Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws
Released: 2009-03-04T00:00:00

Letter

Background

Section 287(g) of the INA, as amended, authorizes ICE to enter into written agreements under which state or local law enforcement agencies may perform, at their own expense and under the supervision of ICE officers, certain functions of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States. The statute also provides that such an agreement is not required for state and local officers to communicate with ICE regarding the immigration status of an individual or otherwise to cooperate with ICE in the identification and removal of aliens not lawfully present in the United States. Thus, 287(g) agreements go beyond state and local officers’ existing ability to obtain immigration status information from ICE and to alert ICE to any removable aliens they identify. Under these agreements, state and local officers are to have direct access to ICE databases and act in the stead of ICE agents by processing aliens for removal. They are authorized to initiate removal proceedings by preparing a notice to appear in immigration court and transporting aliens to ICE-approved detention facilities for further proceedings.

Section 287(g) and its legislative history do not detail the exact responsibilities to be carried out, the circumstances under which officers are to exercise 287(g) authority, or which removable aliens should be prioritized for removal, thus giving ICE the discretion to establish enforcement priorities for the program. The statute does, however, contain a number of detailed requirements or controls for the program. It requires that a written agreement be developed to govern the delegation of immigration enforcement functions (e.g., MOA), ICE determine that any officer performing such a function is qualified to do so (e.g., background security check), the officer have knowledge of, and adhere to, federal law relating to immigration (e.g., training), officers performing immigration functions have received adequate training regarding enforcement of federal immigration laws (e.g., written certification of training provided upon passing examinations), any officer performing such a function be subject to the direction and supervision of ICE, with the supervising office to be specified in the written agreement, and specific powers and duties to be exercised or performed by state or local officers be set forth in the written agreement.

Currently, the 287(g) program is the responsibility of ICE’s Office of State and Local Coordination (OSLC). The OSLC is responsible for providing information about ICE programs, initiatives, and authorities available to state and local law enforcement agencies. In August 2007, OSLC organized its various programs to partner with state and local law enforcement agencies as Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS). ACCESS offers state and local law enforcement agencies the opportunity to participate in 1 or more of 13 programs, including the Border Enforcement Security Task Forces, the Criminal Alien Program, and the 287(g) program. More detailed descriptions of the ACCESS programs appear in appendix IV. Under ACCESS, OSLC officials are to work with state and local applicants to help determine which assistance program would best meet their needs. For example, before approving an applicant for 287(g) program participation, OSLC officials are to assess first whether ICE has the resources to support the applicant, such as available detention space and transportation assets based on what historical patterns indicate will be the approximate number of removable aliens apprehended per year by the applying law enforcement agency. Based on an overall assessment of these and other factors, such as the type of agreement requested, availability of training, congressional interest, and proximity to other 287(g) programs, ICE may suggest that one or more of the other assistance programs under ACCESS would be more appropriate.

Within the 287(g) program, ICE has developed three models for state and local law enforcement participation. One model, referred to as the “jail model,” allows for correctional officers working in state prisons or local jails to screen those arrested or convicted of crimes by accessing federal databases to ascertain a person’s immigration status. Another option, referred to as the “task force model,” allows law enforcement officers participating in criminal task forces such as drug or gang task forces to screen arrested individuals using federal databases to assess their immigration status. ICE has approved some local law enforcement agencies to concurrently implement both models, an arrangement referred to as the “joint model.”

The 287(g) program has grown rapidly in recent years as more state and local communities seek to address criminal activity by those in the country illegally with specialized training and tools provided by ICE. From its initiation 287(g) authority was viewed by members of Congress as an opportunity to provide ICE with more resources—in the form of state and local law enforcement officers—to assist ICE in the enforcement of immigration laws. In 2005, the conference committee report for DHS’s appropriation encouraged ICE to be more proactive in encouraging state and local governments to participate in the program. Beginning in fiscal year 2006, DHS appropriations acts expressly provided funds for the 287(g) program, and accompanying committee reports provided guidance on program implementation. In fiscal year 2006, the DHS Appropriations Act provided $5.0 million to facilitate 287(g) agreements, and the accompanying conference report noted full support for the program, describing it as a powerful force multiplier to better enforce immigration laws and, consequently, to better secure the homeland. In fiscal year 2007, ICE received $5.4 million for the 287(g) program in its regular appropriation and allocated $10.1 million in supplemental funding towards the program. In fiscal year 2008, ICE received $39.7 million for the program, and has received $54.1 million for fiscal year 2009 to support the program. Accompanying committee reports have emphasized that ICE should perform close monitoring of compliance with 287(g) agreements, extensive training prior to delegation of limited immigration enforcement functions, direct supervision of delegated officers by ICE, and enrollment of correctional facilities in the program to identify more removable aliens.

Participating state and local law enforcement agencies in the 287(g) program may apply for financial assistance to cover some costs associated with the program either directly from ICE or through grants provided by the Department of Justice (DOJ). For example, for agencies with contractual reimbursement agreements, ICE can reimburse law enforcement agencies for (1) detention of incarcerated aliens in local facilities who are awaiting processing by ICE upon completion of their sentences and (2) transportation of incarcerated aliens, upon completion of their sentences, from a jurisdiction’s facilities to a facility or location designated by ICE. In addition, state and local law enforcement agencies may apply for grants from the DOJ’s State Criminal Alien Assistance Program (SCAAP) for a portion of the costs of incarcerating certain removable aliens convicted of a felony or two or more misdemeanors.

ICE Lacks Key Internal Controls for the Implementation of the 287(g) Program

The 287(g) program lacks several management controls that limit ICE’s ability to effectively manage the program. First, ICE has not documented the program’s objectives in program-related materials. Second, program- related documents, including the MOA, lack specificity as to how and under what circumstances participating agencies are to use 287(g) authority, or how ICE will supervise the activities of participating agencies. Third, ICE has not defined what program information should be tracked or ensured that program information is being consistently collected and communicated, which would help ensure that management directives are followed. And finally, ICE has not developed performance measures to assess the effectiveness of the 287(g) program and whether it is achieving its intended results.

ICE Has Not Documented the 287(g) Program Objective in Program- Related Documents

According to ICE senior program officials, the main objective of the 287(g) program is to enhance the safety and security of communities by addressing serious criminal activity such as violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering committed by removable aliens. However, program-related documents, including the MOAs and program case files for the initial 29 participating agencies, the 287(g) brochure, training materials provided to state and local officers, and a “frequently asked questions” document do not identify this as the objective of the 287(g) program. Internal controls also call for agencies to establish clear, consistent objectives. In addition, GPRA requires agencies to consult with stakeholders to clarify their missions and reach agreement on their goals. Successful organizations we have studied in prior work involve stakeholders in program planning efforts, which can help create a basic understanding among the stakeholders of the competing demands that confront most agencies, the limited resources available to them, and how those demands and resources require careful and continuous balancing.

The statute that established the 287(g) program and associated legislative history do not set enforcement priorities for the program, which leaves the responsibility to ICE. Therefore, ICE has the discretion to define the 287(g) program objectives in any manner that is reasonable. Although ICE has prioritized its immigration enforcement efforts to focus on serious criminal activity because of limited personnel and detention space, ICE officials told us they did not document the stated 287(g) program objectives as such because a situation could arise where detention space might be available to accommodate removable aliens arrested for minor offenses. We identified cases where participating agencies have used their 287(g) authority to process for removal aliens arrested for minor offenses. For example, of the 29 participating agencies we reviewed, 4 agencies told us they used 287(g) authorities to process for removal those aliens the officers stopped for minor violations 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. Due to the rapid growth of the 287(g) program, an unmanageable number of aliens could be referred to ICE if all the participating agencies sought assistance to remove aliens for such minor offenses. Another potential consequence of not having documented program objectives is misuse of authority. The sheriff from a participating agency said that his understanding of the 287(g) authority was that 287(g)-trained officers could go to people’s homes and question individuals regarding their immigration status even if the individual is not suspected of criminal activity. Although it does not appear that any officers used the authority in this manner, it is illustrative of the lack of clarity regarding program objectives and the use of 287(g) authority by participating agencies.

While agencies participating in the 287(g) program are not prohibited from seeking the assistance of ICE for aliens arrested for minor offenses, detention space is routinely very limited and it is important for ICE to use these and other 287(g) resources in a manner that will most effectively achieve the objective of the program—to process for removal those aliens who pose the greatest threat to public safety. According to ICE’s Office of Detention and Removal (DRO) strategic plan, until more alternative detention methods are available, it is important that their limited detention bed space is available for those aliens posing greater threats to the public. ICE’s former Assistant Secretary made this point in her congressional testimony in February 2008, stating that given the rapid growth of the program in the last 2 years, it is important to ensure that ICE’s bed space for the 287(g) program is used for the highest priority aliens. This may not be achieved if ICE does not document and communicate to participating agencies its program objective of focusing limited enforcement and detention resources on serious and/or violent offenders.

Program-Related Documents Lack Detail Regarding Program Implementation and ICE Supervision Activities

ICE has not consistently articulated in program-related documents, such as MOAs, brochures and training materials, how participating agencies are to use their 287(g) authority, nor has it described the nature and extent of ICE supervision over these agencies’ implementation of the program. Internal control standards state that government programs should establish control activities to help ensure management’s directives are carried out. According to ICE officials, they use various controls to govern the 287(g) program, including conducting background checks on officers working for state and local law enforcement agencies that apply to participate in the 287(g) program, facilitating a training program with mandatory examinations to prepare law enforcement officers to carry out 287(g) program activities, and documenting agreements reached on program operations in the MOA.

Use of 287(g) Authority Is Not Consistently Communicated to Program Participants

ICE has not consistently communicated, through its MOAs with participating agencies, how and under what circumstances 287(g) authority is to be used. Internal control standards state that government programs should establish control activities, including ensuring that significant events are authorized and executed only by persons acting within the scope of their authority. For the 287(g) program, ICE officials identified the MOA as a key control document signed by both ICE and participating agency officials. The MOA is designed to help ensure that management’s directives for the program are carried out by program participants. However, the MOAs we reviewed were not consistent with statements by ICE officials regarding the use of 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 initial 29 participating agencies. Due to the rapid expansion of the 287(g) program in the last 2 years, it is important that ICE consistently communicate to participating agencies how this authority is to be used to help ensure that state and local law enforcement agents are not using their 287(g) authority in a manner not intended by ICE.

Program-Related Documents Do Not Define Nature and Extent of ICE Supervision

ICE has also not defined in its program-related documents the responsibilities required of ICE agents directing and supervising local officers under the 287(g) program. Internal control standards state that a good internal control environment requires that an agency’s organizational structure define key areas of authority and responsibility. 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.

In our analysis of the 29 MOAs, we found little detail regarding the nature and extent of supervisory activities to be performed by ICE working with state and local law enforcement officers. For example, the MOAs state that participating officers will be supervised and directed by ICE regarding their immigration enforcement functions. The MOAs also state that participating officers cannot perform any immigration officer functions except when being supervised by ICE, and that those actions will be reviewed by ICE supervisory officers on an ongoing basis to ensure compliance and to determine if additional training is needed. The MOAs further state that the participating state or local agency retains supervisory responsibilities over all other aspects of the officers’ employment. However, details regarding the nature and extent of supervision, such as whether supervision is to be provided remotely or directly, the frequency of interaction, and whether reviews are conducted as written assessments or through oral feedback, are not described in the MOAs or in any documentation provided to us by ICE.

In response to our inquiry, ICE officials did not provide a clear definition of the nature and extent of ICE supervision to be provided to participating agencies. These officials also cited a shortage of supervisory resources. The Assistant Director for the Office of State and Local Coordination that manages the 287(g) program said the ICE officer who supervises the activities of a participating agency’s officers is responsible for conducting general tasks, such as reviewing and providing oversight over the information added to immigration files; however, he also said the ICE official responsible for supervising the activities of a participating agency’s officers may not have a supervisory designation within ICE. He added that documentation of an ICE 287(g) supervisor’s responsibilities may be included in the position description of a Supervisory Detention and Deportation Officer. We examined seven position descriptions provided by ICE, including this position. Some of the activities described in this position description address such issues as level of supervision or direction and expectations setting for subordinates. For example, the position description for a Supervisory Detention and Deportation Officer establishes guidelines and performance expectations that are clearly communicated, observes workers’ performance and conducts work performance critiques, provides informal feedback, assigns work based on priorities or the capabilities of the employee, prepares schedules for completion of work, gives advice and instruction to employees, and identifies developmental and training needs, in addition to other duties. However, because supervision activities specific to the 287(g) program (or more generally, state and local law enforcement officers carrying out immigration enforcement activities) were not contained in the description, it is unclear the extent to which the supervisory activities enumerated in those position descriptions would apply to the supervision of state and local officers in the 287(g) program.

Further, ICE officials in headquarters noted that the level of ICE supervision provided to participating agencies has varied due to a shortage of supervisory resources. The officials said it has been necessary in many instances for ICE to shift local resources 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. For example, agents from ICE’s Office of Investigations (OI) and DRO have been detailed to the 287(g) program to fulfill the requirement within section 287(g) of the INA, which mandates that ICE supervise officers performing functions under each 287(g) agreement. Officials explained that these detailees have been taken away from their permanent positions, which affects ICE’s ability to address other criminal activity. ICE officials noted that the small number of detailed agents does not have a significant impact on ICE’s overall ability to supervise the 287(g) program in the field.

In addition to the views by ICE officers in headquarters, we asked ICE field officials about 287(g) supervision. There was wide variation in the perceptions of what supervisory activities are to be performed. 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 the computer systems are working properly. Officials at another field office described their supervisory activities as reviewing files for completeness and accuracy.

We also asked state and local officers about ICE supervision related to this program. Officials from 14 of the 23 agencies that had implemented the program gave positive responses when asked to evaluate ICE’s supervision of their 287(g)-trained officers. Another four law enforcement agencies characterized ICE’s supervision as fair, adequate, or provided on an as- needed basis. Three agencies said they did not receive direct ICE supervision or that supervision was not provided daily, which one agency 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. One of these officials noted that it was difficult to establish a relationship with the relevant managers at the local ICE office because there was constant turnover in the ICE agents responsible for overseeing the 287(g) program. Given the rapid growth of the program and ICE’s limited supervisory resources, defining supervision activities would improve ICE’s ability to ensure management directives are carried out appropriately.

ICE Has Not Ensured Information Regarding the 287(g) Program Is Obtained and Communicated

Collection and Reporting Requirements Are Not Defined

While ICE states in its MOAs that participating agencies are responsible for tracking and reporting data, the MOA did not provide details as to what data needs to be collected or in what manner data should be collected and reported. For example, in 20 of the 29 MOAs we reviewed, ICE generally required participating agencies to track data, but the MOA did not define what data should be tracked, or how data should be collected and reported to ICE.

Specifically, the reporting requirements section in 20 of the MOAs states: The LEA will be responsible for tracking and maintaining accurate data and statistical information for their 287(g) program, including any specific tracking data requested by ICE. Upon ICE’s request, such data and information shall be provided to ICE for comparison and verification with ICE’s own data and statistical information, as well as for ICE’s statistical reporting requirements and to help ICE assess the progress and success of the LEA’s 287(g) program.

Furthermore, results of our structured interview with 29 program participants indicated confusion regarding reporting requirements. For example, of the 20 law enforcement agencies we reviewed whose MOA contained a reporting requirement: 7 agencies told us they had a reporting requirement and reported data to ICE; 3 agencies told us they had a requirement, but were not sure what specific data was to be reported; 3 agencies told us they were not required to report any data; 2 agencies told us that while ICE did not require them to report data, they submitted data to ICE on their activities anyway; and 5 agencies did not respond directly regarding a reporting requirement.

Of the nine program participants we interviewed without a reporting requirement in the MOA: 5 agencies told us they reported data to ICE; 2 agencies told us they were not required to report data to ICE, but did so anyway; 1 agency told us they do not report data to ICE; and 1 agency did not know if they were required to report data to ICE.

According to internal control standards, pertinent information should be recorded and communicated to management and others within the entity that need it in a form and within a time frame that enables them to carry out internal control and other responsibilities. Consistent with these standards, agencies are to ensure that information relative to factors vital to a program meeting its goals is identified and regularly reported to management. For example, collecting information such as the type of crime for which an alien is detained could help ICE determine whether participating agencies are processing for removal those aliens who have committed serious crimes, as its objective states. Without clearly communicating to participating agencies guidance on what data is to be collected and how it should be gathered and reported, ICE management may not have the information it needs to ensure the program is achieving its objective.

Performance Measures to Fully Evaluate the 287(g) Program Are Lacking

While ICE has defined the objective of the 287(g) program—to enhance the safety and security of communities by addressing serious criminal activity by removable aliens— the agency has not developed performance measures for the 287(g) program to track the progress toward attaining that objective. 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. Our previous work has shown that agencies successful in evaluating performance had measures that demonstrated results, covered multiple priorities, provided useful information for decision making, and successfully addressed important and varied aspects of program performance. Internal controls also call for agencies to establish performance measures and indicators. 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. In accordance with standard practices for program and project management, specific desired outcomes or results should 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.

ICE officials told us that, although they have not yet developed performance measures, in an effort to monitor how the program is being implemented, they are beginning to conduct compliance inspections based on information provided in the MOA in locations where the 287(g) program has been implemented. ICE’s Office of Professional Responsibility (OPR) was recently directed to conduct field inspections of all participating 287(g) program agencies. OPR officials state that the inspections are based on a checklist drawn from participating agencies’ MOAs as well as interviews with state and local law enforcement agencies and ICE officials who are responsible for overseeing these agencies. OPR’s checklists include items such as the review of the arrest and prosecution history of undocumented criminals, relevant immigration files, and ICE’s Enforcement Case Tracking System (ENFORCE) entries, as well as review of any complaints by those detained pursuant to the 287(g) program directed towards ICE, state and local law enforcement officers. OPR officials use this checklist to confirm whether the items agreed to in the MOA have been carried out. As discussed earlier in this report, the 29 MOAs we reviewed did not contain certain internal controls to govern program implementation consistent with federal internal control standards. According to OPR officials, they have completed six compliance inspections, and have a seventh inspection underway. In addition, OPR officials told us that they are planning to complete compliance inspections for the rest of the initial 29 program participants within the next 2 years. Although ICE has initiated compliance inspections for the 287(g) program, ICE officials stated that the compliance inspections do not include performance assessments of the program.

ICE officials stated that developing performance 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, these measures are important to provide ICE with a basis for determining whether the program is achieving its intended results. 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

Program Resources Are Used for Training, Supervision, and Equipment

ICE and participating agencies used program resources mainly for personnel, training, and equipment. From fiscal years 2006 through 2008, ICE received approximately $60 million to provide 287(g) resources for 67 participating agencies nationwide as follows: Training. Once officers working for state and local law enforcement participating agencies pass a background investigation performed by ICE, they are also required to attend a 4-week course and pass mandatory examinations to be certified. Training is focused on immigration and nationality law, and includes modules on identifying fraudulent documents, understanding removal charges, cross-cultural communications, and alien processing (e.g., accessing federal databases). Of the 27 participating agencies that had received training at the time of our interviews 20 said the training prepared them to perform their 287(g) activities; four of these agencies also reported that their participation in the program was delayed due to problems with scheduling training. ICE provided information reflecting an average training cost per student of $2,622 using the on-site training facility—the Federal Law Enforcement Training Center—and $4,840 using off-site facilities. These average costs include travel, lodging, books, meals, and miscellaneous expenses. As of October 2008, ICE had trained and certified 951 state or local officers in the 287(g) program.

Equipment. ICE is to provide the equipment necessary to link participating state and local law enforcement agencies with ICE to assist these agencies in performing their immigration enforcement activities. ICE estimates that, on average, for each participating agency it spends $37,000 for equipment set-up and installation, and about $43,000 for equipment hardware. These costs include installation of a secure transmission line, which connects the participating agency to ICE databases, one or more workstations, one or more machines that capture and transmit fingerprints electronically, and personnel labor and support costs. In addition, it spends on average about $107,000 annually for recurring equipment operations and maintenance costs for each participating agency.

Supervision. ICE is to provide supervision to state and local law enforcement agencies participating in the 287(g) program. However, as mentioned earlier in this report, ICE has not identified what responsibilities are required of ICE agents directing and supervising local officers under the 287(g) program, and comments about program supervision from ICE officers at headquarters and in field offices, as well as officers from participating agencies, differ widely. Therefore, we are unable to provide more detail as to this 287(g) resource provided by ICE.

In addition to the resources provided by ICE, state and local law enforcement agencies also provide resources to implement the 287(g) program. For example, state and local law enforcement agencies provide officers, space for equipment, and funding for any other expenses not specifically covered by ICE, such as office supplies and vehicles. Of the 29 state and local participating agencies we interviewed, 11 were able to provide estimates for some of their costs associated with participating in the 287(g) program; however, the data they provided was not consistent. Therefore, it was not feasible to total these costs. Those law enforcement agencies able to identify costs may be able to recover some of these expenses through an intergovernmental service agreement, or through DOJ’s SCAAP grant process. When we asked state and local law enforcement participating agencies whether they received federal reimbursement from any source for costs associated with the 287(g) program (e.g., detention or transportation), 18 of the 29 reported that they did not. Six participating state and local agencies said they received SCAAP funding for some of these costs, and another five said they received federal reimbursements for some costs related to detention, transportation, and hospitalization.

The rapid growth of the 287(g) program has presented resource challenges that ICE has begun to address. For example, 11 of the 29 participating agencies we contacted told us of equipment-related problems. Specifically, two of these agencies did not have equipment to carry out the 287(g) program for several months after their staff had received training on how to use it, and they had concerns that refresher training would be needed, while another agency received more equipment than it needed. ICE has worked with participating agencies to address the problems with program equipment distribution. ICE headquarters and field staff also told us that their resources to supervise activities of program participants are being stretched to their maximum capacities to manage the increased growth of the program. To address these issues, ICE has detailed agents from OI and DRO to meet supervisory and other program requirements. ICE is also considering other ways to address the challenges presented by program growth. As discussed earlier in this report, the 287(g) program is 1 of 13 ICE programs to partner with state and local law enforcement agencies under ACCESS. ICE officials are working with state and local participants and applicants to help determine whether a different ACCESS program would better meet their needs, and as a result, ICE has reduced the backlog of applications to the 287(g) program from approximately 80 applications to 29 as of October 2008.

Program Activities Are Reported by ICE and Participating Agencies Reported Benefits and Concerns

Both ICE and state and local law enforcement agencies participating in the 287(g) program have reported activities, benefits, and concerns associated with the program. As of October 2008, ICE reported that 67 state and local law enforcement agencies had enrolled in the 287(g) program, and that about 25 state and local jurisdiction program applications were pending. In addition, ICE reported that 951 state and local officers received training in immigration law and enforcement functions and were certified to use 287(g) authority. ICE’s data show that for 25 of the 29 participating agencies we reviewed in fiscal year 2008 that about 43,000 aliens had been arrested under the 287(g) program authority, with individual agency participant arrests ranging from about 13,000 in one location to no arrests in two locations. Of those 43,000 aliens arrested by program participants pursuant to the 287(g) authority, ICE detained about 34,000 and placed about 14,000 (41 percent) of those detained in removal proceedings, and arranged for about 15,000 (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 detention space.

State and local law enforcement agencies we interviewed have reported specific benefits of the 287(g) program, including the reduction of crime/making the community safer, identifying/removing repeat offenders, improving the quality of life for the community, and giving law enforcement officers a sense of accomplishment related to immigration enforcement. On the other hand, 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 concerns that law enforcement officers in the 287(g) program would be deporting removable aliens because of minor traffic violations (e.g., speeding); fear and apprehension in the Hispanic community about possible deportation; and concerns that officers would be performing increased enforcement of immigration laws at worksites and would engage in racial profiling. To help mitigate these fears and concerns, 27 of the 29 law enforcement agencies we reviewed reported that they had conducted outreach in their communities regarding the program (e.g., newspaper articles, press releases, TV and radio spots, speaking engagements, and public meetings).

Conclusions

Removing aliens who have committed violent crimes is of great importance to the safety of the community at large. Through the 287(g) program and its partnerships with state and local agencies, ICE has an opportunity to identify and train additional law enforcement resources that could help it meet this challenge. However, the lack of internal controls governing the program limits ICE’s ability to take full advantage of this additional resource. For example, without documenting that the objective of the program is to remove aliens who have committed serious crimes or pose a threat to public safety, participating agencies may further burden limited detention resources by continuing to seek ICE assistance for aliens detained for minor crimes. According to ICE, it is important to ensure that their limited detention bed space is available for those aliens posing the greatest threat to the public. Moreover, without consistently communicating to participating agencies how and under what circumstances 287(g) authority is to be used, participating agencies may use this authority in a manner that is not intended by ICE. Additionally, given the rapid growth of the program, the lack of defined supervision activities could hamper ICE’s ability to ensure management directives are being carried out appropriately. Furthermore, without guidance for what data participating agencies are to collect and how this information is to be gathered and reported, ICE may not have the information it needs to help ensure participating agencies are adhering to program objectives. Finally, performance measures are important to provide ICE with a basis for determining whether the program is achieving its intended results. While it is encouraging that ICE is working to develop these measures, without establishing a plan, including a time frame for development, ICE lacks a roadmap for how it will achieve this goal.

Recommendations for Executive Action

To help ensure that the ICE 287(g) program achieves the results intended, we are recommending that the Assistant Secretary for ICE take the following five actions: Document the objective of the 287(g) program for participants, Clarify how and under what circumstances 287(g) authority is to be used by state and local law enforcement officers in participating agencies, 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 agencies, 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 Establish a plan, including a time frame, for the development of performance measures for the 287(g) program.

Agency Comments

We provided a draft of this report to DHS for review and comment. DHS provided written comments on January 28, 2009, which are presented in appendix V. In commenting on the draft report, DHS stated that it agreed with our recommendations and identified actions planned or underway to implement the recommendations.

ICE also provided us with technical comments, which we considered and incorporated in the report where appropriate.

As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the Secretary of Homeland Security, the Secretary of State, the Attorney General, and other interested parties. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff has any questions about this report, please contact me at (202) 512-8777 or at stanar@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this report are acknowledged in appendix VI.

Appendix I: Statutory Provision Governing the 287(g) Program

8 U.S.C. § 1357(g) (g) Performance of immigration officer functions by State officers and employees (1) Notwithstanding section 1342 of title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. (2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws. (3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General. (4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision. (5) 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. (6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee. (7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5 (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims). (8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law. (9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection. (10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State — (A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

Appendix II: Structured Interview Questions for All 29 Participants of the 287(g) Program

Appendix III: Objectives, Scope, and Methodology

Objectives

This report addresses (1) the extent to which ICE has designed controls to govern 287(g) program implementation and (2) how program resources are being used and the program activities, benefits, and concerns reported by participating agencies.

Scope and Methodology

To address our objectives, we contacted and obtained information from key people and organizations associated with the arrest, detention, and removal of aliens, and U.S. Immigration and Customs Enforcement’s (ICE) 287(g) program, including the following: ICE headquarters officials from the following offices: Office of Investigations, Office of the Principal Legal Advisor, Office of Detention and Removal, Office of the Chief Financial Officer/Budget Office, Office of State and Local Coordination, and Office of Professional Responsibility.

ICE officials from ICE Field Offices in Phoenix, Arizona, and in the California offices of Los Angeles, Santa Ana, Riverside, and San Bernardino in conjunction with our site visits to state and local law enforcement agencies in these areas.

Officials from all 29 state and local law enforcement agencies that had entered into agreements with ICE as of September 1, 2007, listed below. Six of these agencies reported that they had not yet begun implementing the program. Our analysis includes information from these six agencies as appropriate. We conducted structured interviews with officials from these organizations from October 2007 through February 2008. By interviewing officials from all participating agencies, we were able to obtain information and perspectives from participating agencies that had been involved in the program for the longest period of time as well as from those agencies that had just started participating to learn how law enforcement agencies get their program implemented.

State and local law enforcement agencies that had entered into agreements with ICE as of September 1, 2007: Alabama Department of Public Safety; Arizona Department of Corrections; Arizona Department of Public Safety; Maricopa County Sheriff’s Office (Arizona); Los Angeles County Sheriff’s Office (California)

Orange County Sheriff’s Office (California); Riverside County Sheriff’s Office (California); San Bernardino County Sheriff’s Office (California); Colorado Department of Public Safety/State Patrol; El Paso County Sheriff’s Office (Colorado); Collier County Sheriff’s Office (Florida); Florida Department of Law Enforcement; Cobb County Sheriff’s Office (Georgia); Georgia Department of Public Safety; Barnstable County Sheriff’s Office (Massachusetts); Framingham Police Department (Massachusetts); Massachusetts Department of Corrections; Alamance County Sheriff’s Office (North Carolina); Cabarrus County Sheriff’s Office (North Carolina); Gaston County Sheriff’s Office (North Carolina); Mecklenburg County Sheriff’s Office (North Carolina); Hudson Police Department (New Hampshire)

New Mexico Department of Corrections; Tulsa County Sheriff’s Office (Oklahoma); Davidson County Sheriff’s Office (Tennessee); Herndon Police Department (Virginia); Prince William-Manassas Adult Detention Center (Virginia); Rockingham County Sheriff’s Office (Virginia); and Shenandoah County Sheriff’s Office (Virginia).

We also conducted site visits with nine state and local law enforcement agencies that entered into an agreement with ICE as of September 1, 2007, and had begun implementing the program. These sites were selected to represent variation in length of partnership with ICE, type of model (e.g., jail, task force, or joint), geographic location, size of jurisdiction, and proximity to ICE Special-Agent-in-Charge or regional office. The offices from which we interviewed officials about their participation in the 287(g) program, include Rockingham County Sheriff’s Office, Shenandoah County Sheriff’s Office, Los Angeles County Sheriff’s Office, Orange County Sheriff’s Office, San Bernardino County Sheriff’s Office, Riverside County Sheriff’s Office, Arizona Department of Corrections, Maricopa County Sheriff’s Office (including the Enforcement Support, Human Smuggling Unit), and Arizona Department of Public Safety (including the Gang Enforcement Bureau and the Criminal Investigations Division). Although we are not able to generalize the information gathered from these visits to all other participating law enforcement agencies, they provided us with a variety of examples related to program implementation.

To determine what the 287(g) program’s objectives are and to what extent ICE has designed controls to govern implementation, we collected and analyzed information regarding the program’s objective and obtained information from both ICE and the participating law enforcement agencies we interviewed and visited to determine if ICE objectives for the program were clearly articulated to law enforcement agencies. We reviewed available program-related documents, including program case files for the initial 29 participating agencies, the 287(g) brochure, training materials provided to state and local officers to become certified in the program, and a “frequently asked questions” document on the program. In addition, we analyzed the MOAs of each state and local agency participating in the 287(g) program as of September 1, 2007. Specifically, we examined sections of the MOAs related to program authority, designation of enforcement functions, and ICE supervision responsibilities, among other areas of these written agreements. We completed a content analysis of responses to structured interviews that were conducted with key officials from each of the participating law enforcement agencies in this review and from information gathered from site visits. Our content analysis consisted of reviewing the responses to the structured interview questions and identifying and grouping responses by theme or characterization. These themes were then coded and tallied. For some questions, participating agencies gave multiple responses or characterizations, therefore responses are not always mutually exclusive. Selection of themes and coding of responses were conducted separately by two analysts; any discrepancies were resolved. We also compared controls ICE told us they designed to govern implementation of the 287(g) program, including conducting background checks, providing formal training with qualifying exams for the applicants’ officers, and agreeing with state and local agencies to MOAs, with criteria in GAO’s Standards for Internal Control in the Federal Government, the Government Performance and Results Act (GPRA) and standard practices for program management. To corroborate the information we received from the law enforcement agencies through both the structured interviews and site visits, we interviewed officials from ICE both at headquarters and in the field, and examined documentation on guidance given to both ICE and state and local participants about the implementation of the program, as well as reviewed all 29 case files created and maintained by ICE on program participants. We identified for what purposes ICE relies on data collected from law enforcement agencies, and how data reliability checks are performed for data collection associated with the 287(g) program. We interviewed ICE officials and participating law enforcement agencies to determine what guidance ICE has provided to law enforcement agencies on how data are collected, stored, and reported to ICE. We interviewed officials and examined documentation from ICE to determine the measures established to monitor performance and improvements made to the program. We reviewed reports that use data from ICE’s Enforcement Case Tracking System or the ENFORCE database, which automates the processes associated with the identification, apprehension, and deportation of removable aliens. During our review, we learned that some data regarding the 287(g) program may not have been included in ENFORCE, and therefore, we are unsure of the completeness of the information relevant to this program in this database. We used this data to a limited extent in our Objective II discussion related to activities, benefits, and concerns of the 287(g) program. The data used was for illustrative purposes only and not used to draw conclusions about the program.

To determine what resources ICE and participating law enforcement agencies provide to the program including the equipment and training for program participants, and the assignment of ICE supervisory staff for this program, we examined ICE’s budget for the 287(g) program, including how ICE calculates the funding requirements for each additional agreement. We also interviewed officials from the participating law enforcement agencies, analyzed information collected from these agencies to determine what resources they reported using to implement the program and the activities, benefits, and concerns they reported associated with the program. In addition, we examined budget and appropriations documentation from the program’s inception to the fiscal year 2009 budget request for the 287(g) program. We collected and analyzed information on the activities reported by ICE stemming from the program. Through our structured interviews, we gathered and analyzed the participating state and local agencies views on the activities, benefits, and concerns related to the program. We did not conduct a fiscal examination of the cost of detention facilities, nor review the budgetary effect on law enforcement agencies implementing the 287(g) program.

Appendix IV: Copy of ICE Pamphlet on ACCESS Programs

Appendix V: Comments from the Department of Homeland Security

Appendix VI: GAO Contact and Staff Acknowledgments

Staff Acknowledgments

In addition to the contact named above, Bill Crocker, Assistant Director, and Lori Kmetz, Analyst-in-Charge, managed this assignment. Susanna Kuebler, Carolyn Garvey, and Orlando Copeland made significant contributions to the work. Michele Fejfar assisted with design, methodology, and data analysis. Katherine Davis, Linda Miller, Adam Vogt and Peter Anderson provided assistance in report preparation, and Frances Cook provided legal support.