Immigration Enforcement: Controls over Program Authorizing State and Local Enforcement of Federal Immigration Laws Should Be Strengthened
Published: 2009-03-04T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: This testimony discusses 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. 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. 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. The first such agreement under the statute was signed in 2002, and as of February 2009, 67 state and local agencies were participating in this program. The testimony today is based on our January 30, 2009, report regarding the program including selected updates made in February 2009. 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. 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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. 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. 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. The first 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. 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. 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.
subsections: section_title: ICE Lacks Key Internal Controls for Implementation of the 287(g) Program
paragraphs: 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 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. 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 as-needed 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 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. 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. 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.
section_title: Program Resources Are Used for Training, Supervision, and Equipment; Benefits and Concerns Are Reported by ICE and Participating Agencies
paragraphs: 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. 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. 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 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.
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.
section_title: GAO Contacts and Staff Acknowledgments
paragraphs: For questions about this statement, please contact Richard Stana at 202- 512-8777 or stanar@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this statement. Individuals making key contributions to this statement  include Bill Crocker, Lori Kmetz, Susanna Kuebler, and Adam Vogt.
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