had never lived—forced to eat out of trash cans and bathe 

in rivers for several months. His mother, also a U.S. citizen, took leave from her 

job to travel to Mexico to search for her son in jails and morgues. After he was located and allowed to reenter the United Statets, Mr. Guzman was so traumatized 

that he could not speak for some time. The illegal deportation of Mr. Guzman occurred pursuant to a INA § 287(g) MOA between Los Angeles County and ICE. Mr. 

Guzman and his mother have filed a lawsuit against ICE.4

In Alamance County, North Carolina, State troopers—who were not authorized 

under an INA § 287(g) MOA—stopped and boarded a bus destined for Mexico. Onboard were two bus drivers, one who spoke English and one who did not. The troopers refused to talk to the driver who spoke English. One of the troopers called the 

Alamance County Sheriff’s Office and requested assistance from the INA § 287(g) officers. When the sheriff deputies arrived, they boarded the bus and asked everyone 

on board for ‘‘papers,’’ including the U.S. citizen passengers. The deputies ordered 

that the bus driver pull off the highway to a local motel, where all the passengers 

including U.S. citizen children were detained in the motel lobby all day while deputies and later ICE agents questioned them. In the end, five passengers were arrested by ICE, and the rest of the passengers were allowed to continue their trip 

to Mexico, but not after losing the better part of a day of travel. It is important to 

note that the INA § 287(g) program in Alamance County is a jail model, not a task 

force or field model. But as illustrated in this case, the INA § 287(g) MOA—though 

designed to be limited to jails only—has negatively shaped the conduct of law enforcement in the field and on the roads, in this case involving both deputized sheriffs as well as undeputized State troopers. 
86 

5See Major City Chiefs’ Immigration Committee Recommendations for Enforcement of Immigration Laws by Local Police Agencies, June 2006, available at http:// 

www.majorcitieschiefs.org/pdfpublic/mcclpositionlstatementlrevisedlcef.pdf. 6 ‘‘An Impact Review of the United States Bureau of Immigration and Customs Enforcement 

287(g) Program Upon the County of Morris,’’ Morris County Sheriff’s Office, October 19, 2007. 7Presentation to the Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee, North Carolina General Assembly, November 18, 2008, Illegal Immigration 

Project, North Carolina Sheriffs’ Association. 8 ‘‘Immigration and Crime in North Carolina: Beyond the Rhetoric,’’ Lindsay Haddix, Department of City and Regional Planning, UNC Chapel Hill, Master’s Project, Spring 2008. 

INA § 287(g) Agreements Undermine Community Policing and Public Safety 

There are legitimate concerns that INA § 287(g) is not being used to keep communities safer by removing dangerous, violent criminals; rather people who do not pose 

a serious threat to public safety are being deported under the guise that they are 

dangerous criminals. In the absence of empirical evidence as to the number and 

types of crimes committed by undocumented immigrants before and after the implementation of INA § 287(g), it would be impossible to evaluate the program’s appropriateness and effectiveness. Before making the decision to implement a program 

that has such large fiscal and social impacts, it would be wise to consider whether 

INA § 287(g) truly makes our communities safer and whether it comports with 

DHS’s overall priorities in immigration enforcement. 

The Major Cities Chiefs’ Association, which represents large cities across the 

country, has expressed concern about entering into INA § 287(g) programs. The Association has stated that the programs work counter to community policing goals 

by undermining the trust and cooperation of immigrant communities, stress the cities’ already reduced resources, and leave cities vulnerable to civil liability claims.5

INA § 287(g) programs impose additional costs on communities that are being severely affected by the downturn in the economy. While local authorities may apply 

for an INA § 287(g) MOA believing that it will bring additional fiscal resources to 

their community, in fact, by statute, it is an unfunded program that will likely add 

additional costs to a department’s budget. For example, the Sheriff’s Department of 

Morristown, New Jersey evaluated a proposed INA § 287(g) program and found that it would add an additional $1,331,876 to its budget. As a result of this cost, plus 

additional liability risks, the Sheriff’s Department recommended that the county not 

go forward with the proposed application.6

Without adequate oversight, it is difficult to determine if this costly program is 

meeting its goals. ICE has not developed or instituted a standardized statistical report that delineates, for example, offenses and/or the disposition of cases involving 

non-citizens encountered through an INA § 287(g) jail enforcement model program. 

In April 2006, the Mecklenburg County Sheriff’s Office in North Carolina took the 

initiative to develop its own tracking report to record the crimes for which non-citizens were arrested.7 Other sheriffs in North Carolina use this template and modify 

it to fit their own needs. ICE requests that sheriffs in North Carolina send the reports to them. ICE’s reliance on these non-uniform and voluntary reports highlights 

a lack of oversight in the current INA § 287(g) program. 

INA § 287(g) Programs Target Individuals Who Do Not Pose a Risk to the Community 

The INA § 287(g) program in Mecklenburg County has targeted individuals who 

are not serious criminals. Of the 2,321 undocumented immigrants in Mecklenburg 

County who were put into removal proceedings in 2007, fewer than 5 percent of the 

charges against them were felonies.8 Over 16 percent of the total charges were traffic violations. 

Similarly, in Alamance County, North Carolina of the 434 undocumented immigrants who were put into removal proceedings in 2007, less than 10 percent of the 

charges against them were felonies. Nearly 25 percent of the charges were traffic 

violations. In at least one case, the overzealous immigration enforcement by 

Alamance County deputies has resulted in the endangerment of children. On June 

14, 2008, around 2 a.m. Maria Chavira Ventura was pulled over by Alamance County deputies on Interstate 85 near Burlington, North Carolina. In the vehicle were 

her three young children and an adult male who was a fellow church parishioner 

but unrelated to the family. The deputies arrested Ms. Ventura for driving without 

a license and false vehicle tags. When they took Ms. Ventura away, the deputies 

also took the car keys, leaving her three children with the adult male in the car. 

Shortly thereafter, he left, looking for help. Alone, frightened and crying, the children called their father in Baltimore (the family was en route to visit him). He immediately drove down to get them, but it took over 6 hours to drive from Baltimore 

to Burlington, North Carolina. During those 7 hours the children were stranded in 
87 

9 Correspondence from the Rocky Mountain Immigrant Advocacy Network. 

the car on Interstate 85, with one water bottle to share. No deputy or law enforcement official returned to the car to check on them; nor did the deputies take the 

children’s mobile telephone number to confirm they returned home safely. 

In Wake County, North Carolina, a man was arrested during a traffic stop by 

local police, who were not authorized to act under the INA § 287(g) MOA. The MOA 

in Wake County covers the Sheriff’s department. As the police arrested the man, 

they told his two young children that their father would be deported and they would 

never see him again. All of this was heard by the children’s mother, who was on 

the mobile telephone, left on in ‘‘speaker phone’’ mode. The police officer picked up 

the telephone and told the mother that her children would be left in the car on the 

side of the road, waiting for her. 

In Colorado, the Rocky Mountain Immigrant Advocacy Network (RMIAN) encountered a woman who was arrested by the Colorado State Patrol during a routine traffic stop. Because the Colorado State Patrol has entered into an INA § 287(g) agreement with ICE in Colorado, the woman was almost immediately deported to Mexico 

without the opportunity to speak to an attorney or learn about her legal rights. Unfortunately, because of the officer’s likely unfamiliarity with immigration law, he did 

not explain to the woman that she might be eligible for relief from removal from 

the United States. Rather, the woman believed her only option was leaving the 

county as soon as possible, and believed the officer was doing her a favor by allowing her to sign a voluntary removal order rather than putting her into proceedings 

before an immigration judge. However, the woman had been the victim of severe 

domestic violence in the United States and had helped law enforcement in the prosecution of that criminal case, and thus was eligible for a U Visa. Nonetheless, she 

only learned about her rights and her eligibility after calling RMIAN from Mexico, 

subsequent to her deportation and separation from her family in the United States. 

This is but one example of individuals who have relief or may have relief being removed under an INA § 287(g) program.9

Return immigration enforcement responsibility to the Federal Government.—Without statutory authority for any program beyond the memoranda of understanding 

envisaged by INA § 287(g), DHS has marshaled an array of State and local immigration law enforcement programs collectively referred to as ICE ACCESS (ICE Agreements of Cooperation in Communities to Enhance Safety and Security). Involvement 

of State and local police in immigration enforcement under INA § 287(g) and other 

ICE ACCESS programs occurs without adequate oversight or review. These programs are not an effective, efficient way to enforce Federal immigration laws; do not 

respect the rights of citizens and immigrants; and undermine community policing 

and public safety. 

Recommendations 

• Mandate a thorough independent review of current agreements and similar programs during which time no new INA § 287(g) agreements or other ICE ACCESS agreements should be entered into. 

• Actively enforce anti-discrimination civil rights protections and implement policies and funding that support community policing and effective law enforcement. 

• Re-assert Federal authority over national immigration laws and policies and reject the authority of States and localities to adopt these Federal responsibilities 

by taking the specific steps outlined below. 

• Train State and local officials about their proper role in the enforcement of 

criminal laws related to immigration rather than civil immigration enforcement. 

Policy Recommendations: INA § 287(g) 

• DOJ should rescind the 2002 Bush Administration Office of Legal Counsel opinion that reversed longstanding agency interpretation about the limits of State 

and local enforcement of civil immigration laws and issue a new opinion reaffirming that State and local police cannot enforce civil immigration laws except where there is specific statutory authorization for them to do so (e.g., 8 

U.S.C. § 1103(a)(10), providing for certain enforcement upon certification of ‘‘an 

actual or imminent mass influx of aliens... ’’) The 2002 opinion is fundamentally flawed from a legal standpoint, and it complicates and obstructs Federal 

efforts to oversee and coordinate immigration enforcement and to effectuate a 

uniform national immigration enforcement policy. 

• DHS Office of Policy should issue guidance to State and local law enforcement 

entities explicitly clarifying that their authority to engage in immigration enforcement is limited to narrow circumstances (i.e. where there is sufficient sus-
88 

picion that an individual has committed a criminal immigration violation, such 

as illegally re-entering the United States as a previously deported felon, that 

would provide police with arrest authority, provided that any State-law limitations on authority are also satisfied) and that any decision to assist DHS or participate in immigration enforcement must be voluntary and must comport with 

State and/or local laws and policies. • DHS should commission independent experts to undertake a comprehensive, detailed review and evaluation of existing INA § 287(g) agreements to determine 

whether and to what extent these programs: 

• Enhance public safety; • Undermine community policing efforts; • Increase racial profiling; • Result in the arrest, detention, or deportation of U.S. citizens or permanent 

residents; • Reduce individuals’ likelihood of reporting crimes or serving as witnesses; • Reduce access to education, health, emergency/fire department, and other 

services by immigrants and members of their families and communities; • Exceed the limitations established in the MOU/MOA; • Are sufficiently supervised by ICE personnel; • Collect data necessary to enable proper oversight; • Are subject to sufficient community, municipal, State and Federal oversight; 

• Result in costs to the State/local participants; 

• Are cost-effective from the Federal Government’s perspective; and 

• Undermine Federal prosecutorial discretion or the ability of DHS and ICE to 

effectively set priorities in immigration enforcement. 

• DHS should require and fund meaningful training including on the complexity 

of immigration laws, limitations of State/local authority, ICE enforcement priorities, and problems with profiling, as a precondition to any officer’s participation 

in ICE ACCESS, Secure Communities, CAP, or other programs envisioning 

state and local participation in immigration enforcement and to all officers operating in an INA § 287(g) jurisdiction, regardless of whether the particular officer 

is actually provided with authority under the MOA. 

• DHS should stop entering civil immigration violations including records relating 

to so-called ‘‘absconders’’ and ‘‘NSEERS violators’’ into the NCIC database and 

remove those records that have previously been entered. FBI should mandate 

that all NCIC entries comply with the accuracy standards of the Privacy Act. 

DHS Should Use the Following Operational Guidance for INA § 287(g) Programs 

• DHS should not conduct joint operations with State or local entities that are 

credibly alleged to have engaged in profiling. 

• DHS should consider the direct and indirect effects on public safety and community policing before requesting State or local participation in any enforcement 

operation. 

• DHS should only issue immigration detainers to State and local agencies to retain custody of persons held on criminal charges where: (1) Interviewing and 

taking custody of the individual in question is impossible for ICE; (2) the individual’s identity and removability are positively confirmed; (3) the individual 

would ordinarily be placed into removal proceedings if ICE exercised its prosecutorial discretion; and (4) the individual would actually be subject to continued detention if he had been apprehended and processed by ICE. 

• DHS should issue guidance clarifying that an immigration detainer is not the 

equivalent of a criminal arrest warrant or criminal detainer and is simply a 

non-mandatory request that police maintain custody of an individual for a maximum of 48 hours to facilitate DHS picking that person up. Any detainer request should clarify that the institution is not authorized under any circumstance to detain the subject for a period exceeding 48 hours, excluding 

weekends and holidays. 

• All INA § 287(g) MOUs must include: 

• Specific mandate; 

• Sunset provision; 

• On-going training requirement; 

• Specific circumstances under which officers can make arrests for immigration 

violations; 

• Means of information and referral for victims of domestic violence, crime victims and trafficking victims; 

• Systematic tracking and reporting requirements: how many arrests, how 

many criminal convictions, how many detained, how long it takes ICE to re-
89 

10 U.S. Immigration and Customs Enforcement, ‘‘Secure Communities: A Comprehensive Plan 

to Identify and Remove Criminal Aliens, Nov. 19, 2008, available at http://www.ice.gov/pi/ 

news/factsheets/securelcommunities.htm. 11 Anabelle Garay, ‘‘Dallas County to Check Immigration Database,’’ Associated Press, Nov. 

12, 2008, available at http://www.dallasnews.com/sharedcontent/APStories/stories/ 

D94D2RS00.html. 12 Id. 

spond, race/ethnicity of those arrested, number of complaints, number of U.S. 

citizens and permanent residents arrested or detained, countries of origin of 

those arrested/detained, training, all funding spent on execution of MOU; 

• The establishment of a community advisory commission; 

• Complaint and redress procedures; 

• Public education and outreach campaign; 

• Oversight; 

• Specified ICE response time to requests for assistance for State and local officials; 

• Prohibition on racial profiling; 

• Penalties for noncompliance. 

B. SECURE COMMUNITIES

The Secure Communities Program was created as part of the ICE ACCESS program to give ICE technological access to the 3,100 local jails throughout the United 

States to identify removable aliens. The Secure Communities Program was announced through ICE press releases, ‘‘fact sheets,’’ and blog entries on the ICE web 

site, but no complete, coherent description of the program has been made available. 

No regulations have been issued for its operation, no guidance to State and local 

authorities has been made public, and no criteria for how ICE will exercise the authority granted to it under the program have been announced. To date, there is no 

system in place to track those individuals against whom detainers are issued, including the crimes for which identified non-citizens are arrested, the disposition of 

the underlying criminal case, and the nationality and ethnicity of identified non-citizens. 

Under the Program, criminal arrestees’ fingerprints are automatically checked 

against DHS databases as well as FBI criminal databases. ICE is automatically notified of a ‘‘hit.’’ According to ICE, the program will allocate its resources against 

those convicted of crimes, in accordance with the following: 

• Level 1.—Individuals who have been convicted of major drug offenses and violent offenses such as murder, manslaughter, rape, robbery, and kidnapping; 

• Level 2.—Individuals who have been convicted of minor drug offenses and property offenses such as burglary, larceny, fraud, and money laundering; and 

• Level 3.—Individuals who have been convicted of other offenses.10

DHS claimed that Secure Communities would be phased in, beginning with Level 

1 criminal aliens. However, it is unclear how or if the prioritization is taking place. 

Statements by ICE officials raise questions about how the program is working in 

practice. Julie Myers, former Assistant Secretary for ICE stated that while the program focuses on those who have committed serious crimes, in cases involving less 

serious offenses ICE would consider its staffing levels and resources in deciding how 

to proceed.11 Myers also stated that those who have not had contact with DHS may 

not be included in the database, making additional investigation necessary to determine if the person has permission to be in the United States.12 It remains unclear 

whether this means that ICE will seek to hold these individuals in detention until 

their status can be determined. 

ICE has not clearly stated what it will do when Level 2 or 3 aliens are identified. 

It is unclear whether ICE considers someone having entered without inspection 

(EWI) sufficient to be considered a ‘‘criminal’’ under this program or whether that 

EWI will generate a ‘‘hit’’ and/or a detainer under a Secure Communities program. 

It is also unclear whether ICE will consider the lawfulness of an arrest and whether 

it was made under purported (and disputed) ‘‘inherent authority’’ to arrest for civil 

immigration violations. 

While Secure Communities is ostensibly directed at those convicted of crimes, the 

identification process is actually focused on those arrested for crimes, before they 

have been either tried or convicted. This creates an incentive for agents to arrest 

persons on pretextual grounds or to arrest persons who might otherwise have received a warning or a ticket. It also leads to individuals being held by ICE who have 

been arrested for minor crimes but not yet tried or convicted. Questions that have 
90 

13Margot Mendelson, Shayna Strom, and Michael Wishnie, ‘‘Collateral Damage: An Examination of ICE’s Fugitive Operations Program,’’ Migration Policy Institute, February 2009, available 

at http://www.migrationpolicy.org/pubs/NFOPlFeb09.pdf. 14 Correspondence from the Immigrant Defense Project, New York. 

been raised about collateral arrests in the context of Fugitive Operations have also 

been raised with regard to Secure Communities.13

Reports suggest that when ICE takes custody of arrested individuals, they are frequently prevented from exercising their right to go to criminal court and challenge 

their criminal charges. It may also mean that individuals who would otherwise be 

released are ineligible for release on bail. In addition to raising obvious due process 

problems, this causes courts to issue warrants of arrest or judgments of conviction. 

This in turn makes the individuals ineligible for future immigration benefits. 

Individuals who have committed minor offenses may be held without bond in 

criminal custody because of ICE intervention through Secure Communities. For example, in North Carolina there are reports of no bond for minor traffic violations, 

as well as arrests without cause (which have included in North Carolina: failure to 

signal, failure to dim headlights, walking in a neighborhood at night without showing a driver’s license to an officer, non-cooperation with an officer while riding a bicycle (refusing to show driver’s license), fishing without a (fishing) license). 

Jails routinely hold detainees well in excess of the 48 hours period permitted by 

regulation. In some counties, reports have indicated that non-citizens are held for 

weeks before ICE assumes custody. Detainers are being filed indiscriminately with 

no apparent attempt to distinguish serious criminal offenders from those who have 

committed minor offenses. 

U.S. citizens are swept up in this broad net. Mr. O, a U.S. citizen from Colorado, 

is serving a criminal sentence at Bent County Correctional Facility in Colorado. He 

has an immigration detainer that is preventing his entry into a halfway house. Several years ago, Mr. O was placed into removal proceedings. The immigration judge 

terminated the proceedings at the request of the Government when it realized that 

Mr. O had derived citizenship from his American parents. Nonetheless, Mr. O has 

not been able to convince ICE to lift the immigration detainer despite being a U.S. 

citizen.14

Anecdotal evidence from advocates in locations with pilot programs suggests that 

Secure Communities does not require an MOU between ICE and the local jail, sheriff, or police department. As a result, the level of training or instruction provided 

to jail or law enforcement personnel remains murky. According to ICE’s web site 

and fact sheet, the plan is to eventually install the system in all State and local 

detention facilities Nation-wide. It is unclear whether the program will be mandatory or optional for all law enforcement agencies. 

It is unclear whether ICE requires the consent or participation of local officials 

in implementing Secure Communities programs. It may be possible that ICE can 

simply connect its IDENT system to the jail’s fingerprinting system, and ICE therefore can automatically access information about anyone being fingerprinted, possibly 

without the approval of local officials. ICE would then determine whether it has the 

resources to issue a detainer and pick up the individual within the 48-hour time 

frame, leaving local authorities out of the process entirely. If this is the current 

structure of the program, Secure Communities raises serious questions about the relationship between Federal and local law enforcement agencies, and about a local 

community’s ability to weigh in on important decisions affecting the community. 

Because Secure Communities involves creating automatic data links between 

booking databases and immigration enforcement systems, it deprives police of the 

discretion to choose when to run ICE checks. This raises questions about local police 

authorities’ ability to build strong, trusting relationships with their communities. 

For example, many police report that it is important to assure crime victims that 

they will not suffer immigration consequences if they call or talk to the police. But 

a Secure Communities jurisdiction may lose this flexibility with regard to ICE 

checks. Needlessly running names through the ICE databases will result in local 

law enforcement losing the trust of the immigrant community, a significant cost for 

police who depend upon the community to fight and solve crime. 

The existence of various ICE programs in a State or locality also makes recordkeeping difficult. If an inmate has a detainer, it is impossible to determine if the 

detainer is the result of a 287(g) agreement, Secure Communities, or if the individual simply confessed to an immigration status violation. This makes it extremely 

difficult to determine the effectiveness of any one program or initiative. 

In sum, Secure Communities denies due process to those arrested by ICE. The 

program’s description makes no mention of protection of civil rights, redress when 

an individual is wrongly identified, auditing or monitoring of its operation, measure-
91 

15Letter from Washington Defender Association’s Immigration Project to Secretary Napolitano, February 16, 2009 regarding ‘‘Issues and Impacts of ICE Enforcement In Washington 

State Jail Facilities.’’ 16 Id. 

ment of racial or ethnic profiling, effect of detainers, or measurement of whether it 

in fact complies with the levels established for use of ICE resources. 

There are also many reports from advocates across the country of inappropriate 

actions by State and local enforcement officials where it is unclear if the officials 

are working under the guise of Secure Communities or other ICE ACCESS programs. For example, in Washington State, public defenders report that ICE agents 

routinely peruse the jails to single out Latino males for interrogation.15 It is common practice for ICE agents to simply place detainers on any defendant on the booking sheets provided by the jail without interviewing them. Since the majority of defendants arrested are for low-level misdemeanor offenses the majority of people 

being apprehended by ICE do not fit within the priorities of the Secured Communities initiative. In the municipality of Lynwood, Washington it is standard practice 

for individuals in traffic court to be interviewed by ICE officers. If believed to be 

undocumented, they are taken into ICE custody. Again, such tactics are akin to a 

fishing expedition and divert resources from more pressing law enforcement goals.16

Recommendations 

• Given ICE’s history of misdirecting its enforcement resources, and the lack of 

supervision and auditing of racial and ethnic profiling under 287(g) agreements, 

DHS should measure the impact of the program before expanding it further. No 

further expansion of the Secure Communities should take place until the program is thoroughly audited and clear guidelines are set forth. 

• Secure Communities initiatives, including data processing initiatives, should ensure that in every instance the State, local, or tribal police retain the discretion 

to determine whether ICE should be sent an individual’s data. 

• All jurisdictions participating in Secure Communities should receive training 

and guidance prohibiting illegal racial or other profiling. The DHS Office for 

Civil Rights and Civil Liberties should oversee the development of this training, 

with periodic review from the Department of Justice. The DOJ has made eliminating racial profiling a priority, and their oversight of this program would be 

an asset. 

• ICE should issue reports to Secure Communities partners and Congress on a 

regular basis with statistics on the crimes for which identified non-citizens are 

arrested, the disposition of the underlying criminal case, and the nationality 

and ethnicity of identified non-citizens. 

• The program should be independently evaluated to determine if the enforcement criteria have been met, the effects on community policing and willingness 

of witnesses and victims to report crimes, and the extent of racial or ethnic 

profiling. 

• All jurisdictions participating in Secure Communities should at the same time 

report periodically to ICE supervisors their arrest and identification statistics 

for oversight and management purposes. Any jurisdictions whose statistics indicate a racial profiling pattern should be suspended from the program. 

Ms. CLARKE. There being no further business, the committee 

stands adjourned. 

[Whereupon, at 5:01 p.m., the committee was adjourned.] 

(93) 

A P P E N D I X 

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON OF MISSISSIPPI FOR WILLIAM F. 

RILEY, ACTING EXECUTIVE DIRECTOR, OFFICE OF STATE AND LOCAL COORDINATION, 

IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY

Question 1. During the hearing, the committee was reassured that a number of 

the issues raised in the GAO report (GAO, Better Controls Needed Over Program 

Authorizing State and Local Enforcement of Federal Immigration Laws, GAO–09– 

109, January 30, 2009 ) would be addressed in a strategic plan currently under development. Please outline the issues that will be addressed in the plan. What is the 

time frame for the plan? How will the modifications in the strategic plan be implemented? 

Answer. In addition to revising the Memorandum of Agreement (MOA) to ensure 

that 287(g) agreements operate consistently with ICE priorities, ICE anticipates 

that the Strategic Plan for the Office of State and Local Coordination (OSLC) will 

be approved and published on or about September 4, 2009. The intent of the OSLC 

Strategic Plan is to better articulate OSLC’s mission, objectives, goals and priorities 

while detailing the framework for management of OSLC programs such as the ICE 

Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS), of which the delegation of 287(g) immigration authority is a part. 

Specifically, the OSLC Strategic Plan will establish a body of performance measures in support of improved management of ICE’s 287(g) partnerships. The plan establishes performance targets and identifies metrics to support them. These metrics 

presently include the number of 287(g) partnerships, the number of partnerships 

terminated or suspended due to lack of activity, types and level of criminal activity 

being encountered by 287(g) partners, and the number of criminal prosecutions. To 

further support internal control, the plan synchronizes with Department of Homeland Security priorities and includes provisions for compliance monitoring in the 

form of one or two program reviews per month by the ICE Office of Professional 

Responsibility (ICE OPR). Control activities will also include weekly review of each 

partner’s ENFORCE statistical data, which includes country of birth, gender, and 

age. The control activities and compliance monitoring set forth in the strategic plan 

will help further provide reasonable assurance of management control of the local 

application of 287(g) authority. 

Question 2. Please provide the committee with arrest statistics made under the 

287(g) program for fiscal year 2007 and fiscal year 2008 by jurisdiction and nature 

of crime. 

Answer. OSLC tracks encounters and not arrests. The purpose for the use of encounter is that a 287(g) trained individual typically ‘‘encounters’’ a foreign national 

subsequent to another law enforcement activity. 

During the time period covering the request, the primary interface used to collect 

data entered by field users was not designed to capture the ‘‘nature of crime’’. During the stated time period, ENFORCE, the primary data collection tool, relied and 

still relies heavily on user-provided information. This leads to data being entered 

in an inconsistent manner. 

Prior to October 2008, OSLC relied on generic data pulls provided by DRO and/ 

or OI. Since October 2008, OSLC has taken the lead in collecting and reporting its 

own statistical data. Since October 2008, changes/enhancements to ENFORCE have 

been requested and are being implemented to help track the nature of criminal activity under the 287(g) program. Previously this data was left to the user to input. 

Once the changes are in effect, the data entry fields will be mandatory and will require users to enter 287(g) driven information. 

Attached is the weekly summary dated April 5, 2009 which identifies the number 

of encounters by jurisdiction. 
94 

State 287(g) Office 2006 Total 2007 Total 2008 Total 2009 2009 Total Program Total Oct Nov Dec Jan Feb Mar Apr 

AL ..... ....................................... .............. .............. .............. .......... .......... .......... .......... 1 1 .......... 2 2 

AL State Police ............ .............. .............. .............. .......... .......... .......... .......... 1 1 .......... 2 2 

AR .... ....................................... .............. 8 871 88 62 59 54 82 69 12 426 1,305 

Benton County Sheriff’s Office. .............. 3 413 26 26 22 19 35 15 5 148 564 City of Springdale Police Department. .............. .............. 140 28 11 8 18 20 23 2 110 250 Rogers Police Department. .............. 2 103 12 6 12 5 13 15 2 65 170 Washington County 

Sheriff’s Office AR.

.............. 3 215 22 19 17 12 14 16 3 103 321 

AZ ..... ....................................... 418 5,208 16,129 1,343 1,274 1,185 1,313 1,260 1,344 431 8,150 29,905 

AZ Department of Corrections. 418 1,913 2,485 275 234 244 326 274 346 149 1,848 6,664 AZ Department of Public Safety. .............. 1 2 .......... .......... 28 .......... .......... .......... .......... 28 31 Maricopa County Sheriff’s Office. .............. 3,294 13,340 1,040 998 882 943 940 937 251 5,991 22,625 Pinal County Sheriff’s 

Office.

.............. .............. 45 6 4 4 8 25 43 1 91 136 

Yavapai County Sheriff’s Office. .............. .............. 257 22 38 27 36 21 18 30 192 449 

CA .... ....................................... 5,219 12,147 11,589 1,113 931 900 1,079 987 1,204 469 6,683 35,638 

Los Angeles County 

Sheriff’s Office.

3,650 4,544 3,854 442 409 329 442 378 423 224 2,647 14,695 

Orange County Sheriff’s Office. .............. 3,558 4,168 307 254 253 254 254 396 122 1,840 9,566 Riverside County Sheriff’s Office. 338 2,116 1,545 163 91 106 175 159 193 49 936 4,935 San Bernardino County Sheriff’s Office. 1,231 1,929 2,022 201 177 212 208 196 192 74 1,260 6,442 

CO .... ....................................... .............. 198 961 151 92 47 62 78 81 15 526 1,685 

CO Department of 

Public Safety.

.............. 198 786 120 62 26 39 54 56 7 364 1,348 

El Paso County Sheriff’s Office. .............. .............. 175 31 30 21 23 24 25 8 162 337 
95 

FL ..... ....................................... .............. 21 832 158 165 178 178 220 217 81 1,197 2,050 

Bay County Sheriff’s 

Office.

.............. .............. 7 19 26 24 3 18 14 2 106 113 

Brevard County Sheriff’s Office. .............. .............. .............. .......... .......... .......... 2 5 13 9 29 29 Collier County Sheriff’s 

Office.

.............. 18 813 104 82 96 118 148 129 56 733 1,564 

FL Department of Law 

Enforcement.

.............. 3 12 .......... .......... 1 1 2 1 .......... 5 20 

Jacksonville Sheriff’s 

Office.

.............. .............. .............. 31 49 43 51 41 52 9 276 276 

Manatee County Sheriff’s Office. .............. .............. .............. 4 8 14 3 6 8 5 48 48 

GA .... ....................................... .............. 128 4,732 347 343 319 355 291 338 125 2,118 6,978 

Cobb County Sheriff’s 

Office.

.............. 128 3,750 247 216 207 229 187 221 77 1,384 5,262 

GA Deptartment of 

Public Safety.

.............. .............. 9 2 .......... 3 2 2 .......... 1 10 19 

Hall County Sheriff’s 

Office.

.............. .............. 873 79 100 76 94 56 75 35 515 1,388 

Whitfield County Sheriff’s Office. .............. .............. 100 19 27 33 30 46 42 12 209 309 

MA .... ....................................... .............. .............. 76 9 1 5 2 5 3 3 28 104 

MA Department of 

Corrections.

.............. .............. 76 9 1 5 2 5 3 3 28 104 

MD ... ....................................... .............. .............. 232 33 23 26 22 31 33 10 178 410 

Frederick County 

Sheriff’s Office.

.............. .............. 232 33 23 26 22 31 33 10 178 410 

MO ... ....................................... .............. .............. 1 1 .......... .......... .......... .......... .......... .......... 1 2 

MO State Highway Patrol. .............. .............. 1 1 .......... .......... .......... .......... .......... .......... 1 2 

NC .... ....................................... 518 2,695 4,064 549 539 500 509 486 568 234 3,385 10,662 

Alamance County 

Sheriff’s Office.

.............. 299 523 47 19 26 41 32 32 22 219 1,041 

Cabarrus County Sheriff’s Office. .............. .............. 221 27 25 23 19 18 15 6 133 354 Cumberland County 

Sheriff’s Office.

.............. .............. 27 1 1 10 5 9 11 7 44 71 

Durham Police Department. .............. .............. 33 2 .......... 4 5 4 .......... .......... 15 48 
96 

State 287(g) Office 2006 Total 2007 Total 2008 Total 2009 2009 Total Program Total Oct Nov Dec Jan Feb Mar Apr 

Gaston County Sheriff’s Office. .............. 195 402 32 35 26 21 23 24 14 175 772 Henderson County 

Sheriff’s Office.

.............. .............. 104 21 30 67 70 40 39 11 278 382 

Mecklenburg County 

Sheriff’s Office.

518 2,201 2,213 189 209 170 176 183 236 110 1,273 6,205 

Wake County Sheriff’s 

Office.

.............. .............. 541 230 220 174 172 177 211 64 1,248 1,789 

NH .... ....................................... .............. .............. 5 .......... .......... .......... .......... .......... .......... .......... .............. 5 

Hudson City Police Department. .............. .............. 5 .......... .......... .......... .......... .......... .......... .......... .............. 5 

NJ ..... ....................................... .............. .............. .............. .......... .......... .......... .......... 10 10 7 27 27 

Hudson County Department of Corrections. .............. .............. .............. .......... .......... .......... .......... 10 10 7 27 27 

NM ... ....................................... .............. .............. 5 .......... .......... .......... .......... .......... .......... .......... .............. 5 

NM Department of 

Corrections.

.............. .............. 5 .......... .......... .......... .......... .......... .......... .......... .............. 5 

NV .... ....................................... .............. .............. .............. 10 130 139 230 236 251 82 1,078 1,078 

Las Vegas Metropolitan Police Dept. .............. .............. .............. 10 130 139 230 236 251 82 1,078 1,078 

OH .... ....................................... .............. .............. 347 42 56 38 25 33 36 8 238 585 

Butler County Sheriff’s 

Office.

.............. .............. 347 42 56 38 25 33 36 8 238 585 

OK .... ....................................... .............. 40 1,346 88 115 95 94 105 97 29 623 2,009 

Tulsa County Sheriff’s 

Office.

.............. 40 1,346 88 115 95 94 105 97 29 623 2,009 

SC ..... ....................................... .............. .............. 363 28 28 34 37 45 39 17 228 591 

Beaufort County Sheriff’s Office. .............. .............. 11 5 4 4 6 10 11 7 47 58 York County Sheriff’s 

Office.

.............. .............. 352 23 24 30 31 35 28 10 181 533 

TN .... ....................................... .............. 1,739 2,650 191 219 190 204 174 210 77 1,265 5,654 

Davidson County Sheriff’s Office. .............. 1,739 2,650 191 219 185 199 172 207 76 1,249 5,638 
97 

TN Department of 

Safety.

.............. .............. .............. .......... .......... 5 5 2 3 1 16 16 

TX ..... ....................................... .............. .............. .............. .......... 252 711 646 573 864 325 3,371 3,371 

Harris County Sheriff’s 

Office.

.............. .............. .............. .......... 252 711 646 573 864 325 3,371 3,371 

UT .... ....................................... .............. .............. .............. .......... 17 33 7 18 10 2 87 87 

Washington County 

Sheriff’s Office UT.

.............. .............. .............. .......... .......... 2 1 4 .......... .......... 7 7 

Weber County Sheriff’s 

Office.

.............. .............. .............. .......... 17 31 6 14 10 2 80 80 

VA .... ....................................... .............. 158 1,224 111 112 108 108 115 100 26 680 2,062 

City of Manassas Police Department. .............. .............. 1 .......... .......... .......... .......... .......... .......... .......... .............. 1 Herndon Police Department. .............. .............. 72 13 3 9 5 5 2 2 39 111 Loudoun County Sheriff’s Office. .............. .............. 2 3 5 4 9 5 3 .......... 29 31 Prince William County 

Police Department.

.............. .............. 30 5 11 8 8 5 3 .......... 40 70 

Prince William County 

Sheriff’s Office.

.............. .............. 2 .......... .......... .......... .......... .......... .......... .......... .............. 2 

Prince William-Manassas Adult Detention 

Center.

.............. 114 929 81 83 74 75 91 88 24 516 1,559 

Rockingham County 

Sheriff’s Office.

.............. 32 163 9 10 12 11 7 4 .......... 53 248 

Shenandoah County 

Sheriff’s Office.

.............. 12 25 .......... .......... 1 .......... 2 .......... .......... 3 40 

Program Total ............. 6,155 22,342 45,427 4,262 4,359 4,567 4,925 4,750 5,475 1,953 30,291 104,215 

No. of States Reporting: 22. No. of Offices Reporting: 58. The above ICE enforcement data/statistics reflect a ‘‘snapshot’’ of the data in the respective ICE Law Enforcement System (LES) at the time the report was 

compiled by the Executive Information Reporting Section. ICE enforcement data within the ICE LES may be modified at any given time by authorized personnel owning the data, which may result in an increase or decrease of ICE data/statistics previously reported. 
98 

Question 3. According to statements made by Sheriff Jenkins, Frederick County, Maryland is currently reimbursed $83 per day for each detainee held in its jail 

through its intergovernmental service agreement (IGSA) with ICE. However, Sheriff 

Jenkins has stated the actual cost for the county to hold and detain persons average 

$7 per day. How does ICE determine IGSA reimbursement rates and how often are 

these rates evaluated? 

Answer. Before ICE enters into an agreement with a county for detention space, 

a rate is negotiated with the county for the per diem costs of the detainee care and 

custody. Before negotiating a rate, the county must submit a Jail Services Cost 

Statement (JSCS). The JSCS outlines the facility’s entire operational costs for the 

jail. ICE determines the reimbursement rate by examining the cost elements from 

individual documents in the JSCS as submitted by the county. Cost components are 

examined and analyzed to determine whether they are allowable, can be allocated, 

and are reasonable in accordance with Office of Management and Budget (OMB) 

Circular A–87. Items reimbursed under this agreement include personnel costs, personnel benefits, consultant costs, on-site medical care expenses, and other direct 

costs as well as indirect costs and depreciation based on the purchase price for the 

county’s building. If a county provides transportation service, the county is reimbursed separately for this service. After examining actual costs of these components, 

a per diem rate is determined and negotiated with county officials. 

In accordance with Article XII of the IGSA, Adjusting the Detainee Day Rate, ICE 

shall reevaluate/adjust the detainee rate every twelve (12) months after the agreement becomes effective. If ICE does not receive an official request for a detainee day 

rate adjustment with a new JSCS, the fixed detainee day rate as stated in the 

agreement will remain in place indefinitely. 

In the last JSCS submitted by Frederick County to ICE, Frederick County pro- posed a per diem rate of $92.36. The JSCS supported rate is $83.00 per day. ICE 

will contact Frederick County to discuss the $7.00 figure you cite and determine 

whether a reevaluation is appropriate. 

Question 4. Section 12 of the Maricopa County MOA places reporting requirements on the Maricopa County Sheriff Office. Pursuant to that section of the agreement, has ICE requested data and statistical information on the ‘‘progress and success of the [Maricopa County] 287(g) program?’’ 

Answer. ICE frequently relies on ENFORCE, the administrative immigration 

booking system, to gather statistical information related to the 287(g) program. 

Agencies use ENFORCE when processing individuals who are subject to removal. 

Because ICE gathers information from ENFORCE on a real time basis, ICE has not 

frequently requested information directly from the Maricopa County Sheriff’s Office. 

However, the ENFORCE system historically had limited data fields related primarily to processing an alien. 

Based on an internal review and the recent GAO audit, ICE has requested several 

system changes to enable ICE to extract more detailed information from ENFORCE 

about the type and severity of the charges lodged against removable aliens identified by 287(g) officers. In addition, ICE is working to modify the MOA template to 

mandate the entry of certain mandatory data and ensure the partner agencies with 

287(g) authority exercise that authority in accordance with ICE’s priorities. 

Question 5. Section 14 of the Maricopa County MOA outlines a Complaint Procedure. Earlier this month, 5,000 people marched to complain about the program. 

What has ICE done to monitor and respond to complaints about the Maricopa County Sheriff’s use of the 287(g) program? 

Answer. The Maricopa County Sheriff’s Office (MCSO) MOA provides that complaints against MCSO personnel relating to their immigration enforcement should 

be reported to the ICE OPR and the MCSO’s Internal Affairs Division. ICE OPR 

forwards complaints to the Department of Homeland Security’s Office of Inspector 

General (DHS OIG) as appropriate for review, and will refer all allegations of racial 

and ethnic profiling, police misconduct, race and national origin discrimination, and 

limited language access to the U.S. Department of Justice Civil Rights Division 

(DOJ CRT) and the DHS Office of Civil Rights and Civil Liberties. 

Complaint reporting procedures are posted within all facilities under MCSO’s jurisdiction in English and Spanish in order to ensure that individuals are aware of 

the availability of such procedures. 

Additionally, ICE OPR created a 287(g) Inspection Group to conduct inspections 

of the 287(g) cross-designated State and local law enforcement agencies. These inspections are designed to determine if agencies are operating in compliance with 

MOA. In fiscal year 2008, ICE OPR inspected four 287(g) programs; and in fiscal 

year 2009, ICE OPR anticipates reviewing an additional 20 sites. OSLC reviews the 

ICE OPR audit report for any area identified as non-compliant with the MOA. The 

OSLC program will then consult with ICE Office of Investigation (ICE OI) and ICE 
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Office of Detention and Removal (DRO) to address issues identified in the ICE OPR 

reports. If any concerns with racial and ethnic profiling, police misconduct, race and 

national origin discrimination, and limited language access are raised as a result 

of an OPR review, OSLC will also consult with the DHS Office for Civil Rights and 

Civil Liberties and will refer all allegations to DOJ CRT. 

In September 2008, the ICE Office of Personnel Responsibility (OPR) conducted 

an audit of the MCSO 287(g) Delegation of Authority Program. MCSO utilizes both 

the Jail Enforcement Officer (JEO) program in which officers working in a detention 

environment (jail) that are trained to identify foreign nationals amenable to removal 

proceedings, after they have been arrested or convicted of violating criminal laws 

and the Task Force Officer (TFO) model in which officers work in an investigative 

setting and are trained to identify foreign nationals amenable to removal proceedings during the course of their duties. The OPR audit included interviews with 

ICE management, employees, in addition to interviews with MSCO management 

and their employees. The overall findings of the ICE Office of Professional Responsibility (OPR) audit support that MSCO is in compliance with the MOA. Recommendations were made to improve effectiveness and efficiency of the MOA, which 

included the establishment of a standard operation procedure (SOP) within the 

MOA specific to both the JEO and TFO model and the establishment of a uniform 

requirement for collecting and reporting specific statistical data. ICE has begun to 

apply such recommendations to the MCSO and other Law Enforcement Agencies 

(LEAs), which have 287(g) agreements with ICE to improve efficiency, reduce complaints, and better monitor the existing MOA. Finally, pursuant to the Secretary of 

Homeland Security’s action directives, ICE is currently re-drafting the standard 

MOA template to increase oversight and accountability. The revised MOA will also 

work to further ensure that 287(g) MOAs operate consistently with ICE arrest and 

detention priorities. 

Question 6. Section 16 of the Maricopa County MOA mandates the formation and 

maintenance of a steering committee to ‘‘ensure compliance with the terms of the 

Memorandum of Agreement.’’ Who is on that committee? Has it met? What has it 

met about? Did ICE and Maricopa hold a review meeting within 9 months of the 

start of the program as mandated by the agreement? 

Answer. The Maricopa County MOA was signed on February 24, 2007. The first 

Steering Committee meeting was held on September 6, 2007, which was within the 

required 9-month guideline as outlined in the MOA. The second Steering Committee 

meeting was held on October 21, 2008. The next steering committee meeting is 

scheduled to be held in October 2009. 

The September 6, 2007, meeting was held at the MCSO Executive Conference 

Room in Phoenix, Arizona. The Representatives from the following ICE offices were 

in attendance: 

ICE 

Special Agent in Charge, ICE OI, SAC Office Phoenix; Deputy Special Agent in 

Charge, ICE OI, SAC Office Phoenix; Group Supervisor ICE OI, SAC Office Phoenix; 

Chief Counsel, Phoenix Office of the Chief Counsel Office, ICE Office of the Principal Legal Advisor (OPLA); Assistant Field Office Director, ICE DRO, Phoenix; Assistant Field Office Director, ICE DRO, Phoenix; and Supervisory Deportation Officer, ICE DRO Phoenix. 

MCSO officers were also present. 

MCSO 

Sheriff; Super Chief; Chief Deputy; Lieutenant; Lieutenant; Lieutenant; Joe Sousa. 

The issues discussed included, but were not limited to, the following topics: background investigations/vetting; computer equipment for five additional sites; training 

completion; media coordination under the MOA; ICE Fusion Center; statistics; and 

MCSO 287(g) successes. 

The October 21, 2008, meeting was held at MCSO in the Executive Conference 

Room in Phoenix, Arizona. ICE and MCSO representatives were in attendance. 

ICE 

Special Agent in Charge, ICE OI, SAC Office Phoenix; Assistant Special Agent in 

Charge, ICE OI, SAC Office Phoenix; Assistant Special Agent in Charge, ICE OI, 

SAC Office Phoenix; Deputy Field Office Director, DRO; Senior Attorney, Phoenix 

Office of the Chief Counsel Office, ICE, OPLA; Public Affairs Officer, ICE; Senior 

Special Agent, ICE OI, SAC Office Phoenix; Special Agent, ICE OI, SAC Office 

Phoenix; Special Agent, ICE OI, SAC Office Phoenix; Staff Assistant, ICE OI, SAC 

Office Phoenix. 
100 

MCSO 

Chief; Captain; Captain; Lieutenant; Sergeant; Sergeant; Lieutenant. 

A roundtable introduction of all members was initiated by SAC Matthew Allen. 

SAC Allen reiterated the reason behind the Steering Committee meetings. He explained that per the MOA, ICE is required to have these meetings at least once a 

year. Additionally, Chief Sheridan commented that MCSO has an excellent working 

relationship with ICE. 

The issues discussed included, but were not limited to arrest statistics and 

progress of the program; future training; 287(g) Letters of Authorization and credentials; Virtual University recurring training; ICE OPR and MCSO Internal Affairs; 

287(g) property inventory; and media relations. 

Question 7. Section 15 of the Maricopa County agreement binds Maricopa County 

Sheriff’s Officers to U.S. civil rights laws and specifically to the U.S. Department 

of Justice ‘‘Guidance Regarding the Use of Race by Federal Law Enforcement Agencies.’’ Given complaints from Phoenix Mayor Phil Gordon, from community members, and from media outlets that the 287(g) program is being used to racially profile Latinos, what steps has ICE taken to ensure compliance with this section of the 

MOA? 

Answer. We understand that the Department of Justice has initiated an investigation of allegations of discriminatory police practices and unlawful searches and seizures by the Maricopa County Sheriff’s Office (MCSO). DOJ will thus be in the best 

position to determine, following that investigation, whether the MCSO is in fact in 

compliance with applicable civil rights laws. 

ICE provides a 4-week training program to LEAs who are authorized to receive 

training under the 287(g) MOA. The training is held at the Federal Law Enforcement Training Center (FLETC) Advanced Training Site in Charleston, SC, where 

certified instructors conduct the training. The 287(g) Training Program includes 

guidance, mandated by the DOJ, regarding the Use of Race by Federal Law Enforcement Agencies. An overview on civil rights is also part of the 287(g) Training Program and training program participants receive a 2-hour lesson on Alien Encounters. This lesson includes instruction on the levels of encounters, as well as the primary line of questioning to establish alienage and removability. 

Racial profiling and civil rights issues are also covered in the ‘‘Use of Race’’ and 

‘‘Officer Liability’’ courses as part of the 287(g) Training Program. These courses 

specifically cover racial profiling practices and the Constitutional concerns regarding 

the use of race in the conduct of law enforcement activities. These courses outline 

the necessity to establish or observe more than one articulable fact, not based on 

race, that leads the officers to believe that the subject(s) is/are in the United States 

illegally, and have no right to be in, remain or reside in, or transit through United 

States lawfully. 

It should also be noted that ICE is currently in the process of incorporating a racial profiling training module into the Virtual University annual refresher training 

curriculum that will be mandatory for all 287(g) officers to take. 

QUESTIONS FROM CHAIRMAN BENNIE G. THOMPSON OF MISSISSIPPI FOR RICHARD M. 

STANA, DIRECTOR, HOMELAND SECURITY AND JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE

Question 1. According to your report, there seemed to be significant confusion 

among 287(g) program participants about what they could or could not do pursuant 

to their 287(g) authority. What should ICE do to ensure local agencies understand 

the limitations and scope of their 287(g) agreements? Does ICE review program participants to ensure they are acting within the scope of their authority pursuant to 

287(g)? 

Answer. Currently, the Memorandum of Agreement (MOA) between State and 

local 287(g) participants and Immigration Customs Enforcement (ICE) are broadly 

written and do not consistently communicate the objective of the 287(g) program or 

under what circumstances 287(g) authority is to be used. For example, ICE officials 

told us that the objective of the program is to enhance the security and safety of 

communities by addressing serious crime such as narcotics smuggling committed by 

removable aliens. However, ICE has not documented these objectives in program 

materials. We identified instances where participating agencies have used their 

287(g) authority to process for removal aliens arrested for minor offenses. All of the 

MOA’s we reviewed contained language that authorizes State or local officers to interrogate ‘‘any person’’ believed to be an alien as to his right to be or remain in the 

United States, but none specified when or how this authority was to be used. Some 

program participants we interviewed interpreted this as giving them broad powers 

to enforce immigration law. According to ICE officials and other ICE documents, 
101 

287(g) authority is to be used in connection with an arrest for a State offense; however, we noted that none of the MOAs state that any use of 287(g) authority should 

be preceded by an arrest. And while the processing of individuals for possible removal is to be done in connection with a conviction for a State or Federal felony 

offense, seven MOAs we examined were void of this language (these were earlier 

MOAs that have never been revised). We recommended that ICE document the objective of the 287(g) program for participants and clarify and document how and 

under what circumstances 287(g) authority is to be used by State and local law enforcement officers in participating agencies. 

According to ICE, its Office of Professional Responsibility (OPR) has implemented 

a regular inspection process to assess local law enforcement agencies’ compliance 

with the terms of the MOA. Currently, the OPR inspections are conducted using 

checklists developed primarily from information in the applicable MOA. According 

to OPR officials, it completes an inspection report after each inspection that will be 

used to address any deficiencies identified. At the time of our review, ICE had performed only a limited number of these inspections and none of the inspection reports had been finalized. As noted in our report, these inspections do not include 

performance assessments of the program. ICE has not yet developed performance 

measures from which to monitor how the program is being implemented. Performance measures are important to provide ICE with a basis for determining whether 

the program is achieving its intended results. 

Question 2. According to your report, over half of the 29 agencies GAO contacted 

conveyed concerns from community members that use of 287(g) program authority 

would lead to racial profiling and intimidation by law enforcement officials. To what 

do you attribute this concern? Could ICE do more to ensure that profiling and intimidation will not occur under 287(g)? If so, what? 

Answer. The enforcement of immigration law by State and local officials has 

raised concerns among some community and immigrants’ rights groups about the 

proper role of such law enforcement officials. As noted in our report, more than half 

of the 29 State and local law enforcement agencies we interviewed reported concerns 

that some members of their communities expressed about the 287(g) program including fear and apprehension that law enforcement officers would engage in racial 

profiling. Groups are also concerned that such activities could lead to apprehension 

in immigrant communities and less inclination to report crimes out of fear that officers with 287(g) authority would inquire about crime victims’ immigration status. 

Groups said that these concerns may reduce the effectiveness of the program and 

other law enforcement initiatives, which they believe were intended to target serious 

criminal activity. 

These concerns underscore the importance of ICE having management controls to 

help ensure that the program was operating as intended; however, we found that 

key controls were lacking. First, while ICE officials have stated that the main objective of the 287(g) program is to enhance the safety and security of communities by 

addressing serious criminal activity committed by removable aliens, they have not: 

(1) Documented this objective in 287(g)-related materials for participants; (2) clarified when the 287(g) authority is authorized for use by State and local law enforcement officers; (3) documented in MOAs the nature and extent of supervisory activities ICE officers are expected to carry out as part of their responsibilities in overseeing the implementation of the 287(g) program and communicate that information 

to both ICE officers and State and local participating agencies. As a result, some 

participating agencies are using their 287(g) authority to process for removal aliens 

who have committed minor crimes, such as carrying an open container of alcohol. 

Second, ICE has not consistently articulated in program-related documents how participating agencies are to use their 287(g) authority. For instance, although the processing of individuals for possible removal is to be conducted in connection with a 

conviction of a State or Federal felony offense, this issue is not mentioned in 7 of 

the 29 MOAs we reviewed. Third, ICE has not described the nature and extent of 

the agency’s supervision over participating agencies’ implementation of the program. 

This has led to wide variation in the perception of the nature and extent of supervisory responsibility among ICE field officials and officials from 23 of the participating agencies that provided information on ICE supervision. 

We made recommendations for ICE to improve its management controls in these 

areas. Specifically, we recommended that ICE document the objective of the 287(g) 

program for participants, clarify when the 287(g) authority is authorized for use by 

State and local law enforcement officers, and document in MOAs the nature and extent of supervisory activities ICE officers are expected to carry out as part of their 

responsibilities in overseeing the implementation of the 287(g) program and communicate that information to both ICE officers and State and local participating agen-
102 

cies. One of these supervisory activities would be to ensure that State and local officers are exercising their 287(g) authority in full compliance with Federal law. 

Another way to help address community concerns is through community outreach. 

Each of the MOAs we reviewed discusses engaging in community outreach with individuals and organizations expressing an interest in the 287(g) program. However, 

community outreach is not a requirement of the program, and the nature and extent 

of outreach is left to the discretion of the State or local agency. Nearly all of the 

29 jurisdictions we reviewed told us they engaged in community outreach and that 

doing so helped address concerns about the 287(g) program. 

Question 3. How are complaints about the 287(g) program processed at ICE? Do 

you believe there is sufficient transparency in the 287(g) program? ICE has stated 

there have been no complaints made related to the program. Yet, the media has 

highlighted various troubling accounts of program management. How would you explain this gap? 

Answer. According to the MOAs, complaints involving participating State and 

local personnel with regard to 287(g) immigration enforcement actions will be accepted from any source (e.g., ICE, the State or local agency, personnel operating 

under 287(g) authority, and the public). The complaints can be reported to ICE 

Headquarters Office of Professional Responsibility (ICE OPR) or to the participating 

agency telephonically or by mail. Each MOA includes the office names, addresses, 

and telephone numbers for ICE OPR and the State or local agency where complaints 

can be reported. 

The MOAs state that regardless of where the complaint is initially received, ICE 

OPR and the State or local agency are to coordinate complaint receipt and investigation. ICE OPR is to follow its established procedures relating to the review, reporting, and resolution of allegations of employee misconduct. In this regard, ICE OPR 

is to forward complaints to the Department of Homeland Security’s Office of Inspector General (DHS OIG), as appropriate, for review, and ensure notification as necessary to the U.S. Department of Justice Civil Rights Division. ICE OPR may also 

refer complaints it receives involving participating State and local personnel to the 

agency for resolution. For its part, the State or local agency is to follow its own applicable policies and procedures, personnel rules, State statutes, and any other operating guidelines, and is to inform ICE OPR of the disposition and resolution of any 

complaints referred by ICE OPR. 

The MOAs state that complaint-reporting procedures shall be disseminated as appropriate by the participating agency within facilities under its jurisdiction in order 

to ensure that individuals are aware of the complaint procedures. We observed that 

the complaint procedures were posted at selected locations we visited, but we did 

not assess the public exposure to avenues for filing a complaint. The complaint-reporting procedures pertaining to the 287(g) program are not posted on the ICE web 

site. 

In response to our inquiries, neither ICE OPR nor the 29 participating jurisdictions we reviewed told us they received any complaints of officer misconduct related 

to the 287(g) program. We do not know why the apparent discrepancy exists between media reports of program problems and the lack of formal complaints to ICE 

OPR or the participating State and local agencies. 

Question 4. My understanding is that under 287(g), State and local law enforcement participants are ‘‘supervised’’ by an ICE agent. Based on your review, what 

does ICE’s supervision consist of? Do you believe that supervision is adequate to ensure participants are abiding by the requirements of the program? If not, what more 

does ICE need to do? 

Answer. The statute that established the program specifically requires ICE to direct and supervise the activities of the State and local officers who participate in 

the 287(g) program. The statute and associated legislative history, however, do not 

define the terms of direction and supervision, which leaves the responsibility for defining them to ICE. Although ICE has the discretion to define these terms in any 

manner that it deems reasonable, it has not defined them in program documents. 

Based on our interviews with officials from the 29 participating jurisdictions we reviewed, there was wide variation in the type and amount of supervision provide by 

ICE. Some participants expressed satisfaction with the ICE supervision they received, while others expressed dissatisfaction. According to ICE officials, supervision 

of participating agencies varied due to shortages of supervisory resources. These officials said it has been necessary in many instances to shift local ICE resources from 

other programs or to utilize new supervisory officers to provide the required oversight and to manage the additional workload that has resulted from the 287(g) program. We recommended that ICE document the nature and extent of supervisory 

activities ICE officers are expected to carry out as part of their responsibilities in 

overseeing the implementation of the 287(g) program and to ensure that this infor-
103 

mation is communicated to both ICE officers and the State and local participating 

agencies. 

Question 5. What efforts on the part of DHS, ICE, and State/local agencies are 

being undertaken to ensure that the training provided to State and local law enforcement agents is comparable to the complex and voluminous body of immigration 

law training ICE agents receive? How did the participants you interviewed for your 

report view their training? What kind of continuing education requirements exist for 

the officers? How does ICE monitor completion of ‘‘refresher’’ training? 

Answer. State and local officers participating in the 287(g) program attend a mandatory 4-week training program at the Federal Law Enforcement Training Center. 

This program includes training in areas consistent with that given to ICE agent, 

although more condensed—immigration and criminal law, document examinations, 

cross-cultural communications and intercultural relations, alien status, ICE operations, statutory authority, removal charges, ICE use of force policy, and avoidance 

of racial profiling. In order to become certified to exercise certain authorities of an 

immigration officer, participants are required to pass written examinations which, 

according to ICE, are equivalent to those given to ICE officers. While we did not 

specifically evaluate training program content, officials from the 29 participating jurisdictions we reviewed consistently told us that the ICE prepared them to perform 

their 287(g) activities. The MOAs that we reviewed state that, approximately 1 year 

after participating agencies personnel are trained and certified, ICE will provide 

those personnel with additional updated training. However, at the time of our review, ICE had not yet established a continuing-education requirement or refresher 

training for 287(g) participants. 

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