In mid-February 2009, the American Civil Liberties Union (ACLU) of North Carolina and the Immigration and Human Rights Policy Clinic of UNC-Chapel Hill issued a report declaring that the 287(g) program should be eliminated because it is “too problematic, too costly, and too difficult to implement.” The 287(g) program is a federal-local partnership that trains local law enforcement to enforce immigration law. Seven North Carolina counties, along with the city of Durham, currently participate in 287(g).
Even as the ACLU asserts that 287(g) is an “ineffective means of immigration enforcement,” the group complains that the initiative is “a powerful immigration enforcement program” being “used indiscriminately to find, arrest, detain, and remove immigrants.” As the ACLU would have it, 287(g) is not actually intended to help local law enforcement officers enforce immigration law, as such. Rather, they contend that 287(g) should be limited to deporting illegal aliens convicted of a felony. Based on this presupposition, the ACLU claims that North Carolina’s local law enforcement officers are misusing 287(g) to arrest misdemeanor offenders, and in so doing, are engaging in racial profiling against Hispanics. These accusations are addressed below:
Claim #1: “The 287(g) program was originally intended to target and remove undocumented immigrants convicted of ‘violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.’”
The Truth: The statutory language (see the Illegal Immigration Reform and Immigrant Responsibility Act, § 133) authorizing 287(g) in no way restricts the program’s applicability to “serious” criminals or felons, but is specifically intended to encourage local law enforcement to help enforce immigration law. The quote used above is taken from an Immigration and Customs Enforcement (ICE) fact sheet stating that 287(g) provides local law enforcement with the “necessary resources and latitude to pursue investigations” related to the above crimes. The document does not indicate that 287(g) enforcement is limited only to “serious” crimes. As confirmed by a January 2009 report from the Government Accountability Office (GAO), “agencies participating in the 287(g) program are not prohibited from seeking the assistance of ICE for aliens arrested for minor offenses” – albeit the report cautions that focusing on minor offenses could place a strain on ICE resources. Immigration and Customs Enforcement, however, is already looking at alternative detention methods that could be used to accommodate “minor” offenders.
Claim #2: The majority of 287(g) arrests are for misdemeanors
The Truth: It is true that the majority of 287(g) arrests are for misdemeanors. This fact indicates that 287(g) offenders are being treated no differently than any other group because most arrests are for misdemeanors. If anything, 287(g) offenders are less – not more – likely to be arrested merely for a misdemeanor. Alamance County’s 287(g) program, for instance, resulted in an 80 percent misdemeanor arrest rate in 2007. Yet, statewide, 84 percent of total convictions for the 2006-07 fiscal year were for misdemeanors.
Moreover, it is well established that misdemeanor offenders are more likely than non-offenders to commit more serious crimes in the future. A 15-year study by the U.S. Department of Justice likewise found that so-called less serious offenders (property offenses, drug offenses and public order offenses) actually had higher recidivism rates than offenders convicted of more serious crimes like rape, assault or robbery. Consider also that four of the 9/11 terrorist hijackers — Mohammed Atta, Nawaf al Hazmi, Hani Hanjour and Ziad Jarrah – were pulled over for routine traffic stops in the six months prior to 9/11. In all four instances, local law enforcement could have arrested the terrorists for immigration violations. If those arrests had taken place, the loss of 2,996 American lives might have been prevented.
Claim #3: “287(g) encourages, or at the very least tolerates, racial profiling and baseless stereotyping.”
The Truth: This accusation can be understood in two ways: either there is something about the 287(g) program in itself that encourages racial profiling or the program is being misused in a manner that encourages racial profiling. The first accusation is entirely without merit. As even the ACLU acknowledges, under North Carolina’s “detention-model” 287(g) programs, “the general rule applies regarding the prohibition against law enforcement stopping, detaining, or seizing individuals based on racial characteristics.” While the second charge might have merit, it remains unproven.
Claim #4: “Anecdotal evidence and other data suggest that § 287(g)-deputized law enforcement officers in some North Carolina counties are violating legal standards and engaging in racial profiling by stopping motorists in the community who appear to be Hispanic/Latino.”
The Truth: Anecdotal evidence is insufficient to prove that North Carolina’s law enforcement officers are abusing the 287(g) program. This is especially the case insofar as this evidence is taken from persons who, by and large, are already violating immigration law. It is unclear what “other data” the ACLU possesses that would prove 287(g) officers in North Carolina are engaging in racial profiling. It seems the ACLU’s claims here are based on the following three documents: a survey on Tennessee traffic stops written by a pro-immigration group based in Nashville; a law review article acknowledging “there have been no official racial profiling complaints filed against [287(g)] officers”; and an apparently unpublished review of traffic stops in Mecklenburg and Alamance counties. The latter study, written by professors working with the Latino Migration Project at UNC-Chapel Hill, found a significant increase in the number of Hispanics cited for driving without a license between July 2005 and December 2007. This is hardly a smoking gun given that North Carolina finally stopped issuing driver’s licenses to illegal aliens in 2007.
Claim #5: Using race or ethnicity as a factor in investigating crime is always wrong.
The Truth: It is important to distinguish racial profiling from what law enforcement experts refer to as criminal profiling. Racial, or bias-based, profiling entails using race or some other personal factor (gender, religion, etc.) to establish probable cause. Criminal profiling is based on observed facts and, as such, may include personal factors such as race, gender or religion when such factors are relevant to identifying a suspect. According to the National Latino Peace Officers’ Association: “Criminal profiling is a bona fide activity that helps in focusing attention on persons likely to engage in specific crimes based on behaviors, not race.” When implemented as intended, 287(g) relies on self-selecting behavior, not race or ethnicity, as a trigger for checking immigration status. This is because in order for a 287(g) check to be run, a person must first be arrested for a non-immigration related offense.
Claim #6: 287(g) is having “detrimental effects on North Carolina’s communities.”
The Truth: The vast majority of North Carolina’s citizens support 287(g). According to Civitas’ polling:
- 88% of N.C. voters support county participation in the 287(g) program (July 2007);
- 91% support giving law enforcement officers the technology needed to confirm the identity and legal status of a driver who does not possess a valid driver’s license (April 2008);
- 89% support allowing police officers to ask arrestees if they are legal residents of the United States (September 2007);
- 73% think their local government needs to do more to combat illegal immigration (September 2008).
The GAO likewise indicates that participating law enforcement agencies believe 287(g) has made their communities safer and “improved the quality of life for the community.” These same agencies also acknowledge that while some members of the Hispanic community – 78 percent of illegal aliens are Hispanic – were afraid of possible deportation, nearly every 287(g) locality had conducted public outreach aimed at allaying these concerns.
Claim #7: The 287(g) program fosters “a fear of law enforcement that causes immigrant communities to refrain from reporting crimes.”
The Truth: It is important here to distinguish between legal immigrants and illegal aliens. Given that illegal immigration is a crime, it would be strange if illegal aliens were not afraid of being deported. More to the point, the ACLU provides no objective evidence that legal immigrants who have committed no other crimes are generally afraid of law enforcement because of 287(g). Indeed, the report indicates that “many immigrant crimes are not reported” for reasons that have nothing to do with 287(g). The fact is that 287(g) can make even illegal immigrant communities safer by deporting criminal illegal aliens who prey on other illegals. Consider, for instance, the case of Francisco Martinez, who was stopped by Raleigh police one night in May 2008 and found to have an expired license. Instead of arresting him, police let Martinez go. Six hours later, he killed three other illegal aliens in a drunk-driving accident. Had Martinez been arrested and flagged for deportation under 287(g), his victims would still be alive.
Claim #8: Immigration law is too “complicated” to expect local law enforcement to assist in enforcement.
The Truth: 287(g) does not require intricate knowledge of immigration law. The program merely facilitates the identification of illegal aliens by making it easier for local police to ask ICE to verify immigration status. After an arrest has been made, local law enforcement merely submits identifying information to ICE, which then makes a determination as to whether an offender should be detained for deportation. Here we might also add that according to numerous courts and the Department of Justice, it is a “well-settled” fact that local law enforcement officers are permitted to enforce federal statutes and that as “sovereign entities,” states and localities “have the inherent authority to enforce civil and criminal violations of federal immigration law.”
Claim #9: 287(g) has caused “economic devastation for already struggling municipalities, as immigrants are forced to flee communities, causing a loss of profits for local businesses and a decrease in tax revenues.”
The Truth: Illegal immigration has both costs and benefits. Employers who hire illegal aliens benefit the most by paying low wages and shifting healthcare costs to taxpayers. Employers who obey the law suffer most, as do low-income American workers, whose wages have declined owing to illegal immigration. Likewise, the Congressional Budget Office has determined that “the cost of providing public services to unauthorized immigrants at the state and local levels exceeds what this population pays in state and local taxes” (December 2007). Here in North Carolina the myth that illegal aliens are paying their own way has been perpetuated by a report (Kasarda and Johnson, 2006) sponsored by the Mexican consulate in Raleigh. Yet, even this study admits that Hispanic residents (the report makes no distinction between legal residents and illegal aliens) impose a net burden of $102 per capita. The report also undercounts costs, leaving out school construction costs, transportation costs, law enforcement costs, water and sewerage usage, electricity usage, pollution impacts and other budgetary impacts.
Claim #10: The ACLU wants to “improve” 287(g).
The Truth: Given ICE’s track record, it should come as no surprise that the federal agency that administers 287(g) needs to manage the program better. Already in January 2009, under the guidance of the GAO, the Department of Homeland Security (DHS) began to take steps to implement additional internal controls over 287(g). The impression one gets from the ACLU report, however, is that local sheriffs cannot be trusted to enforce federal law, such that their participation in 287(g) must be so heavily regulated as to make the program practically unworkable.
Indeed, the ACLU argues that “ultimately, the most obvious and effective way to eliminate the problems associated with 287(g) implementation is to eliminate the 287(g) program altogether.” Likewise, the organization is seeking the nullification of all prior 287(g) agreements, “in order to return all federal immigration enforcement powers to DHS only.”
Congress authorized 287(g) because the federal government understood it could not enforce immigration law without the assistance of local law enforcement. Consider that there are an estimated 11 million to 40 million illegal aliens in the United States. By comparison, ICE employs about 2,000 agents dedicated to interior enforcement, such that there are anywhere from 5,500 to 20,000 illegal aliens per agent. Yet, there are some 800,000 local law enforcement officers throughout the United States – making for a ratio of 50 to 1. This is not to say that every local police officer should devote the majority of their time to immigration enforcement. Rather, targeted enforcement, such as that facilitated by 287(g), will send the message that America’s communities are united in combating illegal immigration and upholding the dignity of the rule of law. It is only upon this basis that true immigration reform can occur.
Dr. Jameson Taylor is a senior policy fellow with the Civitas Institute