287(g) – Highly Flawed in North Carolina

Kuck Baxter Immigration Blog Leave a Comment

In his article posted March 26th, 2009, Gregory Weeks of the News and Observer points out a lot of the flaws with the current implementation of the 287 (g) program here in North Carolina.

“The program sounded very good on paper. According to U.S. Immigration and Customs Enforcement (ICE), the purpose of 287(g) authority is to identify undocumented immigrants who commit “violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.”

In other words, we want to find the very worst offenders, get them off our streets and then out of the country once they have served their time. If done properly, this protects everyone from serious predators.

In 2006, Sheriff Jim Pendergraph made Mecklenburg County the first sheriff’s office on the East Coast to provide local law enforcement with 287(g) authority through ICE. There are a total of eight agreements across the state today.

From the beginning, doubts were raised about the program. Latino communities across the state repeatedly expressed concern that they would become targets. The way someone looks or speaks could easily become an excuse for detaining him.

This type of racial profiling could severely damage the relationship between Latinos and the police. Fears about deportation could lead undocumented immigrants to avoid the police even when they were the victim of or witness to a crime.

The bad news is that these concerns have been borne out. The Government Accountability Office of the Congress reported recently that many people were being apprehended for minor offenses such as speeding.

As the GAO notes, the emphasis on minor offenses has indeed left many community members fearful of intimidation. “Driving while brown” is an increasingly common phrase.

There is credible evidence of that occurring. A Mecklenburg sheriff’s office report on arrests until the beginning of March notes that about 6,000 individuals were identified as undocumented immigrants and subjected to deportation proceedings. Only 2,029 of these were detained for felonies or DWIs — more serious crimes — while more than 1,700 were arrested for traffic offenses.

There are other problems with the current 287(g) program. The GAO report indicated that there is virtually no oversight and no way for arrest data to be collected and analyzed, even though the number of local governments using the program has continued to grow.

In addition, there is the purely practical matter that ICE lacks the facilities to process all the immigrants going through the system. It has actually released people arrested for minor offenses due to lack of space.

Closer to home, a February 2009 study by the American Civil Liberties Union and the Immigration and Human Rights Policy Clinic at UNC-Chapel Hill explains in detail how the program in North Carolina fails to adhere to its own legally defined standards.

As part of the Memorandum of Agreement signed with the federal government, local law enforcement is required to implement complaint mechanisms, publicize officials’ functions, outline how certification takes place, provide for interpreters, create a steering committee and even allow for modification of the memorandum itself with public input.

None of these has taken place in North Carolina.

The good news is that all of these problems do not mean that the program should be rejected entirely. The goal of finding criminals is a worthy one. Instead, we need to recognize that the program is not functioning properly and cannot continue in its present form. With careful work the 287(g) program can be repaired.

Participating law enforcement should coordinate with ICE to clearly define which criminal offenses are covered under the program, expand oversight, increase transparency and create formal links with the Latino community as a way to foster continuous dialogue.

The public has a right to know exactly who is being detained, why they were arrested and exactly what to do if someone needs to lodge a complaint.

This will be no easy task. The 287(g) program exists largely because of failure. Local governments have felt the need to take the initiative because Congress has proved unable to pass immigration reform. Police officers and sheriff’s deputies are now expected to learn and enforce immigration law, something far beyond their regular duties.

But positive change is possible. A spirit of cooperation and a public commitment to improvement would be an important step in the right direction.”

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Kuck Baxter Immigration

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