In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. In section 287(g), the act authorizes the Department of Homeland Security to work with local and state law enforcement agencies to enforce immigration law. Federal immigration and customs agents train local police to detect, detain, and deport undocumented people. Each jurisdiction contracts with Immigration and Customs Enforcement through a signed memorandum of agreement, which describes the role and authority of each party. Until 2009, each memo had been tailored to each jurisdiction. All memos are now standardized.
In August 2008, at dusk on the banks of the Haw River, a North Carolina Wildlife Resources officer found five Hispanic men fishing without licenses. The officer asked the men for other forms of identification. Two produced IDs from other countries, and a third handed him an expired California license that the officer thought looked fake. According to press reports, the officer said that he could have issued citations, but he arrested the men instead because he couldn’t establish their identities and none of them had a license to drive the car they used to get to the river. Using a federal immigration program called 287(g), the Alamance County Sheriff’s Office detained the five men. Soon after, U.S. Immigration and Customs Enforcement (ICE) established that the men were in the country illegally and deported them.
Some find no fault with this story; the men were here illegally and got what they deserved. Others say that the officer racially profiled the men, and that’s illegal.
Still others, including two UNC researchers, say that 287(g) was designed to help police get rid of the worst criminal elements — thugs and terrorists — not a bunch of guys fishing the Haw.
That’s true. But police say there’s more to it.
Pluses and minuses
According to the ICE website, 287(g) is supposed to give resources and latitude to local and state police while they pursue investigations related to violent crimes, human smuggling, gang or organized crime activity, sexual-related offenses, narcotics smuggling, and money laundering. The ICE standard memo of agreement with local jurisdictions states that 287(g) is for “identifying and processing for the removal of criminal aliens who pose a threat to public safety or a danger to the community.”
William Riley, acting director of ICE’s Office of State and Local Coordination, said at a congressional hearing in March 2009 that 287(g) jail space should be used “to detain the aliens who pose the greatest risk to the public.” According to anthropologist Hannah Gill and urban planner Mai Nguyen, most Hispanics detained through 287(g) are not major threats. The two researchers analyzed crime data from five North Carolina counties and found that 86.7 percent of people detained and then processed through 287(g) between 2007 and 2009 had been charged with misdemeanors, usually traffic violations. The Durham City Police Department was the lone jurisdiction that applied 287(g) solely to the more serious crimes listed on the ICE website.
Because of the way 287(g) has been designed and used, Gill and Nguyen say, the program has cost millions of dollars while having no measurable effect on crime rates. Instead, it might have negative long-term consequences on crime fighting and local economies. “On paper, it looks unobjectionable,” Gill says. “If the program were carried out the way it was intended, you’d be getting rid of the worst offenders in our society. Who could argue with that? But in practice you have to ask: What’s this program really about?”
Here’s how 287(g) works. When police arrest and book suspects, officers can access the ICE database to determine whether the suspects are in the United States illegally. They can detain suspects or send them to a federal detention center while ICE starts the deportation process. Alamance County, one of eight North Carolina jurisdictions that use the 287(g) program, built a jail to federal standards to house detainees, including some sent to Alamance from surrounding counties.
Randy Jones, spokesman for the Alamance County Sheriff’s Office, says, “The vast majority of illegal aliens we have criminal contact with use false names. It’s hard to have a successful criminal justice system if you don’t know who you’re dealing with.” Many suspects don’t have driver’s licenses. Jones says they often give false addresses, too, which makes issuing citations ineffective. “There was no integrity to the system,” he says. “It was almost a joke. So now, we use ICE databases to screen everybody we arrest. That’s the only way to be fair.”
Jones also says that most serious criminals, no matter their race or nationality, are often arrested while committing a lesser offense, such as a traffic violation. “We’ve been successful in eliminating thirteen or fourteen gang members,” he says. “But they had been picked up for minor violations.”
Gill says that 287(g) is a legal way to deport illegal immigrants, no matter their crimes. But she and Nguyen interviewed more than one hundred people — including police officers — some of whom said that police officers have profiled suspected aliens based on race. Some of Gill’s informants within the Hispanic community told her that police have asked them for immigration documentation in the field, before they were arrested. According to 287(g), suspects can only be asked for documentation back at the station after they have been arrested.
“In some counties, we found that Hispanics are pulled over for a lot of questionable reasons — what they look like, what sort of car they drive,” Gill says. “This is where the issue becomes tricky. This is why so many people are upset about the new law in Arizona.”
Because of the way 287(g) is set up, Gill says, the program helps ICE deport low-level offenders instead of violent felons. This costs taxpayers a lot of money that Gill and Nguyen say would be better spent on crime-fighting measures and outreach programs that have already been proven effective, such as Gang Resistance Education and Outreach Training.
Costs and consequences
Some proponents of 287(g) have said the program should be used because the influx of illegal immigrants has caused crime rates to soar. But that’s not what Gill and Nguyen found. In Mecklenburg County, the immigrant population — not just Hispanics — was estimated at 6,000 in 1990. It climbed to 80,000 by 2006. But during that span, violent crime decreased in Mecklenburg County from 10,300 incidents to 7,450, according to statistics from the North Carolina Uniform Crime Report.
Since 2006, when 287(g) was first adopted in North Carolina, crime rates have remained steady in jurisdictions that use the program. Yet 287(g) isn’t cheap.
Nguyen’s analysis shows that first-year costs in Mecklenburg County for implementing 287(g) in 2006 were an estimated $5.5 million. Alamance started the program a year later at an estimated cost of $4.8 million. These costs included ICE training of local police and salaries for officers dedicated to enforcing 287(g). But the vast majority — $4.8 million in Mecklenburg County — went toward the detention of prisoners. The federal government covers costs once ICE determines that a suspect is an illegal alien.
“But taxpayers pay for all of it, whether at the federal, state, or local level,” Gill says.
Julia Rush, Mecklenburg County Sheriff’s Office spokeswoman, says it costs a little over a hundred dollars to jail one inmate for one day. But she says the Mecklenburg Sheriff’s Office, like Alamance’s, does not go out of its way to arrest undocumented residents. Both offices arrest people who commit crimes; then they use 287(g).
“We told this to the media and the Latin American community: If you don’t want to encounter the 287(g) program, don’t commit a crime,” she says. “You might say we’re identifying low-level offenders, but if a person is driving without a license and has no insurance and doesn’t know the rules of how to drive in North Carolina and runs into your family, should it be considered a low-level offense?”
Such tragic incidents are rare, but they’ve happened in highly publicized cases across the country, including in Graham and Gastonia, North Carolina.
Nguyen and Gill say it’s much more difficult to estimate other costs of the 287(g) program, such as jail expansion or retrofitting, medical and social services for prisoners, transportation costs to federal detention centers, court costs, new computer equipment for accessing ICE databases, and litigation fees. Indirect costs were even harder to measure. Communities lose business and tax revenue when thousands of people are deported each year. Counties save money when immigrants are deported and no longer use resources, such as health-care clinics. According to a report from UNC’s business school, Hispanic immigrants contributed more than $9 billion to North Carolina’s economy through purchases, taxes, and labor in 2004. They cost the state less than $1 billion in health-care, education, and imprisonment costs.
There might be more dire consequences of 287(g). During Gill and Nguyen’s research, many Hispanics said they no longer report serious crimes to police and don’t come forward as witnesses for fear that they and their families will be deported. This common refrain makes Gill and Nguyen wonder if 287(g) is having a negative effect on police work.
Jones says Alamance still receives many calls from Hispanics reporting crimes. Rush and Jones also say that Mecklenburg and Alamance officers have no interest in questioning victims or witnesses about their immigration status, and that both counties have reached out to Hispanic communities. “We’re constantly on Latino radio, we work with Latino reporters, attend Latino events, and invite people from the community to come and talk to us,” Rush says. “They should not be afraid to come forward with information. And we’ve also told them to make sure they come to court so that they don’t have orders for their arrest issued. Their immigration status will not be checked in the courtroom.” But it will be if they are arrested — for any reason.
No line on the horizon
In 2008, in a highly publicized case in Alamance County, a Graham librarian named Marxavi Angel Martinez was arrested and eventually deported, though not through 287(g). Alamance County Sheriff Terry Johnson told the Burlington Times-News that police learned about her immigration status during an investigation of Hispanic patients using aliases at the county’s health department, where Martinez had received prenatal care. Some Alamance residents, including Marilyn Tyler, a friend of Martinez’s, wondered if police had been trolling through confidential health records trying to find undocumented workers. That’s against the law. Later, Johnson told reporters that his office had been tipped off about Martinez’s immigration status — that she used a fraudulent Social Security number to get her job — and his office relayed the information to state investigators, who contacted ICE.
Tyler and Gill say that Martinez’s case is a good example of the complexity of the immigration issue. “Yes, she broke the law,” Tyler says. “That wasn’t good. But she did that to get a good job and go to college. Isn’t that what America is about? She was adding to the American community. And we lock her up and send her away. I can’t think of any goodness that came from this. This case is emblematic of the system that is so broken in our country.”
No one has disputed that Martinez was a hard worker who contributed to society. She paid taxes and also paid into a social security system that would never have benefitted her. Jones acknowledges the unfortunate personal stories of cases like Martinez’s. But he also says that police are not to blame for these situations. In Martinez’s case, he says, the parents were responsible for their daughter; they brought her to the United States when she was three years old and didn’t return to Mexico when their work visas expired.
Gill says that stories like Martinez’s are common among Hispanic immigrants. Gill spoke to a teenager who had been deported to El Salvador even though his mother had brought him to the United States as a baby. He had never learned to speak proper Spanish. Had he been born a few months later, he’d be a U.S. citizen.
But proponents of 287(g) say that the law is the law; illegal aliens must be deported whether they’ve committed minor or major offenses, or no offense at all.
On paper, the 287(g) program tries to focus on the worst criminal elements within the community of undocumented residents. In reality, though, the program is putting law enforcement officers right in the middle of a sociopolitical situation that the federal government has yet to fully address.
So what’s the solution?
“True immigration reform will be tricky,” Nguyen says, and not just because it’s a hot-button issue for politicians. “Reform has to be thoughtful and comprehensive. The government will have to secure the borders while giving people who are already here a path toward citizenship. Otherwise we’re just using people for their labor without giving them any rights.” (See Endeavors, Spring 2009, “A Good, Swift Kick.”)
Gill says, “There has to be a shift in the way visas are granted. Right now we prioritize high-skilled labor when our demand is for low-skilled jobs.”
As for the eleven to twelve million undocumented residents in the United States, Gill says the U.S. government could start an amnesty program similar to the one George W. Bush proposed in 2006, or one similar to more-recent bipartisan bills.
“The idea is to have immigrants show that they’ve been paying taxes for, say, five years,” Gill says. If they proved that, then they could be granted legal residency and put on a path toward citizenship. That would not completely solve the problem. “What about people who’ve not been here for five years?” Nguyen says. Should the U.S. government grant the reward of citizenship to anyone who crosses the border? Nguyen and Gill say that, at the very least, a basic amnesty program would help the millions of people like Marxavi Martinez.
Marilyn Tyler says she’s heard that Martinez is trying to use legal means to come back to Alamance. But getting a visa is nearly impossible. Her four-year-old son could come back any time. He was born in the United States; he’s a citizen.
“The Marxavi case was appalling,” Tyler says. “I’ve known her since she was twelve. I’d see her all the time at the library where I worked. She went to the same school as my kids. I can’t tell you how horrible this was, watching my government toss her in with federal felons. It was sickening to me. It was a nightmare that didn’t have to happen.”