DHS Continues State and Local Immigration Enforcement Program Without Meaningful Changes

After a congressional request and multiple Freedom of Information Act
(FOIA) requests, including one from the American Civil Liberties Union,
the Department of Homeland Security (DHS) released a new standardized
Memorandum of Agreement (MOA) that it will use in its expanded 287(g)
program granting state and local law enforcement agencies federal
immigration enforcement authority. The 287(g) program has led to
serious civil rights abuses and public safety concerns, and according
to an analysis by the ACLU, the changes in the new MOA do nothing to
solve these problems.

"The new standardized MOA makes no
serious attempt at discouraging illegal racial profiling or reducing
the conflict between sound community policing principles and the
expansion of this program," said Omar Jadwat, staff attorney with the
ACLU Immigrants' Rights Project. "The Department of Homeland Security
has claimed that the new MOA contains many significant improvements,
but now that we actually have the document, it is clear that many of
the claimed changes are really not changes at all, that the remaining
changes have little or no positive operative effect, and that the new
MOA actually takes several disturbing steps backward, particularly in
the area of transparency."

Section 287(g) of the Immigration
and Nationality Act provides for the delegation of immigration
enforcement authority in certain circumstances to specific state or
local agencies. Previously, MOAs between U.S. Immigration and Customs
Enforcement (ICE) and local law enforcement varied by jurisdiction, but
the new standardized MOA would govern all 287(g) partnerships.

In a comparison of the new
standardized MOA to the MOA that ICE signed with Maricopa County,
Arizona in February 2007, the ACLU found that the new MOA would do
little or nothing to correct the egregious racial profiling and civil
rights abuses that have occurred there, and in some respects, the new
MOA is actually worse than the original from the Bush administration.

The new MOA includes a list of
"priority levels" of different categories of suspected violators, but
even assuming those priorities are sound, the MOA does not include any
measures to ensure that its priorities translate into practice, such as
requiring that arrest statistics reflect the priority levels, requiring
agencies to implement an effective prioritization system or preventing
the use of local resources to go after low-priority offenders.

A number of DHS's claimed
improvements simply cannot be verified by comparing the old and new
MOAs. For example, DHS claimed that the new MOA would reduce concerns
that individuals are arrested for minor or pretextual violations by
requiring that the arresting authority pursue any criminal charges that
justified the original arrest. But the new MOA only "expect[s]," rather
than "requires," the pursuit of charges. The old MOA contained the same
"expectation."

Some aspects of new MOA are clearly
a step in the wrong direction. The new MOA reduces the amount of
experience that a local law enforcement officer needs to become
MOA-designated; expands the list of powers granted to task force
personnel; attempts to remove 287(g) documents from public scrutiny by
subjecting even state or local records to ICE control and claiming that
documents related to the 287(g) are no longer public records; reduces
the already-low data collection and tracking requirements under the old
agreement; and authorizes the exclusion of civilian personnel from some
program reviews.

"Contrary to DHS's announcement, the
new 287(g) Memorandum of Agreement is not substantially different from
the Bush administration MOA, including the much abused agreement
currently in place in Maricopa County, Arizona," said Joanne Lin, ACLU
Legislative Counsel. "This new 287(g) MOA is not government reform.
Cosmetic changes to a written agreement will not solve the fundamental
problems associated with local police enforcement of federal civil
immigration laws. Under the Bush administration 287(g) program, local
law enforcement committed illegal profiling and civil rights violations
under the cloak of federal immigration authority. Under the newly
released 287(g) MOA, local law enforcement are free to continue the
same abuse of power. It is time for the Department of Homeland Security
and Congress to end, not mend, the 287(g) program."

The new standardized MOA, Maricopa County's MOA and the ACLU side-by-side comparison of the two can be found at: www.aclu.org/immigrants/local/40350lgl20090716.html

The ACLU's FOIA request can be found at: www.aclu.org/immigrants/gen/40308lgl20090714.html

ACLU's submitted testimony on 287 (g) program can be found at: www.aclu.org/immigrants/gen/39062leg20090304.html