[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
   EXAMINING 287(G): THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT IN 
                            IMMIGRATION LAW
=======================================================================



                                HEARING

                               before the

                     COMMITTEE ON HOMELAND SECURITY

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 4, 2009

                               __________

                            Serial No. 111-3

                               __________

       Printed for the use of the Committee on Homeland Security

                                     

[GRAPHIC] [TIFF OMITTED] CONGRESS.#13


                                     

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

                               __________



                     COMMITTEE ON HOMELAND SECURITY

               Bennie G. Thompson, Mississippi, Chairman
Loretta Sanchez, California          Peter T. King, New York
Jane Harman, California              Lamar Smith, Texas
Peter A. DeFazio, Oregon             Mark E. Souder, Indiana
Eleanor Holmes Norton, District of   Daniel E. Lungren, California
    Columbia                         Mike Rogers, Alabama
Zoe Lofgren, California              Michael T. McCaul, Texas
Sheila Jackson Lee, Texas            Charles W. Dent, Pennsylvania
Henry Cuellar, Texas                 Gus M. Bilirakis, Florida
Christopher P. Carney, Pennsylvania  Paul C. Broun, Georgia
Yvette D. Clarke, New York           Candice S. Miller, Michigan
Laura Richardson, California         Pete Olson, Texas
Ann Kirkpatrick, Arizona             Anh ``Joseph'' Cao, Louisiana
Ben Ray Lujan, New Mexico            Steve Austria, Ohio
Bill Pascrell, Jr., New Jersey
Emanuel Cleaver, Missouri
Al Green, Texas
James A. Himes, Connecticut
Mary Jo Kilroy, Ohio
Eric J.J. Massa, New York
Dina Titus, Nevada
Vacancy
                    I. Lanier Avant, Staff Director
                     Rosaline Cohen, Chief Counsel
                     Michael Twinchek, Chief Clerk
                Robert O'Connor, Minority Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               Statements

The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chairman, Committee on 
  Homeland Security..............................................     1
The Honorable Mark E. Souder, a Representative in Congress From 
  the State of Indiana:
  Oral Statement.................................................     2
  Prepared Statement.............................................     4
The Honorable Emanuel Cleaver, a Representative in Congress From 
  the State of Missouri:
  Prepared Statement.............................................     5
The Honorable Lamar Smith, a Representative in Congress From the 
  State of Texas:
  Prepared Statement.............................................     5
The Honorable Gus M. Bilirakis, a Representative in Congress From 
  the State of Florida:
  Prepared Statement.............................................     6

                               Witnesses

Mr. William F. Riley, Acting Director, Office of State and Local 
  Coordination, U.S. Immigration and Customs Enforcement, 
  Department of Homeland Security:
  Oral Statement.................................................     7
  Prepared Statement.............................................     9
Mr. Richard M. Stana, Director, Homeland Security and Justice 
  Issues, Government Accountability Office:
  Oral Statement.................................................    14
  Prepared Statement.............................................    16
Mr. Charles A. Jenkins, Sheriff, Frederick County, State of 
  Maryland:
  Oral Statement.................................................    20
  Prepared Statement.............................................    22
Mr. J. Thomas Manger, Chief, Montgomery County Police Department, 
  State of Maryland:
  Oral Statement.................................................    26
  Prepared Statement.............................................    27
Mr. Muzaffar A. Chishti, Director, NYU School of Law Office, 
  Migration Policy Institute:
  Oral Statement.................................................    32
  Prepared Statement.............................................    34

                             For the Record

Gary D. Leatherman, Noble County Sheriff:
  Document, Submitted by the Honorable Mark E. Souder............    47
The Honorable Ed Pastor, a Representative in Congress From the 
  State of Arizona:
  Letter.........................................................    77
Wade Henderson, President and Chief Executive Officer, Leadership 
  Conference on Civil Rights, and Margaret Huang, Executive 
  Director, Rights Working Group:
  Joint Statement................................................    78
Harold L. Hurtt, Chief of Police, Houston, Texas:
  Letter, Submitted by the Honorable Sheila Jackson Lee..........    81
The Immigration Policy Center, a Division of the American 
  Immigration Law Foundation:
  Statement......................................................    82
The American Immigration Lawyers Association, the National 
  Immigration Forum, and the National Immigrant Justice Center:
  Joint Statement................................................    84

                                Appendix

Questions From Chairman Bennie G. Thompson.......................    93


   EXAMINING 287(G): THE ROLE OF STATE AND LOCAL LAW ENFORCEMENT IN 
                            IMMIGRATION LAW

                              ----------                              


                        Wednesday, March 4, 2009

                     U.S. House of Representatives,
                            Committee on Homeland Security,
                                                    Washington, DC.
    The committee met, pursuant to call, at 2:02 p.m., in Room 
311, Cannon House Office Building, Hon. Bennie G. Thompson 
[Chairman of the committee] presiding.
    Present: Representatives Thompson, Sanchez, DeFazio, 
Jackson Lee, Cuellar, Carney, Clarke, Richardson, Kirkpatrick, 
Lujan, Cleaver, Green, Kilroy, Massa, Titus, Smith, Souder, 
Lundgren, Rogers, McCaul, Dent, Bilirakis, Broun, Olson, Cao, 
and Austria.
    Also present: Representatives Bartlett and Edwards.
    Chairman Thompson [presiding]. The Committee on Homeland 
Security will come to order. I would like to ask unanimous 
consent to allow Representative Edwards and Bartlett to sit in 
on the hearing for the purpose of introducing their respective 
witness.
    Without objection.
    The committee is meeting today to receive testimony on 
``Examining 287(g): The Role of State and Local Law Enforcement 
in Immigration Law.'' I want to thank the witnesses for 
appearing today to provide testimony on the 287(g) program, 
which has been around since 1996 but has experienced a 
remarkable surge in popularity in recent years.
    According to Immigration and Customs Enforcement, the main 
goal of the program is to increase the safety and security of 
our communities by apprehending and removing undocumented 
criminal aliens who are involved in violent and serious crimes. 
According to ICE, the local sheriffs and police officers would 
work with ICE to identify, locate, and apprehend these 
dangerous people.
    The 287(g) program, as intended, would achieve two parallel 
goals. No. 1, participating jurisdictions would have dangerous 
people removed from their communities. No. 2, the Federal 
Government would have a force multiplier to enhance efforts to 
remove dangerous aliens from the country.
    In theory, it seems like a good idea and a good deal for 
everyone involved. In fact, many jurisdictions have bought into 
the promise of this program as evidenced by the surge in 
popularity over the last 2 years. Participation has grown from 
29 programs in 2006 in 13 States to 67 programs in 23 States 
today. There is even a waiting list to join. Forty-two State 
and local law jurisdictions are on the waiting list. As the 
popularity of this program has grown, so has funding. In the 
last 3 years, the 287(g) program's budget has increased from $5 
million to nearly $60 million.
    Like everyone else, I applaud the growth of successful 
programs. But the record is incomplete, at best, as to whether 
or not this program is a success. For instance, in 2008, it was 
credited with resulting in the removal of 29,000 people. Its 
budget for fiscal year 2008 was just under $40 million. To 
determine whether that was a prudent way to spend the 
taxpayers' money, we would need to know whether the people 
removed were dangerous aliens. Unfortunately, we do not know 
the critical piece of information.
    We cannot answer this basic question because, as we will 
hear from the Government Accountability Office, ICE does not 
require that specific data be collected, does not require that 
specific information be reported and does not have any 
performance measures. Without objective data, we cannot 
evaluate the effectiveness of this program nor can we determine 
whether better results could be achieved by other means such as 
increasing the number of ICE agents.
    While I do not know whether 287(g) is an effective program, 
I do know that it is a program that has been accused of racial 
profiling. That accusation should concern all of us. Effective 
law enforcement and discrimination cannot coexist. Our 
communities must be safe and our Nation must be secure. We will 
only achieve that goal by making sure that our efforts are 
strategic and tailored. Popularity cannot be a replacement for 
documented performance and constitutional principles.
    I look forward to hearing testimony from our distinguished 
panel.
    The Chair now recognizes our Ranking Member, Mr. Souder, 
sitting in for Mr. King, from Indiana, for an opening 
statement.
    Mr. Souder. Thank you very much, Mr. Chairman.
    This is an important hearing on a cornerstone Department of 
Homeland Security law enforcement information sharing program. 
While the 287(g) program was slow to start--the law was enacted 
in 1996, the first agreement signed in 2002 after the 9/11 
terrorist attacks--a major vote did not occur until 2007. There 
are clear benefits for the jurisdictions who volunteer for this 
program. They get access to immigration status information, a 
direct link to ICE to identify and remove aliens in the custody 
of local law enforcement, deterrent for aliens to commit crimes 
and engage in gang activity in the community, the ability to 
remove aliens from jail, saving space and money.
    Under this program, officers undergo federally sponsored 
training, receive equipment, and most importantly, have access 
to information. This allows them to accurately check the 
immigration status of the aliens they encounter during their 
day-to-day activity such as arresting an individual for 
narcotics violations, driving without a license or drunk 
driving, investigating a violent crime or booking an individual 
into a correctional facility. All of these things are in fact 
crimes in addition to the illegal status.
    ICE depends on data provided by local law enforcement. 
Illegal immigration investigations are similar to counter-
narcotics in that a significant amount of data is necessary to 
connect the dots and find systems of smuggling. For the entire 
Nation as well as for foreign assignments, ICE has 6,000 agents 
and 6,000 detention and removal officers. ICE resources are 
stretched thin. For ICE to tackle the large smuggling networks, 
they rely on partnerships with State and local law enforcement 
and correctional facilities--by the way, just like we do in 
narcotics and HIDAS.
    ICE has 67 active agreements and 25 applications pending. 
Unfortunately, ICE has also denied many requests from 
jurisdictions wanting to participate in the 287(g) program. 
There is clearly interest among State and local law enforcement 
to--including in my own congressional district--to partner with 
ICE as a means to enhance community safety and bolster national 
security. My biggest frustration is that ICE, under both 
Republican and Democratic administrations, has not done enough 
to support the program.
    In October 2007 after hearing from several sheriffs in my 
district about their concerns with illegal immigration, 
criminal aliens in particular, I organized an immigration law 
enforcement roundtable. The event was attended by ICE and 25 
representatives from across Indiana and parts of western Ohio, 
including sheriffs, prosecutors, and jailors.
    Allen County Sheriff Fries is from the largest county in my 
district--350,000 people. He has applied to participate in 
287(g) and was told that ICE did not have the resources to 
support the request. Even if he did the training, they wouldn't 
have any DRO agents to remove people that were arrested.
    At the time of the roundtable, most of the law enforcement 
jurisdictions present were encouraged that ICE had a person 
dedicated to transporting illegal aliens from their jails who 
had been arrested for other crimes to Federal detention 
facilities. Shortly after, however, this arrangement fell 
apart, as the individual assigned was involved in an accident, 
and his replacement was sent on another assignment.
    It is my understanding that this situation still has not 
been corrected in Indiana. As recently as February 9, Sheriff 
Fries reported that there are at least 200 illegal aliens 
housed in my home county's jail for various crimes, costing the 
taxpayers $40 a day. Sheriff Fries would prefer to turn them 
over to ICE for removal from the country, but ICE cannot or 
will not provide anyone to transport them. He and the taxpayers 
of Indiana and other sheriffs from my district are ranging 
between frustrated to angry that the Federal Government refuses 
to execute their obligations and commitments to follow through 
on their part.
    I am looking forward to this hearing from ICE about this 
situation and the future of the 287(g) program. I would like to 
especially thank Sheriff Jenkins from Frederick County, 
Maryland, for being here. I am interested in hearing about 
287(g) and how it works in your jurisdiction. I also appreciate 
the work of GAO in producing a report on 287(g) and offering 
several common-sense suggestions that should improve the 
program management.
    Thank you to the other witnesses as well, and I look 
forward to your testimony.
    Thank you, Mr. Chairman.
    [The statement of Hon. Souder follows:]
           Prepared Statement of the Honorable Mark E. Souder
                             March 4, 2009
    Thank you, Mr. Chairman. This is an important hearing on a 
cornerstone DHS law enforcement information sharing program.
    While the 287(g) program was slow to start--the law was enacted in 
1996; the first agreement was signed in 2002 after the 9/11 terrorist 
attacks--major growth did not occur until 2007.
    There are clear benefits for the jurisdictions who volunteer for 
this program:
   Access to immigration status information;
   Direct link to ICE to identify and remove aliens in the 
        custody of local law enforcement;
   Deterrant for aliens to commit crimes and engage in gang 
        activity in the community;
   Ability to remove aliens from jails--saving space and money.
    Under this program, officers undergo Federally-sponsored training, 
receive equipment, and most importantly have access to information. 
This allows them to check the immigration status of aliens they 
encounter during their day-to-day activities, such as arresting an 
individual driving without a license or drunk driving, investigating a 
violent crime, and booking an individual into a correctional facility.
    ICE depends on data provided by local law enforcement. Illegal 
immigration investigations are similar to counternarcotics in that a 
significant amount of data is necessary to connect the dots and find 
systems of smuggling. For the entire Nation, as well as foreign 
assignments, ICE has 6,000 agents and 6,000 detention officers. ICE 
resources are stretched thin. For ICE to tackle the large smuggling 
networks, they rely on partnerships with State and local law 
enforcement and correctional facilities.
    ICE has 67 active agreements and 25 applications pending. 
Unfortunately, ICE has also denied many requests from jurisdictions 
wanting to participate in the 287(g) program. There is clearly interest 
among State and local law enforcement to, including in my own 
Congressional district--to partner with ICE as a means to enhance 
community safety and bolster national security.
    My biggest frustration is that ICE--under both Republican and 
Democratic administrations--has not done enough to support the program. 
In October 2007, after hearing from several Sheriffs in my district 
about their concerns with illegal immigration, criminal aliens in 
particular, I organized an Immigration Law Enforcement Roundtable. The 
event was attended by ICE and 25 representatives from across Indiana 
and parts of Western Ohio, including sheriffs, prosecutors, and 
jailers.
    One Sheriff from my District who wanted to participate in 287(g) 
was told ICE did not have the resources to support the request. At the 
time of the Roundtable, most of the law enforcement jurisdictions 
present were encouraged that ICE has a person dedicating to 
transporting illegal aliens from their jails to Federal detention 
facilities. Shortly after, however, this arrangement fell apart as the 
individual assigned was involved in an accident and his replacement was 
sent on another assignment. It is my understanding that this situation 
still has not been corrected.
    As recently as February 9, a Sheriff reported that there are at 
least 200 illegal aliens housed in his county jail for various crimes, 
costing the taxpayers $40 per day. The Sheriff would prefer to turn 
them over to ICE for removal from this country, but ICE cannot or will 
not provide anyone to transport them.
    I am looking forward to hearing from ICE about this situation and 
the future of the 287(g) program. I would like to especially thank 
Sheriff Jenkins from Frederick County, Maryland for being here; I am 
interested in hearing about how the 287(g) program works in your 
jurisdiction. I also appreciate the work of the GAO in producing a 
report on 287(g) and offering several common-sense suggestions that 
should improve the program management. Thank you to the other witnesses 
as well. I look forward to the testimony.
    Thank you Mr. Chairman.

    Chairman Thompson. Thank you very much, Mr. Ranking Member.
    Other Members of the committee are reminded that, under 
committee rules, opening statements may be submitted for the 
record.
    [The statements of Hons. Cleaver, Smith, and Bilirakis 
follow:]
          Prepared Statement of the Honorable Emanuel Cleaver
                             March 4, 2009
    Chairman Thompson, Ranking Member King: I look forward to hearing 
testimony today about the 287(g) program. This section was added to the 
Immigration and Nationality Act by Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996, and allows the Federal Government 
through Immigration and Customs Enforcement to work with State and 
local authorities to carry out immigration enforcement. The objective 
of the 287(g) program is to address serious criminal activity committed 
by removable aliens.
    I am concerned, however, with a number of the recent findings of 
the GAO report entitled ``Immigration Enforcement: Controls over 
Program Authorizing State and Local Enforcement of Federal Immigrations 
Laws Should Be Strengthened.'' The report notes that ICE officials have 
not properly documented their program objectives in memorandums of 
agreement with local law enforcement agencies. This has resulted in 
agencies removing aliens for ``minor offenses, such as speeding, 
carrying an open container, and urinating in public.'' I hardly believe 
that these minor offenses should be considered on par with the level of 
serious criminal activity that was intended with the enactment of this 
program.
    I am further concerned that lack of ICE supervision and failure to 
provide clear objectives has given local law enforcement agents far too 
much leeway. I am troubled by reports in Arizona of raids by the county 
sheriff. I am even more troubled by the report of a Nashville woman, 
who while 9 months pregnant, was arrested on a minor traffic violation, 
and forced to give birth while in custody. While I am grateful for the 
community protection provided by local law enforcement officials, I am 
eager today to question these witnesses, and assess whether immigration 
enforcement is best left in the hands of ICE officials.
                                 ______
                                 
            Prepared Statement of the Honorable Lamar Smith
                             March 4, 2009
    The 287(g) program was created in the ``Illegal Immigration Control 
and Immigrant Responsibility Act of 1996,'' which I co-authored. That 
legislation has reduced illegal immigration and helped ensure the 
integrity of America's legal immigration system.
    The 287(g) program allows DHS to enter into an agreement with a 
State or locality so that State and local law enforcement officers can 
assist in the investigation, apprehension and detention of illegal 
aliens. It is a voluntary program.
    In recent years, the annual number of jurisdictions participating 
has risen dramatically--from one in 2002 to 67 currently. And DHS 
cannot keep up with the increased demand. In fiscal year 2007, ICE 
received 69 new applications. I understand that some of those 
applicants may not have been good candidates for the 287(g) program, 
but according to ICE, the vast majority were rejected because of 
limited funding.
    The 287(g) program is effective because it allows State and local 
law enforcement officials to augment immigration enforcement. In 
September 2006, Corey Stewart, the Chairman of the Prince William 
County, VA Board of Supervisors testified, that the 287(g) agreement 
enabled his county in just 3 months to prevent 111 criminal aliens from 
returning to the streets of Prince William County. In the over 2 years 
since then, Prince William County has continued its success with the 
287(g) program.
    And there are stories like Prince William County's all over the 
country. According to ICE, ``since January 2006, the 287(g) program is 
credited with identifying more than 79,000 individuals, mostly in 
jails, who are suspected of being in the country illegally.'' And more 
than 950 officers have been trained and certified through the program.
    State and local law enforcement officials have the inherent 
authority to assist in the enforcement of immigration laws should they 
choose to do so.
    When we wrote the bill that created section 287(g), our goal was to 
help local law enforcement officials reduce the crime committed by 
illegal immigrants. Law enforcement officials believe that this 
voluntary program works.
    The Government Accountability Office has suggested some ways that 
ICE could improve the 287(g) program.
    One issue the GAO addresses is that ICE states the purpose of the 
program is to ``enhance the safety and security of communities by 
addressing serious criminal activity committed by removable aliens.'' 
This statement is being touted by those who oppose the program as a 
reason to stop State and local law enforcement officers from arresting 
illegal immigrants who have committed minor offenses.
    Let me assure you, as the co-author of the legislation enacting the 
287(g) program, it was not our intent that the program would only be 
used to address ``serious criminal activity.'' 287(g) was created to 
let State and local law enforcement officials help enforce all Federal 
immigration laws and to remove illegal immigrants from the streets.
    State and local law enforcement agencies are successfully using 
287(g) authority to make communities safer. Those who are serious about 
public safety should not only support the program, but also call for 
its expansion.
                                 ______
                                 
          Prepared Statement of the Honorable Gus M. Bilirakis
    I am keenly interested in ensuring that all homeland security 
programs in general, and this one in particular, are operating as 
efficiently and effectively as possible. I welcome the GAO's 
constructive comments and encourage Immigration and Customs Enforcement 
(ICE) to continue its efforts to strengthen management controls over 
the program.
    I strongly support the 287(g) program and believe that it is an 
invaluable tool to help enhance our ability to deter illegal 
immigration and detect criminals and others who may wish to do us harm.
    This program provides an additional tool to help local law 
enforcement protect their communities by identifying illegal aliens who 
commit crimes and ensuring they are removed from the country and not in 
a position to commit subsequent crimes in the future. I believe it 
would be short-sighted to allow current management challenges in the 
program to deter us from expanding and maximizing its immigration 
enforcement benefits.

    Chairman Thompson. I now welcome our panel of witnesses. 
Our first witness, Mr. William Riley, is acting director of the 
Office of State and Local Coordination at Immigration and 
Customs Enforcement, which administers the 287(g) program.
    Our second witness is Mr. Richard Stana, director of 
Homeland Security and Justice Issues at the Government 
Accountability Office. During his 33-year career at GAO, Mr. 
Stana has directed reviews on a wide variety of complex 
military and domestic issues.
    I will yield to the gentleman from Maryland, Mr. Bartlett, 
to introduce our third witness.
    Mr. Bartlett. Thank you very much, Mr. Chairman, and thank 
you for the opportunity to come here to introduce Sheriff Chuck 
Jenkins. Not only is Chuck a long-time friend, he is a really 
great sheriff and a truly great American. He is also a pioneer. 
He is one of the first in the general region and the first and 
only law enforcement officer in Maryland cooperating with ICE 
to identify and deport illegal aliens who are also felons. 
Thank you very much for having him here as a witness.
    Chairman Thompson. Thank you very much.
    I will also yield to the young lady from Maryland to 
introduce the next witness.
    Ms. Edwards.
    Ms. Edwards. Thank you, Mr. Chairman, and it is my great 
pleasure to introduce to the committee today Chief J. Thomas 
Manger of the Montgomery County Police Department, which is one 
of the largest police departments in our State. One of the 
things that you will find about Chief Manger is he understands 
the important balance that needs to be struck in communities. 
You will hear his insight and innovation and the creativity 
with which he has led the Montgomery County Police Department 
as it takes on these important challenges of immigration in a 
very diverse community. So I thank you for inviting him here 
today. I know that, as I have, you will have a lot to learn 
from Chief Manger. Thank you.
    Chairman Thompson. Thank you. Thank both of you for your 
introductory remarks.
    Our final witness is Mr. Chishti.
    Director of Migration Policy Institute Office at New York 
University School of Law. His work focuses on U.S. immigration 
policy, the intersection of labor and immigration law, civil 
liberties and local and State enforcement of immigration laws.
    Welcome to all our witnesses.
    Without objection, the witnesses' full statement will be 
inserted in the record.
    Mr. Riley, I now recognize you to summarize your statement 
for 5 minutes.

STATEMENT OF WILLIAM F. RILEY, ACTING DIRECTOR, OFFICE OF STATE 
     AND LOCAL COORDINATION, U.S. IMMIGRATION AND CUSTOMS 
          ENFORCEMENT, DEPARTMENT OF HOMELAND SECURITY

    Mr. Riley. Thank you.
    Chairman Thompson. Congressman Souder and distinguished 
Members of this committee, thank you for the opportunity to 
testify before you today about U.S. Immigration and Customs 
Enforcement management and oversight of the 287(g) delegation 
of authority program, which allows State and local law 
enforcement agencies to partner with ICE to enforce our 
Nation's immigration laws.
    My name is William Riley, and for the past 5 months I have 
served as the acting executive director for the ICE Office of 
State and Local Coordination, which is responsible for the 
management and oversight of the 287(g) program. I am pleased to 
discuss with you today the partnerships ICE has in place with 
State and local law enforcement agencies through the 287(g) 
program and also to discuss the General Accountability Office's 
recommendations to improve management of the program.
    As a result of community concern associated with illegal 
migration and the public safety threat posed by criminal 
aliens, there has been increased interest in the 287(g) 
program, and it has become one of the primary tools requested 
by State and local law enforcement agencies as they address 
their immigration enforcement concerns. A review of the current 
state of the 287(g) program reveals that, as of February 2009, 
almost 1,000 law enforcement officers have been trained 
pursuant to 67 signed memoranda of agreement in 23 States.
    As of February 2009, ICE's 287(g) cross-designated partners 
have encountered over 90,000 aliens who were identified for 
removal from the United States. It should be noted that 90 
percent or 60 of the 67 MOAs were signed in fiscal year 2007 
and 2008. ICE looks forward to entering into additional 
agreements with our State and local partners and will focus 
future expansion on the jail enforcement model.
    I would like to take this opportunity to discuss ICE's 
response to GAO's report, ``Immigration Enforcement: Better 
Controls Needed Over Program Authorizing State and Local 
Enforcement of Federal Immigration Laws.'' First, let me note 
that ICE welcomed GAO's review of the 287(g) program. Although 
still in its infancy, as ICE has expanded the program, it has 
not only seen an increase in public interest but increased 
scrutiny as well.
    To ensure the program is operating in the most efficient 
manner, ICE developed a review of the draft copy of the GAO 
report that contains five recommendations. ICE concurs with all 
the recommendations and in some areas had already begun 
addressing the recommendations before the GAO study was 
completed.
    Before addressing ICE's response to GAO's recommendations, 
I would like to point out that soon after her confirmation as 
Secretary of Homeland Security, Secretary Napolitano issued a 
wide-ranging action directive on immigration and border 
security. The directive requires specific department offices 
and components to work together and with State and local 
partners to review and assess current plans and policies in 
this area.
    Secretary Napolitano is looking for metrics of success, 
gaps in service and resources, partnerships with State and 
local governments and other Federal agencies, as well as other 
suggestions for reforms, restructuring and consolidation where 
needed. Included in that directive is a review of the current 
287(g) program.
    With that in mind, in a response to the GAO 
recommendations, ICE has begun the process of redrafting the 
template that is used to form 287(g) agreements. Once 
redrafted, the template will be submitted to DHS headquarters 
for comment and approval. Upon being approved, this template 
will incorporate many of the recommendations made by GAO.
    For example, the MOAs will include 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. The MOAs will outline how 
and under what circumstances 287(g) authority is to be used by 
State and local law enforcement officers and participating 
agencies.
    Also to be incorporated in each MOA are ICE's detention 
priorities. These priorities ensure that ICE's finite detention 
space is used to detain aliens who pose the greatest risk to 
the public. Sunset dates will be incorporated into all MOAs to 
ensure regular review and modification as needed. ICE will also 
specify the program information and data that each agency is 
expected to collect regarding the implementation of the 287(g) 
program and how this information is to be reported.
    The Office of State and Local Coordination is working to 
create system enhancements to ENFORCE, which is the DHS's 
primary administrative arrest booking case management system, 
that will allow ICE to classify the types of aliens 287(g)-
trained officers are encountering and the severity of their 
crimes. This data will be used by ICE to evaluate whether or 
not our 287(g) partnerships function in accord using resources 
with ICE priorities and to ensure that the continuation of an 
agreement is in the best interest of ICE.
    In closing, it is critically important to note, as pointed 
out in GAO's report, many benefits have been realized by the 
agencies participating in the 287(g) program. Program 
participants reported to GAO a reduction in crime, the removal 
of repeat offenders and other safety benefits.
    I am proud of the partnerships ICE has formed with 287(g)-
trained State and local law enforcement officers. These 
partnerships are essential to ICE in carrying out its mission 
of deterring criminal activity and threats to national security 
and public safety throughout the United States. While ICE has 
expanded the 287(g) program rapidly and its internal management 
controls can be improved, I believe that we have a strong 
framework in place to effectuate improvements, and I look 
forward to the challenges that lie ahead.
    Again, I thank the committee for its support of ICE and our 
critical mission. I would be happy to answer any questions you 
might have at this time.
    [The statement of Mr. Riley follows:]
                 Prepared Statement of William F. Riley
                             March 4, 2009
    Chairman Thompson, Ranking Member King and distinguished Members of 
the committee. Thank you for the opportunity to testify before you 
today about U.S. Immigration and Customs Enforcement's (ICE) management 
and oversight of the 287(g) delegation of authority program, which 
allows State and local law enforcement agencies (LEA) to partner with 
ICE to enforce our Nation's immigration laws.
    ICE is the Department of Homeland Security's (DHS) largest 
investigative agency with responsibility for investigations having a 
nexus to the border and within the interior of the United States. I am 
pleased to discuss with you today the partnerships ICE has in place 
with State and local LEAs through the 287(g) delegation of authority 
program and the Government Accountability Office's (GAO) 
recommendations to improve management of the program.
    ICE's homeland security mission readily acknowledges the critical 
role that State and local law enforcement have in our country's broad 
homeland security strategy. ICE's State and local partners are 
frequently our Nation's first responders. They often encounter foreign-
born criminals and immigration violators who threaten national security 
and public safety during the course of their daily duties. To ensure 
that foreign nationals cannot exploit any perceived vulnerability, ICE 
partners with State and local LEAs through a variety of arrangements, 
including the 287(g) Program, which increases the overall effectiveness 
of the entire law enforcement community's ability to protect our 
homeland.
           background and rapid growth of the 287(g) program
    The Illegal Immigration Reform and Immigrant Responsibility Act 
(IIRIRA), effective September 30, 1996, added Section 287(g) to the 
Immigration and Nationality Act (INA), which authorized the Attorney 
General, now the Secretary of Homeland Security, to designate State and 
local law enforcement officers to act as Federal immigration officers. 
Through Memoranda of Agreement (MOA), specially trained State and local 
law enforcement officers perform immigration enforcement duties only 
under the supervision of ICE agents and officers.
    These agreements allow ICE to utilize State and local officers as 
force multipliers in both task forces and detention facilities. 
Agencies participating under the Task Force Officer (TFO) model work 
under the supervision of the ICE Office of Investigations personnel. 
These TFOs focus on criminal activity involving gangs, identity and 
benefit fraud, human and narcotics smuggling and trafficking. TFOs 
assist ICE with both long-term investigations and large-scale 
enforcement activities. ICE's enforcement efforts have benefited 
greatly from the synergy created by the fusion of Federal immigration 
authority with the State and local law enforcement authority vested in 
these cross-trained officers. For example:
   In fiscal year 2008, the Northwest Arkansas Immigration and 
        Criminal Apprehension Task Force (ICAT), a 287(g) task force, 
        participated in the investigation of the Acambaro Mexican 
        Restaurant and Garcia's Distributor, Inc. This investigation 
        that involved harboring of aliens resulted in the execution of 
        six search warrants, four arrest warrants, and a seizure 
        warrant for 15 bank accounts. These warrants led to the arrest 
        of 19 foreign nationals and the seizure of nine vehicles and 
        approximately $114,000 in U.S. currency. In addition to the 
        seizures, ICE filed verified complaints of forfeiture on 11 
        real properties in Northwest Arkansas valued at more than $3.5 
        million.
    Agencies participating in the 287(g) Program's Jail Enforcement 
Officer (JEO) model partner with ICE in detention facilities under the 
supervision of the ICE Office of Detention and Removal Operation 
personnel. Cross-designated officers expand the reach of ICE's Criminal 
Alien Program (CAP). The intersection of the CAP and 287(g) programs 
further ICE's efforts to identify aliens charged with and/or convicted 
of crimes who are incarcerated within State and local facilities. 
Furthermore, the program helps to ensure that criminal aliens are not 
released into the community by assisting with the identification of 
removable aliens during the booking process and then assisting ICE with 
the processing of those identified aliens for removal.
    The following exemplifies how these partnerships have expanded 
ICE's presence in State and local jails:
   On September 30, 2008, officers assigned to the Wake County 
        (North Carolina) Sheriff's Office 287(g) Program identified, 
        interviewed, and placed detainers on five individuals who were 
        arrested and charged with murder and accessory after the fact 
        to murder. It was determined that all five individuals were 
        illegally present in the United States, and are being held in 
        connection with the murder of a 26-year-old individual from 
        Raleigh, North Carolina. The five individuals will be processed 
        for removal proceedings and, upon completion of any criminal 
        sentence served, they will be transferred to ICE for removal.
    To place the great strides ICE has made with the 287(g) Program in 
context, it is necessary to examine how the program began. The first 
287(g) agreement was executed under the former Immigration and 
Naturalization Service (INS) in the aftermath of the 9/11 attacks. 
After Florida law enforcement officials became increasingly concerned 
about the number of terrorism-related investigations in Florida, many 
of which involved foreign nationals, Florida officials approached the 
former INS seeking participation in the 287(g) Program. Thus, the first 
287(g) agreement was executed with the Florida Department of Law 
Enforcement (FDLE) in 2002, which resulted in the creation of seven 
Regional Domestic Security Task Forces that were established in the 
State of Florida. Thereafter, 35 officers assigned to these regional 
task forces participated in, and graduated from, the 287(g) training 
program. Since the inception of that agreement, ICE has trained and 
certified an additional 23 officers under the FDLE MOA.
    As I noted earlier, ICE partnered with State and local law 
enforcement agencies to address the vulnerabilities discovered in the 
aftermath of the 9/11 attacks. However, our work is not done. To 
fulfill its homeland security and public safety mission, ICE has 
carefully expanded the 287(g) Program to increase ICE's ability to 
identify and remove criminal aliens from the United States.
    As a result of community concern associated with illegal migration 
and the public safety threat posed by criminal aliens, there has been 
increased interest in the 287(g) Program. A review of the current state 
of the 287(g) Program reveals that, as of February 2009, a total of 951 
law enforcement officers have been trained pursuant to 67 signed MOA's 
in 23 States.\1\ As the below chart illustrates, ICE has seen a 
dramatic rise in 287(g) Program participation and interest during 
fiscal years 2007 and 2008.
---------------------------------------------------------------------------
    \1\ Please see Attachment 1 for a list of all 67 agreements.
    
    
    As of February 2009, ICE's 287(g) cross-designated partners, 
operating under 67 MOAs, have encountered over 90,000 aliens who were 
screened for removability. We have seen positive results from the 
current 287(g) Program. For example, the 29 287(g) LEA partners 
selected for review during the GAO audit encountered 43,000 aliens. The 
work conducted by the same 29 participants during fiscal year 2008 
resulted in 34,000 aliens being detained by ICE. Of the 34,000 
detained, approximately 41 percent were placed in removal proceedings 
and approximately 44 percent agreed to voluntarily depart the United 
States.
    As ICE has expanded the 287(g) Program, it has become one of the 
primary tools requested by State and local LEAs as they address their 
immigration enforcement concerns. While ICE acknowledges the 
effectiveness of a multi-agency, multi-authority approach to protect 
public safety, ICE is not always in a position to grant all the 
requests for participation in the 287(g) Program. Further, careful 
study of the requirements of each LEA revealed that participation in 
the 287(g) Program was not always the best fit for every State and 
local LEA.
    Accordingly, we created the ICE Agreements of Cooperation in 
Communities to Enhance Safety and Security (ICE ACCESS) umbrella 
program in fall 2007 to assist State and local LEAs that are not 
enrolled in the 287(g) Program. ICE ACCESS programs allow ICE personnel 
to collaborate with their local law enforcement peers to address 
specific local challenges and provide solutions and alternatives 
tailored to each community's needs. ICE ACCESS facilitates partnerships 
between ICE and State and local LEAs to target criminal aliens, 
document and immigration benefit fraud, human trafficking, fugitive 
aliens, narcotics smuggling, and money laundering.
                  ice oversight of the 287(g) program
    The ICE Office of State and Local Coordination (OSLC) was 
established in December 2007, and is responsible for the management and 
oversight of the 287(g) Program. OSLC has implemented the following 
practices and procedures to ensure that ICE is adequately overseeing 
the program:
   Prior to attending training, all 287(g) candidates must 
        complete a background questionnaire. The questionnaire requires 
        the submission of fingerprints, a personal history 
        questionnaire, and the candidate's disciplinary history. ICE's 
        Office of Professional Responsibility conducts a background 
        check and determines each officer's suitability to participate 
        in the 287(g) Program.
   Officers cleared to participate in the 287(g) Program must 
        complete a multi-week training program conducted by the ICE 
        Office of Training and Development. To successfully complete 
        the program, all officers must pass each examination with a 
        minimum score of 70 percent. If an officer fails to attain a 70 
        percent rating on any examination, the officer is provided a 
        single opportunity to review the curriculum and re-take a 
        similar examination. Only one remediation examination is 
        permitted during the entire course. Failure to achieve a 70 
        percent on any two examinations results in the automatic 
        disqualification of the candidate.
   Upon successful completion of the training, officers are 
        granted the authority to carry out immigration enforcement 
        functions. 287(g) designated officers are only permitted to 
        exercise immigration enforcement consistent with the parameters 
        outlined in the Memorandum of Agreement (MOA) executed between 
        ICE and the officer's LEA. Each MOA includes a section that 
        requires that any immigration enforcement activities be 
        supervised and directed by ICE supervisory agents and officers. 
        Cross-designated officers are not authorized to perform 
        immigration functions except when working under the supervision 
        of ICE. If a State or local officer violates the MOA, ICE may 
        suspend or terminate an individual officer's participation in 
        the program. Additionally, at any time deemed necessary, ICE 
        may suspend or terminate the MOA with the LEA.
   To ensure that the LEA and the supervising ICE component 
        operate in compliance with the terms in the MOA, OSLC and 
        Office of Professional Responsibility have developed a vigorous 
        inspection program to audit 287(g) agreements. These 
        inspections are conducted by the Office of Professional 
        Responsibility, which provides OSLC and ICE senior management 
        with an assessment regarding the performance of the MOA.
   To ensure cross-designated officers' training remains 
        current, additional training is available to the officers 
        through eight different courses available through ICE's on-line 
        Virtual University. These courses were developed to ensure that 
        State and local officers are informed of new developments in 
        immigration law and policy.
                         comments on gao report
    I would like to take this opportunity to discuss ICE's response to 
the Government Accountability Office (GAO) report, Immigration 
Enforcement: Better Controls Needed Over Program Authorizing State and 
Local Enforcement of Federal Immigration Laws. First, let me note that 
ICE welcomed GAO's review of the 287(g) Program. Although still in its 
infancy, as ICE has expanded the program, it has not only seen an 
increase in public interest, but increased scrutiny as well. To ensure 
the program is operating in the most efficient manner, ICE reviewed the 
draft copy of the report that contained five recommendations. ICE 
concurs with all of the recommendations and, in some areas, had already 
begun addressing the recommendations before the GAO study was 
completed.
    Before addressing ICE's response to GAO's recommendations, I would 
like to point out that soon after her confirmation as Secretary of 
Homeland Security, Secretary Napolitano issued a wide-ranging action 
directive on immigration and border security. The directive requires 
specific Department offices and components to work together and with 
State and local partners to review and assess current plans and 
policies in this area.
    Secretary Napolitano is looking for metrics of success, gaps in 
service and resources, partnerships with State and local governments 
and other Federal agencies as well as other suggestions for reforms, 
restructuring and consolidation where needed. Included in that 
directive is a review of the current 287(g) Program. With that in mind 
and in response to the GAO recommendations, ICE has begun the process 
of redrafting the template that is used to form 287(g) agreements. Once 
redrafted, the template will be submitted to DHS headquarters for 
comment and approval. Upon being approved, this template will 
incorporate many of the recommendations made by GAO. For example:
    1. The MOAs will include 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;
    2. Communicating that information to both ICE officers and State 
        and local participating agencies;
    3. The MOAs will outline how and under what circumstances 287(g) 
        authority is to be used by State and local law enforcement 
        officers in participating agencies;
    4. Also incorporated in each MOA are ICE's detention priorities. 
        These priorities ensure that ICE's finite detention space is 
        used to detain the aliens who pose the greatest risk to the 
        public. Specifically, the following list reflects the 
        categories of aliens that are a priority for detention, with 
        the highest priority being Level 1 criminal aliens. The 
        following priorities will be listed in all MOAs:
     Level 1--Individuals who have been convicted of major drug 
            offenses and/or violent offenses such as murder, 
            manslaughter, rape, robbery, and kidnapping;
     Level 2--Individuals who have been convicted of minor drug 
            offenses and/or mainly property offenses such as burglary, 
            larceny, fraud and money laundering; and,
     Level 3--Individuals who have been convicted of other 
            offenses.
    5. ``Sunset'' dates will be incorporated into all MOAs to ensure 
        regular review and modification as needed; and,
    6. ICE will also 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.
    Furthermore, all 287(g) partners are required to use the ENFORCE 
\2\ system to ensure that ICE has all relevant data with which to 
monitor the operation of each 287(g) MOA. However, ICE recognizes that 
in its current state, ENFORCE has limited capabilities to capture the 
criminal history of each alien processed.
---------------------------------------------------------------------------
    \2\ ENFORCE is the primary administrative arrest and booking case 
management system for DHS.
---------------------------------------------------------------------------
    OSLC is working to create system enhancements to ENFORCE that will 
allow ICE to classify the types of aliens 287(g) trained officers are 
encountering. Specifically, ICE will require that the program 
participants populate mandatory ENFORCE data fields concerning the type 
of criminal activity the alien has engaged in. Violent crimes, crimes 
against property, narcotics violations, traffic driving under the 
influence (DUI) related violations and non-DUI related traffic 
violations will all be captured. Furthermore, there will be fields 
within ENFORCE concerning the severity of crimes broken down by 
felonies, misdemeanors or civil violations. This data will be used by 
ICE to evaluate whether or not our 287(g) partnerships function in 
accord using resources with ICE priorities and to ensure that the 
continuation of an agreement is in the best interest of ICE.
    Additionally, pursuant to the 2009 Consolidated Security, Disaster 
Assistance, and Continuing Appropriations Act of 2009, the DHS Office 
of Inspector General will be reviewing the 287(g) Program to ensure 
that none of the funds provided to the 287(g) Program are being used 
where the terms of the 287(g) agreements have been violated.
                               conclusion
    In closing, it is critically important to note, as pointed out in 
GAO's report, many benefits have been realized by the agencies 
participating in the 287(g) Program. Program participants reported to 
GAO a reduction in crime, the removal of repeat offenders and other 
safety benefits. The cost savings associated with crime reduction are 
not being easily quantified, but there has undoubtedly been a positive 
impact on many communities. I am proud of the partnerships ICE has 
formed with 287(g)-trained State and local law enforcement officers. 
These partnerships are essential to ICE carrying out its mission of 
deterring criminal alien activity and threats to national security and 
public safety throughout the United States. While ICE has expanded the 
287(g) Program rapidly and its internal management controls can be 
improved, I believe that we have a strong framework in place to 
effectuate improvements, and I look forward to the challenges that lay 
ahead.
    Again, I thank the committee for its support of ICE and our 
critical mission. I would be happy to answer any questions you might 
have at this time.
                              ATTACHMENT 1

----------------------------------------------------------------------------------------------------------------
               State                           MOA--Name                  MOA--Type             Signed--Date
----------------------------------------------------------------------------------------------------------------
AL................................  AL State Police...............  Task Force...........  9/10/2003
AL................................  Etowah County Sheriff's Office  Detention............  7/8/2008
AR................................  Benton County Sheriff's Office  Detention/Task Force.  9/26/2007
AR................................  City of Springdale Police       Task Force...........  9/26/2007
                                     Department.
AR................................  Rogers Police Department......  Task Force...........  9/25/2007
AR................................  Washington County Sheriff's     Detention/Task Force.  9/26/2007
                                     Office AR.
AZ................................  AZ Department of Corrections..  Detention............  9/16/2005
AZ................................  AZ Department of Public Safety  Task Force...........  4/15/2007
AZ................................  City of Phoenix Police          Task Force...........  3/10/2008
                                     Department.
AZ................................  Maricopa County Sheriff's       Detention/Task Force.  2/7/2007
                                     Office.
AZ................................  Pima County Sheriff's Office..  Detention/Task Force.  3/10/2008
AZ................................  Pinal County Sheriff's Office.  Detention/Task Force.  3/10/2008
AZ................................  Yavapai County Sheriff's        Detention/Task Force.  3/10/2008
                                     Office.
CA................................  Los Angeles County Sheriff's    Detention............  2/1/2005
                                     Office.
CA................................  Orange County Sheriff's Office  Detention............  11/2/2006
CA................................  Riverside County Sheriff's      Detention............  4/28/2006
                                     Office.
CA................................  San Bernardino County           Detention............  10/19/2005
                                     Sheriff's Office.
CO................................  CO Department of Public Safety  Task Force...........  3/29/2007
CO................................  El Paso County Sheriff's        Detention............  5/17/2007
                                     Office.
FL................................  Bay County Sheriff's Office...  Task Force...........  6/15/2008
FL................................  Brevard County Sheriff's        Detention............  8/13/2008
                                     Office.
FL................................  Collier County Sheriff's        Detention/Task Force.  8/6/2007
                                     Office.
FL................................  FL Department of Law            Task Force...........  7/2/2002
                                     Enforcement.
FL................................  Jacksonville Sheriff's Office.  Detention............  7/8/2008
FL................................  Manatee County Sheriff's        Detention............  7/8/2008
                                     Office.
GA................................  Cobb County Sheriff's Office..  Detention............  2/13/2007
GA................................  GA Department of Public Safety  Task Force...........  7/27/2007
GA................................  Hall County Sheriff's Office..  Detention/Task Force.  2/29/2008
GA................................  Whitfield County Sheriff's      Detention............  2/4/2008
                                     Office.
MA................................  Barnstable County Sheriff's     Detention............  8/25/2007
                                     Office.
MA................................  Framingham Police Department..  Task Force...........  8/14/2007
MA................................  MA Department of Corrections..  Detention............  3/26/2007
MD................................  Frederick County Sheriff's      Detention/Task Force.  2/6/2008
                                     Office.
MN................................  MN Department of Public Safety  Task Force...........  9/22/2008
MO................................  MO State Highway Patrol.......  Task Force...........  6/25/2008
NC................................  Alamance County Sheriff's       Detention............  1/10/2007
                                     Office.
NC................................  Cabarrus County Sheriff's       Detention............  8/2/2007
                                     Office.
NC................................  Cumberland County Sheriff's     Detention............  6/25/2008
                                     Office.
NC................................  Durham Police Department......  Task Force...........  2/1/2008
NC................................  Gaston County Sheriff's Office  Detention............  2/22/2007
NC................................  Henderson County Sheriff's      Detention............  6/25/2008
                                     Office.
NC................................  Mecklenburg County Sheriff's    Detention............  2/27/2006
                                     Office.
NC................................  Wake County Sheriff's Office..  Detention............  6/25/2008
NH................................  Hudson City Police Department.  Task Force...........  5/5/2007
NJ................................  Hudson County Department of     Detention............  8/11/2008
                                     Corrections.
NM................................  NM Department of Corrections..  Detention............  9/17/2007
NV................................  Las Vegas Metropolitan Police   Detention............  9/8/2008
                                     Dept.
OH................................  Butler County Sheriff's Office  Detention/Task Force.  2/5/2008
OK................................  Tulsa County Sheriff's Office.  Detention/Task Force.  8/6/2007
SC................................  Beaufort County Sheriff's       Task Force...........  6/25/2008
                                     Office.
SC................................  York County Sheriff's Office..  Detention............  10/16/2007
TN................................  Davidson County Sheriff's       Detention............  2/21/2007
                                     Office.
TN................................  TN Department of Safety.......  Task Force...........  6/25/2008
TX................................  Carrollton Police Department..  Detention............  8/12/2008
TX................................  Farmers Branch Police Dept....  Task Force...........  7/8/2008
TX................................  Harris County Sheriff's Office  Detention............  7/20/2008
UT................................  Washington County Sheriff's     Detention............  9/22/2008
                                     Office UT.
UT................................  Weber County Sheriff's Office.  Detention............  9/22/2008
VA................................  City of Manassas Police         Task Force...........  3/5/2008
                                     Department.
VA................................  Herndon Police Department.....  Task Force...........  3/21/2007
VA................................  Loudoun County Sheriff's        Task Force...........  6/25/2008
                                     Office.
VA................................  Manassas Park Police            Task Force...........  3/10/2008
                                     Department.
VA................................  Prince William County Police    Task Force...........  2/26/2008
                                     Department.
VA................................  Prince William County           Task Force...........  2/26/2008
                                     Sheriff's Office.
VA................................  Prince William-Manassas Adult   Detention............  7/9/2007
                                     Detention Center.
VA................................  Rockingham County Sheriff's     Detention/Task Force.  4/25/2007
                                     Office.
VA................................  Shenandoah County Sheriff's     Detention/Task Force.  5/10/2007
                                     Office.
----------------------------------------------------------------------------------------------------------------


    Chairman Thompson. Thank you very much for your testimony.
    Mr. Stana, I now recognize you to summarize your statement 
for 5 minutes.

STATEMENT OF RICHARD M. STANA, DIRECTOR, HOMELAND SECURITY AND 
        JUSTICE ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Stana. Okay, thank you, Chairman Thompson, Mr. Souder, 
Members of the committee.
    As you know, section 287(g) of the INA authorizes ICE to 
enter into written agreements that allow State or local law 
enforcement agencies to perform at their own expense and under 
the supervision of ICE officers certain functions of an 
immigration officer, including searching selected Federal 
databases and conducting interviews to identify criminals who 
are in the country illegally. My prepared statement is based on 
our report that was released today on the management controls 
ICE has in place to govern the 287(g) program implementation 
and the resources, benefits, and concerns reported by 
participating agencies.
    In sum, we found that ICE had some controls to govern the 
program, such as MOAs with participating agencies as well as 
background checks and training for officers participating in 
the program. But the program lacked other key controls, which 
make it difficult for ICE to ensure that it is operating as 
intended. I would like to highlight four areas.
    First, the program lacked documented program objectives to 
help ensure that participants work toward a consistent purpose. 
ICE officials stated that the objective of the program is to 
address serious crime, such as drug trafficking and violent 
crimes committed by removable aliens. However, ICE has not 
documented this objective in MOAs or key program materials. In 
absence of a clear objective, at least four of 29 program 
participants we reviewed used 287(g) authority to process 
individuals for minor crimes, such as speeding or carrying open 
containers of alcohol, which is contrary to what ICE said is 
the program objective.
    Second, ICE has not consistently articulated in program-
related documents how participating agencies are to use their 
287(g) program authority. While all 29 MOAs we reviewed contain 
language that authorizes a State or local officer to 
interrogate any person believed to be an alien as to his right 
to remain in the country, none of them mentioned that ICE's 
position is that the 287(g) authority should be used in 
connection with an arrest. We found differing interpretations 
by participants about the scope of 287(g) authority, such as 
permitting officers to go to people's houses to question them 
about immigration status. Further, although processing 
individuals for possible removal is to be conducted in 
connection with a conviction of a State or Federal felony 
offense, this issue is not mentioned in seven of the 29 MOAs we 
reviewed.
    Third, although by law, State and local officials are to 
use 287(g) authority under the supervision of ICE officials, 
ICE has not described the nature and extent of supervision it 
is to exercise over participating agencies. This has led to 
wide variation in the nature and extent of ICE's activities. 
ICE officials in one location told us they provided no direct 
supervision. In another location, we were told they provided 
frontline support for the program. At two other locations, they 
described their supervisory activities as overseeing training 
and ensuring that computer systems are working properly. At 
another location, they described their supervisory activity as 
reviewing files for completeness and accuracy.
    For their part, the majority of State and local officials 
we contacted said that ICE supervision was good. But others 
said they did not receive adequate or direct supervision or 
that ICE supervisors were either unresponsive or not available. 
ICE officials in headquarters noted that the level of ICE 
supervision provided to participating agencies has varied due 
to a shortage of supervisory resources.
    Finally, ICE states in the MOAs signed 2007 or later that 
participating agencies are responsible for tracking and 
reporting data to ICE. But those MOAs did not define what data 
should be tracked or how it should be collected and reported. 
We found considerable confusion among participating 
jurisdictions regarding whether they had a data tracking and 
reporting requirement, what type of data should be tracked and 
reported and what format they should use in reporting data to 
ICE.
    Turning now to program resources, in fiscal years 2006 
through 2008, ICE received about $60 million to train, 
supervise, and equip program participants. As of last month, 
ICE reported enrolling 67 agencies and training 951 State and 
local enforcement officers. They had 42 additional requests for 
participation, as has been mentioned. In six of the 42, their 
participation has been approved pending the approval of the 
MOA.
    According to fiscal year 2008 data provided by ICE, for 25 
of the 29 program performance participants we reviewed, about 
43,000 aliens had been arrested pursuant to the program, and of 
those ICE detained about 34,000. Program benefits reported by 
participants include a reduction in crime, the removal of 
repeat offenders and other public safety improvements. However, 
over half the 29 agencies we contacted reported concerns from 
community members, including concerns that the use of program 
authority would lead to racial profiling and intimidation by 
law enforcement officials.
    We made several recommendations to strengthen internal 
controls for the program to address the deficiencies we 
identified and to help ensure the program operates as intended. 
DHS and ICE concurred with each of our recommendations and 
reported plans and steps taken to address them.
    In closing, the 287(g) program can be an important tool for 
ICE and participating jurisdictions to use to enforce our 
Nation's immigration laws. Controversy can arise when 
jurisdictions misunderstand the limits of their authority. ICE 
fails to provide appropriate guidance and supervision. This 
underscores the need for ICE to ensure that effective control 
mechanisms exist to govern the 287(g) program.
    This concludes my oral statement, and I would be happy to 
answer any questions that Members may have.
    [The statement of Mr. Stana follows:]
                 Prepared Statement of Richard M. Stana
                             March 4, 2009
    Mr. Chairman and Members of the committee: I am pleased to be here 
today to discuss the Department of Homeland Security's (DHS) U.S. 
Immigration and Customs Enforcement's (ICE) management of the 287(g) 
program. Recent reports indicate that the total population of 
unauthorized aliens residing in the United States is about 12 
million.\1\ Some of these aliens have committed one or more crimes, 
although the exact number of aliens that have committed crimes is 
unknown. Some crimes are serious and pose a threat to the security and 
safety of communities. ICE does not have the agents or the detention 
space that would be required to address all criminal activity committed 
by unauthorized aliens. Thus, State and local law enforcement officers 
play a critical role in protecting our homeland because, during the 
course of their daily duties, they may encounter foreign-national 
criminals and immigration violators who pose a threat to national 
security or public safety. On September 30, 1996, the Illegal 
Immigration Reform and Immigrant Responsibility Act was enacted and 
added section 287(g) to the Immigration and Nationality Act.\2\ This 
section authorizes the Federal Government to enter into agreements with 
State and local law enforcement agencies, and to train selected State 
and local officers to perform certain functions of an immigration 
officer--under the supervision of ICE officers--including searching 
selected Federal databases and conducting interviews to assist in the 
identification of those individuals in the country illegally.\3\ The 
first such agreement under the statute was signed in 2002, and as of 
February 2009, 67 State and local agencies were participating in this 
program.
---------------------------------------------------------------------------
    \1\ Under section 101(a)(3) of the Immigration and Nationality Act, 
8 U.S.C.  1101(a)(3), the term ``alien'' means any person not a 
citizen or national of the United States. It does not include foreign 
nationals who have become U.S. citizens.
    \2\ Pub. L. No. 104-208, div. C,  133, 110 Stat. 3009-546, 3009-
563 to 64.
    \3\ The change to the Immigration and Nationality Act is codified 
in 8 U.S.C.  1357(g).
---------------------------------------------------------------------------
    My statement today is based on our January 30, 2009, report 
regarding the program including selected updates made in February 
2009.\4\ Like the report, this statement addresses: (1) The extent to 
which Immigration and Customs Enforcement has designed controls to 
govern 287(g) program implementation; and, (2) how program resources 
are being used and the activities, benefits, and concerns reported by 
participating agencies. To do this work, we interviewed officials from 
both ICE and participating agencies regarding program implementation, 
resources, and results. We also reviewed memorandums of agreement (MOA) 
between ICE and the 29 law enforcement agencies participating in the 
program as of September 1, 2007, that are intended to outline the 
activities, resources, authorities, and reports expected of each 
agency. We also compared the controls ICE designed to govern 
implementation of the 287(g) program with criteria in GAO's Standards 
for Internal Control in the Federal Government, the Government 
Performance and Results Act (GPRA), and the Project Management 
Institute's Standard for Program Management.\5\ More detailed 
information on our scope and methodology appears in the January 30, 
2009 report. In February 2009, we also obtained updated information 
from ICE regarding the number of law enforcement agencies participating 
in the 287(g) program as well as the number of additional law 
enforcement agencies being considered for participation in the program. 
We conducted our work in accordance with generally accepted government 
auditing standards.
---------------------------------------------------------------------------
    \4\ GAO, Immigration Enforcement: Better Controls Needed Over 
Program Authorizing State and Local Enforcement of Federal Immigration 
Laws, GAO-09-109 (Washington, DC: January 2009).
    \5\ GAO, Standards for Internal Control in the Federal Government, 
GAO/AIMD-00-21.3.1 (Washington, DC: November 1999); and GAO, Executive 
Guide: Effectively Implementing the Government Performance and Results 
Act, GAO/GGD-96-118 (Washington, DC: June 1996). Additional program 
management standards we reviewed are reflected in the Project 
Management Institute's The Standard for Program Management (2006).
---------------------------------------------------------------------------
    In summary, ICE has designed some management controls, such as MOAs 
with participating agencies and background checks of officers applying 
to participate in the program, to govern 287(g) program implementation. 
However, the program lacks other key internal controls. Specifically, 
program objectives have not been documented in any program-related 
materials, guidance on how and when to use program authority is 
inconsistent, guidance on how ICE officials are to supervise officers 
from participating agencies has not been developed, data that 
participating agencies are to track and report to ICE has not been 
defined, and performance measures to track and evaluate progress toward 
meeting program objectives have not been developed. Taken together, the 
lack of internal controls makes it difficult for ICE to ensure that the 
program is operating as intended. ICE and participating agencies used 
program resources mainly for personnel, training, and equipment, and 
participating agencies reported activities and benefits, such as a 
reduction in crime and the removal of repeat offenders. However, 
officials from more than half of the 29 State and local law enforcement 
agencies we reviewed reported concerns members of their communities 
expressed about the use of 287(g) authority for minor violations and/or 
about racial profiling. We made several recommendations to strengthen 
internal controls for the 287(g) program to help ensure that the 
program operates as intended. DHS concurred with our recommendations 
and reported plans and steps taken to address them.
   ice lacks key internal controls for implementation of the 287(g) 
                                program
    ICE has designed some management controls to govern 287(g) program 
implementation, such as MOAs with participating agencies that identify 
the roles and responsibilities of each party, background checks of 
officers applying to participate in the program, and a 4-week training 
course with mandatory course examinations for participating officers. 
However, the program lacks several other key controls. For example:
   Program Objectives.--While ICE officials have stated that 
        the main objective of the 287(g) program is to enhance the 
        safety and security of communities by addressing serious 
        criminal activity committed by removable aliens, they have not 
        documented this objective in program-related materials 
        consistent with internal control standards. As a result, some 
        participating agencies are using their 287(g) authority to 
        process for removal aliens who have committed minor offenses, 
        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. While participating agencies are not 
        prohibited from seeking the assistance of ICE for aliens 
        arrested for minor offenses, if all the participating agencies 
        sought assistance to remove aliens for such minor offenses, ICE 
        would not have detention space to detain all of the aliens 
        referred to them. ICE's Office of Detention and Removal 
        strategic plan calls for using the limited detention bed space 
        available for those aliens that pose the greatest threat to the 
        public until more alternative detention methods are available.
   Use of Program Authority.--ICE has not consistently 
        articulated in program-related documents how participating 
        agencies are to use their 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.\6\ 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 29 
        participating agencies. A potential consequence of not having 
        documented program objectives is misuse of authority. Internal 
        control standards state that Government programs should ensure 
        that significant events are authorized and executed only by 
        persons acting within the scope of their authority. Defining 
        and consistently communicating how this authority is to be used 
        would help ICE ensure that immigration enforcement activities 
        undertaken by participating agencies are in accordance with ICE 
        policies and program objectives.
---------------------------------------------------------------------------
    \6\ While law enforcement officers without 287(g) designation are 
not prohibited from contacting ICE to get information on the 
immigration status and identity of aliens suspected, arrested, or 
convicted of criminal activity, the statutory authority of an ICE 
officer to interrogate individuals as to their immigration status is 
one of the Federal immigration enforcement functions specifically 
delegated to State and local officers who are certified to perform this 
function under the 287(g) program.
---------------------------------------------------------------------------
   Supervision of Participating Agencies.--Although the law 
        requires that State and local officials use 287(g) authority 
        under the supervision of ICE officials, ICE has not described 
        in internal or external guidance the nature and extent of 
        supervision it is to exercise over participating agencies' 
        implementation of the program. This has led to wide variation 
        in the perception of the nature and extent of supervisory 
        responsibility among ICE field officials and officials from 23 
        of the 29 participating agencies that had implemented the 
        program and provided information to us on ICE supervision. 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 that computer systems are 
        working properly. ICE officials at another field office 
        described their supervisory activities as reviewing files for 
        completeness and accuracy. Officials from 14 of the 23 agencies 
        that had implemented the program were pleased with ICE's 
        supervision of the 287(g) trained officers. Officials from 
        another four law enforcement agencies characterized ICE's 
        supervision as fair, adequate, or provided on an as-needed 
        basis. Officials from three agencies said they did not receive 
        direct ICE supervision or that supervision was not provided 
        daily, which an official from one of these agencies 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. ICE officials in headquarters noted that the level 
        of ICE supervision provided to participating agencies has 
        varied due to a shortage of supervisory resources. Internal 
        control standards require an agency's organizational structure 
        to define key areas of authority and responsibility. Given the 
        rapid growth of the program, defining the nature and extent of 
        ICE's supervision would strengthen ICE's assurance that 
        management's directives are being carried out.
   Tracking and Reporting Data.--MOAs that were signed before 
        2007 did not contain a requirement to track and report data on 
        program implementation. For the MOAs signed in 2007 and after, 
        ICE included a provision stating that participating agencies 
        are responsible for tracking and reporting data to ICE. 
        However, in these MOAs, ICE did not define what data should be 
        tracked or how it should be collected and reported. Of the 29 
        jurisdictions we reviewed, 9 MOAs were signed prior to 2007 and 
        20 were signed in 2007 or later. Regardless of when the MOAs 
        were signed, our interviews with officials from the 29 
        participating jurisdictions indicated confusion regarding 
        whether they had a data tracking and reporting requirement, 
        what type of data should be tracked and reported, and what 
        format they should use in reporting data to ICE. Internal 
        control standards call for pertinent information to be recorded 
        and communicated to management in a form and within a time 
        frame that enables management to carry out internal control and 
        other responsibilities. Communicating to participating agencies 
        what data is to be collected and how it should be gathered and 
        reported would help ensure that ICE management has the 
        information needed to determine whether the program is 
        achieving its objectives.
   Performance Measures.--ICE has not developed performance 
        measures for the 287(g) program to track and evaluate the 
        progress toward attaining the program's objectives.\7\ 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.\8\ 
        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. 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. ICE officials 
        also stated that developing 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, 
        standard practices for program and project management call for 
        specific desired outcomes or results to 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. 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.
---------------------------------------------------------------------------
    \7\ In general, performance measures are indicators, statistics, or 
metrics used to gauge program performance.
    \8\ 8GAO/GGD-96-118.
---------------------------------------------------------------------------
 program resources are used for training, supervision, and equipment; 
  benefits and concerns are reported by ice and participating agencies
    ICE and participating agencies used program resources mainly for 
personnel, training, and equipment, and participating agencies reported 
activities, benefits, and concerns stemming from the program. For 
fiscal years 2006 through 2008, ICE received about $60 million to 
provide training, supervision, computers, and other equipment for 
participating agencies. State and local participants provided officers, 
office space, and other expenses not reimbursed by ICE, such as office 
supplies and vehicles.
    ICE and State and local participating agencies cite a range of 
benefits associated with the 287(g) partnership. For example, as of 
February 2009, ICE reported enrolling 67 agencies and training 951 
State and local law enforcement officers. At that time, ICE had 42 
additional requests for participation in the 287(g) program, and 6 of 
the 42 have been approved pending approval of an MOA. According to data 
provided by ICE for 25 of the 29 program participants we reviewed, 
during fiscal year 2008, about 43,000 aliens had been arrested pursuant 
to the program.\9\ Based on the data provided, individual agency 
participant results ranged from about 13,000 arrests in one location, 
to no arrests in two locations. Of those 43,000 aliens arrested 
pursuant to the 287(g) authority, ICE detained about 34,000, placed 
about 14,000 of those detained (41 percent) in removal proceedings, and 
arranged for about 15,000 of those detained (44 percent) to be 
voluntarily removed.\10\ 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 the Federal Government's detention 
space.\11\
---------------------------------------------------------------------------
    \9\ ICE provided data for 25 of the 29 participating agencies we 
reviewed. ICE also provided data for four other participating agencies, 
but we do not report them as they were not within the scope of our 
review. We used the data provided by ICE for illustrative purposes only 
and not to draw conclusions about the 287(g) program.
    \10\ A voluntary removal (called voluntary departure) occurs when 
an alien is allowed to depart the country at his or her own expense 
(escorted by ICE) in lieu of formal removal proceedings or prior to 
completion of such proceedings.
    \11\ Individuals arrested on administrative charges who may be sole 
caregivers or who have other humanitarian concerns, including those 
with serious medical conditions that require special attention, 
pregnant women, nursing mothers, parents who are the sole caretakers of 
minor children or disabled or seriously ill relatives, and parents who 
are needed to support their spouses in caring for sick or special needs 
children or relatives, may be released by ICE. As appropriate, if ICE 
is provided with new information regarding a humanitarian condition 
after an arrestee has been processed and detained, ICE may consider the 
possibility of release on humanitarian grounds based on such 
information. In general, aliens given a humanitarian release or not 
taken into custody due to limited detention space receive a notice to 
appear in immigration court at a later date for removal proceedings. 
Removable aliens serving a sentence in Federal State prison are to be 
processed for removal at the end of their sentences.
---------------------------------------------------------------------------
    Participating agencies cited benefits of the program including a 
reduction in crime and the removal of repeat offenders. However, more 
than half of the 29 State and local law enforcement agencies we 
reviewed reported concerns community members expressed about the 287(g) 
program, including concerns that law enforcement officers in the 287(g) 
program would be deporting removable aliens pursuant to minor traffic 
violations (e.g., speeding) and concerns about racial profiling.
    We made several recommendations to strengthen internal controls for 
the 287(g) program to help ensure the program operates as intended. 
Specifically, we recommended that ICE: (1) Document the objective of 
the 287(g) program for participants; (2) clarify when the 287(g) 
authority is authorized for use by State and local law enforcement 
officers; (3) document 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; (4) 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, (5) establish 
a plan, including a time frame, for the development of performance 
measures for the 287(g) program. DHS concurred with each of our 
recommendations and reported plans and steps taken to address them.
    Mr. Chairman and Members of the committee, this concludes my 
statement. I would be pleased to respond to any questions you or other 
Members of the committee may have.

    Chairman Thompson. Thank you very much.
    Sheriff Jenkins. I now recognize you to summarize your 
statement for 5 minutes.

  STATEMENT OF CHARLES A. JENKINS, SHERIFF, FREDERICK COUNTY, 
                       STATE OF MARYLAND

    Sheriff Jenkins. Good afternoon, Mr. Chairman, 
distinguished committee Members. I am Charles A. Jenkins, 
sheriff, Frederick County, Maryland, your neighbor to the 
north.
    I moved forward to the 287 program in 2007 for two reasons: 
No. 1, national security, specifically the identification of 
individuals encountered through arrest and investigations that 
may be a potential terrorist threat inside of our borders; No. 
2, the enormous increase in crime throughout the United States, 
to include this region, which can be tied directly to the 
unchecked flow of illegal immigrants through our southern 
borders with Mexico.
    The agreement for participation was signed in late 2007. 
ICE provided training for 26 Frederick County Sheriff's Office 
personnel: 16 correctional officers and 10 sworn law 
enforcement deputies. Frederick County currently participates 
in both arms of the 287 program. The detention center program 
was implemented on April 11, 2008, and the law enforcement task 
force program was implemented on August 1, 2008.
    In Frederick County, everyone arrested by our agency and 
all other local and State agencies in the county are screened 
and identified through the detention program to determine their 
legal presence, their alienage or legal status in the United 
States. Persons arrested, charged and convicted for violent and 
serious crimes, crimes of moral turpitude and serious 
arrestable driving offenses are not released back onto the 
streets of our community to commit even more serious crimes or 
to cause the horrific crashes and driving events that we have 
seen across our country.
    Those identified as being in the United States illegally 
are prosecuted locally, serve time on the State/local charges 
as appropriate, then placed into the removal proceedings. The 
first arrest and detainer filed under 287(g) was arrested for 
driving intoxicated at two times the legal limit in his blood 
through a school zone during school hours. Since April 11, 
2008--and these are some stats I think are very important--the 
following arrests reflect the effectiveness and significance of 
the 287 program in Frederick County, Maryland.
    Frederick County has lodged detainers on 337 arrestees 
identified through the program with 309 of those placed into 
removal proceedings. The program has allowed us to identify and 
place into removal proceedings nine members of the notoriously 
violent gangs, MS-13 and 18th Street, originally out of El 
Salvador, now thriving on this side of the coast. Also among 
those arrested and identified were a Nicaraguan military-
trained sniper and a Salvadorian guerilla trained in knife 
fighting.
    Some of the most serious offenses in which criminal aliens 
have been arrested are attempted second-degree murder, second-
degree rape, armed robbery, child abuse, burglary. Over the 
past 2 years, all of the largest multi-kilo narcotics 
investigations and seizures by our narcotics task force for 
both cocaine and marijuana have involved the arrest of illegal 
criminal aliens and the trafficking of those drugs in Frederick 
County. Several cases involve the drugs being brought directly 
from the border States.
    I will strongly argue that national security is at risk by 
the increased organized street crimes we are seeing now in our 
communities. It is in this light that the argument is made--and 
I will make it--that national security and fighting that crime 
are one and the same.
    Human trafficking is yet another element of the organized 
crime we are seeing. Immigrants themselves are victimized. The 
bleeding of our borders and the crime associated is in fact 
terrorism. It is also recognized that the face of terrorism has 
changed. It is no longer identified by one face, one profile, 
one country of origin, or one ethnic group.
    Our law enforcement task force deputies work not as a 
separate unit but as criminal investigator, as narcotics 
investigators, patrol deputies, now trained in the 
investigation and identification of fraudulent documents, now 
able to identify criminal aliens. They work closely under the 
direct supervision of an ICE agent or supervisor. We have also 
worked on an ICE gang surge unit.
    As far as the relationship, the working relationship 
between ICE and Frederick County has been outstanding from day 
1. We work at the direction of ICE supervisors who have trusted 
our well-trained people to effectively run the program with 
direct supervision when needed and availability when we need 
them. This speaks well to the training program and the 
oversight. I would be remiss if I said that at times ICE--their 
manpower is strained, they are understaffed, and they need 
additional manpower. As a sheriff and a participant in the 
program, I would fully support additional manpower and 
resources for the 287 program.
    I educated the county about what we were going to do from 
the start. From the outset, I made the public aware of my 
intentions and the reasons why. It was well publicized in the 
local media. I have attended many organizational and community 
meetings where this program has been brought up and discussed 
at length. The facts were explained and the rumors were 
dispelled and the false information was set aside. Again, I 
listen to the citizens of Frederick County in moving forward 
with this program.
    The negative criticism--yes. Overall, public support of and 
comment about this program has been overwhelmingly positive. 
Estimates of local public support in Frederick County are as 
high as 90 percent. There are opponents who have criticized our 
involvement in the program and have made false assertions and 
claims. CASA de Maryland, the ACLU, the local chapter of the 
NAACP have all voiced opposition, but they should be behind 
this. This is not about profiling; this is not about 
discrimination.
    A couple of points: There have been absolutely no 
complaints of profiling or discrimination based on ethnicity 
since the implementation of the program. The program has not 
harmed police-immigrant community relations. The program has 
not been a huge additional cost to the citizens of Frederick 
County. I would argue that the cost of doing nothing is 
enormous. All other costs are paid for through the program 
funding. There has been no special immigration enforcement unit 
created in our office.
    Chairman Thompson. Sheriff, we don't like to stop folk with 
badges on, because you might have a weapon too, but----
    Sheriff Jenkins. Could I----
    Chairman Thompson. If you could summarize----
    Sheriff Jenkins. Okay, I will summarize in closing. In the 
10 months since the 287 program was implemented, I can show you 
with statistics, with proof, that it has been an overwhelming 
success. We have been cited as a model agency in the program.
    The citizens of this country are clearly frustrated. I 
would respectfully urge the committee to expand the resources 
and oversight for the program.
    Mr. Chairman, committee Members, Americans are angered, 
they are tired, they are frustrated. We are dying on American 
soil. I urge you to listen to them. There is a role for local 
law enforcement in the enforcement of the immigration laws of 
America.
    Thank you.
    [The statement of Mr. Jenkins follows:]
                Prepared Statement of Charles A. Jenkins
                              introduction
    Frederick County, Maryland is located approximately 60 miles 
northwest of Washington, DC, with a population of approximately 
230,000. Frederick County has a very strong agricultural industry base, 
also bio-science, and light manufacturing industry. The Frederick 
County Sheriff's Office is a full-service law enforcement agency with 
primary law enforcement responsibility outside of the municipalities, 
also responsible for the operations of the courthouse and adult 
detention center.
    The city of Frederick is currently the second-largest city in the 
State of Maryland. As recent as late 2008, Frederick County has been 
identified as one of the top five counties in the United States in 
terms of seeing increases of immigrants moving into the community, a 
significant number here illegally.
    Elected as Sheriff in November 2006, I had researched this program 
extensively and the reasons for seeking participation were two-fold:
    (1) National security, specifically the identification of 
        individuals encountered through arrests and investigations, 
        which may be a potential terrorist threat inside of our 
        borders.
    (2) The enormous increase in crime throughout the United States, to 
        include this region which can be tied directly to the unchecked 
        flow of illegal immigrants through our southern borders with 
        Mexico.
    Federal, State, and local law enforcement agencies across the 
country know and have attributed much of the increase in violent crime 
and drug trafficking to the rapid growth of trans-national gangs and 
organized crime tied to drug cartels outside of our borders.
         general overview of 287(g) program in frederick county
    With executive authority as Sheriff, my agency applied for 
participation the DHS/ICE 287(g) Delegation of Authority Program in 
early 2007. The agreement for participation was signed in late 2007. 
ICE provided training for 26 Frederick County Sheriff Office personnel, 
16 Correctional Officers and 10 sworn law enforcement deputies. The 4 
weeks of intensive training was conducted by ICE in February 2008, 
hosted at the Frederick County Law Enforcement Center.
    Frederick County currently participates with both arms of the 
287(g) Program, the detention center program and the law enforcement/
task force program. The detention center program was implemented on 
April 11, 2008, and the law enforcement/task force program was 
implemented on August 1, 2008.
    Through the 287(g) Program, Frederick County Sheriff's Deputies and 
Correctional Officers are authorized to act as immigration officers in 
the enforcement of the United States Immigration Laws, in effect a 
force multiplier for DHS/ICE. I view this as critical that State/local 
law enforcement participate with DHS/ICE in accomplishing the overall 
mission of enforcing the immigration laws in accordance existing 
Federal laws and the removal of criminal illegal aliens.
    As a valuable tool to law enforcement in fighting crime, I would 
urge every law enforcement executive, both police chiefs and sheriffs, 
to request participation into the program. In Frederick County, 
everyone arrested by all other local and State agencies, are screened 
and identified through the detention program, to determine their legal 
presence or status in the United States.
    Persons arrested, charged, and convicted for violent and serious 
crimes, crimes of moral turpitude, and serious driving offenses are not 
released back onto the streets of our community to commit even more 
serious crimes, or to cause the horrific crashes and driving events 
that have victimized our communities.
    To dispute the detractors and arguments that many arrestees in 
driving offense arrests, are eventually identified, detained, and 
removed through the program, criminal background checks show criminal 
records of serious and violent crimes. Those identified as being in the 
United States illegally are prosecuted locally; serve time on the 
State/local charges as appropriate, then placed into removal 
proceedings. The first arrest and detainer filed under the 287(g) 
Program was arrested for driving intoxicated, through a school zone, 
during school hours of operation.
       results of the program/statistics of significant interest
    Since April 11, 2008, the following statistics on arrest reflect 
the effectiveness and significance of the 287(g) Program in Frederick 
County, Maryland:
   Frederick County has lodged detainers on 337 arrestees 
        identified through the program as being in the United States 
        illegally, with 309 of those placed into removal proceedings.
   The program has allowed us to identify and place into 
        removal proceedings 9 members of the notoriously violent gangs 
        MS-13 and 18th Street, originally out of El Salvador, now 
        thriving across the United States. Also, among those arrested 
        and identified were a Nicaraguan military trained sniper and a 
        Salvadorian guerilla fighter trained in knife fighting.
   Some of the most serious offenses in which criminal aliens 
        have been arrested as offenders and identified include: 
        Attempted 2nd Degree Murder, 2nd Degree Rape, Armed Robbery, 
        1st Degree Assault, Child Abuse, Burglary, and Possessing 
        Counterfeit U.S. Currency.
   Over the past 2 years, all of the largest (multi-kilo) 
        narcotics investigations and seizures by our Frederick County 
        Narcotics Task Force, for both cocaine and marijuana, have 
        involved the arrests of illegal criminal aliens and the 
        trafficking of those illegal drugs in Frederick County. Several 
        cases have involved drugs being trafficked directly from the 
        southern Border States.
                      crime and national security
    It can be strongly argued that national security is at risk by the 
increased organized street crimes we are seeing in our communities. It 
is in this light that the argument is made that national security and 
fighting that crime are one in the same, with the increases of violent 
crime spilling across our borders, controlled by the corruption and 
power of the Mexican drug cartels, driven by trans-national and 
organized street gangs. Human trafficking is yet another element of the 
organized crime we are seeing.
    The bleeding of our borders and the crime associated is in fact 
terrorism. Terrorists and criminals are able to easily exploit our 
immigration system because of our vulnerable borders and by utilizing 
fraudulent identification. They seek to operate and remain in the 
United States under the radar of the Federal Government.
    The 287(g) Program in this regard is a strong and effective tool in 
safeguarding our national security at our borders. It is also 
recognized that the face of terrorism has changed dramatically across 
the globe and that it can no longer be identified by just one face, one 
profile, country of origin, or ethnic group.
    This valuable program can be of enormous assistance to local law 
enforcement in the identification of suspects who may be looking to 
target soft targets and critical infrastructure on our soil.
    Our law enforcement/task force deputies work within the authority 
of the 287(g) Program as an extension of their routine law enforcement 
duties. Those deputies include criminal investigators, narcotics 
investigators, and patrol deputies, now trained in the investigation 
and identification of fraudulent documents, now able to identify 
criminal aliens in the process of investigating street crimes. They 
have worked under the direct supervision of ICE on a gang surge effort.
                         relationship with ice
    The working relationship between ICE and the Frederick County 
Sheriff's Office has been outstanding from day 1. We have worked at the 
direction of ICE supervisors who trust our well trained personnel to 
effectively run the program with direct supervision when needed, and 
constant availability and response to assist and answer questions. This 
speaks well to the training program.
    ICE special agents, supervisors, extending to the director level in 
both the investigations side and detention programs have worked to 
assure that this program and our participation have been effective and 
seamless. I am fortunate to have an ICE Special Agent working in-house 
on a very routine basis.
    I would be remiss if I did not acknowledge that at times, DHS/ICE 
is understaffed and in need of additional manpower.
    Recognizing the magnitude of their mission in the 287(g) 
Immigration Enforcement Program, I would strongly encourage an 
expansion of the program and the appropriate increase in field agents 
and supervisory personnel to support the number of law enforcement 
agencies who want to participate.
    As a Sheriff and as a participant in this program, I would fully 
support additional manpower and resources for the 287(g) Program, given 
that many agencies have shown the value and effectiveness of the 
program.
                 community education about the program
    In listening and hearing the frustrations and concerns of the 
citizens of Frederick County, I went forward in seeking this program. 
From the outset I made the public aware of my intentions to move the 
agency forward into this program. It was well-publicized in the local 
media, to include local radio, the newspapers, and local television 
when interested.
    In addition, I have attended many organizational and community 
meetings where this program has been brought up and discussed at 
length, to explain the facts and value of the program and to dispel 
rumors and false information. Again, I listened to the citizens of this 
county in moving forward with participation in this program.
    In educating the public the focus has been to make people aware 
that everyone taken into the detention center is screened, asked the 
same questions to determine legal status, and are processed in the 
identical manner.
        dispelling the negative criticism of the 287(g) program
    Overall, public support of and comment about this program has been 
overwhelmingly positive. It is very clear by way of phone calls, 
emails, letters, letters to the local paper, and radio call-ins, that 
the vast majority of the citizens of this county are in favor of this 
illegal immigration enforcement initiative. Estimates of local public 
support are as high as 90 percent.
    Many residents of neighboring counties also voice their approval of 
this effort in Frederick County.
    I have received many calls from naturalized citizens and legal 
immigrants who are offended at those who violate the laws entering this 
country illegally and have been given a free pass while breaking State 
and local laws, to remain in this country illegally.
    There are detractors that have criticized our involvement in the 
program, and have made false assertions and claims of discrimination 
and profiling. CASA de Maryland, the ACLU, and the local chapter of the 
NAACP has voiced opposition, citing profiling, discrimination, and 
creating distrust within the local immigrant communities. Those same 
organizations and detractors also cited the exorbitant costs of the 
program to the citizens of this county. These claims have been proven 
to be false.
   There have been absolutely NO complaints of profiling or 
        discrimination based on ethnicity since the implementation of 
        the 287(g) Program.
   The program has NOT harmed police/immigrant community 
        relations, and has not created fear or distrust of law 
        enforcement. This is all rhetorical, with no real basis. Any 
        existing fear or distrust of law enforcement is generally 
        cultural based, as most countries where immigrants originate 
        from do have corrupt governments, corrupt and abusive law 
        enforcement, which is all they have been exposed to in their 
        lives. This is simply not true.
   This program has NOT been a huge cost to the citizens of 
        Frederick County. The training was hosted at no cost, other 
        than the normal salaries of those FCSO deputies and officers 
        attending. The database access, computers, hardware, IT lines, 
        and other tie-in and technical expenses were paid for through 
        ICE program funding, not local taxpayer dollars.
   Other program expenses such as travel, medical expenses for 
        detainees, and detention housing expenses are covered by and 
        reimbursement by DHS/ICE through program funding.
   There is NO special Immigration Enforcement Unit created in 
        the FCSO as a result of this program. All of our enforcement 
        efforts in the detention program and the law enforcement/task 
        force program are an extension of the current duties of the 
        personnel trained in the program.
                           closing statement
    In the almost 10 months since the 287(g) Program was implemented in 
Frederick County, the results have clearly shown it to be an 
overwhelming success. The Frederick County Sheriff's Office has been 
cited as a model agency in this partnership with DHS/ICE. Clearly, the 
program has become an effective tool in fighting crime, keeping 
criminal aliens from being set free on the streets of our communities, 
and being placed into removal proceedings and returned to their home 
countries.
    Testifying here today, I strongly believe I am representing the 
voice of America. The citizens of United States clearly are frustrated 
with the problems associated with illegal immigration including the 
crime, national security risks, and the associated economic effects.
    Detractors and opponents of the 287(g) Immigration Enforcement 
Program will say they want nothing done. With everything currently at 
stake, doing nothing is NOT an option. I would respectfully urge this 
committee to expand the resources for this program and to encourage law 
enforcement across the entire United States to participate in this 
partnership with DHS/ICE.

    Chairman Thompson. Thank you.
    For the membership of the committee, we will hear one other 
witness. We will recess at that point. We will have four votes, 
and we will reconvene right after those four votes.
    Chief Manger for 5 minutes.

STATEMENT OF J. THOMAS MANGER, CHIEF, MONTGOMERY COUNTY POLICE 
                 DEPARTMENT, STATE OF MARYLAND

    Chief Manger. Mr. Chairman, distinguished Members of the 
committee, I am Tom Manger, chief of police of Montgomery 
County, Maryland, and chairman of the Major Cities Chiefs' 
Legislative Committee. The Major Cities Chiefs Association 
represents the 56 largest police departments in the United 
States.
    Each one of these 56 police chiefs is dealing every day 
with the issues of undocumented residents and the crime 
committed by a fraction of these residents. Nowhere is this 
challenge more acute than in this country's largest urban 
settings. Local governments have, by necessity, had to react 
and respond to the growing number of challenges caused by an 
increasing population of undocumented residents.
    Municipalities have chosen a range of approaches. Some are 
proud to be called sanctuary jurisdictions, where not only does 
local law enforcement not inquire about anyone's immigration 
status, some jurisdictions don't honor nor serve warrants from 
ICE. On the other end of the spectrum, some jurisdictions have 
adopted policies that prohibit government services going to 
undocumented individuals and have elected to participate in the 
Federal 287(g) training. Most jurisdictions have adopted 
policies somewhere between the two approaches I just described.
    The overwhelming majority of major city police agencies 
have elected not to participate in 287(g) training. In fact, 
the last figures I have seen indicate that over 95 percent of 
police and sheriffs' departments in the United States have 
elected not to participate in the 287(g) training.
    But I think it is important to make two points here. One, I 
am not trying to be critical of those agencies that do 
participate. It just would not work in most large, urban 
jurisdictions. We believe that there would be--we also believe 
that there should be strong cooperation and coordination with 
all of our Federal law enforcement partners, including ICE.
    So why have the Nation's largest police agencies elected 
not to participate in 287(g)? First, it undermines the trust 
and cooperation with immigrant communities that are essential 
elements of community policing. We need to have strong policies 
that take into full account the realities of local law 
enforcement. One of those realities is that public safety 
increases when people have trust and confidence in their police 
department. Consequently, unreported crime goes down.
    Another reality is that immigrants, both documented and 
undocumented, are more likely to be victims of crimes than are 
U.S. citizens. Delivering fair and consistent police service to 
all crime victims has to be a priority.
    A second reason that most jurisdictions are not taking the 
287(g) training is that local agencies do not possess adequate 
resources to enforce these laws in addition to the added 
responsibility of homeland security. Enforcing Federal law is 
an unfunded mandate that most agencies just cannot afford to 
do.
    Third, immigration laws are very complex, and the training 
required to understand them would significantly detract from 
the core mission of the local police to create safe 
communities. Prior to just a few years ago, enforcing 
immigration law was solely a Federal responsibility. It was a 
specialty, like the IRS and tax law. If the Federal Government 
comes to the conclusion someday that too many people are tax 
evaders, will the solution be to authorize local police to 
enforce tax laws? This is contrary to our mission.
    That said, working cooperatively with our Federal partners 
is essential for public safety. Using the IRS again as an 
example, when we make a case against an individual as a major 
narcotics distributor, notifying and working closely with the 
IRS is the effective thing to do. In the same way, working 
closely with ICE on human trafficking cases, gang 
investigations, fraudulent document cases is a proven crime-
fighting technique.
    Montgomery County Corrections sends a list of all foreign-
born inmates to ICE once a week. In addition, my police 
officers and detectives notify ICE on every violent crime 
arrest that we make. But the bottom line is this: Local law 
enforcement needs to work closely and effectively with our 
Federal partners, but we cannot do their job for them.
    The Major Cities Chiefs have sent a clear and consistent 
message to each attorney general for the past 8 years. That 
message is: No. 1, secure our borders; it has to be a top 
priority. No. 2, remove civil immigration detainers from the 
NCIC database. In August 2003, Attorney General John Ashcroft 
put these civil warrants in a national database that had 
previously been for criminal warrants. Our current attorney 
general can remedy this with the stroke of a pen. No. 3, 
consulting and involving local police agencies when developing 
any immigration initiative is imperative if that initiative is 
to involve local law enforcement.
    Thank you.
    [The statement of Mr. Manger follows:]
                 Prepared Statement of J. Thomas Manger
        enforcement of immigration laws by local police agencies
                         a. statement of issue
    Illegal immigration is a problem that vases our Nation and society 
as a whole and one that must be dealt with at the national level. It is 
absolutely critical that our country develop a consistent unified 
national plan to deal with immigration and this plan must include the 
critical component of securing our borders to prevent illegal entry 
into the United States.
    Since the horrendous attacks of September 11, 2001, local law 
enforcement has been called upon to do its part in protecting the 
Nation from future terrorist attacks. The response of local law 
enforcement to the call to protect the homeland has been tremendous. 
Today, local police agencies stand as the first line of defense here at 
home to prevent future attacks. Local law enforcement's unending 
efforts include providing additional training and equipment to 
officers, increasing communication and coordination with Federal 
agencies, gathering, assessing and sharing intelligence, modifying 
patrol methods and increasing security for potential targets such as 
power plants, airports, monuments, ports, and other critical facilities 
and infrastructure. Much of these efforts have been at a high cost to 
local budgets and resources.
    The Federal Government and others have also called upon local 
police agencies to become involved in the enforcement of Federal 
immigration laws as part of the effort to protect the Nation. This 
issue has been a topic of great debate in the law enforcement community 
since September 11. The call for local enforcement of Federal 
immigration laws has become more prominent during the debate over 
proposed immigration reform at the national level.
    Major city police departments have a long undeniable history of 
working with Federal law enforcement agencies to address crime in the 
United States, whether committed by citizens, visitors, and/or illegal 
immigrants. Local police agencies have not turned a blind eye to crimes 
related to illegal immigration. They have worked and continue to work 
daily with Federal agencies whenever possible and to the extent 
allowable under state criminal law enforcement authority to address 
crimes such as human trafficking and gang violence, which have a nexus 
with illegal immigration.
    How local agencies respond to the call to enforce immigration laws 
could fundamentally change the way they police and serve their 
communities. Local enforcement of Federal immigration laws raises many 
daunting and complex legal, logistical and resource issues for local 
agencies and the diverse communities they serve. Some in local law 
enforcement would embrace immigration enforcement as a means of 
addressing the violation of law represented by illegal immigration 
across our borders. Many others recognize the obstacles, pitfalls, 
dangers and negative consequences to local policing that would be 
caused by immigration enforcement at the local level.
    It is important for Major Cities Chiefs [MCC] as a leader and 
representative of the local law enforcement community to develop 
consensus on this important subject. The purpose of this position 
statement is to evaluate and address the impact and potential 
consequences of local enforcement of Federal immigration laws and to 
highlight steps that, if taken, might allow local agencies to become 
involved in immigration enforcement. It is hoped that this statement 
will help to draw attention to the concerns of local law enforcement 
and provide a basis upon which to discuss and shape any future national 
policy on this issue. In this regard it is absolutely critical that MCC 
be involved in all phases of this debate from developing this official 
position statement to demanding input and involvement in the 
development of any national initiatives.
            b. overview of immigration and immigrant status
    The Federal Government has the clear authority and responsibility 
over immigration and the enforcement of immigration laws. With this 
authority, the Federal Government has enacted laws, such as the 
Immigration and Naturalization Act (INA), that regulate a person's 
entry into the United States, his or her ability to remain in the 
country, and numerous other aspects of immigration. The Federal 
Government has given Federal agencies such as Immigration and Customs 
Enforcement [ICE] the specific authority to investigate a person's 
immigration status and deport individuals who have no legal status or 
authority to be in the United States.
    Under the current immigration laws there exist various immigration-
status classifications. The immigration status of any particular person 
can vary greatly. The most common status classifications include the 
following:
    (1) Legal Immigrants are citizens of other countries who have been 
        granted a visa that allows them to live and work permanently in 
        the United States and to become naturalized U.S. citizens. Once 
        here, they receive a card, commonly referred to as a ``green 
        card'' from the Federal Government indicating they are 
        permanent residents. Some legal immigrants are refugees who 
        fear persecution based on race, religion, nationality, 
        membership in a particular social group, or political opinion 
        in their home countries. Refugees are resettled every year in 
        the United States after their requests for asylum have been 
        reviewed and granted.
    (2) Nonimmigrant Visa Holders are persons who are granted temporary 
        entry into the United States for a specific purpose, such as 
        visiting, working, or studying. The United States has 25 types 
        of nonimmigrant visas, including A1 visas for Ambassadors, B2 
        visas for tourists, P1 visas for foreign sports stars who play 
        on U.S. teams and TN visas for Canadians and Mexicans entering 
        the United States to work under NAFTA. Visa Holders are allowed 
        to stay in the United States as long as they meet the terms of 
        their status.
    (3) Illegal Immigrants are citizens of other countries who have 
        entered or remained in the United States without permission and 
        without any legal status. Most illegal immigrants cross a land 
        or sea border without being inspected by an immigration 
        officer. Some persons fall into illegal status simply by 
        violating the terms of a legal entry document or visa.
    (4) Absconders are persons who entered the United States legally 
        but have since violated the conditions of their visa and who 
        have had a removal, deportation, or exclusion hearing before an 
        immigration judge and are under a final order of deportation 
        and have not left the United States.
     c. concerns with local enforcement of federal immigration laws
    Local police agencies must balance any decision to enforce Federal 
immigration laws with their daily mission of protecting and serving 
diverse communities, while taking into account: Limited resources; the 
complexity of immigration laws; limitations on authority to enforce; 
risk of civil liability for immigration enforcement activities and the 
clear need to foster the trust and cooperation from the public 
including members of immigrant communities.
(1) Undermine Trust and Cooperation of Immigrant Communities
    Major urban areas throughout the Nation are comprised of 
significant immigrant communities. In some areas the immigrant 
community reaches 50 percent-60 percent of the local population. Local 
agencies are charged with protecting these diverse populations with 
communities of both legal and illegal immigrants. The reality is that 
undocumented immigrants are a significant part of the local populations 
that major police agencies must protect, serve and police.
    Local agencies have worked very hard to build trust and a spirit of 
cooperation with immigrant groups through community-based policing and 
outreach programs and specialized officers who work with immigrant 
groups. Local agencies have a clear need to foster trust and 
cooperation with everyone in these immigrant communities. Assistance 
and cooperation from immigrant communities is especially important when 
an immigrant--whether documents or undocumented--is the victim of or 
witness to a crime. These persons must be encouraged to file reports 
and come forward with information. Their cooperation is needed to 
prevent and solve crimes and maintain public order, safety, and 
security in the whole community. Local police contacts in immigrant 
communities are important as well in the area of intelligence-gathering 
to prevent future terroristic attacks and to strengthen homeland 
security.
    Immigration enforcement by local police would likely negatively 
affect and undermine the level of trust and cooperation between local 
police and immigrant communities. If the undocumented immigrant's 
primary concern is that he/she will be deported or subjected to an 
immigration-status investigation, then the individual will not come 
forward and provide needed assistance and cooperation. Distrust and 
fear of contacting or assisting the police would develop among legal 
immigrants as well. Undoubtedly legal immigrants would avoid contact 
with the police for fear that they themselves or undocumented family 
members or friends may become subject to immigration enforcement. 
Without assurances that contact with the police would not result in 
purely civil immigration-enforcement action, the hard-won trust, 
communication, and cooperation from the immigrant community would 
disappear. Such a divide between the local police and immigrant groups 
would result in increased crime against immigrants and in the broader 
community, create a class of silent victims, and eliminate the 
potential for assistance from immigrants in solving crimes or 
preventing future terroristic acts.
(2) Lack of Resources
    The budgets and resources of local police agencies are not 
unlimited. Local police agencies struggle every year to find the 
resources to police and serve their respective communities. Since the 
events of September 11, local agencies have taken on the added duty of 
serving as the first line of defense and response to terrorist attacks 
for our country. These efforts on the local level to deter and prevent 
another terrorist attack and to be prepared to respond to the aftermath 
of an attack have stretched local resources even further. Since the 
creation of the Homeland Security Department, Federal funding for major 
city police departments has been greatly reduced. Local agencies have 
also had to take on more responsibilities in areas that have 
traditionally been handled by the FBI, whose investigative resources 
are now more focused on counter-terrorism efforts. Local agencies are 
forced to fill the gap left by the shift of Federal resources away from 
investigating white-collar crimes and bank robberies, areas 
traditionally handled by Federal agencies.
    Enforcement of Federal immigration laws would be a burden that most 
major police agencies would not be able to bear under current resource 
levels. The cost in terms of personnel, facilities and equipment 
necessary for local agencies to address the 8-12 million illegal 
immigrants currently living in the United States would be overwhelming. 
The Federal Government, which has primary authority to enforce 
immigration laws, has itself failed to provide the tremendous amount of 
resources necessary to accomplish such enforcement to its own agencies 
specifically charged with that responsibility. Local communities and 
agencies have even fewer resources to devote to such an effort than 
does the Federal Government, given all the numerous other demands on 
local police departments.
    Local police agencies must meet their existing policing and 
homeland-security duties and can not even begin to consider taking on 
the added burden of immigration enforcement until Federal assistance 
and funding are in place to support such enforcement. Current calls for 
local police agencies to enforce immigration come with no clear 
statement or guarantee to provide adequate Federal funding. Local 
agencies also fear that the call for local enforcement of immigration 
laws signals the beginning of a trend toward local police agencies 
being asked to enter other areas of Federal regulation or enforcement.
(3) Complexity of Federal Immigration Law
    Federal immigration laws are extremely complicated in that they 
involve both civil and criminal aspects. The Federal Government and its 
designated agencies such as ICE and the Department of Justice have 
clear authority and responsibility to regulate and enforce immigration 
laws. It is these Federal agencies who have the authority to determine 
if a person will be criminally prosecuted for his/her violations of 
immigration laws or be dealt with through a civil-deportation process. 
Based on their authority, training, experience and resources available 
to them, these Federal agencies and the Federal courts are in the best 
position to determine whether or not a person has entered or remained 
in the country in violation of Federal regulations and the 
applicability of criminal sanctions.
    Immigration violations are different from the typical criminal 
offenses that patrol officers face every day on their local beats. The 
law enforcement activities of local police officers revolve around 
crimes such as murder, assaults, narcotics, robberies, burglaries, 
domestic violence, traffic violations and the myriad of other criminal 
matters they handle on a regular basis. The specific immigration status 
of any particular person can vary greatly and whether the person is in 
fact in violation of the complex Federal immigration regulations would 
be very difficult if not almost impossible for the average patrol 
officer to determine. At this time local police agencies are ill-
equipped in terms of training, experience, and resources to delve into 
the complicated area of immigration enforcement.
(4) Lack of Local Authority and State Law Limitations of Authority
    The Federal Government has clear authority over immigration and 
immigration enforcement. Federal law does not require the States or 
local police agencies to enforce immigration laws nor does it give the 
States or local agencies the clear authority to act in the area of 
immigration.
    Laws in their respective States define the authority of local 
police officers. The authority of local police officers to act to 
enforce against criminal acts is clear and well established. Federal 
immigration laws, however, include both civil and criminal process to 
address immigration violations. It is within the authority of Federal 
agencies such as ICE and the Department of Justice to determine if an 
immigration violation will be dealt with as a criminal matter or 
through a civil process. Given the complexity of the immigration laws, 
it would be difficult for local police agencies to determine if a 
particular violation would result in criminal charges or purely civil 
proceedings and regulation. This duality in immigration law creates a 
gap in authority for local police officers who generally are limited to 
acting only in criminal matters.
    In addition, State laws may restrict a local police officer's 
authority to act even in criminal matters in such a way that it would 
prevent or hinder the officer's ability to investigate, arrest, or 
detain a person for immigration violations alone. Federal agents are 
specifically authorized to stop persons and conduct investigations as 
to immigration status without a warrant. Local police officers may be 
constrained by local laws that deal with their general police powers 
such as the ability to arrest without a warrant, lengths of detention, 
and prohibitions against racial profiling.
    An example of this conflict between the civil nature of immigration 
enforcement and the established criminal authority of local police 
exists in the Federal initiative of placing civil immigration detainer 
notices on the NCIC system. The NCIC system had previously been used 
only to notify law enforcement of strictly criminal warrants and/or 
criminal matters. The civil detainers being placed on this system by 
Federal agencies notify local officers that the detainers are civil in 
nature by including a warning that local officers should not act upon 
the detainers unless permitted by the laws of their State. This 
initiative has created confusion due to the fact that these civil 
detainers do not fall within the clear criminal-enforcement authority 
of local police agencies and in fact lays a trap for unwary officers 
who believe them to be valid criminal warrants or detainers.
(5) Risk of Civil Liability
    In the past, local law enforcement agencies have faced civil 
litigation and liability for their involvement in immigration 
enforcement. For example, the Katy, Texas, Police Department 
participated in an immigration raid with Federal agents in 1994. A 
total of 80 individuals who were detained by the police were later 
determined to be either citizens or legal immigrants with permission to 
be in the country. The Katy Police Department faced suits from these 
individuals and eventually settled their claims out of court.
    Because local agencies currently lack clear authority to enforce 
immigration laws, are limited in their ability to arrest without a 
warrant, are prohibited from racial profiling and lack the training and 
experience to enforce complex Federal immigration laws, it is more 
likely that local police agencies will face the risk of civil liability 
and litigation if they chose to enforce Federal immigration laws.
                 d. mcc's nine-point position statement
    Based upon a review, evaluation, and deliberation regarding the 
important and complex issue of local enforcement of Federal immigration 
laws, the members of MCC, who are the 56 Chief Executive Officers of 
police departments located within a metropolitan area of more than 1.5 
million population and which employ more than 1,000 law enforcement 
officers, hereby set forth our consensus-position statement, which is 
comprised of nine crucial components.
(1) Secure the Borders
    Illegal immigration is a national issue and the Federal Government 
should first act to secure the national borders to prevent illegal 
entry into the United States. We support further and adequate funding 
of the Federal agencies responsible for border security and immigration 
enforcement so they can accomplish this goal. We also support 
consideration of all possible solutions including construction of 
border fences where appropriate, use of surveillance technologies, and 
increases in the number of border-patrol agents. Only when the Federal 
Government takes the necessary steps to close the revolving door that 
exists at our national borders will it be possible for local police 
agencies to even begin to consider dedicating limited local resources 
to immigration enforcement.
(2) Enforce Laws Prohibiting the Hiring of Illegal Immigrants
    The Federal Government and its agencies should vigorously enforce 
existing immigration laws prohibiting employers from hiring illegal 
immigrants. Enforcement and prosecution of employers who illegally seek 
out and hire undocumented immigrants or turn a blind eye to the 
undocumented status of their employees will help to eliminate one of 
the major incentives for illegal immigration.
(3) Consult and Involve Local Police Agencies in Decision-Making
    Major Cities Chiefs and other representatives of the local law 
enforcement community such as the International Association of Chiefs 
of Police and local district attorneys and prosecutors should be 
consulted and brought in at the beginning of any process to develop a 
national initiative to involve local police agencies in the enforcement 
of Federal immigration laws. The inclusion of local law enforcement at 
every level of development would utilize their perspective and 
experience in local policing, address their concerns and likely result 
in a better program that would be more effectively implemented.
(4) Completely Voluntary
    Any initiative to involve local police agencies in the enforcement 
of immigration laws should be completely voluntary. The decisions 
related to how local law enforcement agencies allocate their resources, 
direct their work force, and define the duties of their employees to 
best serve and protect their communities should be left in the control 
of State and local governments. The decision to enter this area of 
enforcement should be left to the local government and not mandates or 
forced upon them by the Federal Government through the threat of 
sanctions or the withholding of existing police assistance funding.
(5) Incentive-Based Approach with Full Federal Funding
    Any initiative to involve local police agencies in the enforcement 
of immigration laws should be an incentive-based approach with full 
Federal funding to provide the necessary resources to the local 
agencies that choose to enforce immigration laws. Federal funds should 
be available to participating local agencies to cover the costs 
associated with enforcement such as expenditures on equipment and 
technology, training and educational programs, and costs of housing, 
caring for, and transporting immigrants prior to their release to 
Federal authorities.
(6) No Reduction or Shifting of Current Assistance Funding
    The funding of any initiative to involve local police agencies in 
the enforcement of immigration laws should not be at the detriment or 
reduction directly or indirectly of any current Federal funding or 
programs focused on assisting local police agencies with local policing 
or homeland security activities. Local police agencies are currently 
working on strained budgets and limited resources to meet local 
policing needs and strengthening homeland security and in fact need 
increased funding and grant assistance in these areas. Merely shifting 
or diverting Federal funding currently available for local policing and 
homeland security activities to any new immigration enforcement 
initiative would only result in a detrimental net loss of total 
resources available to local police agencies to police their 
neighborhoods and strengthen homeland security.
(7) Clarification of Authority and Limitation of Liability
    The authority of local police agencies and their officers to become 
involved in the enforcement of immigration laws should be clearly 
stated and defined. The statement of authority should also establish 
liability protection and an immunity shield for police officers and 
police agencies that take part in immigration enforcement as authorized 
by clear Federal legislation.
(8) Removal of Civil Immigration Detainers From the NCIC System
    Until the borders are secured and vigorous enforcement against 
employers who hire illegal immigrants has taken place and the concerns 
regarding lack of authority and confusion over the authority of local 
agencies to enforce immigration laws and the risk of civil liabilities 
are adequately addressed, MCC strongly requests that the Federal 
agencies cease placing civil-immigration detainers on NCIC and remove 
any existing civil detainers currently on the system. The integrity of 
the system as a notice system for criminal warrants and/or criminal 
matters must be maintained. The inclusion of civil detainers on the 
system has created confusion for local police agencies and subjected 
them to possible liability for exceeding their authority by arresting a 
person upon the basis of a mere civil detainer.
    MCC would encourage the Federal agencies to seek Federal criminal 
warrants for any person they have charged criminally with violations of 
immigration laws and to submit those criminal warrants on the NCIC 
system so the warrants can be acted upon by local police officers 
within their established criminal-enforcement authority and training.
(9) Commitment of Continued Enforcement Against Criminal Violators 
        Regardless of Immigration Status
    MCC member agencies are united in their commitment to continue 
arresting anyone who violates the criminal laws of their jurisdictions 
regardless of the immigration status of the perpetrator. Those 
immigrants--documented and/or undocumented--who commit criminal acts 
will find no safe harbor or sanctuary from their criminal violations of 
the law within any major city but will instead face the full force of 
criminal prosecution.

    Chairman Thompson. Thank you, Chief.
    As previously indicated, we will recess. There are only 
three votes rather than four. Shortly after the three votes, we 
will reconvene.
    [Recess.]
    Chairman Thompson. We would like to reconvene our recessed 
meeting. We have one witness left to offer testimony.
    Mr. Chishti, I now recognize you to summarize your 
statement for 5 minutes.

 STATEMENT OF MUZAFFAR A. CHISHTI, DIRECTOR, NYU SCHOOL OF LAW 
               OFFICE, MIGRATION POLICY INSTITUTE

    Mr. Chishti. My written testimony has been submitted. I 
will just highlight three major areas that I have covered in 
the testimony. One is sort of the evolution of these 
agreements. The second is about their accountability and 
supervision. The third is what costs and public policy issues 
does this program raise.
    The first point we understand from these memoranda of 
understanding--we have been studying them at MPI for the last 
few months--is their recent dramatic growth and their 
concentration. As we know, the 1996 law provided for the 
enactment of these agreements. None were signed until 2002. At 
the start of 2007, there were eight agreements in effect. In 
2007, however, 26 agreements were signed, and 28 more in the 
last year.
    The program's growth, therefore, has not only been dramatic 
and recent, it has also been concentrated. Of the current 67 
agreements under this program, 42 are in the South-Central 
region of the country. What is striking, Mr. Chairman, is the 
majority of these agreements--37 of them--are in the Southeast. 
There has been a rapid growth, we know, in that part of the 
country about recent immigrants and foreign-born population. We 
also know that a good chunk of that may be unauthorized. But we 
cannot ignore the fact also that this is a region of the 
country that comes with a troubled legacy of civil rights 
violation and racial profiling.
    The second point I want to make is sort of remarkably--you 
know, evolution of the purposes of these programs. If you look 
at the legislative history of 287(g), the Congressman who 
introduced it on the floor of the House said that what he meant 
to be covered by these agreements were what we today would call 
a fugitive alien. In the Florida first agreement that was 
signed, it was supposed to cover terrorist suspects.
    But beginning in 2005, you heard senior ICE officials 
coming before subcommittees of this committee assuring that 
these MOUs will be focused on issues of high criminal target 
and high criminal activity. In fact, if you look at all the ICE 
public material on this, it is targeted on criminal aliens.
    But beginning in 2006, the focus of the program started 
shifting. No longer did these programs target criminal aliens, 
but rather at least some agencies were by this point seeking to 
apprehend as many unauthorized immigrants as possible. Thus the 
focus appears to have shifted from dangerousness of targeted 
immigrants to raw numbers.
    The issues of supervision and guidance, I think, have been 
very well covered by the GAO report. They raise very serious 
concerns; I won't repeat them here.
    The last point I want to make from the testimony that we 
offered is that there are obviously very important issues of 
cost and policy that these agreements raise. Mr. Chairman, we 
live in a world of limited resources. The core function of law 
enforcement agencies is to protect the public and keep the 
community safe. Deviation from that core function must be done 
for a compelling reason and be done with caution.
    Focusing on terrorists, on dangerous fugitives, or serious 
criminals can be a high priority of local community; however, 
when that focus is lost and ordinary civil immigration 
violators become the target, there is a significant societal 
cost. The issues of ethnic profiling, the racial profiling, and 
the impact on community policing we heard so well today from 
Chief Manger, and therefore I won't repeat it.
    But the last point on the cost I want to mention is 
immigration laws are complex and ever-changing, as the two 
police organizations, the MCC and IACP have mentioned, that 
they obviously come with significant costs of racial profiling 
and community policing. But the most important ultimately may 
be the Federal Government's ability to dictate and establish a 
coherent national immigration enforcement policy. Because of 
the need to respond to the demands of the applicants of the 
287(g) program, ICE has lost a great deal of initiative as to 
where and when and how to deploy enforcement resources. So 
instead of these agreements advancing a coherent national 
immigration policy--are likely to advance the political 
mandates at the local level.
    So for these reasons we are making a few recommendations. 
We are asking that the expansion of the program be put on hold 
to permit a thorough review of this program and its design. We 
would like this committee to hold hearings in those 
jurisdictions which have these programs and which chose not to 
have these programs.
    We believe that if Congress chooses to continue this 
program, in the future you must articulate specific, meaningful 
programmatic objectives for this program. If the program has to 
be continued, the committee should examine clearly the 
possibility of limiting it to jail programs for serious 
criminal offenses. We should also suggest that Congress should 
make it clear that law enforcement agencies that--if they 
consistently exceed the authority of the MOAs, those MOAs 
should be terminated.
    Thank you very much.
    [The statement of Mr. Chishti follows:]
               Prepared Statement of Muzaffar A. Chishti
                             March 4, 2009
    Mister Chairman and distinguished Members of the committee: My name 
is Muzaffar Chishti, and I am the Director of the Migration Policy 
Institute's Office at New York University School of Law. Thank you for 
inviting me to testify before your committee on ``Examining 287(g): The 
Role of State and Local Law Enforcement in Immigration Law.''
                              introduction
    The Migration Policy Institute (MPI) is a non-partisan, non-profit 
think tank that studies migration and the management of migration 
systems worldwide, and one of its key areas of focus is U.S. 
immigration policy. Last month, MPI issued a report which called on the 
Federal Government to reassert its authority and willingness to enforce 
immigration law, while recognizing the discrete co-operative role that 
States and localities could play in important Federal enforcement 
efforts.\1\ MPI also recently issued a report on the National Fugitive 
Operations Program,\2\ another component of the interior enforcement 
strategy of U.S. Immigration and Customs Enforcement (ICE). In that 
report, we concluded that the fugitive operations program had strayed 
far from its initial mandate and ICE's core priorities, and issued a 
series of recommendations to restore integrity and bring efficacy to 
the program. We are currently engaged in an in-depth study of the 
287(g) program; we have been studying the 67 Memoranda of Agreement 
(MOA) that the Federal Government has signed with various State and 
local government agencies for immigration-related enforcement. As part 
of that work, we are collecting data and will be doing site visits over 
the next several months in preparation for a comprehensive report 
expected to be released later this year. Among other things, we are 
seeking to understand the character, implementation, and impacts of the 
287(g) agreements. The latter include their costs and benefits to 
national, State, and local law enforcement and to local communities. 
What follows are some preliminary conclusions based primarily on our 
examination of the MOAs themselves and publicly available data.
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    \1\ Doris Meissner and Donald Kerwin, ``DHS and Immigration: Taking 
Stock and Correcting Course,'' (Washington, DC: Migration Policy 
Institute, 2009), pg. 48-50, http://www.migrationpolicy.org/pubs/
DHS_Feb09.pdf.
    \2\ Margot Mendelson, Shayna Strom, and Michael Wishnie, 
``Collateral Damage: An Examination of ICE's Fugitive Operations 
Program,'' (Washington, DC: Migration Policy Institute, 2009), http://
www.migrationpolicy.org/pubs/NFOP_Feb09.pdf.
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             i. two years of dramatic, regionalized growth
    The 287(g) program was created as part of the Illegal Immigration 
Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The first 
agreement under the provision was not signed until 2002 by the State of 
Florida. Growth in the program remained measured for the next 5 years, 
but the last 2 years have seen dramatic growth in the number of 287(g) 
agreements.
    At the beginning of 2007, there were eight agreements in effect, 
including six ``jailhouse'' agreements whereby cross-deputized local 
incarceration officers perform immigration functions exclusively with 
respect to individuals already detained on State criminal charges. In 
2007, however, 26 agreements were signed, and another 28 were added the 
following year. The agreements signed in 2007 and 2008 were not 
confined to the jails, but also included the Task Force model in which 
287(g)-authorized officers perform immigration-related enforcement on 
the streets, and the ``hybrid'' model, which entails both the Task 
Force and jailhouse components. Jailhouse agreements comprise the 
majority of the 67 agreements currently in force. (Figure 1 in the 
Appendix section summarizes the growth of 287(g) agreements by year and 
type.)
    While the 287(g) program encompasses law enforcement agencies at 
the State, county, and local levels, counties comprise approximately 
two-thirds of all program participants. The Task Force model is 
predominant in State and city law enforcement agencies, while nearly 
all of the counties have either the jail or hybrid model. (See Figure 2 
for MOAs by jurisdiction and type.)
    The 287(g) program's growth has been regionally concentrated. Of 
the 67 agreements, 42 are in the South, 17 are in the West, five in the 
Northeast and three in the Midwest. ICE has confirmed that there are 
approximately 80 applications pending to join the 287(g) program. About 
two-thirds of the pending applications are from jurisdictions in the 
South, according to ICE.
       ii. mission drift: the evolving purpose of section 287(g)
    One critical threshold issue immediately apparent in our study of 
the 287(g) program is that its ostensible purpose has undergone a 
dramatic evolution from the time it was added to the Immigration and 
Nationality Act (INA) in 1996 to the present day. Initially conceived 
with a narrow mandate, the program has undergone at least two major 
transformations. The first, following the Sept. 11, 2001 attacks, 
sought to utilize the program as a tool to fight terrorism and promote 
public safety. The second transformation, which occurred around 2006, 
made the program a broader, more generalized immigration enforcement 
program. The program's rapid expansion has been accompanied by an 
apparent shift in mission. These changes suggest the need for closer 
supervision of on-going 287(g)-related operations, more extensive 
training of State and local law enforcement officers in the often 
complex arena of immigration law, and clear, publicly released 
guidelines for participating agencies.
1996: Legislative History
    The primary legislative sponsor of the amendment that added the 
287(g) program to the INA, Representative Tom Latham (R-IA), explained 
during the House floor debate that it was intended to ``allow State and 
local law enforcement agencies to enter into voluntary agreements with 
the Justice Department to give them the authority to seek, apprehend 
and detain those illegal aliens who are subject to an order of 
deportation.''\3\ Thus, as initially conceived, the program was to 
focus on non-citizens to whom ICE now refers as ``fugitive aliens'' and 
who were previously referred to by the Immigration and Naturalization 
Service (INS) as ``absconders.''
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    \3\ Floor statement of Rep. Tom Latham, (R-IA), 142 Congressional 
Record, H2475-01, *H2477, 1996.
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1998: Salt Lake Debate
    Although the first MOA was not signed until 2002, the Salt Lake 
City Council came close to enacting a 287(g) agreement just 2 years 
after IIRIRA's passage because of a shortage of INS officers in the 
area. As a result of the shortage, unauthorized immigrants subject to 
INS detainers were nonetheless released by local law enforcement 
because there were not sufficient Federal personnel to transport the 
individuals to a facility in Las Vegas or Denver, and the local police 
had neither the space to continue to hold them nor the authority to 
convey them across State lines.\4\
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    \4\ Statement of Aaron Kennard, Salt Lake County Sheriff, to the 
House Judiciary Committee, Subcommittee on Immigration and Claims, 
Problems Related to Criminal Aliens in the State of Utah, 105th Cong., 
2d sess., July 27, 1998, pg. 14-15.
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    This scenario frustrated local law enforcement and led Salt Lake 
City and County to explore the possibility of signing a Memorandum of 
Understanding, or MOU as the agreements were then called, so that its 
officers could gain ``the authority to . . . assist the INS in 
transporting that person across State lines to an INS holding facility 
in Denver or Las Vegas.''\5\ Both the County Commission and Sheriff 
emphasized that this was the sole purpose of seeking the MOU; as the 
latter put it, ``I have no intention of cross-deputizing my deputies so 
they can enforce the INS laws. I have enough to do in Salt Lake County 
with the local laws. I have no intention of my people arresting people 
for illegal status.''\6\ Ultimately, however, Salt Lake did not pursue 
the MOA because of strong public concerns about the potential for 
racial profiling.\7\
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    \5\ Ibid., Statement of Mary Callaghan, Commissioner, Salt Lake 
County Commission, pg. 6.
    \6\ Ibid., Statement of Aaron Kennard, Salt Lake County Sheriff, 
pg. 15.
    \7\ Shawn Foster, ``SLC Council Says No to Cross-Deputization,'' 
Salt Lake Tribune, September 2, 1998.
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2002-2005: Florida, Alabama and the Los Angeles County Sheriff's 
        Department
    The first 287(g) agreement was ultimately signed by the State of 
Florida in 2002. The officers trained under the new agreement were 
members of the Regional Domestic Security Task Forces created to 
address perceived shortcomings in the State's ability to combat 
terrorism after the Sept. 11 terrorist attacks.\8\ In 2003, the State 
of Alabama entered an MOA to address particular problems it was 
experiencing with fraudulent documents being presented to secure 
drivers' licenses.\9\
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    \8\ Statement of Mark F. Dubina, Special Agent Supervisor, Tampa 
Bay Regional Operations Center, Florida Department of Law Enforcement, 
Regional Domestic Security Task Force Supervisor, before the House 
Committee on Homeland Security, Subcommittee on Management, Integration 
and Oversight, The 287(g) Program: Ensuring the Integrity of America's 
Border Security System Through Federal-State Partnerships, 109th Cong., 
1st sess., July 27, 2005), pg. 17.
    \9\ Ibid., Statement of Major Charles E. Andrews, Chief, 
Administrative Division, Alabama Department of Public Safety, pg. 20.
---------------------------------------------------------------------------
    In July 2005, when only three agreements were in force, a House 
Homeland Security Committee Subcommittee held a hearing on the 287(g) 
program. Paul M. Kilcoyne, Deputy Assistant Director of ICE's Office of 
Investigations, assured the subcommittee that the program would remain 
``focused on criminal organizations, those individuals who pose a 
threat to the border security,'' and not ``the landscape architect that 
had the broken headlight.''\10\ At the time, a 287(g) agreement had 
recently been instituted in Los Angeles County, where custody 
assistants in the county jails were trained to check the immigration 
status of inmates after they had been convicted of a crime. Mr. 
Kilcoyne emphasized the importance of maintaining ``a very focused 
approach'' to the 287(g) program in order to make the best use of 
limited fiscal and managerial resources. For precisely this reason, the 
subcommittee was told that the 287(g) program would expand only into 
State and local jails.
---------------------------------------------------------------------------
    \10\ Ibid., Statement of Paul M. Kilcoyne, Deputy Assistant 
Director, Office of Investigations, ICE.
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2006: A Shift in Focus
    By September 2006, the program had expanded into four additional 
jails, bringing to seven the total number of agreements. The focus of 
the program--or at least the manner in which it was being employed by 
some law enforcement agencies--had shifted further. No longer did 
287(g) officers focus solely on targeting criminal aliens; rather, at 
least some law enforcement agencies were, by this point, seeking to 
apprehend as many unauthorized immigrants as possible on the belief 
that all unauthorized immigrants are more likely to commit crimes and 
in response to perceived fiscal burdens placed on public services by 
immigrants to new immigrant-receiving communities.\11\
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    \11\ Testimony of Jim Pendergraph, Sheriff of Mecklenburg County, 
North Carolina, before the House Committee on Government Reform, 
Subcommittee on Criminal Justice, Drug Policy and Human Resources, 
Empowering Local Law Enforcement to Combat Illegal Immigration, 109th 
Cong., 2nd sess., August 25, 2006.
---------------------------------------------------------------------------
    The Special Agent in Charge of the Atlanta ICE Office of 
Investigations, Kenneth Smith, stated that while it could help identify 
criminal aliens, ``the real beauty of the program'' is that it 
guaranteed that every person who enters a jail that has an MOA is 
screened for civil immigration law violations.\12\ Mr. Smith 
acknowledged that this ``would not have necessarily a huge impact on 
the criminal system,'' but that ``it certainly would on our detention 
and removal capabilities.''\13\ Mr. Smith speculated that the 
Mecklenburg County approach was a ``model that . . . will be mirrored 
in jurisdictions around the country.''\14\
---------------------------------------------------------------------------
    \12\ Ibid., Statement of Kenneth A. Smith, Special Agent in Charge, 
Atlanta, Georgia, Office of Investigations, ICE, pg. 35
    \13\ Ibid.
    \14\ Ibid., pg. 29.
---------------------------------------------------------------------------
    At the time, Mecklenburg County was the only jurisdiction in North 
Carolina with an MOA, and its sheriff, Jim Pendergraph, reported that 
the agreement had permitted his officers to identify a large number of 
civil immigration law violators. ICE Detention and Removal Operations, 
the sheriff said, was ``overwhelmed by the numbers we are generating 
for removal in Mecklenburg County alone,''\15\ and ``they've had to 
reassign ICE agents to deal with the numbers that we're seeing.''\16\ 
In so doing, he also foreshadowed significant problems relating to ICE 
supervision and the 287(g) program's interference with Federal 
immigration priority-setting and initiative. According to Sheriff 
Pendergraph, his office had generated so many removal cases for ICE 
that:
---------------------------------------------------------------------------
    \15\ Ibid., pg. 49.
    \16\ Ibid., pg. 70.

``They can't support many more because they are flooded with work. I 
don't know where the resources are going once they're appropriated in 
Washington but they're not getting to the local field offices because 
they can't handle what they have now. If more sheriffs in this State 
got on-board then there would be no ICE agents to deal with what they 
normally do.''\17\
---------------------------------------------------------------------------
    \17\ Ibid.

Since 2006, seven other North Carolina counties have signed MOAs--all 
of which use largely the same language as the Mecklenburg County MOA 
(there are reportedly an additional 16 jurisdictions in the State with 
applications pending). In fact, from the beginning of 2007 to the 
present day, all or virtually all of the 54 MOAs signed in this period 
seem to be based on the same template, and thus not designed to reflect 
the targeted needs or priorities of each participating agency.
ICE's Statements About the Program's Purpose
    ICE's own 287(g) documents also suggest that the program has gone 
beyond its initial purpose, which ICE has consistently described as 
combating serious crime committed by immigrants. According to a 2007 
ICE Fact Sheet, the program is aimed at ``violent crimes, human 
smuggling, gang/organized crime activity, sexual-related offenses, 
narcotics smuggling and money laundering.''\18\ The fact sheet went on 
to clarify that ``[t]he 287 (g) programs is not designed to allow State 
and local agencies to perform random street operations. It is not 
designed to impact issues such as excessive occupancy and day laborer 
activities.'' This 2007 Fact Sheet was even used as evidence that a 
particular law enforcement agency had exceeded the authority conveyed 
by the MOA.\19\ Later versions of the 287(g) Fact Sheet have not 
contained similar language concerning the objectives or limitations of 
the program.\20\
---------------------------------------------------------------------------
    \18\ Delegation of Immigration Authority, Section 287(g), 
Immigration and Nationality Act, September 6, 2007.
    \19\ E.g., Am. Compl.  22-23, Melendres, et al. v. Arpaio, et 
al., No. 07-02513 (D. Ariz. filed July 16, 2008).
    \20\ E.g., Delegation of Immigration Authority, Section 287(g), 
Immigration and Nationality Act, August 18, 2008; ``The ICE 287(g) 
Program: A Law Enforcement Partnership,'' (November 19, 2008); Section 
287(g), Immigration and Nationality Act, ``Frequently Asked 
Questions,'' (last modified February 20, 2009), http://www.ice.gov/
partners/287g/Section287g_faq.htm.
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Arrest Statistics
    According to ICE, law enforcement agencies participating in the 
287(g) program were responsible for approximately 79,000 arrests of 
suspected immigration law violators from January 2006 through November 
2008.\21\ However, it is not known how many of those arrested posed 
national security or public safety threats because ICE has not set 
forth priority categories with respect to the 287(g) program and has 
not released any information to date beyond the raw number of arrests. 
The statistics, however, indicate that the program has departed from 
the earlier risk-based approach to immigration enforcement articulated 
by the Department of Homeland Security (DHS).
---------------------------------------------------------------------------
    \21\ ``The ICE 287(g) Program: A Law Enforcement Partnership,'' 
(November 19, 2008).
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    By way of illustration, under the first MOA signed, the State of 
Florida devoted 35 officers to high-value targets--in particular those 
who posed threats to national security. In the first 36 months that the 
MOA was in operation, those officers made approximately 165 arrests 
(i.e., fewer than five arrests a month, or slightly less than one 
arrest per seven deputized officers per month). The second MOA, through 
which 21 members of the Alabama State Police were trained, resulted in 
approximately 200 arrests in the first 21 months--fewer than 10 arrests 
a month, or about one arrest per two officers per month.\22\ In 
contrast, in the last 3 years, each law enforcement agency has 
arrested, on average, roughly 100 immigrants a month, suggesting a 
shift in emphasis from high-priority targets to volume of arrests. 
Though the removal of unauthorized immigrants is clearly within ICE's 
mandate, there are less costly, less disruptive and more efficient ways 
of accomplishing that.
---------------------------------------------------------------------------
    \22\ Hearing, supra note 8, at 16.
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                        iii. costs to the system
    It appears that the rapid expansion of the 287(g) program imposes 
considerable costs--both tangible and intangible--on the entire 
immigration enforcement system. I will focus here on four.
Subordination of Federal Immigration Enforcement Priorities
    The 287(g) program threatens the ability of DHS and ICE to set a 
coherent immigration enforcement agenda at the national level. Because 
of the need to respond to the demands of the 287(g) program and its 
State and local partners, the Federal Government has lost initiative 
with respect to where, how, and when to deploy enforcement resources. 
Instead, operations have been initiated by 287(g) law enforcement 
agencies, most of which are led by elected sheriffs who may be using 
their MOAs for local purposes not necessarily consistent with the 
overall needs of the region or country. Even law enforcement agencies 
with the best intentions are primarily concerned with their own 
communities.
    Under some circumstances, law enforcement agencies entering into 
287(g) agreements can have an incentive to detain large numbers of 
immigrants. After the initial arrest and processing by the 287(g) 
partner, the Federal Government bears the full cost for virtually every 
other step in the enforcement process, including detention, 
prosecution, adjudication and removal. In fact, with regard to law 
enforcement agencies reimbursed by the Federal Government for holding 
immigration detainees through an Inter-Governmental Service Agreement 
(IGSA), there are strong financial incentives to make as many arrests 
as possible. For example, under the IGSA between ICE and the Frederick 
County, Maryland Sheriff's Office--which also has a 287(g) MOA--the 
county is reimbursed $83 a day for holding an immigration detainee. 
However, according to Frederick County Sheriff Charles Jenkins, it 
costs the county $7 a day to feed and house a detainee.\23\ The 
difference between the reimbursement rate and the actual cost 
represents pure profit, and can be an incentive for over-enforcement--
particularly in the current economic climate. At least 22 287(g) 
partners also have IGSAs providing reimbursement for housing 
immigration detainees.
---------------------------------------------------------------------------
    \23\ Nicholas C. Stern, ``Sheriff Updates County on ICE Action,'' 
Frederick News-Post, October 17, 2008.
---------------------------------------------------------------------------
    Immigration enforcement priorities must be set at the Federal 
level. Only from a national perspective can all of the relevant factors 
and resource levels be taken into account. This permits a much more 
efficient allocation of resources on a system-wide basis and avoids 
expending a great deal of Federal resources on individuals who pose 
neither a threat to public safety nor national security. Although ICE 
has not released comprehensive arrest statistics on the 287(g) program, 
independent data obtained by journalists suggest that significant 
resources are expended to remove unauthorized immigrants who are guilty 
only of traffic violations. In Frederick County, Maryland, for example, 
more than half of the first 300 suspected immigration law violators 
charged under its MOA were arrested for driving without a license. 
Likewise, data from Gaston, North Carolina reveals that 95 percent of 
State charges filed against 287(g) arrestees were for misdemeanors; 60 
percent were for traffic violations that were not DWIs.\24\ In 
Mecklenburg County, 2,321 unauthorized immigrants were placed in 
removal proceedings in 2007. Data shows that fewer than 5 percent of 
the charges against these individuals were felonies.\25\ By yielding 
such a high rate of relatively low-priority civil immigration arrests, 
MOAs compromise DHS' ability to set the immigration enforcement agenda.
---------------------------------------------------------------------------
    \24\ Michael Barret, ``Officers Decide When to Arrest, But for 
Immigrant Community Decision Can Lead to Deportation,'' Gaston Gazette, 
July 7, 2008; Aarti Shahani and Judith Green, Local Democracy on ICE, 
(New York: Justice Strategies, 2009), http://www.justicestrategies.org/
sites/default/files/JS-Democracy-On-Ice.pdf.
    \25\ Lindsay Haddix, Immigration and Crime in North Carolina: 
Beyond the Rhetoric, (Chapel Hill, NC: Department of City and Regional 
Planning, UNC Chapel Hill, 2008).
---------------------------------------------------------------------------
Fiscal Costs
    Although ICE has not publicly released information about the total 
fiscal cost of the 287(g) program, statements by agency administrators 
indicate it is substantial. Former ICE Assistant Secretary Julie Myers 
testified in July 2007 that it costs slightly more than $17.5 million 
in the first year of an MOA to implement the program.\26\ This figure 
included ``startup and first-year maintenance costs consisting of such 
items as detention, removal and bed space management, IT infrastructure 
and maintenance, [Office of Investigations]/[Detention and Removal 
Operations] personnel and support positions, training, transportation 
and other elements,'' and was based on a law enforcement agency with 20 
trained officers that made 240 arrests in the first year. Assuming that 
this figure has remained fairly constant, the first year of the 67 MOAs 
currently in force would constitute an expenditure of more than $1.1 
billion.
---------------------------------------------------------------------------
    \26\ Pre-hearing questionnaire by Julie Myers, DHS Assistant 
Secretary nominee, submitted to the Senate Committee on Homeland 
Security and Governmental Affairs, 110th Cong., 1st sess., July 26, 
2007.
---------------------------------------------------------------------------
    It is important to note that this $1.1 billion estimate includes 
only the front end of the removal process. This estimate does not 
include immigration court prosecution expenses such as the salaries for 
ICE attorneys, immigration judges and support personnel; maintenance 
and overhead expenses for their offices; etc.--as well as similar 
expenses for appeals to the Board of Immigration Appeals and U.S. 
Courts of Appeals.
    The program's substantial apparent costs reinforce the need for it 
to advance DHS' overall enforcement priorities.
Community Impact
    Given the complexity of immigration law and the apparent paucity of 
supervision and training offered to agents under the current 287(g) 
program, harmful errors and even racially motivated law enforcement 
tactics may be inevitable. Whereas regular ICE agents receive 5 months 
of training in the intricacies of immigration law, 287(g) officers 
receive 4 weeks of ICE training. Furthermore, because immigration 
enforcement is not the primary job of local law enforcement agents, 
they do not accumulate the experience and expertise of ICE agents. 
Noting that immigration law is intricate, voluminous, and distinct, the 
International Association of Chiefs of Police (IACP) has expressed 
concern that local law enforcement agents acting under 287(g) 
agreements will violate the unique standards and constitutional 
requirements surrounding immigration enforcement: ``What constitutes 
`probable cause' in immigration matters may not be easy to 
discern.''\27\ Indeed, evidence shows that 287(g)-authorized officers 
purporting to enforce immigration law have illegally detained and even 
deported U.S. citizens.\28\
---------------------------------------------------------------------------
    \27\ International Association of Chiefs of Police, Police Chiefs 
Guide to Immigration Issues, July 2007, 13.
    \28\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's 
Deportation Ordeal,'' Los Angeles Times, February 28, 2008.
---------------------------------------------------------------------------
Community Policing
    The core functions of law enforcement officers are to protect the 
public and keep communities safe. By deputizing State and local law 
enforcement officials to enforce civil immigration law, the 287(g) 
program may detract from officers' ability to fulfill their core 
mission in addition to diverting scarce local law enforcement resources 
to general immigration enforcement.
    In 2005, an IACP representative testified before this committee 
that local enforcement of civil immigration laws ``would likely have a 
chilling effect on both legal and illegal aliens reporting criminal 
activity or assisting police in criminal investigations'' and could 
thereby ``diminish the ability of law enforcement agencies to 
effectively police their communities and protect the public they 
serve.''\29\ IACP and the Major Cities Chiefs (MCC) both have publicly 
expressed concern that 287(g) agreements weaken their capacity to 
police their communities.
---------------------------------------------------------------------------
    \29\ Hearing, supra note 8, at 11.
---------------------------------------------------------------------------
    Fear and distrust of law enforcement agencies have broad 
reverberations. Immigrant victims of crime are less likely to seek 
police assistance and therefore more vulnerable. Immigrant women facing 
domestic violence may not report or seek protection from abuse out of 
fear that they, their partners or their relatives will be deported. 
Likewise, witnesses to street crime and violence may not come forth 
with valuable evidence and testimony. With respect to national security 
and counterterrorism, DHS has long emphasized the necessity for all 
individuals to report information and intelligence to law enforcement 
agencies. The underlying message is clear: building safe communities 
requires that all residents feel safe turning to and cooperating with 
law enforcement.
    Furthermore, as a recent MPI study of the National Fugitive 
Operations Program demonstrates,\30\ failure to abide by strict 
priorities in immigration enforcement inevitably blurs the distinction 
between immigrants who are unlawfully present and those convicted of 
violent crimes. The 287(g) agreements, as they have been applied, 
potentially collapse the important distinction between civil 
immigration violations and criminal offenses by affecting all 
individuals, citizen or non-citizen, suspected of being unauthorized 
immigrants. In so doing, these agreements send a message to the public 
that immigrants are criminals--thus, reinforcing harmful stereotypes.
---------------------------------------------------------------------------
    \30\ Mendelson, Strom and Wishnie, Collateral Damage: An 
Examination of ICE's Fugitive Operations Program.
---------------------------------------------------------------------------
        iv. the lack of guidance, supervision and accountability
    The statutory authorization for the 287(g) program requires that:

``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.''\31\
---------------------------------------------------------------------------
    \31\ INA  287(g)(5), 8 U.S.C.  1357(g)(5). 32 Hearing, supra note 
8, at 16.

    Although the MOAs generally set forth the powers and authorities 
that may be wielded by the deputized officers, they are far from 
comprehensive; indeed, those written in the last 2 years seem to be 
mostly boilerplate. Of particular concern, the MOAs do not articulate 
any overall objectives for the program or provide guidance as to when 
the law enforcement agencies should exercise their immigration 
enforcement powers. These newer agreements simply state that the intent 
of the agreeing parties (ICE and the law enforcement agency) is either 
that the MOA will ``enable [the law enforcement agency] to identify and 
process immigration violators'' or ``result in enhanced capacity to 
deal with immigration violators.'' Such vague statements of intent are 
less likely to constrain abuses and direct resources to high national 
enforcement priorities.
    This absence of objectives and guidance has essentially authorized 
participating law enforcement agencies to employ their 287(g) authority 
as they wish. Inevitably, this has led to widely divergent applications 
of the newly acquired powers, as well as many of the highest-profile 
abuses of the program. The wide discretion afforded law enforcement 
agencies is accompanied by questionable and uneven supervision and 
insufficient accountability measures.
Lack of Guidance Regarding Immigration Enforcement Functions
    While some of the MOAs state that the participating officers ``will 
exercise their immigration-related authorities during the course of 
criminal investigations,'' the language offers little concrete 
direction. Nowhere do the MOAs prohibit the officers from using their 
authorities outside of criminal investigations or set forth 
consequences if they do. Thus, law enforcement agencies are basically 
free to use their 287(g) powers at their discretion, including during 
non-criminal investigations, such as routine traffic stops.
    The jailhouse MOAs do little more to curb unbridled officer 
discretion. One reason is that the jail agreements are no longer 
confined to the post-conviction stage of criminal proceedings, as the 
first one was. Instead, the immigration functions are frequently, if 
not always, performed as to every inmate booked in the facility, 
including those detained on arrestable traffic offenses and even civil 
contempt, at the time of initial intake.
Inadequate Supervision
    The requirement that ICE ``supervise'' participating law 
enforcement agencies is so vague as to render the statutory language 
virtually meaningless. To our knowledge, ICE has issued no guidelines, 
regulations, or protocols with respect to the nature of its 
supervision, how frequently it must take place or which ICE office must 
provide it. Because of the differentiated regional concentration for 
the 287(g) agreements, some regional ICE offices have a greater 
supervision responsibility than others. (See Figure 3 in the Appendix 
section.)
    ICE and its partners have emphasized the importance of close 
supervision over participating 287(g) partners. Florida Task Force 
Supervisor Mark Dubina testified to a subcommittee of this committee 
that ``[i]n all cases, the ICE team leader to the [task force], the 
[State law enforcement] special agent supervisor and the local ICE 
immigration supervisor must agree on a decision to arrest or detain a 
person, pursuant to 287(g) authority.''\32\
---------------------------------------------------------------------------
    \32\ Hearing, supra note 8, at 16.
---------------------------------------------------------------------------
    In practice, however, the boilerplate MOA states only that 
``activities conducted by the participating law enforcement agency 
personnel will be supervised and directed by ICE supervisory 
officers.'' In sharp contrast to Mr. Dubina's description of joint 
deliberation in advance of arrests, most MOAs require only that 
participating personnel ``shall give notice to the ICE supervisory 
officer as soon as practicable after, and in all cases within 24 hours 
of, any detainer issued.'' Only five of the 67 MOAs set forth specific 
circumstances in which 287(g) partners must notify ICE of their 
actions. And, even then, the language is retrospective: law enforcement 
agencies, for example, are to contact ICE immediately in the event of 
``death or injury of an alien(s).''
Inadequate Accountability Measures
    At a minimum, a program that does not constrain its State and local 
partners from deviating from their traditional role and shifts 
immigration enforcement authority away from Federal officials requires 
careful recordkeeping and close review. However, the 287(g) program 
entails few mechanisms for accountability, transparency or public 
scrutiny. Most MOAs do not contain requirements or guidelines about the 
nature of the data that law enforcement agencies should collect. 
Likewise, ICE has released no information about processes or protocols 
by which it audits or reviews its 287(g) partners and the data they 
collect.
    Given the magnitude of the program's authority, one would expect 
strict and transparent procedures by which individuals can report 
inappropriate or problematic experiences with law enforcement agencies 
functioning in their immigration enforcement capacity. To the contrary, 
however, the complaint procedures set forth in MOAs are vague and 
boilerplate.
                   v. conclusion and recommendations
    We live in a world of choices, with limited law enforcement 
resources. In general, when law enforcement agencies go beyond their 
core mission, we must be sure of the purpose and objectives for the 
departure. Law enforcement agencies already face myriad competing 
pressures and priorities. They are over-stretched and under-funded: 
trends that will no doubt worsen under the current economic conditions. 
The 287(g) program necessarily requires officers to spend time on 
activities beyond their core functions. With this new responsibility 
come risks and costs for the participating law enforcement agencies, 
the Federal Government and communities across the country.
    When conceived by Congress in 1996, the 287(g) program was to be 
narrowly aimed at training local and State law enforcement officers to 
arrest unauthorized immigrants already subject to outstanding warrants 
of deportation (i.e. ``fugitive aliens''). Eight years later, the first 
287(g) agreement, signed by the State of Florida, was not focused on 
fugitive aliens, but rather tailored to the counter-terrorism 
objectives of Florida's Regional Domestic Security Task Forces. Had the 
287(g) program remained confined to either of these initial purposes--
fugitive aliens, as envisioned by Congress, or counter-terrorism, as 
embodied in the first agreement with the State of Florida--perhaps it 
would be a success today and prove to be a good model for a force 
multiplier in Federal immigration enforcement.
    But much has changed in the interim years. The program has grown to 
include nearly 1,000 officers at 67 law enforcement agencies in 23 
States, with most of that expansion happening in just the last 2 years.
    Because of the growth of the 287(g) program over a short period of 
time, its potential to distract from the Federal Government's important 
efforts to enact a coherent national immigration policy, and its 
potential costs to communities, we therefore make the following 
recommendations:
    1. Expansion of the program should be put on hold to permit a 
        thorough review and potential redesign.--Congress or DHS should 
        impose a moratorium on new 287(g) agreements while a broad, in-
        depth, empirically based study is undertaken to evaluate cost 
        effectiveness and community impact.
    2. The committee should hold field hearings on the 287(g) 
        program.--I would encourage the committee to consider today's 
        hearing a starting point to further examination of the program 
        by holding field hearings in communities that have MOAs as well 
        as those that have chosen not to pursue an agreement.
    3. If Congress chooses to continue the 287(g) program, it should 
        enumerate specific and meaningful programmatic objectives with 
        clear reporting requirements.--The program would benefit from 
        coherent, transparent objectives that fit logically into the 
        overall DHS enforcement priorities. With respect to its 
        fugitive operations, ICE has set forth priority categories in 
        which individuals posing a threat to national security are 
        specifically identified as most important. ICE should adopt a 
        similar set of publicly articulated priorities for 287(g) 
        operations. Local law enforcement agencies should be required 
        to regularly report arrest data, with specific indication of 
        the individuals' priority levels. As part of that process, 
        287(g)-authorized agencies should also record and report the 
        violation for which each individual was arrested as well as the 
        individual's race and country of origin.
    4. If the 287(g) program is continued, the committee should examine 
        whether it should be confined to the jailhouse model and 
        whether only those convicted of serious crimes should be 
        screened for civil immigration violations.
    5. All existing agreements should be reviewed to determine how well 
        they advance Federal objectives, how efficaciously they 
        allocate resources, and whether they are sufficiently cost-
        effective.--Agreements that do not advance DHS' objectives or 
        suffer from other problems of management or oversight should be 
        modified or terminated.
    6. Congress should make clear any law enforcement agency that 
        consistently exceeds its authority shall have its MOA 
        terminated.--All MOAs should also undergo a mandatory, periodic 
        review to monitor compliance.
    7. The basic MOA itself should ensure sufficient training and 
        supervision by ICE and include clear reporting and 
        accountability measures. Moreover, processes should be included 
        that require law enforcement agencies to seek the input of 
        affected communities.
                             vi. appendices

                                 FIGURE 1.--TYPES OF 287(g) MOAS SIGNED BY YEAR
----------------------------------------------------------------------------------------------------------------
                                                                                             Hybrid
                                                                    Jailhouse  Task Force  Jailhouse/
                               Year                                Agreements  Agreements  Task Force    Total
                                                                                           Agreements
----------------------------------------------------------------------------------------------------------------
2002.............................................................  ..........           1  ..........          1
2003.............................................................  ..........           1  ..........          1
2004.............................................................  ..........  ..........  ..........          0
2005.............................................................           3  ..........  ..........          3
2006.............................................................           3  ..........  ..........          3
2007.............................................................          11           9           6         26
2008.............................................................          14          13           6         28
                                                                  ----------------------------------------------
      TOTAL......................................................          31          24          12         67
----------------------------------------------------------------------------------------------------------------


                              FIGURE 2.--TYPES OF 287(g) MOAS BY JURISDICTION TYPE
----------------------------------------------------------------------------------------------------------------
                                                                                             Hybrid
                                                                    Jailhouse  Task Force  Jailhouse/
                               Year                                Agreements  Agreements  Task Force    Total
                                                                                           Agreements
----------------------------------------------------------------------------------------------------------------
STATE............................................................           4           8           0         12
COUNTY...........................................................          25           6          12         43
CITY.............................................................           2          10           0         12
                                                                  ----------------------------------------------
      TOTAL......................................................          31          24          12         67
----------------------------------------------------------------------------------------------------------------


    FIGURE 3.--SUPERVISING ICE OFFICES AND SUPERVISED LAW ENFORCEMENT
                                AGENCIES
------------------------------------------------------------------------
                                                                  Avg.
                                                    Number of   Distance
          Location of Supervising Office            Agencies   to Agency
                                                   Supervised   (Miles)
------------------------------------------------------------------------
Atlanta, GA......................................          13        219
New Orleans, LA..................................           8        544
Phoenix, AZ......................................           7         42
Fairfax, VA......................................           7         25
Charlotte, NC....................................           5         64
Los Angeles, CA..................................           4         45
Miami, FL........................................           4        313
Tampa, FL........................................           4        194
Fort Smith, AR...................................           4         70
Boston, MA.......................................           4         44
Dallas, TX.......................................           4         75
------------------------------------------------------------------------


    Chairman Thompson. Thank you for your testimony as well as 
each of you before our last witness.
    I remind each Member that he or she will have 5 minutes to 
question the panel.
    I will now recognize myself for questions.
    Mr. Riley, you have heard Mr. Stana testify that ICE 
presently has no performance measures or program goals. Do you 
agree with that statement?
    Mr. Riley. Yes, that is an accurate statement.
    Chairman Thompson. If that is correct, how do we determine 
success or failure within the 287(g) program?
    Mr. Riley. Right now, the Office of State and Local 
Coordination that I am overseeing recently finished a draft of 
a strategic plan that is currently being vetted through ICE 
right now. That strategic plan is going to have baseline 
performance measures for which ICE can then project the success 
of agreements that are currently in place and future 
agreements. I would also like to note that Secretary Napolitano 
on January 30 issued an action directive to ICE specifically 
for a full review of the 287(g) program, and part of that 
program is for us to start getting performance measures by 
which we can judge the success of all the agreements that we 
have in place.
    Chairman Thompson. So let me be absolutely clear with the 
testimony. At this point, you have said that there are no real 
measurements in place, but you plan to do that.
    Mr. Riley. Right, the measures that we have tracked for the 
past few years, as I did testify, that 90 percent of the 
agreements we have in place were entered into in the past 3 
years. The measures that we had been tracking were the number 
of State and local officers that have been trained, the number 
of individuals identified by 287(g)-trained officers that were 
identified for removal via the memoranda of agreement and the 
number of agreements that we have entered.
    Chairman Thompson. Thank you.
    Mr. Stana, did GAO make any suggestions as to how ICE could 
determine success or failure within the 287(g) program?
    Mr. Stana. Not anything specific in the report, and this is 
because--first before you articulate what your performance 
measures are, you have to articulate what the objective of the 
program was. Since there was some variation depending on which 
document you looked to as to what the intent of the program 
was, it is hard to create a measure.
    But assuming that one measure might be to address serious 
crime by removable aliens, one measure might be, for example, 
the percentage of serious criminal activity reduction in a 
jurisdiction participating in 287(g) or if, say, 90 percent of 
the arrests under the program were for crimes that are 
considered serious criminal activity. Those might be two.
    But again, the fundamental underpinning of having 
performance measures is to have a more wide-reaching control 
mechanism and a control structure that you are trying to 
measure success against. That is also something that ICE said 
they are going to be working on.
    Chairman Thompson. Thank you.
    Mr. Riley, can you provide this committee with the last 2 
fiscal years' arrest statistics under the 287(g) program? After 
providing that information, can you provide us ICE's definition 
of serious crime?
    Mr. Riley. The statistics I will have to get back to the 
committee on. Serious crime--I don't know if we have a specific 
definition for that, but what I will say is that over the past 
few years, ICE has been enhancing its database systems, one of 
which is ENFORCE, which is DHS's administrative arrest booking 
system. Both Customs and Border Protection, USCIS, and ICE use 
this system.
    What we plan to do is have a short-term fix in the next few 
months that will allow us to better track those types of data. 
Specifically we are going to be requiring that the State and 
local 287(g)-trained officers populate additional fields that 
are going to be added to ENFORCE, specifically that will track 
if the individual was charged with a felony, misdemeanor or 
non-driving----
    Chairman Thompson. So we don't have a measurement or 
identifier for serious crime?
    Mr. Riley. ICE doesn't have a definition that I know of for 
serious crime. We have aggravated felon, felon, and 
misdemeanor.
    Chairman Thompson. Mr. Stana, I guess what I am trying to 
figure out is if we have a memorandum of agreement between ICE 
and a unit of Government as an objective to stop and apprehend 
serious crime but we can't define what a serious crime is, how 
can we measure anything?
    Mr. Stana. Well, that is a really good question. I think--
DRO, the Detention Removal Office, does have definitions of 
serious crime, and they might list things such as drug 
traffickers or sex crimes, things like that. They put that 
information out to participating jurisdictions with the idea--
and I think Mr. Souder alluded to this. ICE isn't going to come 
and pick up or doesn't have the space to deal with people who 
fall below a certain threshold.
    It is not that they don't understand and aren't sensitive 
to the need to respond to other types of crime; it is just that 
there are not enough resources, and they try to--if you look at 
the statistics that ICE has, you will see that--I think it was 
about 43,000 people were arrested under this program, about 
34,000 of which, and this is for the 29 jurisdictions we 
studied, were accepted by ICE, meaning there were about 9,000 
that they didn't take presumably because it was too low a 
threshold for them to take them.
    Of the 34,000 that were taken, it is interesting to see how 
they were dealt with jurisdiction by jurisdiction. Some of the 
large feeder jurisdictions, one in particular, Maricopa County, 
about three-quarters were V.R.--voluntary removal--indicating 
it probably wasn't a serious crime that they were arrested for, 
but they were removed from the country nonetheless. I am not 
arguing that they shouldn't have been if they are out of status 
here, but I am concerned about the focus of the program.
    Chairman Thompson. Thank you.
    I yield to the Ranking Member for questions.
    Mr. Souder. First, let me say to Mr. Stana, I appreciate 
your thoroughness, and we all agree pretty much on the 
recommendations that--I wanted to ask Mr. Riley, is anybody 
forced into this program who doesn't voluntarily want to join? 
Because if so they should resign so that I can have some of my 
sheriffs who want to voluntarily join.
    Mr. Riley. No, Congressman, it is a completely voluntary 
program.
    Mr. Souder. Because there was some implication here that--
for example, who are other people to decide whether an elected 
sheriff who is voluntarily joining the program is doing what he 
thinks reduces his law enforcement most--his problems? Because 
he is elected by the people; he is subject to reelection by the 
people. If he makes a decision the best way to reduce my crime 
is by ``X'', it is a tad arrogant of other people to decide 
that that should be otherwise. Now, if it is Federal money, 
there can be guidelines. But there was an implication here that 
one group has a better judgment as to what their pressure is 
than another group, and that should be up to elected officials.
    I am also concerned--I was relieved to here that basically 
the big city police chiefs--I was disappointed to hear you get 
to selectively decide which laws of the United States you are 
going to enforce and which ones are unfunded mandates and not. 
I was relieved to hear that you still consider narcotics laws, 
which are Federal, an unfunded mandate on local police that 
will still be enforced by most jurisdictions.
    Because in fact these things are partnerships. What is 
local crime is also Federal crime. It is often the Federal law 
to go across State lines, and I am a little nervous about this 
implication that, oh, well, we are going to pick and choose 
which Federal laws to enforce.
    We are running into this in medicinal marijuana as well. We 
already had a civil war over whose jurisdiction supersedes. It 
is not a question of local authority to decide which laws they 
are going to enforce.
    Also the 10-day or once a week that you fax to ICE--most 
people are released within 48 hours. We will lose most before 
they could do a background check. I just wanted to get those 
things on the record.
    I have also some additional concerns about the ability of 
ICE--because really the No. 1 challenge here is they don't have 
enough money to do all the different missions. That is how you 
wind up targeting. As Mr. Stana just referred, as I did 
earlier, when we had this meeting in Indiana, one of the 
prosecutors, ClaraMary Winebrenner from DeKalb County--she has 
got about 45,000 people--said, okay, you are saying you will 
only take him if I get a conviction, because most prosecutors 
are having to plea bargain because they have to make the same 
decisions too.
    Most marijuana convictions in the United States for 
possession aren't for possession; it is that they are plea-
bargaining through, making tradeoffs of where they do 
prosecution for dealing. You don't get a marijuana possession 
unless you have a plea bargain basically. But the same thing is 
true in many of the illegals that they have in the sense of 
they are showing up as misdemeanors because they are plea-
bargaining them because they don't have time to go through all 
this process and that they were told by ICE that if they got 
the conviction for a felony they would be deported, but they 
are still there.
    One of my direct questions related to my district to Mr. 
Riley is when will we have a DRO person in Indiana, where we 
have people who have been meth dealers, cocaine dealers, spouse 
abusers, that in Allen County I think they have 40-some felony 
in addition to others who have plea-bargain negotiated--when 
are we going to get somebody in Indiana to do the removal?
    Mr. Riley. I am going to have to take your question back to 
the operational components within ICE to address your concerns 
and get back to you on that.
    Mr. Souder. All right, thank you, sir. Forgive me, but we 
have been frustrated. I have asked to insert into the record a 
three-page memo I got this morning from Sheriff Leatherman from 
Noble County, who has been raising this to me for 4 years. He 
has got 158 who had felony processes who weren't picked up in a 
county of 45,000 people. It has been very frustrating.
    Now, the other thing I don't quite understand is that at 
the border, because you can't use ICE agents--we are having 
them do immigration issues. They are trained, a lot of them in 
narcotics and financial-type thing, and then we have DRO, but 
sometimes they are having to move agents over to do DRO work. 
Why isn't this contracted out with Wackenhut or people like 
that like it is done around the border? Because it is just a 
matter of taking people out. You don't need trained agents.
    Mr. Riley. I am going to have to consult with the Office of 
Detention and Removal to formulate an answer for you.
    Mr. Souder. Because one of the frustrations here is that if 
we have cost pressures--and it would seem best to try to figure 
out a way once decisions are made that this person clearly has 
been convicted--they are out of status--because part of the 
problem with local police unless they get in this progress, 
they make judgments based on their driver's license but don't 
have any way to verify whether they are unless they get in this 
program, unless they have a fingerprint system. So it has been 
very frustrating, that in Indiana there is a lot of frustration 
with the process. So I yield back.
    Chairman Thompson. Thank you very much. If the gentleman 
will provide minority or majority counsel a copy of the 
information, we will insert it after it is shared with 
everyone.
    [The information follows:]
   Document Submitted For the Record By the Honorable Mark E. Souder






    Chairman Thompson. The Chair now recognizes other Members 
for questions they may wish to ask the witnesses. In accordance 
with our committee rules, I will recognize Members who are 
present at the start of the hearing based on seniority on the 
committee, alternating between majority and minority. Those 
Members coming in later will be recognized in the order of 
their arrival.
    The Chair now recognizes the gentlelady from California for 
5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman, and thank you for 
calling what I think is a very important hearing. Out in Orange 
County, California, we have some jurisdictions where my police 
chiefs don't want to do 287(g), and we have others where we 
have actually implemented the program. In my district in 
particular, which is a heavily immigrant district of all sorts 
of people from all different types of countries, for some of 
the reasons given in the testimony by Chief Manger, they don't 
want to have this program because they need the information 
from the community on real criminals and crimes going on in 
their district.
    My concern, and it has been reiterated by the written 
testimony of Mr. Stana--and you have a lot of stamina, Mr. 
Stana, to be before our committee so often on so many of these 
issues; it is great--is that the objectives and the standards 
and the overall policies of the program are really not 
communicated effectively in the MOAs and in other program-
related material.
    So my question is to Mr. Riley. How do local officials know 
what the penalties for noncompliance will be if they are not 
really clearly communicated in the materials and information 
that are provided to them?
    Mr. Riley. All the agreements, I will start off, can be 
terminated by either party at any time. As far as the severity 
of it, ICE initiated a study last year, a review of all the 
existing memoranda of agreement by ICE's Office of Professional 
Responsibility.
    Ms. Sanchez. Have any been terminated by ICE?
    Mr. Riley. No, they have not. OPR to date is projected to 
do 20 reviews this year and they completed four last year. The 
increase was based on an appropriation in the 2009, so we are 
projecting that within the next few years, all of the existing 
agreements will have been reviewed by the Office of 
Professional Responsibility.
    Ms. Sanchez. But yet in reading the testimony of Mr. Stana 
or the report of Mr. Stana, it was really quite evident given 
all the different agencies he had spoken to, a majority of them 
didn't understand what the responsibilities were under the 
MOAs.
    Mr. Riley. I believe that is why Secretary Napolitano 
issued an action directive for a full review of the program. In 
addition to updating our template MOA that we will use for 
future agreements, which take into account a lot of the GAO 
recommendations and also other lessons that ICE has learned 
through the various different evolutions of the MOAs we have 
created over the past few years, we are also reviewing all 
existing MOAs, especially earlier ones to ensure that these 
directives and the priorities of the program are better spelled 
out.
    Ms. Sanchez. What type of oversight do you think is really 
needed from ICE agents in order to have a good and effective 
program on the ground? I will ask that of the whole membership 
up there.
    Mr. Riley. I believe----
    Ms. Sanchez. What type of supervision is required? Because 
in reading the report from Mr. Stana, I mean, supervision was 
all over the place. There were some ICE agents who thought all 
they had to do was keep the computer program going. There were 
others who never showed up and did any of that. There were 
others who thought 25 percent of the time should be toward it.
    Mr. Riley. Early on, a lot of the MOAs, and as GAO noted, 
did not specify the specific duties. ICE is working to fix 
those duties but still retain the flexibility because the 
agreements are unique in nature. Each one is different. Some 
range from programs that may only encounter a dozen 
apprehensions a month to some that encounter hundreds per 
month.
    You know, to have an exact template with that is difficult 
because it does vary between the different programs. We are 
looking at instituting SOPs specifically formulated with the 
field office and in conjunction with ICE's review of the 287(g) 
program to specify exactly what we see as the supervisor needs 
for each of these individual programs. That is something we 
hope to achieve in the near future.
    Sheriff Jenkins. Congressman, I would like to comment to 
that. I think a lot of this goes back to what I said in my 
statement about the intensive--the quality of the training, No. 
1, the intensity of the training and the quality of the people 
that you put into the program as an agency. What we found--that 
early on, yes, we needed constant supervision, constant 
oversight and as, you know, you learn as you go. It is like 
anything else. As we moved forward and that ICE felt 
comfortable in the way we were implementing the program and 
moving forward, the less we had the need for daily supervision.
    So again, like I said before, they are there when we need 
them, but, you know, and again, every arrest we make, there is 
an agent who looks at the A-files, they inspect the paperwork, 
so it is a work in progress. But I think it goes back to the 
quality of the original oversight and the training.
    Ms. Sanchez. Mr. Stana.
    Mr. Stana. You know, this is a controversial and even a 
polarizing program, and so I think it requires sort of an extra 
measure of supervision. It starts with articulating what you 
want out of the program, collecting performance data, visiting 
the program periodically and sometimes unannounced to 
understand what is going on.
    You know, about half of the jurisdictions told us they were 
just fine with the supervision. But when you peeled that back a 
little bit and asked them why they were fine with it, they 
would say because they leave me alone; they don't come around. 
I agree to some extent that this is a program that is a work in 
progress, and that might have been true for the first 10. But 
we are up to number 67 now. We ought to know now what we want 
out of these jurisdictions in this program.
    This is a problem that needs to have--you know, the 
criminal alien problem needs to have some help and some 
resolution and some control. This population is like any other 
population; there are bad people in it, and we have to identify 
the bad people and we have to deal with them. But if we spend a 
lot of time on people who aren't bad, there are other programs 
to deal with that.
    These are resources that we want to devote to the worst of 
the worst. That is what Assistant Secretary Myers said a year 
ago. That is what ICE's informal guidance says. But it is just 
not articulated and not understood by the program participants 
in all cases.
    Ms. Sanchez. Mr. Chairman, I would just like to put on the 
record that it also is very dependent--and what the sheriff 
said about what type of person you put to do this type of 
program. For example, in one of the jurisdictions that I have 
without the program, I had a particular officer who was picking 
people up on normal traffic stops, putting them in his police 
car, driving them down about an hour and a half to the border, 
to the secondary border area we had, and dropping them off to 
INS agents. So this type of officer, I mean, obviously just 
doesn't want anybody that looks, in this particular case, 
Mexican, in my opinion, in my city.
    So it is very important to understand who is going into the 
program, that we have MOAs that articulate what the program and 
what the objectives are and what the measurement is and that we 
have good oversight, as I think Mr. Stana said, if we are going 
to continue with these types of programs.
    Sheriff Jenkins. Could I make a comment to Mr. Stana's 
comment? You know, when we talk about what is the worst of the 
worst. Well, is a person who is driving drunk through a school 
zone during the daytime with a violent criminal past any worse 
or less a bad person than a drug dealer? How do you measure who 
are the worst of the worst?
    Chairman Thompson. We will resolve that issue too. That is 
one of the issues for the program, and if you had an MOU that 
was definitive enough, a lot of those questions would not be 
left to the individual, but they would be quite specific. I 
think that is where this hearing is moving us.
    Ms. Sanchez. Thank you, Mr. Chairman, for the time.
    Chairman Thompson. Thank you very much.
    The gentleman from Alabama, Mr. Rogers, is recognized for 5 
minutes.
    Mr. Rogers. Thank you, Mr. Chairman.
    Sheriff Jenkins, I think the answer to your question is it 
depends on if it is your kids in that schoolyard.
    I want to ask Mr. Riley, this program--the Alabama 
Department of Public Safety has been involved since the 
beginning. It was one of, I believe, three States that had 
participation in the ICE program starting in 2003, and it has 
been incredibly popular. I get feedback regularly from State 
troopers about how much they appreciate it and how they want 
more access to it.
    Can you, Mr. Riley, tell me a little bit about how you 
think this task force model works in Alabama and why we aren't 
hearing more of that kind of feedback from these other States?
    Mr. Riley. Yes, the Alabama model, as you said, was one of 
the first ones. It was the first model where it was the actual 
State patrol that was using it. Recently did a review of that 
MOA, and one of the findings that we found was that the 
troopers acknowledged that they wanted additional training on 
our ENFORCE database system, and we created a specialized 
training class specifically for the troopers. I believe we 
trained 15 of them to go back as a train-the-trainer to show 
them, you know, how the database system has changed since they 
went through. I think most of those troopers went through 4 or 
5 years ago, and they hadn't had refresher training.
    So that was an outtake of our review process, that that was 
a concern of OPR and a concern of the Alabama State Troopers, 
and we moved quickly to fix that. So I think it shows that is 
the kind of partnership we have, and I think it is a successful 
task force.
    Mr. Rogers. To my knowledge, there has not been one alleged 
incident of profiling by the Alabama State Troopers since 2003 
when this program was initiated. Do you know anything different 
than that?
    Mr. Riley. I don't, and as part of the OPR's review of the 
MOAs, although ICE doesn't investigate civil rights violations, 
our Office of Professional Responsibility does check with the 
United States Attorney's Office, the local Federal Bureau of 
Investigation and also the agencies' internal affairs bureau to 
see if there were any allegations of racial profiling, and 
there weren't any reflected in that report.
    Mr. Rogers. Thank you, Mr. Riley.
    Mr. Stana, do you know of anything different, anything 
contrary with regard to the Alabama Public Safety Department 
and the involvement with 287(g)--any complaints or profiling?
    Mr. Stana. No, I don't. I will add that most of the 
organizations we spoke with were also positive about the 
program. It increased public safety. It dealt with recidivists. 
It performed a function that ICE didn't have the resources to 
perform.
    The question isn't: ``Was it popular?'' The question is: 
``Is it being put to best use?'' With regard to Alabama or any 
other jurisdiction, there is a complaint process in the MOA. It 
is a little hazy as to what it is supposed to be about. We 
didn't see any complaints in the files of any jurisdiction or 
in OPR about any jurisdiction that was filed. I don't quite 
know how to reconcile that with media reports about problems 
with these programs in certain jurisdictions. But we didn't 
find any in the ICE files.
    Mr. Rogers. In your audit, did you--when you talked about 
the question is whether or not they are being put to best use, 
did you find any concerns like that in the Alabama program----
    Mr. Stana. We didn't look at any individual program, 
Alabama or otherwise, but, you know, there are always 
allegations in some jurisdictions that some people being 
deported weren't really serious criminals.
    Mr. Rogers. There are few programs that we put in place in 
Congress that I get as much positive feedback about as this 
287(g) program, so it is very concerning to me when I hear you 
use words like controversial and polarizing to reference this 
program, because I don't see that in my world. Can you tell me 
why I am wrong?
    Mr. Stana. I don't think it is a matter of right or wrong. 
I think it is a matter of perception that we are reflecting in 
our report. Of the 29 jurisdictions we looked at in detail that 
were in place as of October 1, 2007, about half of them made 
that observation that the Hispanic communities in their 
jurisdictions were a little wary of the program.
    Now, some tried to overcome that wariness with public 
outreach, like the chief mentioned, trying to put some 
transparency to the program. We found one jurisdiction that 
found a woman who passed a bad check, found out her status, and 
she was out of status. Rather than deport her, they told her 
that that crime didn't rise to the level they were really 
looking at in this program, sent her back to the community with 
the message that we are after people who are serious criminals, 
so tell your friends and--well, not accomplices--tell your 
friends and associates that it is okay to report crimes to us; 
you are not in danger if you are not a serious criminal.
    So I think it is a--you know, it is not disagreeing with 
you. It is a matter of how the program is being implemented and 
to what end.
    Mr. Rogers. Well, it is being implemented very well in 
Alabama, and I don't want anything that comes out of this 
hearing to disturb that.
    Thank you, Mr. Chairman.
    Chairman Thompson. Thank you.
    The Chair now recognizes the young lady from Texas for 5 
minutes, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman, for 
holding this hearing, and let me acknowledge each and every one 
of the witnesses as patriots and individuals who love this 
country, and we respect that.
    It is well to note that this Congress has a major 
responsibility, hopefully in the 111th Congress, to implement 
comprehensive immigration reform, which will then denote for 
all of us individuals who will either be able to access, if you 
will, legalization and others who are in fact bad actors. No 
one sitting on the Homeland Security Committee wants bad 
actors, potential terrorists, individuals who travel up the 
southern border or northern border that can integrate in our 
community and pose a serious threat.
    At the same time, we recognize that crime is on the rise 
and resources are precious. My position is that we should have 
comprehensive immigration reform. Our resources for crime 
fighting should go to crime fighting. Those individuals who are 
comfortable with this particular program, let them continue 
under the present or lessened funding, because I have 
constituents in my community who are crying because of crime 
that has no label of whether or not it has been immigrant or 
nonimmigrant; it is crime.
    That is what I see. Law enforcement on the local and State 
level is fighting the kind of crime that our neighbors are 
talking about that is not necessarily pointed to a traffic 
stopping of someone who happens to be non-status, possibly 
driving to their work.
    Now, let me just say this. There are problems with people 
who are non-status and driving without a license who are 
engaged in criminal activity. Frankly I believe the normal law 
enforcement can be as helpful if we provide them with more 
funding like cops on the beat.
    Let me acknowledge--I think it is Sheriff Jenkins--just to 
thank him for his work. This is not intended to indicate that 
the program in your community is not working or the program in 
Alabama is not working.
    But let me speak to--I am in an awkward location here; I 
can't see the head of the national chiefs organization's name.
    Chairman Thompson. Chief Manger.
    Ms. Jackson Lee. Yes, Chief, let me pose a question to you, 
because I think you have a reasonable approach to that, because 
I frankly am from one of the large cities. My understanding is 
do you let any immigrant that may be detained go without--it 
seems that you provide a weekly report or a monthly report of 
individuals that are detained or picked up. Is that not true?
    Chief Manger. That is true. Everyone we arrest we run a 
warrant check on so if there is any outstanding warrant from 
any organization, including ICE, we serve that warrant. Once a 
week, our corrections department sends a list of all foreign-
born inmates to ICE.
    Ms. Jackson Lee. In doing so, you believe that you are 
covering the responsibility, frankly, that you don't represent 
yourself--I heard you say the word sanctuary; that has gotten 
to be an ugly word--but the point is you are engaged in law 
enforcement. If someone is in violation and if they happen to 
be out of status, you make sure that you follow through on 
providing the Federal Government with the information.
    Chief Manger. That is correct. We allow ICE to do their 
job, yes.
    Ms. Jackson Lee. You also have indicated something very 
important. In large cities with multiple multicultural 
communities, it is very difficult to extract information on 
violent crimes or human trafficking when there is this sense of 
intimidation. Is that not true?
    Chief Manger. That is true. In some of our most heavily 
populated immigrant communities, we know that there is a great 
deal of unreported crime that goes on, and in order to make 
those communities, those neighborhoods, safer, we need to have 
the trust and cooperation from the people that live there.
    Ms. Jackson Lee. So showing up at a laundry with a raid and 
you have your uniform on, that would spill through the 
community and keep you from finding the MS-13 or anyone else 
that you might try to find.
    Chief Manger. We believe that to be the case, yes, ma'am.
    Ms. Jackson Lee. Let me ask the gentleman--I can't see any 
names here, but this gentleman here. You have written in your 
testimony here--and I am sorry, what is the name? Mr. Chishti--
because I can't see from over here in this location. But in any 
event, you have indicated that Federal authorities need to 
focus on their Federal authorities or organizing this 
particular program. Would you comment on that and comment on 
the potential for racial profiling?
    Mr. Stana, in my last period I notice that your sentence 
says ICE lacks key internal controls for implementation of this 
program. I don't think we have answered that. That is true, and 
we need to improve that. I would like you to comment. Would you 
comment on why you think the Federal Government needs to be 
more involved?
    Mr. Chishti. Thank you, well, this is a program written for 
the Federal Government. I mean, Congress wrote it so that 
enforcement mandate of the Federal Government could be helped 
by the assistance from local government. So it is intended to 
help improve the Federal enforcement immigration 
responsibility. Therefore, the agreements should be seen 
advancing that enforcement strategy.
    I think what we have seen increasingly is that, when given 
the limited resources that the DHS has for its enforcement, 
then you are confronted with a number of applications coming 
in. You therefore have to decide how to spend the resources of 
enforcement, and if you spend them on 287(g)'s programs, which 
don't target criminal aliens but principally target regular, 
unauthorized workers--not that they should not be removed, but 
this is a very expensive program, targeted program.
    If it targets those at the expense of going at high-
interest immigrants who may be committing crimes, are of 
terrorist interest, then I think it deviates from the real 
mission of the Federal enforcement function of the Government. 
So it doesn't advance Federal enforcement policy actually; it 
advances the local political interest of the people who might 
be interested in applying for these.
    Now, the racial profiling was important because the 
training that these local cops and State cops get is obviously 
very limited. It is about 4 to 5 weeks. As you know, Congress 
submits a very complex field of law which constantly changes. 
The immigration agents who do this on a day-to-day basis have 
months of training, years of experience.
    So when you have to go on the beat and determining that 
someone is undocumented, and in the absence of very rigorous 
training, and if you have to make those decisions in a very 
short period of time, you are inevitably going to use race or 
ethnicity as a proxy for someone's illegal status. That is, I 
think, what the MCC and the police in the International 
Association of Chiefs of Police have consistently stated in 
their positions. It is that cost of doing racial profiling in 
their function of this new mandate that I think they have 
chosen not to do it.
    Ms. Jackson Lee. Thank you, Mr. Chishti and Mr. Manger.
    I am sorry, Mr. Chairman, I didn't see their names, Chief 
Manger and Mr. Chishti. Maybe Mr. Stana might be able to answer 
the question later. I posed a question to him.
    Chairman Thompson. That is good.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Thompson. The gentlelady's time has expired.
    I will now recognize the gentleman from Texas, Mr. Olson, 
for 5 minutes.
    Mr. Olson. Thank you very much, Mr. Chairman. Welcome to 
all the witnesses and thank you for all your service to our 
country and your local communities.
    Mr. Riley, I have a few questions for you. Last year the 
Houston Chronicle reported that ICE was releasing criminal 
aliens and putting them back on the street. Specifically the 
Chronicle said that ICE officials didn't file paperwork to 
detain roughly 75 percent of more than 3,500 inmates who told 
jailors during the booking process that they were here in the 
United States illegally. Many of these illegal aliens were 
child molesters, rapists and drug dealers.
    A bipartisan group of the Houston congressional delegation 
met with ICE officials after the story broke and were told that 
funding from the fiscal year 2009 Homeland Security 
appropriations bill had helped fix some of the programs that 
this article highlighted by having Harris County deputies train 
in 287(g). How have these deputies helped ICE stop this problem 
in Houston?
    Mr. Riley. 287(g)-trained deputies in Harris County. I will 
note that that is one of the largest programs we have now in 
terms of individuals identified for removal. That helped 
tremendously. They do the vast majority of the screening in 
Harris County and identify several hundred individuals per 
month alone just out of Harris County. To us it is definitely 
one of the successes of the program.
    Mr. Olson. Great, so it does work in a large jurisdiction, 
in Harris County being the third most populous county in our 
Nation. It can work there if applied properly and----
    Mr. Riley [continuing]. Well there.
    Mr. Olson. My other question for you is just regarding the 
backlog of funding. Is it deterring communities from entering 
the program at this time? I mean, can you----
    Mr. Riley. Backlog of----
    Mr. Olson. The backlog of funding for 287(g). Is that 
deterring communities from enrolling in the program?
    Mr. Riley. No, we currently have approximately 42 requests 
pending. The slow process of reviewing the agreements--the 
reason why there has been a significant delay in the past year 
is that we were looking at enhancing the program, looking at, 
you know, working with GAO in their audit and also internally 
had been working on additional measures to enhance the program, 
building performance measures and identifying those agreements 
where we feel that ICE's priority is the best.
    So going back to the program only really having expanded 
dramatically in the past 2 years, it is a growing process, and 
that is why we do have a backlog. But we haven't really seen 
much of a reduction. There has been a slight reduction in the 
number of requests, but we still have quite a few pending.
    Mr. Olson. Okay, great.
    Thank you very much, Mr. Chairman. I yield back my time.
    Chairman Thompson. Thank you very much.
    Chair will now recognize Mr. Cuellar, the gentleman from 
Texas, for 5 minutes.
    Mr. Cuellar. Thank you, Mr. Chairman.
    I would like to follow up on some of the questions the 
Chairman asked earlier today, more of a structural question I 
guess to Mr. Riley and Mr. Stana and anybody who wants to 
answer on that. If you know the answer, we can talk about this 
later.
    What is the mission of the program, No. 1? What are the 
goal or goals of the program? What are the specific outputs, 
performance measures, efficiencies, that is how much--you know, 
for every individual they have, for every deputy or police, how 
much does it cost to have that? I am sure every MOA is going to 
be a little different. Do you have those answers or would you 
prefer if we get together later with Mr. Stana to work that 
out?
    Mr. Riley. I prefer later on because ICE is actually 
working with our, as I knew before--having a finalized, 
strategic plan, which will have our future performance measures 
and how we are going to extract them. So I think once that 
strategic plan is approved through ICE, it might be more 
productive time where we can sit down and look at those----
    Mr. Cuellar. Mr. Riley, believe it or not I am a supporter 
of the program if we have the right definitions as to what is a 
major offense, if we have the right performance measures, if we 
have the strategy, the right mission, the right goals on it. 
Because otherwise it is a good program--well, I don't want to 
be judgmental. But a program with good intentions might turn 
bad. I think for the local officials, I think having that is 
important. So I take it that you are trying to finalize it but 
there is no strategic plan in place right now.
    Mr. Riley. There is not.
    Mr. Cuellar. Okay.
    Mr. Riley. But we are, again, looking at our review 
process. One of the main areas of review is tying in, you know, 
the serious crime issue, looking at some of our other programs, 
such as Secure Communities and our Detention and Removal that 
have pre-existing definitions, tying ours to be similar so we 
have consistent definitions across our various programmatic 
areas. Once we have those, then bringing them back out to our 
partner agencies and showing them--these are ICE's priorities 
and this is where we want to work within the MAOs.
    Mr. Cuellar. Would the Executive branch have a problem 
sharing with the committee the strategic plan before you 
finalize it with your partners, local partners?
    Mr. Riley. I would have to review that through our legal 
advisor to come up with an answer for you on that, Congressman.
    Mr. Cuellar. Mr. Chairman, I would like to ask the 
committee to officially request the--Mr. Riley--and again, we 
want to--it is not us vs. them; that is the theme we have been 
using. We want to work with you and make this better, but I 
would like to see the strategic plan before it becomes 
finalized. You know, Mr. Chairman, because you can have a 
program with good intentions, but if you don't have the right 
strategy, the right goals, the right performance measures and 
what have, the outputs and the efficiencies, we might be 
talking about this a year from now on that. So I would like to 
at least have some sort of input, constructive input, on this.
    Chairman Thompson. If the gentleman will yield, I think we 
will share with the Secretary the committee's interest in 
whatever plan, including all those items you have articulated 
just now. As well as, as you know, our oversight responsibility 
will allow us to at any point look at whatever the Department 
is doing.
    Mr. Cuellar. Yes, and just, Mr. Riley, just, again, in the 
past there has been an us versus them. I want to emphasize it 
is us together as a team and certainly want to work with you on 
that part.
    Moving from that structural question, let me ask you a 
couple questions. Why is the Border Patrol, who has primary 
jurisdiction between the ports of entry and the first 
responders along with State and local, not part of this 
program? I know it is an ICE program, but any particular reason 
how they can get involved or whether they should get involved?
    Mr. Riley. I am not sure why they are not involved. I mean, 
they are another agency, and I guess when ICE was formed, the 
287(g) program came with ICE when Border Patrol was shifted 
under Customs and Border Protection.
    Mr. Cuellar. Okay, because they do have the Sole Guardian 
Program, where they give money to the local folks, so--an issue 
that I think we will follow up a later time.
    The other thing I have--what about the Criminal Alien 
Program? How does that work along with this program?
    Mr. Riley. The Criminal Alien Program is managed out of our 
Office of Detention and Removal, and it is one of many outreach 
programs with State and locals that ICE has under its ICE 
ACCESS umbrella. The Criminal Alien Program is ICE officers 
working in correctional facilities to identify the individuals 
that have been charged with crimes in the jails, lodging 
detainers on them, placing them into removal proceedings and 
attempting to ensure that they come into ICE custody prior to 
being released to the street.
    Mr. Cuellar. Okay, last question--I have got about 24 
seconds left. I guess, Mr. Chishti, you mentioned this. I am 
from the Southwest, from the border, right at the border. Why 
aren't there many other programs, I mean other sheriffs' or 
police departments, on the border, the Southwest border part of 
this program? Since that is the entry into the United States, 
at least the southern entry?
    Mr. Riley. I will have to check to see if any have 
requested, but primarily it is a voluntary program so if a 
sheriff or chief or the political entity overseeing that 
department does not want it, it is not something we go out and 
recruit heavily for. We wait for the request to come in to us.
    Mr. Cuellar. I understand it is voluntary, but any--I mean, 
doesn't that get you to think why there is not any more from 
the border part of it?
    Mr. Riley. Yes, I don't have an answer for that.
    Mr. Cuellar. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you very much.
    Chair would ask unanimous consent to include in the record 
Mr. Souder's letter from Noble County, the letter from 
Congressman Ed Pastor, Leadership Conference on Civil Rights, 
Ms. Jackson Lee and the Immigrant Policy Center, without 
objection.*
---------------------------------------------------------------------------
    * The information referred to is included elsewhere in the hearing 
record.
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    Chairman Thompson. Chair now recognizes gentleman from 
Louisiana, Mr. Cao, for 5 minutes.
    Mr. Cao. Thank you, Mr. Chairman, and thank you for the 
witnesses being here today.
    Based on what I have heard from the panel, it seems to me 
that ICE does not really have the capacity to arrest and detain 
and eventually deport the number of illegal immigrants here in 
the United States. Is that correct?
    Mr. Riley. All individuals that may be subject to removal?
    Mr. Cao. That is correct.
    Mr. Riley. Depending on those numbers, I doubt we would 
have that type of capacity.
    Mr. Cao. Based on the numbers that were estimated, it is 
approximately 12 million illegal immigrants.
    Mr. Riley. I would have to extrapolate what the actual cost 
of all that is, but I have read studies where it would be in 
the multi, multibillions of dollars, which would far exceed the 
budget that we have.
    Mr. Cao. Now, is there a more efficient and effective 
proposal out there to address the issue of illegal immigration 
that you know of?
    Or can you propose a more--or maybe this question can be 
posted to Mr. Chishti or Mr. Stana, whether or not there is a 
more efficient, effective way to approach this problem that we 
have.
    Mr. Stana. Well, there are a number of approaches that are 
already outlined. Of course, the Border Patrol has been plussed 
up to over 18,000 agents now. That is one. The Secure Border 
Initiative is another. Those are, you might say, the line of 
scrimmage.
    In the interior, E-Verify would, you know, show some 
promise if we can, you know, work some of the bumps in the road 
out of it. But that needs some more debate I think. But that is 
really addressing the jobs magnet that brings most people in, 
but those are just a handful. There are many programs that 
address the problem, but those are just a couple.
    Mr. Chishti. As you know, Congressman, there have been a 
number of proposals issued; our institute has issued a proposal 
itself. I mean, first of all you have to deal with the present 
12 million people, and it is hard to see anything to do other 
than acknowledge their presence and find a way for them to come 
out of the shadows and become part of the mainstream society, 
in some form legalize them toward eventual citizenship.
    But a second is that you have to recognize as to what 
causes undocumented population. Our analysis is that this--
significantly the pro-factors, the demand and the labor market 
in the United States--and there are no legal channels for 
people to come which has been the outcome of our present 
immigration system, that our selection system now allows very 
few people to be able to come legally in our existing 
preference system, that we have expanded that system to allow 
people who now come illegally to come through legal channels.
    We have improved enforcement, and I think most of it has to 
be done at the workplace in a very smart way than we have been 
able to do so far, which respects people's rights but at the 
same time gets us to the heart of why people come to the United 
States.
    Mr. Cao. Now, the 287(g) program allows the Federal 
Government to pay State and local law enforcement agencies 
money for detaining these Federal ``inmates.'' Is that correct?
    Mr. Riley. No, not exactly. Our Detention and Removal 
branch enters into intergovernmental service agreements to 
reimburse them for individuals that are being detained in the 
local jail. It is not specifically 287(g), but ICE uses a lot 
of State and local facilities that can meet our standards and 
enter into a contractual agreement with them, but it is not 
specifically--there is 287(g) detention bed money, but it is 
not an authorization that is within 287(g).
    Mr. Cao. Now, does this lead to certain abuse where 
possibly law enforcement agencies would just arrest and detain 
people in order just to get reimbursements from Federal 
Government?
    Mr. Riley. We haven't seen that. It is a reimbursement for 
the costs that they have encountered and used to detain 
prisoners that have been put into removal proceedings.
    Mr. Cao. Sheriff Jenkins.
    Sheriff Jenkins. I will address that. The answer is no, 
because we are involved in actually the 287(g) and the IGSA 
agreement, in which we are reimbursed. However, the vast 
majority of our reimbursement are for detainees that are 
brought into our facility by ICE because we do have bed space 
available. So it does not encourage or it doesn't promote going 
out and profiling to fill bed space.
    Mr. Chishti. But Congressman, I am sure GAO will study it 
sometime. There is clearly disparity between how much the 
localities get reimbursed for housing these undocumented 
immigrants and how much the cost to get them--to actually house 
them. So I think that is the next plus for a number of these 
local communities which choose to detain them.
    Mr. Cao. Thank you very much.
    Chairman Thompson. Thank you very much.
    Sheriff, since you raised a question, for the record, how 
much does it cost you to keep a prisoner that Mr. Cao was 
talking about in your facility?
    Sheriff Jenkins. Well, there is a couple ways of looking at 
it; let me explain. I think right now at the State level, it is 
looked at as the cost of detaining any prisoner, anyone 
incarcerated, is $90-some a day, say low $90's. Now, yes, we do 
generate revenue off of the IGSA agreement.
    Looking at the operation of the detention center as a 
constant expense operationally, the constant expense in 
staffing, we do have available bed space, so we do actually, if 
you will, profit from the housing of detainees through the 
IGSA. The actual cost over and above the operational cost of 
the jail is roughly about $7 a day per detainee for a small 
amount of medical services plus the meals. You know, in effect 
we are generating revenue off of that program.
    Chairman Thompson. So it is costing you $7 per day for a 
person you detain and how much per day are you reimbursed?
    Sheriff Jenkins. I think our rate currently--about $87 a 
day or $83 a day.
    Chairman Thompson. Oh, okay.
    Sheriff Jenkins. Yes, but----
    Please understand, that is only because we do have 
available jail space, bed space in our jail. If we didn't have 
that, we couldn't do that. We don't create a problem of 
overcrowding because of the program.
    Chairman Thompson. Okay, does that help you, Mr. Cao, in 
terms of numbers?
    Mr. Cao. Thank you, Mr. Chairman.
    Chairman Thompson. Thank you.
    Will now recognize the gentleman from New Mexico for 5 
minutes, Mr. Lujan?
    Mr. Lujan. Mr. Chairman, thank you very much.
    Mr. Riley. I want to go back to some of the questions in 
and around the performance measures. I just want to ask the 
question again. Has ICE developed performance measures? Because 
I am not sure if I have heard yes or no completely.
    Mr. Riley. For the 287(g) program, we have built 
performance measures into our strategic plan on the 287(g) 
program, they just have not been approved through ICE yet. So 
our goal is to not only have the strategic plan but also 
looking at the review of the program itself, tying future 
agreements better into ICE priorities and having them spelled 
out within the agreement. But we do have performance measures 
that are in draft form that we are trying to get completed.
    Mr. Lujan. Mr. Riley, when were those developed?
    Mr. Riley. The strategic plan has been in development for 
approximately--at least the 5 months that I have been the 
acting director.
    Mr. Lujan. And----
    Mr. Riley. It started prior to that so a little longer than 
5 months.
    Mr. Lujan. Mr. Riley, when was the first time that we 
entered into an agreement with a local law enforcement agency 
in this program?
    Mr. Riley. 2002.
    Mr. Lujan. So between 2002 and 2009, the beginning of the 
year, there have been no performance measures put together to 
be able to measure the success or failure of this program?
    Mr. Riley. Other than any officers trained and individuals 
identified and agreements met, no, there haven't been.
    Mr. Lujan. So when there is discussion of success in this 
program or failures of this program, there hasn't been anything 
identified that has been formalized yet to be able to measure 
that.
    Mr. Riley. No, I don't believe so.
    Mr. Lujan. Mr. Chairman, one of the questions I have also 
in this area is currently, and I think this was touched upon--
what is the process if someone who is not necessarily well-
trained in enforcing immigration law violates what we hope are 
the parameters of 287(g), for example if someone was improperly 
detained?
    Mr. Riley. An individual officer's authority can be 
revoked. We have policy in place that discusses the suspension 
and or revocation of an individual officer's authority based on 
cause. The allegation is forwarded to ICE's OPR, the matter is 
reviewed, and the authorization can be pulled unilaterally.
    In fact we recently had an instance where a 287(g) officer 
was charged with a serious off-duty crime, nothing to do with 
his duty, that the next day we revoked his authority and 
canceled his actions into our system. So there are policies in 
place to address the allegations and/or misconduct of 287(g) 
officers.
    Mr. Lujan. Mr. Riley, are you aware of any comprehensive 
audits or reviews of all of those that have been detained back 
to 2002? Have they been reviewed to see if there were any that 
were detained that were not undocumented?
    Mr. Riley. As part of OPR's review of all the MOAs that is 
on-going, they do spot checks on a certain percentage of alien 
trials that were created under the program. They review to 
ensure that the charging documents were prepared properly and 
also look to see if there were any complaints filed by any 
detainees against any 287(g) and/or ICE officers.
    Mr. Lujan. Sheriff Jenkins, you made reference a little bit 
earlier that there was a certain number--it sounded like it was 
in the high 300's--of arrests, but only of which 307 or so were 
actually--there were violations there. Could you refresh my 
memory with those numbers?
    Sheriff Jenkins. Yes, let me find that here. Bear with me 
for 1 second--337 persons who were brought in through central 
booking who had committed, again, some type of crime or an 
arrestable traffic offense, booked through our central 
processing and then were determined to be illegal status; 309 
of those persons were placed into removal proceedings.
    Mr. Lujan. Okay, Mr. Stana, one question that I have for 
you specifically is your report includes a trouble point that 
many agencies the GAO contacted noted concerns for community 
members that 287(g) could lead to racial profiling and 
intimidation. I come from a very diverse district in which this 
is something that we embrace and where we look forward to 
having strong relationships with our law enforcement, as the 
chief has described, where we are able to work closely with one 
another to go after and make sure that we are addressing those 
drug dealers and those that are committing serious crimes. What 
do you think of these concerns about intimidation and profiling 
that are being expressed, and how can we better work with our 
communities to address these specific concerns?
    Mr. Stana. I would answer the question this way. There are 
fundamentally three different models that this program uses. 
One is the jail model, and that is when people come in and they 
are booked and then they check the status and most people, the 
vast majority of people have no problem with that. You have a 
felon or at least a very bad person who is arrested. They are 
brought before you; they did something wrong.
    Then there is what used to be the patrol model, and I 
believe ICE has stopped that one. But the patrol model enabled 
officers to, in the course of their normal patrol duties, to 
identify people who are out of status, supposedly in the course 
of arrest action. But some allege that this is not being done 
in the course of arrest action, that there are people who are 
arrested for minor traffic violations, cracked windshield or 
something like that--this is the allegation--and they felt that 
there was profiling going on.
    That model, I believe, is not in use anymore. It was now 
turned over into what is known as the task force model. These 
are supposed to be ICE-led task forces. I looked at the list 
and I don't know if all of them are ICE-led. But this is to 
provide another measure of control where ICE is a partner among 
other agencies to work on, say, a drug case or a trafficking, 
human-trafficking case or something like that. Haven't heard 
much noise about that one either.
    It was the patrol model that seemed to generate the most 
concern. Now, the issue is people feeling that they are maybe 
committing a crime--a crime is sort of a loose term--but a 
relatively minor infraction but that the officers were just 
waiting for them. Some of the allegations we had heard were 
corn vendors on the street, and they were brought in on charges 
that they didn't comport with food and safety laws--or people 
with cracked taillights and someone who looks Hispanic. The 
people who raised the issues were people of Hispanic descent 
who happened to be U.S. citizens who were concerned about being 
pulled over too. So those were the kinds of complaints that we 
are, you know, we are aware of.
    Now, this is a program that set a rather high bar of 
serious crime that is supposed to be the target here. If you 
want to lower that bar, that is within the, you know--Congress 
hasn't defined where the bar is, so ICE could reasonably define 
where that bar should be. If you want to lower it, that would 
be fine if they articulate that. But the cost is going to go 
up. The cost is going to go up in terms of detention space 
needed, officers needed to supervise and another cost very well 
may be what Chief Manger pointed out, a cost in are you going 
to get community cooperation in your pursuit to root out crime.
    Mr. Lujan. Thank you, and, Mr. Chairman, I know my time is 
expired here. But I would just go on to say, Mr. Chairman, that 
I completely agree with Ms. Jackson Lee that the answer and the 
solution to many of these problems is comprehensive immigration 
reform. I hope that, as we are doing our jobs to make sure that 
we are protecting our Nation against crime, that we do not lose 
sight that we are talking about real lives and real people with 
everything that we do and that we keep that in the back of the 
mind when we are making decisions going forward.
    Thank you very much, Mr. Chairman.
    Chairman Thompson. Thank you. The gentleman's time has 
expired.
    Now recognize the gentleman from Texas, Mr. Smith, for 5 
minutes.
    Mr. Smith. Thank you, Mr. Chairman.
    First of all, Mr. Stana, with the GAO, I want to thank you 
for your suggestions on how to improve the 287(g) program. I 
just want to emphasize something that you alluded to a while 
ago--and I say this because I was the House author of the 1996 
immigration reform bill that included the 287(g) program--and 
that is that there is nothing in the legislation that limits 
the program to detaining those who have committed serious 
crimes. It sounds like to me you agree with that.
    In fact, the goal was not that at all. The goal was to 
really enable those local law enforcement authorities who 
wanted to, to enforce the immigration laws in whatever way they 
thought best, and that might or might not include those who had 
committed serious crimes. Some people, I think, are under the 
mistaken impression that somehow that is required by the 
legislation, and as you pointed out, that is really a decision 
made by the Government and individual situations.
    The other thing is I think clearly the program has been a 
success, in part because of the testimony of various law 
enforcement officials, like Sheriff Jenkins--and I have a 
question for you in just a minute--but also in part because of 
the dramatic increase in applications, so many applications by 
local law enforcement authorities, in fact, that the Federal 
Government can't even keep up with approving those agreements. 
So clearly there is an interest in the program, which I think 
is to be commended.
    I also think, and I want to read here, and I don't know if 
Mr. Riley got to it in his oral testimony or not, and I 
apologize for not being here at that point. I was on the floor. 
I am a Member of another committee, Judiciary Committee. We had 
bills on the floor. So I may have missed it if you said it.
    But I just want to make sure it is in the record, and this 
goes to the success of the program. It is critically important 
to note, as pointed out in GAO's report, many benefits have 
been realized by the agencies participating in the 287(g) 
program. Program participants reported to GAO a reduction in 
crime, the removal of repeat offenders and other safety 
benefits. The cost savings associated with crime reduction are 
not being easily quantified, but there has undoubtedly been a 
positive impact on many communities. These partnerships are 
essential to ICE carrying out its mission of deterring criminal 
alien activity and threats to national security and public 
safety throughout the United States.
    That is a strong statement which I very much appreciated, 
but again I think it points to the success of the program. I 
would also say in fact that I consider 287(g) to really be a 
litmus test as to whether we are serious about enforcing 
immigration laws, whether we are serious about making our 
communities safer and whether we are serious about reducing 
illegal immigration. That is how important the program is.
    Mr. Stana, a few minutes ago, you mentioned that we have 
18,000 Border Patrol agents. Well, when you think that you have 
to cover 24 hours a day, that means you divide by three of the 
8-hour shifts; there is only 6,000 agents on duty at any one 
time. We have 4,000 miles of border north and south. That means 
we have only got three agents for every 2 miles of border. 
Believe me, that is not enough, and I don't know of anybody who 
thinks that that is enough, but that is why we need programs 
such as 287(g) to augment our efforts to try to secure the 
border.
    Let me run through a couple of questions if I could. 
Sheriff Jenkins, I will begin with you. Thank you for being an 
example of how the program works. You suggest in your written 
testimony that we actually ought to expand the program. Is that 
correct?
    Sheriff Jenkins. That is correct, sir.
    Mr. Smith. Why is that?
    Sheriff Jenkins. Well, again, I say--you look at the needs 
of the agencies or the requests of the number of agencies that 
want to get on board, and again I think there is a true role 
for the need and involvement of local law enforcement. The 
reason I say this is because if the resources were available to 
ICE to provide all the oversight and supervision that was 
needed, I think the program would be even more successful.
    Mr. Smith. Okay, thank you, Sheriff Jenkins.
    Chief Manger, let me just ask you a question based upon 
what I read in your testimony. You said local police agencies 
must balance any decision to enforce Federal immigration laws 
with their daily mission of protecting and serving diverse 
communities and so forth. I know you have--feel pros and cons 
about 287(g), but it sounds like to me from your written 
statement, at least, that you believe that it should be up to 
the local law enforcement authorities whether they participate 
or not. Is that accurate?
    Chief Manger. That is accurate, yes, sir.
    Mr. Smith. Okay, that is helpful because I think what we 
all want to do is try to improve the program. In my judgment, I 
think we ought to expand it. I agree with Sheriff Jenkins in 
that regard--and make it, you know, improve it to the point 
where more and more communities want to use it.
    But the problem we have is that we need more personnel 
within the Department of Homeland Security so that we can get 
those agreements approved. I just think it is inexcusable to 
have local law enforcement authorities wanting to participate 
and not having the personnel in D.C. to approve those 
agreements. I hope we could rectify that.
    Madam Chairman, I will yield back.
    Ms. Clarke [presiding]. Thank you very much.
    I will now recognize myself for 5 minutes.
    I wanted to thank Chairman Thompson and Mr. Souder for the 
opportunity to address our witnesses today.
    As a New Yorker, I am acutely aware that we are in a post-
9/11 world, and it is incredibly important that we protect our 
Nation from terrorist threats. In order to do so, it is 
important that we identify the bad actors, both documented and 
undocumented, residing within our borders. But unfortunately I 
think we are all stuck at a point where we recognize wherein 
our current immigration system is antiquated and is in urgent 
need of fundamental reform. I am particularly concerned about 
the lack of internal controls, oversight and accountability in 
the 287(g) program.
    Let me just state that, as a second-generation American of 
immigrant parents and a representative of a congressional 
district with a substantial and diverse immigrant population, I 
am concerned about the potential this program poses for racial 
profiling and for the lack of trust and the hostility that it 
fosters between immigrant communities and law enforcement. As 
noted in both the testimonies of Chief J. Thomas Manger and MPI 
director, Mr. Chishti, even legal immigrants will cease to 
report crimes in a culture of fear and paranoia.
    So that sort of brings me to you, Sheriff Jenkins. I kind 
of found it interesting that in your conversation here, you 
said that your department has found a way to make--what is it, 
$80 per detainee? Is that what your reimbursement is per 
detainee?
    Sheriff Jenkins. Eighty-three dollars reimbursement.
    Ms. Clarke. Okay, and that could be quite profitable 
particularly if your jurisdiction has additional bed space, 
couldn't it?
    Sheriff Jenkins. I think it is a good use of bed space.
    Ms. Clarke. Yes.
    Sheriff Jenkins. Again, look at helping the overall mission 
of ICE.
    Ms. Clarke. Yes, okay. In terms of community policing, it 
is vital that every local police and sheriff's department have 
a strong relationship with the community. Victims of crime and 
witnesses should be able to come forward and talk to the police 
freely without fear of being arrested or deported. I am 
concerned that participation in this program may negatively 
impact this important relationship.
    I wanted to ask if you believe that undocumented immigrants 
in your community who were victims of a crime or witness to a 
crime are reluctant to come forward because they fear of 
detention or deportation.
    Sheriff Jenkins. The answer is no, not for that reason. I 
think you will find--and I am going to go back to my 
experiences in working crime and criminal investigation is that 
the reluctance is a cultural thing. It is not an issue that you 
can tie to the immigration enforcement. I mean, there is 
typically a mistrust of police, Government and law enforcement 
in most of the rest of the world. We know that. So I think in a 
lot of cases it is cultural. I could tell you----
    Ms. Clarke. Could you go a little bit more into detail 
about what you mean when you say it is cultural?
    Sheriff Jenkins. Well, I mean, a lot of other countries in 
the world, let us face it, their police are corrupt. Their 
governments, in a lot of senses, are corrupt, and there is just 
a general mistrust of law enforcement, not necessarily in this 
country but other areas of the world, and not tied to one 
specific country. I mean, I think we know that. I mean, look at 
the law enforcement in South America, Central America. I mean, 
we all know what is going on below the borders.
    I will be very frank with you, I mean, let us face it. A 
lot of other countries people cannot trust law enforcement. I 
don't think this program creates mistrust. We participate very 
strongly in community policing. We reach out to the Latino 
communities, all the immigrant communities. I have had calls, I 
have had letters from immigrants who are in this country 
illegally who frankly they believe in this program.
    Ms. Clarke. Let me ask you something. If that is indeed 
your premise, then how do you become an effective crime fighter 
in an environment where we know that we would need the 
intelligence of individuals within our own community to avoid 
and avert really, really bad things from happening?
    Sheriff Jenkins. We do and we----
    Ms. Clarke. So I am just asking you, I mean, just the two 
responses just don't jive.
    Sheriff Jenkins. Okay.
    Ms. Clarke. You know, it--but they don't jive.
    Sheriff Jenkins. There are mechanisms in this program to 
protect victims of crime. We make that very clear. I mean, just 
because you are a victim of a crime and you happen to be an 
immigrant doesn't mean we won't do everything absolutely within 
our power to protect you.
    Ms. Clarke. Yes, okay, well, Mr. Jenkins, my time is 
running out and I am going to just end with one more question 
for you. Have you participated in any outreach efforts 
specifically designed to inform the community about the 287(g) 
authority?
    Sheriff Jenkins. Yes, I have.
    Ms. Clarke. Could you just give us a little bit more detail 
on that?
    Sheriff Jenkins. I have made myself accessible to any 
community group.
    Ms. Clarke. No, I said outreach not----
    Sheriff Jenkins. Outreach, yes, yes. I have, again, from 
the onset of this program, I have let the community know where 
we were going to go, the reasons we were getting involved in 
this program and have taken an active posture in getting out 
and letting the community know. All segments of the community 
know what this program is. I have been very transparent about 
it.
    Ms. Clarke. Okay, very well.
    Let me now acknowledge Mr. Dent. I believe you are next 
to--Mr. McCaul, just going by the list here, sir.
    Mr. McCaul. I thank the Chair.
    Ms. Clarke. You are acknowledged for 5 minutes.
    Mr. McCaul. I thank the gentleman from Pennsylvania as 
well.
    There is an old expression: If it is not broken, don't fix 
it. I think this has been a very successful program, and if 
anything we should look at expanding it in the Congress, not 
criticizing it.
    You know, after 9/11 we all talked about working together--
Federal, State and local. I think that applies to this issue as 
well. Our local law enforcement are the eyes and ears. We 
talked about the patrol model. That is the model that picked up 
Tim McVeigh on the streets with a routine traffic stop.
    I think the American people are frustrated by the illegal 
immigration issue, but when they see illegal immigrants come 
into this country and commit crimes, they find that to be 
intolerable and unacceptable. They certainly do in my district. 
This program, in the Houston area, has been very successful. 
The only problem that I have seen is that more local police 
departments want to participate in it that cannot qualify and 
that ICE does not have the resources that it needs to properly 
carry this out.
    I met in the Houston area with ICE with our smaller local 
police departments, and the ICE official literally pointed at 
me, as a Member of Congress, and said--as the local law 
enforcement officers are saying, ``We want to do this. We want 
to participate. We need ICE to help us detain more of these 
illegals committing crimes in the United States.'' The response 
from the ICE official was, he pointed at me and said, ``Well, 
you are from the Congress. You need to help us.'' I think he is 
right.
    I think that Congress needs to appropriate more money for 
this program to expand it. I think Congress needs to 
appropriate more money so that ICE can fully participate in 
this program, which I believe ICE cannot fully participate in 
this program given the limited resources available.
    So with that question and given that this is a voluntary 
program--we are not forcing any local police department to do 
this--but given that, I will throw my first question to Mr. 
Riley at DHS, in terms of--does ICE have the resources to fully 
participate in this program?
    Mr. Riley. Currently with the workload we have, I believe 
we do. The Congress has been very generous in appropriating 
funds. The 287(g) program receives over $54 million this 
current year, and that is up from zero 5 years ago. The growth 
has been dramatic in the past 2 years, and we have signed on 60 
MOAs just in the past 2 fiscal years, and we have more in the 
pipeline.
    We started tracking the full cost expended upon the program 
as a result of GAO asking what the average cost per agreement 
was, and looking at that, and we have expanded that 
spreadsheet. GAO looked at 29; we have it expanded to all 67 
now. So in the upcoming years we are going to be tracking what 
the full impact is as detention bed costs, space, personnel 
costs and things of that nature to get a better picture on what 
the average memorandum of agreement does cost.
    Mr. McCaul. Well, then, I would--Mr. Stana, is that your 
experience as well with your report?
    Mr. Stana. Well, the $60 million goes for computers and 
training mainly, some equipment, but not for people, not for 
bed space, not for ICE supervision. They are in short supply 
there. So to some extent, Mr. Riley is correct. On another 
plane, we might want to reexamine.
    I think the question people normally ask GAO is: ``How well 
did they spend what they got?'', not: ``Do they need more?'' 
But, you know, the fact that Mr. Souder can't get in the 
program or his jurisdiction can't get in the program and others 
are waiting would suggest that maybe the resource question 
ought to be revisited.
    Mr. McCaul. Well, and I agree with that.
    Mr. Riley. I would love to invite you down to my district 
and you can talk to several local police departments that want 
to be in this program but cannot. The director of ICE in the 
Harris County area who has been very, I think--I commend him 
for being honest with me and very straightforward that they do 
need more resources. I think that is an issue that we in this 
Congress should be focused on. I think it is a successful 
program. I think it deserves expansion.
    With that, I have 2 seconds left. I just want to ask 
Sheriff Jackson and Mr. Riley if--I would like to hear the 
successes of your model, Sheriff, and then also ask the 
question: Have there been any complaints filed regarding racial 
profiling both in Maryland and also, Mr. Riley, Nation-wide?
    Sheriff Jenkins. The answer is no. I have had no complaints 
or investigation--no complaints of racial profiling or 
discrimination as a result of the program. It has been a very 
successful program. I don't quantify that with numbers. I look 
at how well we run the program in partnership with ICE.
    Mr. McCaul. I commend you for that.
    Mr. Riley, have you had any complaints regarding racial 
profiling pertaining to this program?
    Mr. Riley. ICE does take the allegations that are out there 
very seriously, and I believe we have built several measures 
into it. Although we don't audit the investigative agency for 
racial profiling, we do have a multilayered approach when 
looking at the issue. The way the agreements are established, 
there is a complaint process for any violation of the MOA, 
which is a complaint process through our Office of Professional 
Responsibility.
    The officers that are recommended for the training, we do 
background checks on those officers and look at pending 
disciplinary actions. As well as within the training, there are 
components of the 287(g) training program that looks at racial 
profiling and civil rights issues. The officers are advised 
that now that they are Federal officers when exercising a 
287(g) authority, that they are bound by the Department of 
Justice's civil rights policies and procedures on racial 
profiling and use of race in law enforcement activities.
    Additionally, our OPR reviews, when they go out to the 
officers and review the MOAs, they do check with the racial 
civil rights entities, the U.S. Attorney's Office and the FBI 
to ascertain if there are any pending racial or civil rights 
issues----
    Mr. McCaul. Are there? My question is: Have there been any 
filed?
    Mr. Riley. None of our OPR reports have reflected any----
    Mr. McCaul. Thank you.
    Mr. Riley [continuing]. With them.
    Ms. Clarke. I now acknowledge the gentleman from Texas, Mr. 
Green, for short--for 5 minutes.
    Mr. Green. For a short 5 minutes.
    [Laughter.]
    Thank you, Madam Chair.
    Ms. Clarke. The standard 5 minutes.
    Mr. Green. Thank you very much. I want to thank the 
witnesses as well.
    For edification purposes, permit me to share this with you. 
I have been in and out because we have another hearing in 
Financial Services, and it is quite important that I attend 
both of these hearings today. So I may have missed something 
that I will ask you to share, and I beg your indulgence because 
of my trying to split my time.
    Let us start with some intelligence that I have received 
indicating that ICE officials reported to GAO that they are in 
the process of developing performance measures. Let us go to 
Mr. Stana. Is this true that ICE has been in touch with you and 
they are in the process of developing some performance 
standards?
    Mr. Stana. That is correct. Mr. Riley and his people are 
developing a strategic plan; embedded in the strategic plan are 
performance measures. We have not seen them. The strategic plan 
is still in draft form and I am not sure exactly when it is 
going to come out, but we will be looking to that plan----
    Mr. Green. Well, that is a good segue into my next 
question. Have you been given any time table as to when you can 
expect this performance plan, if you will, or measure?
    Mr. Stana. Nothing specific.
    Mr. Green. Perhaps I should move now to ICE then and ask 
you the follow-up question. Is there a time frame within which 
the performance measures will be accorded GAO?
    Mr. Riley. The plan is in final format and with our 287(g) 
review that we are conducting across the board. I don't have a 
time frame. I can check on the status of where the strategic 
plan is and the performance measures and get back to you on the 
time frame.
    Mr. Green. Understanding that you do not have a time frame, 
is it fair to assume that it will be done within the next 6 
months?
    Mr. Riley. I believe so with the review that is being 
conducted at the direction of Secretary Napolitano; I believe 
we will have it done in the next 6 months.
    Mr. Green. Would it be done within the next 3 months?
    Mr. Riley. That I can't answer. I can get back to you on 
that when I have a chance to consult.
    Mr. Green. So within about 3 to 6 months--given that not 3 
but possibly 6? I ask because, having gone through this on many 
occasions now, I have learned that time frames are important, 
and if we are going to have an efficacious program, we do need 
these performance standards. The best way to get to them is to 
have some horizon that we are looking to. So I am going to not 
necessarily say that I will hold you to it, but I will at least 
expect to see something in about 6 months, so that we can get a 
better handle on what we are doing.
    Next point is this: The MAOs generally do not provide 
details, according to my intelligence, as to what data should 
be collected or how the data should be collected and how the 
data should be reported to ICE. Is this true?
    Mr. Riley. That is correct.
    Mr. Green. Given that some of this can become standard, why 
can we not standardize certain aspects of these MOAs so that we 
can have one that we can use generally speaking that we tweak 
for a given location? Is this possible?
    Mr. Riley. That is our goal, and that is what we are doing 
right now is we have a draft, a new draft. We have gone through 
several evolutions of MOAs, and they have been templates and 
standardized and we have added to them over the years. The 
current one that we are putting together takes into account 
many of the GAO recommendations plus other areas that we wish 
to improve internally with our current review.
    One of the measures is the data collection--and, for the 
record, that we have data that we extract out of our database 
system that the State and locals are required to put in. It is 
not spelled out in the MOA, but it is a seamless mission where 
we give instructions on what fields need to be filled out so 
that we just pull the data out directly. Even that system 
itself, the ENFORCE system, is being enhanced so that the data 
collection will be better to focus on the individual----
    Mr. Green. My time is about to expire, so forgive me for 
interrupting. But I do have one final question. This is rather 
general and it will help me with many hearings of this type. 
Was there anything that prevented you from visiting with GAO 
prior to the implementation of the program and ascertaining 
what type of acid tests might be best used given what your 
mission was? Is there anything that prohibits this?
    Mr. Riley. I am not sure if there is a prohibition from us 
consulting with GAO.
    Mr. Green. I only ask because we find ourselves after the 
fact making these kinds of adjustments that in many 
circumstances are based upon what I have seen now--this is my 
observation. Based upon my observations, we could have 
prevented this hearing possibly by having had a meeting with 
someone in GAO and your organization. This doesn't just apply 
to you, so I am not finger-pointing. I am just trying to find a 
better way to do business and save money for the Government.
    Mr. Stana. You know, Mr. Green, from time to time, other 
organizations do engage us. We call them constructive 
engagements. They ask our counsel on certain things they are 
thinking about doing. In this case, if Mr. Riley and his people 
would like us to have a look at what they have drafted and 
provide any insights, we would be welcome to do that, but we 
haven't been asked yet.
    Mr. Green. Seems like a fairly reasonable thing to do.
    I thank you, Madam Chair. By the way, you do look good in 
the seat.
    [Laughter.]
    Ms. Clarke. Thank you very much.
    I would now like to acknowledge the gentleman from 
Pennsylvania for 5 minutes.
    Mr. Dent. Thank you, Madam Chair.
    Ms. Clarke. Mr. Dent.
    Mr. Dent. Great to be here.
    Mr. Riley, good to see you again.
    Mr. Riley. You too, Congressman.
    Mr. Dent. How did you get this job, by the way, can I ask?
    Mr. Riley. All luck.
    [Laughter.]
    Mr. Dent. Why don't you tell them what you did before you 
were--when I used to run into you up in my----
    Mr. Riley. Prior to my assignment here as the acting 
director of the State and local law enforcement, I was an 
assistant special agent in charge with ICE's Office of 
Investigations in Philadelphia and worked with Congressman Dent 
on some significant community issues.
    Mr. Dent. Interesting issues trying to help facilitate 
greater collaboration between my ICE and local law enforcement, 
if I recall.
    Mr. Riley. Very ironic.
    Mr. Dent. Some interesting meetings. But it is great to see 
you again.
    I have a lot of questions. But, one, I just want to say, 
Mr. Riley, and I would be remiss if I didn't ask you about a 
situation that just occurred in my district in the last few 
days. It was in, again, Northampton County where you had some 
experience. I had an individual enter the United States 
illegally and then got a green card when he married a U.S. 
citizen. The individual is now facing his sixth drunk driving 
charge--sixth.
    I guess my question is what does it take to pull the guy's 
green card? He is operating under aliases, entered the country 
illegally--and send him packing. You know, I guess, you know, I 
mean, my constituents are asking. Does he have to kill somebody 
first before we get him out? Would there be any relevance for 
the 287(g) program in a case like this?
    Mr. Riley. If the individual has a green card, is a lawful 
permanent resident, only a deportable criminal offense would 
render him removable. It has been a few months since I have 
reviewed some notices to appear and understanding the 
Pennsylvania statute, but not knowing what the exact conviction 
is for and the severity of it, I would have to, you know, if 
you want to forward the information, I----
    Mr. Dent. I will get it to you, but the individual was 
convicted of drunk driving in 1993, 1994, 1996 and 2007 twice, 
just got picked up for a 0.23 and, you know, this has been on-
going. There are aliases, improper or false aliases and that 
sort of thing. So that has kind of come up and I just wanted to 
raise that with you and look forward to working with you on 
that particular situation.
    I also wanted to mention, too, that--and I guess my next 
question is to Sheriff Jenkins. Can you tell me in this 
committee, you know, how many criminal aliens identified by 
your agency have been released and not deported because ICE has 
not had the resources to deport everybody?
    Sheriff Jenkins. To my knowledge, none--I mean, again--I am 
sorry, sir--to my knowledge, none. Again, when you look at the 
numbers of persons we filed detainers on--337--the number that 
were placed into removal proceedings--again I go back to the 
program has worked well for us. We have never been in the 
situation where the person was removable that it has not 
occurred.
    Mr. Dent. Okay, and, you know, we have a lot of situations, 
too, up where I live as you are well aware, Mr. Riley, but I 
just really would like to have further dialog with you on these 
issues because it is becoming a bigger issue. As you know, we 
have had some celebrated cases, which you have been familiar 
with.
    I guess finally, too, I just wanted to say that we have a 
lot of people, too, in this country--I am not sure what you 
folks can do about this, but I know there are about 139,000 
people, Mr. Riley, in the United States from about eight 
countries who are awaiting removal orders but cannot be 
repatriated. I don't know if you have any insight or thoughts 
on that particular issue. We have got legislation out here 
pending that would make it--we would like to hold up visas from 
those countries where these individuals are from, places like 
India, China, Jamaica, Vietnam, Laos. I can go through the list 
of eight countries. I don't know if anybody wants to respond. I 
picked on Mr. Riley, but maybe somebody else has some insight.
    Mr. Stana. Well, it has been several years, but we did some 
work on the Zabidas cases, which I think is what you are 
talking about, which was named after a Supreme Court decision.
    Mr. Dent. Yes, we can't hold these people indefinitely----
    Mr. Stana. Yes, and that is part of the problem. If I 
remember right, there needed to be more collaboration between 
States and Homeland Security and local jurisdictions to make 
sure that all the paperwork was right and all the appeals were 
exhausted, in concert with law but in an expeditious manner. 
But there are some--it is just a tough nut to crack. Laos--I 
can name the countries also--will not take them back. So they 
languish in the detention facility.
    Mr. Dent. At this time, I have no further questions. I 
just----
    Mr. Souder. Will the gentleman yield----
    Mr. Dent. I will yield to Mr. Souder.
    Mr. Souder. Sheriff Jenkins, does the Federal Government 
pay any of the salaries on your people who participate in 
287(g)?
    Sheriff Jenkins. No, sir, they do not.
    Mr. Souder. I think it is really important to point out 
that when we are talking about control, that the salaries are 
paid just like in HIDA by the local law enforcement, and if we 
don't include local law enforcement in the decision of what 
they are allowed to do, we won't have a program, because the 
Federal Government is merely doing training. Anybody who is 
watching this today, listening to this, needs to understand 
Sheriff Jenkins is funding the program. The Federal Government 
only did the training.
    Sheriff Jenkins. Correct, sir.
    Mr. Souder. Thank you.
    Ms. Clarke. It think it is also important to note that it 
is a voluntary program.
    The next person to give their questions at this time is the 
gentleman from Missouri, Mr. Cleaver.
    Mr. Cleaver. Thank you, Madam Chair.
    I am apologetic as well. I am on the Financial Services 
Committee, and we are dealing with TARP, so we have been in and 
out. My colleague, Mr. Green, is accustomed to sitting by me in 
both committees. He will be lost without me so I will have to 
join him to create some comfort for him as soon as I can.
    But this is a very important subject. I just want to say I 
think some highly publicized cases like those that Mr. Dent, my 
colleague, mentioned are the kinds of things that really will 
irritate the American public. I think we have got to clean up 
our laws and figure out ways to address some of these issues 
because those are the things that are lifted up to anger the 
American public.
    But at the same time, I am also very concerned about 
xenophobia. I think in the aftermath of 9/11, there is a great 
deal of that. I think it would be very difficult for someone to 
dismiss the fact that that is the case. So I am concerned about 
that, and I know that, you know, the American public--Chief 
Jenkins, you mentioned the fact that there was, you know, 
people, I guess, criticizing your program, 287(g) and your 
operation, but I do have to say that sometimes the public is 
wrong. You know, politicians aren't supposed to say that, but 
it is a fact.
    I mean, as a little boy growing up in Texas, I can remember 
this Congress in these walls repeatedly refusing to pass a 
civil rights bill. The poll showed that they were doing what 
their constituents said. So I think we have to--I mean, we have 
to be really careful. I think we are the leaders who have to 
make sure that the xenophobia is not a part of what we push and 
fail from these hallowed walls.
    But I would like to move to Chief Thomas. Do you believe 
that 287(g) creates tension between the police operation and 
immigrant community?
    Chief Manger. You know, it is going to be different from 
jurisdiction to jurisdiction and I can speak for Montgomery 
County, where I police. I can tell you with the number of 
immigrants that we have, with the number of undocumented 
immigrants that we have, it would pose a difficult issue for us 
if that segment of the community saw us as ``the immigration 
police.'' Yes, it would be a problem.
    Mr. Cleaver. Do you think that would spill over into--I 
mean, I think, you know, for sure in Latin America and in other 
places around the world that there is a fear of police and of 
authority. I think minorities and certainly immigrants may have 
that same paranoia, and so--I think someone mentioned it 
earlier. I think the Chair mentioned that we need some 
cooperation to adequately fight crime from all segments of the 
population.
    Mr. Chishti, do you believe that there is something we can 
do to tweak 287(g) that would make it workable but it not 
oppressive?
    Mr. Chishti. I think so, Congressman. I mean, there are 
clearly four or five things that you can do. First of all, you 
can insist that these agreements have a clear, narrow 
objective, because the limited resources--they must be spent on 
high target-of-interest criminal aliens, I think. No. 2 is that 
I think they must have very strict supervision. Right now, the 
supervisory language in these agreements is so vague that they 
make the statutory language essentially meaningless.
    They must also have very tight guidance as to when they are 
going to use the authority that they are given by the 
agreement. I think they should have very strict compliance 
procedures, and they should be monitored. Most importantly, we 
should have very important reporting requirements, which we 
don't have now.
    We all talked about how many criminal aliens they are 
picking; we have no idea today how many criminal aliens have 
been picked as a result of these operations because the program 
doesn't allow them to keep numbers like that. Then we must have 
a--from the local community here. I think if the local 
community buys into the program, it will be a success. Without 
that, it won't be.
    Mr. Cleaver. Well, thank you, Madam Chair. I apologize I 
have to go. Mr. Green needs me.
    [Laughter.]
    Ms. Clarke. Thank you. I now call upon the gentleman from 
Florida for 5 minutes.
    Mr. Bilirakis. Thank you, Madam Chairwoman, I appreciate it 
very much.
    I strongly support 287(g) and believe it is invaluable, 
too, to help enhance our ability to deter illegal immigration 
and detect criminals and others who may wish to do us harm. I 
believe it would be shortsighted to allow current management 
challenges in the program to deter us from expanding and 
maximizing its immigration enforcement benefits.
    I have a question for Sheriff Jenkins. Do you believe, as 
Sheriff Bob White in my district does, that legal, law-abiding 
immigrants are actually more afraid of the criminal aliens in 
their communities than they are of local law enforcement and 
that because they lack confidence in the ability of local law 
enforcement to keep these people off the streets, they are 
hesitant to cooperate with and trust local authorities?
    Sheriff Jenkins. Yes, I believe the local population--and I 
am speaking again for my jurisdiction.
    Mr. Bilirakis. Yes.
    Sheriff Jenkins. There is a fear among the resident 
community of the crime that is attributed to illegal aliens in 
this country. Now, I don't think that they are frustrated with 
the efforts of police or law enforcement. The problem is 
enormous. This problem is not isolated to one jurisdiction, one 
State. It is an enormous problem from coast to coast. So I 
think overall, I think people are frustrated by the fact we 
can't enforce the laws any more than what we do.
    Mr. Bilirakis. Thank you.
    I would like to yield 1 minute to Representative Dent.
    Mr. Dent. Thank you.
    Mr. Riley, just one other question I thought of as I was 
listening to the discussion. It is my understanding based on 
one of our last conversations that much of the resource 
allocation for removing people who are in this country 
illegally focuses in these areas: terrorists, human smugglers 
and criminals. Is that a fair assessment that they tend to get 
more attention in terms of your enforcement efforts at ICE?
    Mr. Riley. Within the Office of Investigations, they pursue 
those areas, but our Office of Detention and Removal, one of 
the top focuses is the criminal alien population.
    Mr. Dent. Yes.
    Mr. Riley. The criminal aliens in all the areas that we 
target them, both in our gang efforts, in our CAP program and 
things like that in 287(g). I would say criminal aliens is one 
of the top priorities of ICE.
    Mr. Dent. I yield back at this time.
    Mr. Chishti. Congressman, if I could----
    One of the problems with the present program is that it 
allows us no way of knowing whether those priorities are being 
met. We have no idea how many terrorists have been picked up as 
a result, how many criminal aliens, how many drug traffickers. 
What we know is a large number of people are being picked up. 
So we have gone from quality to quantity in this program, which 
ultimately is the problem in terms of its long-term objectives.
    Mr. Riley. Actually just to rebut that one issue that we do 
know that more than 90 percent of the individuals picked up in 
the 287(g) program were either picked up in a jail setting or 
had criminal histories. We are trying to tighten those numbers 
up because it may be higher and also so we can reflect what 
initial crimes they were charged with or convicted of. Our 
system doesn't allow us to do it now, but by and large the vast 
majority of the 287(g) arrests were encountered in jail 
settings.
    Mr. Bilirakis. Thank you. I yield the balance of my time to 
Representative Souder.
    Mr. Souder. One of the challenges here, as Mr. Smith said, 
who wrote the bill, and I was in negotiations in my first term 
because our class was so big in the negotiations on the final 
immigration bill--this Congress did not specify that this was 
just supposed to be high-risk people or people who were 
violent. That is not there. In talking to--it may be a 
logical--if we are going to have restricted funding and 
different targets, that may be a logical outgrowth, but it is 
not a failure of ICE nor was it the intent of Congress to do 
that.
    It was part of an immigration bill, and 287(g) does not 
fund local law enforcement; 287(g) was to extend because we 
were not going to use ICE agents to do regular type of 
immigration work, and that the 287(g) was to extend and try to 
offer a program to people like Sheriff Jenkins who said, 
``Look, I will take my limited resources and put them into this 
program.'' We will to some degree be changing the intent.
    Now, I talked to Assistant Secretary Myers in both 
categories. One is how do we, with limited funding, which I 
believe there should be more, target ICE, and do you do random 
investigations or you target bigger organizations? Then second, 
is there a goal that ideally we would pick up more high-risk 
people? Ideally we pick up that, but that is not the 
legislative purpose written or intent.
    Now, I think that there are suggestions now that this is 
going to be a limited program. How do we best use the funds? 
How do we work that through if Congress doesn't pass more 
money? That is what we are debating here.
    But there needs to be a clear understanding that if we 
narrow it, in fact people like Sheriff Jenkins may withdraw. It 
is their money. It is really important for a program like this 
to not just be Washington top down, which is what we have run 
into in narcotics, and we have had this back and forth, because 
if you want local law enforcement in, you have to let them 
participate in the decision that says if I am going to put my 
resources in, what do I think my problem is in my district.
    In narcotics, they wouldn't do meth. They said, ``Oh, well, 
we will do cocaine; we are not going to do meth.'' The sheriffs 
pulled out their funding. In this case, if they feel they have 
different types of crimes in their district, 287(g) was to 
allow some flexibility for illegal activity, not just the 
highest kind of violence.
    Yield back the rest of Mr. Bilirakis'----
    Ms. Clarke. Well, I want to thank the witnesses for their 
valuable testimony and their time today and the Members for 
their questions. The Members of the committee may have 
additional questions for you, and we will ask you to respond 
expeditiously in writing to those questions.
    Without objection, I have letters and statements from 
several organizations commenting on the 287(g) program. I offer 
them for the record. Hearing no objections, so ordered.
    [The information referred to follows:]

    
    
    
    
                                 ______
                                 
   Joint Statement of Wade Henderson, President and Chief Executive 
  Officer, Leadership Conference on Civil Rights, and Margaret Huang, 
                Executive Director, Rights Working Group
                             March 4, 2009
    Chairman Thompson, Ranking Member King, and Members of the 
committee: We are Wade Henderson, president & CEO of the Leadership 
Conference on Civil Rights (LCCR), and Margaret Huang, executive 
director of the Rights Working Group. Thank you for the opportunity to 
submit testimony for the record regarding today's hearing on State/
local enforcement of Federal immigration laws.
    As the Nation's oldest, largest, and most diverse coalition of 
civil and human rights organizations, LCCR has long been concerned with 
the civil rights implications surrounding the use of Section 287(g) of 
the Immigration and Nationality Act (``287(g)''). LCCR was founded in 
1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, and seeks 
to further the goal of equality under law through legislative advocacy 
and public education. LCCR consists of approximately 200 national 
organizations representing persons of color, women, children, organized 
labor, people with disabilities, older Americans, LGBT Americans, and 
major religious groups.
    Formed in the aftermath of September 11, the Rights Working Group 
(RWG) is a national coalition of more than 250 organizations 
representing civil liberties, national security, immigrant rights and 
human rights advocates. RWG seeks to restore due process and human 
rights protections that have eroded since 9/11, ensuring that the 
rights of all people in the United States are respected regardless of 
citizenship or immigration status, race, national origin, religion, or 
ethnicity. RWG is particularly concerned about the impact of 287(g) 
agreements on the civil liberties and human rights of communities of 
color.
    287(g) was passed in 1996 as part of the Illegal Immigration Reform 
and Immigrant Responsibility Act (IIRAIRA), at a time when the 
Department of Justice recognized no inherent authority for State and 
local law enforcement to enforce Federal immigration law. A 2002 
opinion from the Department of Justice Office of Legal Counsel (OLC), 
however, reversed the earlier ruling and found that State and local 
police departments did have such an inherent authority. The use of 
Section 287(g), combined with the 2002 OLC opinion, has lead to rampant 
abuses of the authority granted to local law enforcement agencies.
    An ICE fact sheet describing the 287(g) program states that it is:

``not designed to allow State and local agencies to perform random 
street operations. It is not designed to impact issues such as 
excessive occupancy and day laborer activities . . . it is designed to 
identify individuals for potential removal, who pose a threat to public 
safety, as a result of an arrest and/or conviction for State crimes. It 
does not impact traffic offenses such as driving without a license 
unless the offense leads to an arrest . . . Officers can only use their 
287(g) authority when dealing with persons suspected of committing 
State crimes and whose identity is in question or are suspected of 
being an illegal alien.''\1\
---------------------------------------------------------------------------
    \1\ United States Immigration and Customs Enforcement, Delegation 
of Immigration Authority: Section 287(g) Immigration and Nationality 
Act, Sept. 5, 2007, available at http://www.ice.gov/pi/news/factsheets/
070906factsheet287gprogover.htm.

    When one looks closely at the implementation of 287(g) agreements, 
a few things become clear. First, despite the rhetoric that these 
programs are not intended to be used for traffic stops or to disrupt 
day laborer sites, the facts argue otherwise. The agreements have been 
used to set up traffic checkpoints in areas heavily populated by 
Latinos and engage in ``crime suppression sweeps'' of day laborer 
sites. Arrest records in localities that have 287(g) agreements show 
that a majority of the arrests result from traffic stops, not incident 
to serious criminal activity. Second, because it is impossible to 
ascertain a person's legal status by his or her name, appearance, or 
way of speaking, 287(g) programs that focus on enforcing civil 
immigration law incentivize police to target members of the Latino 
community in a broad way, leading to racial profiling. Finally, the 
push to focus on civil immigration status has pulled limited law 
enforcement resources away from addressing criminal activity in their 
communities.
    Local enforcement of civil immigration laws under 287(g) agreements 
is a civil and human rights issue, not just an immigration issue. 
Although the program is promoted as one that allows local and State 
police to identify serious criminals who are non-citizens and 
facilitate their deportation once their sentence is completed, the 
reality of that program has been rampant racial profiling that has 
affected undocumented immigrants, legal residents and citizens.
    The reality is that police officers have interpreted this authority 
as allowing them to raid day laborer sites and use traffic stops to 
check people's immigration status. Citizens have been detained after 
traffic stops based on their name and accent, or even for listening to 
Spanish music while standing outside a family business. Painting the 
program with a veneer of immigration enforcement does not accurately 
relay the nature of the program, nor does it cure the underlying 
violations. A recent Justice Strategies report entitled ``Local 
Democracy on ICE: Why State and Local Governments Have No Business in 
Federal Immigration Law Enforcement'' found that 287(g) agreements were 
being used in Maricopa County, AZ to do ``crime suppressions sweeps'' 
of day laborer sites.\2\ A report by the North Carolina ACLU and the 
University of North Carolina Chapel Hill Immigration and Human Rights 
Policy Clinic studying the implementation of 287(g) agreements in North 
Carolina found that a majority of arrests in several counties came as a 
result of traffic stops, not criminal acts.\3\
---------------------------------------------------------------------------
    \2\ See generally Chapter ``Local Democracy on ICE: Why State and 
Local Governments Have No Business in Federal Immigration Law 
Enforcement,'' February 2009, http://www.justicestrategies.org/sites/
default/files/JS-Democracy-On-Ice-print.pdf.
    \3\ ``For example, during the month of May 2008, eighty-three 
percent of the immigrants arrested by Gaston County ICE authorized 
officers pursuant to the 287(g) program were charged with traffic 
violations. This pattern has continued as the program has been 
implemented throughout the State. The arrest data appears to indicate 
that Mecklenburg and Alamance Counties are typical in the targeting of 
Hispanics for traffic offenses for the purposes of a deportation 
policy.'' The Policies and Politics of Local Immigration Enforcement 
Laws, February 2009, Pg. 29, http://acluofnc.org/files/
287gpolicyreview_0.pdf.
---------------------------------------------------------------------------
    Racial profiling is an insidious violation of civil and human 
rights that can affect people in both public and private places--in 
their homes or at work, or while driving, flying or walking. Racial 
profiling by law enforcement instills fear and distrust among members 
of targeted communities, making them less likely to cooperate with 
criminal investigations or to seek police protection when victimized. 
Multiple studies have shown that when police focus on race, even as one 
of several predictive factors, they tend to pay less attention to 
actual criminal behavior.
    Racial profiling is defined as any use of race, religion, 
ethnicity, or national origin by law enforcement agents as a means of 
deciding who should be investigated, except where these characteristics 
are part of a specific suspect description. Under this definition, 
racial profiling doesn't only occur when race is the sole criterion 
used by a law enforcement agent in determining whom to investigate. 
Such a definition would be far too narrow.
    Today, overt racism is roundly condemned whenever it comes to 
light, and it is rare for individuals to be targeted by law enforcement 
agents solely because of their race. However, race is often the 
decisive factor in guiding law enforcement decisions about whom to 
stop, search, or question. Selective enforcement based in part on race 
is no less pernicious or offensive to the principle of equal justice 
than is enforcement based solely on race. Indeed, because the first 
form of selective enforcement is more prevalent and more subtle than 
explicit racism, it may be more damaging to our constitutional fabric.
    According to the U.S. Constitution, Federal laws and guidelines, 
and international treaties, every person has the fundamental right to 
equal protection under the law, regardless of race, ethnicity, 
religion, or national origin. Two of these sources are the 14th 
Amendment of the Constitution and the Department of Justice's 
``Guidance Regarding the Use of Race By Federal Law Enforcement 
Agencies.'' The Equal Protection clause of the Constitution reads in 
part `` . . . nor shall any State deprive any person of life, liberty, 
or property, without due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.'' The DOJ Guidance 
states unequivocally:

``In making routine or spontaneous law enforcement decisions, such as 
ordinary traffic stops, Federal law enforcement officers may not use 
race or ethnicity to any degree, except that officers may rely on race 
and ethnicity in a specific suspect description. This prohibition 
applies even where the use of race or ethnicity might otherwise be 
lawful.''\4\
---------------------------------------------------------------------------
    \4\ Department of Justice ``Guidance Regarding the Use of Race By 
Federal Law Enforcement Agencies,'' June 2003, http://www.usdoj.gov/
crt/split/documents/Kguidance_on_race.php.

    Implementation of 287(g) programs by local law enforcement have run 
afoul of both of these provisions, and many more.
    This is a dangerous trend that can inhibit effective law 
enforcement and ultimately can endanger the lives of all persons who 
depend on law enforcement for protection. When local law enforcement 
begins targeting people for their suspected immigration status and not 
criminal activity, the entire community suffers. Recommendations by the 
Major Cities Chiefs on local enforcement of Federal immigration law 
states in part:

``Immigration enforcement by local police would likely negatively 
effect and undermine the level of trust and cooperation between local 
police and immigrant communities. If the undocumented immigrant's 
primary concern is that they will be deported or subjected to an 
immigration status investigation, then they will not come forward and 
provide needed assistance and cooperation. Distrust and fear of 
contacting or assisting the police would develop among legal immigrants 
as well. Undoubtedly legal immigrants would avoid contact with the 
police for fear that they themselves or undocumented family members or 
friends may become subject to immigration enforcement. Without 
assurances that contact with the police would not result in purely 
civil immigration enforcement action, the hard won trust, communication 
and cooperation from the immigrant community would disappear. Such a 
divide between the local police and immigrant groups would result in 
increased crime against immigrants and in the broader community, create 
a class of silent victims and eliminate the potential for assistance 
from immigrants in solving crimes or preventing future terroristic 
acts.''\5\
---------------------------------------------------------------------------
    \5\ Major Cities Chiefs Immigration Committee Recommendations: For 
Enforcement of Immigration Laws by Local Police Agencies, Adopted June, 
2006 http://www.majorcitieschiefs.org/pdfpublic/
mcc_position_statement_revised_cef.pdf.

    The use of 287(g) agreements to target people based on their race 
has led to civil rights violations beyond the initial racial profiling. 
For example, Juana Villegas was pulled over in Nashville, TN, while 
driving back from a doctor's appointment. She was 9 months pregnant and 
had her two other children in the car with her. Although the traffic 
violation would usually result in a citation, the police officer 
arrested her and took her to the police station on suspicion of being 
undocumented. Even though she was being held on a misdemeanor traffic 
violation and a civil immigration infraction, she was forced to give 
birth while shackled and in police custody, then separated from her 
newborn and not allowed to nurse or use a breast pump for the next 2 
days.\6\
---------------------------------------------------------------------------
    \6\ Tennessee Immigrant and Refugee Rights Coalition, ``Immigrant 
Mother Suffers at Hands of Nashville Law Enforcement,'' July 14, 2008, 
available at http://www.tnimmigrant.org/news.php?viewStory=153; see 
also, ``Immigrant, Pregnant, Is Jailed Under Pact,'' Julia Preston, New 
York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/
20/us/20immig.html?_r=1.
---------------------------------------------------------------------------
    These violations are not limited to immigrant communities; they 
also affect U.S. citizens. No case illustrates this better than that of 
Pedro Guzman, a U.S. citizen born in California who was deported to 
Mexico because an employee of the Los Angeles County Sheriff's Office 
determined that Mr. Guzman was a Mexican national. Mr. Guzman, 
cognitively impaired and living with his mother prior to being 
deported, ended up being dumped in Mexico--a country where he had never 
lived--forced to eat out of trash cans and bathe in rivers for several 
months. His mother, also a U.S. citizen, took leave from her job to 
travel to Mexico to search for her son in jails and morgues. After he 
was located and allowed to reenter the United States, Mr. Guzman was so 
traumatized that he could not speak for some time. The illegal 
deportation of Mr. Guzman occurred pursuant to an INA  287(g) MOA 
between Los Angeles County and ICE. Mr. Guzman and his mother have 
filed a lawsuit against ICE.\7\
---------------------------------------------------------------------------
    \7\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's 
Deportation Ordeal,'' Los Angles Times, February 28, 2008, available at 
http://articles.latimes.com/2008/feb/28/local/me-guzman28.
---------------------------------------------------------------------------
    In sum, the 287(g) agreements are not being implemented as 
advertised by ICE and, in fact, are violating the rights of both 
immigrants and U.S. citizens. The agreements have led to widespread 
profiling by local law enforcement, terrorized communities, and 
increased threats to public safety. LCCR and RWG strongly urge the 
Department of Homeland Security to:
   Mandate a thorough independent review of current agreements 
        and similar programs during which time no new INA  287(g) 
        agreements should be entered into;
   Actively enforce anti-discrimination civil rights 
        protections and implement policies and funding that support 
        community policing and effective law enforcement;
   Re-assert Federal authority over national immigration laws 
        and policies and reject the authority of States and localities 
        to enforce these Federal responsibilities;
   Train State and local officials about their proper role in 
        the enforcement of criminal laws related to immigration rather 
        than civil immigration enforcement.
    Thank you again for the opportunity to express our views regarding 
today's important hearing. We would be happy to answer any post-hearing 
follow-up questions you may have.
                                 ______
                                 
Letter From Harold L. Hurtt, Chief of Police, Houston, Texas, Submitted 
                  by the Honorable Sheila Jackson Lee
                                                     March 3, 2009.
The Honorable Sheila Jackson Lee,
U.S. House of Representatives, 2160 Rayburn Building, Washington, DC 
        20515.
    Dear Rep. Jackson Lee: I have been advised that on Wednesday, March 
4, the House Committee on Homeland Security will be conducting a 
hearing on the topic of ``Examining 287(g): The Role of State and Local 
Law Enforcement in Immigration Law.'' This is an important issue and I 
wanted to take a moment to provide you and the committee with my 
perspective this topic in advance of the committee hearing. As Police 
Chief of the City of Houston and a current member of the executive 
board and past president of Major Cities Chiefs, I have been involved 
in numerous discussions at both the national and local level on the 
topic of local law enforcement's involvement in the enforcement of 
Federal immigration laws. In 2006 while I was president of Major Cities 
Chiefs, the organization evaluated and adopted nine specific 
recommendations concerning this issue. I have attached a copy of the 
recommendations for your reference.
    Illegal immigration is a problem that faces our Nation and society 
as a whole and one, which must be dealt with at the national level. It 
is absolutely critical that our country develop a consistent unified 
national plan to deal with immigration and this plan must first and 
foremost include the Federal Government taking the necessary steps to 
secure our borders to prevent illegal entry into the United States.
    Secondly, Federal agencies such as Immigration and Customs 
Enforcement [ICE] and the Department of Justice who have the specific 
duty of enforcing immigration laws should be given adequate Federal 
resources to fulfill that duty.
    Local enforcement of Federal immigration laws raises many daunting 
and complex legal, logistical, and resource issues for local law 
enforcement, especially agencies such as the Houston Police Department 
which serves a large and diverse community. Local law enforcement 
agencies must balance the call for us to enforce Federal immigration 
laws with our primary mission of protecting our diverse communities 
from crimes such as murders, sexual assaults, drug trafficking, gang 
violence, robberies, and burglaries which are committed by and 
victimize citizens, legal immigrants, and illegal immigrants. Like 
other major cities, the City of Houston's policies regarding 
enforcement of immigration laws takes into account our limited 
resources; the complexity of immigration laws; limitations on authority 
to enforce; risk of civil liability for immigration enforcement 
activities and the clear need to foster the trust and cooperation from 
the public including members of immigrant communities within our 
jurisdictions.
    The 287(g) programs appear more appropriate for law enforcement 
agencies which operate large jail facilities and in many jurisdictions 
it is often the county level agencies such as the county sheriff's 
department which operate these facilities. The City of Houston 
transfers the majority of its prisoners to the Harris County Sheriff's 
Department which is primarily responsible for incarcerating criminal 
defendants in Harris County, Texas where the city is located. The 
city's jail facilities serve mainly as temporary holding locations 
until prisoners can be transferred to the county jail. Because of our 
current high level of cooperation with ICE cited below and the fact 
that the 287(g) programs have been used primarily to train local 
jailers, the Houston Police Department has not chosen or seen the need 
to take part in the 287(g) training programs.
    The Houston Police Department does and will continue to enforce 
against criminal violations occurring within our jurisdiction 
regardless of the perpetrator's immigration status. Due to the issues 
mentioned above, the police department does not engage in the direct 
enforcement of Federal immigration laws; however, where possible and 
reasonable, we cooperate with and provide assistance to ICE, which has 
the primary and specific duty to enforce Federal immigration laws. We 
have given ICE full access to our jail facilities to conduct 
immigration and citizenship investigations. In addition, the department 
has developed procedures to hold persons who are subject to an 
immigration detainer issued by ICE. The department conducts a computer 
check of all arrested persons to determine if they are subject to an 
ICE detainer. If an ICE detainer exists, the person is held pursuant to 
ICE's detention authority so that ICE can take custody of the person 
within a reasonable amount of time.
    I would conclude with my sincere hope that the committee's hearings 
and work on immigration issues will move our country towards finding a 
comprehensive national response to the critical issue of illegal 
immigration. Thank you for your time and consideration.
            Sincerely,
                                           Harold L. Hurtt,
                                                   Chief of Police.
                                 ______
                                 
Statement of the Immigration Policy Center, a Division of the American 
                       Immigration Law Foundation
  summary of recent publications on 287(g) memoranda of understanding
Local Democracy on ICE: Why State and Local Governments Have No 
Business in Federal Immigration Law Enforcement, by Aarti Shahani and 
Judith Greene, Justice Strategies, February 2009.
   The report points out that while some localities have 
        claimed to need a partnership with ICE because of rising crime 
        rates, an analysis of the jurisdictions with 287(g) agreements 
        and found that immigration rates are not associated with higher 
        crime rates. According to Justice Strategies, 61 percent had a 
        violent crime index lower than the national average, and 55 
        percent witnessed an overall decrease in violent crimes from 
        2000 to 2006. Furthermore, 61 percent had a property crime 
        index lower than the national average, and 65 percent saw an 
        overall decrease in property crimes from 2000 to 2006.
   Justice Strategies looked at the factors that 287(g) 
        jurisdictions have in common and found that 87 percent of the 
        jurisdictions with 287(g) agreements had a rate of Latino 
        population growth higher than the national average. 
        Furthermore, 62 percent of the local ICE partners were county 
        sheriff departments.
   According to Justice Strategies, there is very little ICE 
        oversight of the 287(g) partnerships and ICE personnel do not 
        lead or directly oversee 287(g) arrests. When faced with 
        criticism that he had not followed the requirements of his MOA, 
        Sheriff Joe Arpaio of Maricopa County, Arizona stated, ``Do you 
        think I'm going to report to the Federal Government? I don't 
        report to them.''
The Policies and Politics of Local Immigration Enforcement Laws: 287(g) 
Program in North Carolina, by the ACLU of North Carolina Legal 
Foundation and the Immigration and Human Rights Policy Clinic at the 
University of North Carolina at Chapel Hill, February 2009.
   The report found that, while the 287(g) partnership program 
        with DHS was intended to target immigrants convicted of violent 
        crimes, human smuggling, gang/organized crime activity, sexual-
        related offenses, narcotics smuggling, and money laundering, 
        the Federal/local partnerships are actually being used to 
        ``purge towns and cities of `unwelcome' immigrants.''
   During May 2008, 83 percent of the immigrants arrested by 
        officers deputized to perform immigration enforcement duties in 
        Gaston County, NC were charged with traffic violations.
   The report pointed out that immigration is not associated 
        with high crime rates. A 2008 comprehensive study of population 
        growth and crime in North Carolina showed that between 1997 and 
        2006 the counties with the highest Hispanic population growth 
        rates had the lowest violent and property crime rates.
   The authors state that 287(g)'s have ``created a climate of 
        racial profiling and community insecurity'' in communities 
        across North Carolina. Law enforcement officials have stated 
        time and time again that trust with immigrant communities is 
        crucial to preventing and investigating crimes and leads to 
        safer communities. Anecdotal evidence from North Carolina 
        points to undocumented residents being less likely to contact 
        law enforcement to report crimes.
``Reasonable Doubt,'' the East Valley Tribune, July 2008.
   This series of articles found that immigration-enforcement 
        activities have been expensive, resulting in few key arrests 
        and drawing law enforcement personnel away from investigating 
        non-immigration-related crimes. Highlights from the series 
        include:
   The Sheriff's Office created a $1.3 million deficit in just 
        3 months, much of it due to overtime. In order to staff the 
        immigration team, Sheriff Arpaio pulled deputies off patrol 
        beats and used them to staff the human-smuggling unit. Tactics 
        include racial profiling, sweeps of Hispanic neighborhoods, and 
        stops for minor traffic offenses.
   While Sheriff Arpaio has diverted resources to immigration 
        enforcement, response times to 911 calls have increased, arrest 
        rates have dropped, and thousands of felony warrants have not 
        been served.
   Despite the time and energy spent on immigration 
        enforcement, the Tribune found that MCSO has had little success 
        building cases against violent immigrant offenders or those at 
        the top of the smuggling rings. In 2006-2007, Maricopa County 
        sheriff deputies arrested 578 illegal immigrants in the course 
        of traffic stops, and of those, 498 faced a single charge of 
        conspiracy to smuggle themselves.
Mission Unaccomplished: The Misplaced Priorities of the Maricopa County 
Sheriff's Office, by Clint Bolick, Goldwater Institute Scharf-Norton 
Center for Constitutional Litigation, December 2008.
   The report documents how the Maricopa County Sheriff's 
        Office, under the leadership of Sheriff Arpaio, has failed to 
        serve and protect his community. The Goldwater Institute found 
        that, though the Maricopa County Sheriff's Office (MCSO) budget 
        has increased at four times the rate of the county's 
        population, violent crimes increased nearly 70 percent, and 
        homicides increased 166 percent between 2004 and 2007.
   The Goldwater Institute also found that MCSO has refused to 
        share crime statistics and other data, and in 2007, the county 
        had to pay $38,000 in legal fees to a newspaper for withholding 
        press releases. Despite reporting a high crime clearance rate, 
        MCSO reported that relatively few of the cleared cases--18 
        percent--ended with an arrest. In contrast, in Phoenix, 78 
        percent of cleared cases ended with an arrest. A high number of 
        those cases cleared without an arrest correlate to MCSO's use 
        of an ``exceptionally cleared'' category. A case may be 
        designated ``exceptionally cleared'' when a suspect is known 
        and enough evidence exists to make an arrest, but circumstances 
        beyond the control of law enforcement prevent an arrest. In 
        some instances where cases were ``exceptionally cleared'' there 
        is no evidence that an investigation took place at all.
                                 ______
                                 
 Joint Statement of the American Immigration Lawyers Association, the 
 National Immigration Forum, and the National Immigrant Justice Center
     state and local enforcement including ina  287(g) and secure 
                              communities
                     a. ice access and ina  287(g)
    Through the INA 287(g) program and other ICE ACCESS programs, the 
Federal Government has shifted its responsibility for enforcement of 
civil immigration laws to State and local police and other State and 
local agencies. It has--without meaningful oversight or review or 
statutory authority in many cases--encouraged immigration enforcement 
at the local level that has resulted in racial and ethnic profiling and 
the detention of U.S. citizens and permanent residents.
    The basic problem is this: in INA  287(g) jurisdictions, State, or 
local police with minimal training (or, in the case of a ``jail 
model,'' no training) in immigration law are put on the street with a 
mandate to arrest ``illegal aliens.'' Local officials often make it a 
high political and policy priority that these arrests take place. 
Meanwhile, the Federal Government has not provided meaningful 
oversight. The predictable and inevitable result is that any person who 
looks or sounds ``foreign'' is more likely to be stopped by police, and 
more likely to be arrested (rather than warned, or cited, or simply let 
go) when stopped. Moreover, any other abuses that police commit when 
exercising INA  287(g) authority are likely to go unreported and 
unpunished, given that many of the individuals they arrest are swiftly 
deported and have little access to counsel; that State or local 
officials may not exercise their ordinary oversight roles when their 
police are performing a ``Federal'' function; and that the Federal 
Government has not created effective oversight mechanisms. DHS should 
terminate INA  287(g) Memoranda of Agreement (MOAs) with localities 
that have misused their limited authority. It should engage in 
meaningful oversight of the conduct of local law enforcement agencies 
both before and after an INA  287(g) MOA is put in place.
INA  287(g) Agreements Have Contributed to Pervasive Racial Profiling 
        by Local Law Enforcement
    In Maricopa County, Arizona Sheriff Arpaio and his deputies have 
engaged in a widespread pattern and practice of racial profiling in an 
illegal, improper, and unauthorized attempt to enforce Federal 
immigration laws against Latinos without regard for citizenship or 
valid immigration status. Claiming authority under the INA  287(g) 
MOA, Arpaio and his deputies in September 2007 launched a series of 
massive so-called ``crime suppression sweeps'' by utilizing deputies 
and volunteer ``posse'' members. Together they have targeted Latinos 
for investigation of immigration status, using pretextual and unfounded 
stops, racially motivated questioning, searches and other mistreatment, 
and arrests that are often baseless. In 2008, several U.S. citizens 
sued Sheriff Arpaio and Maricopa County for racial profiling and other 
racially and ethnically discriminatory treatment.\1\ One plaintiff, 
Manuel Nieto, a U.S. citizen, was grabbed and handcuffed by several 
Maricopa County deputies, his face pressed against his car and arms 
twisted behind his back. This took place in front of his family's auto 
repair business. Mr. Nieto's father ran out of the shop, told the 
deputies that he owned the shop, and that Mr. Nieto was his child and a 
U.S. citizen. The deputies then uncuffed Mr. Nieto and ran his 
identification through their computer system.
---------------------------------------------------------------------------
    \1\ See, Spencer S. Hsu, ``Arizona Sheriff Accused of Racial 
Profiling,'' July 17, 2008, available at http://www.washingtonpost.com/
wp-dyn/content/article/2008/07/16/AR2008071602636.html.
---------------------------------------------------------------------------
    David and Jessica Rodriguez are two other plaintiffs in the same 
lawsuit who have sued Sheriff Arpaio and Maricopa County for racial 
profiling.\2\ They were issued a traffic citation for failing to follow 
a road sign. The Rodriguezes were the only residents to receive a 
citation, even though deputies pulled over several other vehicles and 
gave oral warnings to the other drivers, all of which were Caucasian. 
In addition, the deputy demanded to see Mr. Rodriguez's Social Security 
card, which has no bearing on his driving, but did not request Social 
Security information of the other drivers.
---------------------------------------------------------------------------
    \2\ Daniel Gonzalez, ``U.S. Citizens Claim Profiling, Join Lawsuit 
Against Sheriff Arpaio,'' July 17, 2008, available at http://
www.azcentral.com/news/articles/2008/07/17/20080717profiling0717.html.
---------------------------------------------------------------------------
    In an example reported by the Tennessee Immigration and Refugee 
Coalition, a pregnant woman was detained after being stopped for a 
traffic violation.\3\ On July 3, 2008, Juana Villegas was driving in 
Nashville when she was pulled over by a Berry Hill police officer for 
``careless driving.'' Mrs. Villegas, 9 months pregnant, was forced to 
wait in her hot car with her three children for over an hour. 
Eventually, the children were allowed to leave with a family member 
without Villegas's permission, and she was taken into custody. By the 
time Mrs. Villegas was released from the county jail 6 days later, she 
had gone through labor with a sheriff's officer standing guard in her 
hospital room, where one of her feet was cuffed to the bed most of the 
time. County officers barred her from seeing or speaking with her 
husband. Up until an hour before the actual birth, Mrs. Villegas's hand 
and foot remained shackled to the hospital bed. As she was taken back 
to the Davidson County jail, she was told that her baby would be given 
to her husband. Mrs. Villegas was never allowed to speak to her 
husband. On July 9, Mrs. Villegas appeared in court on the misdemeanor 
charge of driving without a license, and was sentenced to time served. 
She did not see her newborn again until the morning of July 10, after 
she was released from sheriff's custody on her own recognizance. On 
August 15, 2008, the ``careless driving'' charge against Juana Villegas 
was dismissed in Berry Hill Municipal Court. Mrs. Villegas is still 
being processed for deportation as a result of the INA  287(g) 
program.
---------------------------------------------------------------------------
    \3\ Tennessee Immigrant and Refugee Rights Coalition, ``Immigrant 
Mother Suffers at Hands of Nashville Law Enforcement,'' July 14, 2008, 
available at http://www.tnimmigrant.org/news.php?viewStory=153; see 
also, ``Immigrant, Pregnant, Is Jailed Under Pact,'' Julia Preston, New 
York Times, July 20, 2008, available at http://www.nytimes.com/2008/07/
20/us/20immig.html?_r=1.
---------------------------------------------------------------------------
    Legal service providers across the country report racial profiling 
cases in areas with INA  287(g) programs. In York County, along the 
North Carolina and South Carolina border, deputies have abused the INA 
 287(g) program to arrest Latinos for broken windshields or improper 
vehicle tags. Traffic offenses that ordinarily would lead to a citation 
and court summons are now resulting in criminal arrests. Only about 5 
percent of the arrests of Latinos are for serious crimes. Since the 
implementation of the INA  287(g) program in York County, relations 
between local law enforcement and the Latino communities have 
deteriorated, and the county jail population has exploded. Longtime 
residents of York County describe the situation as ``out of control.''
U.S. Citizens Have Been Illegally Detained, and In One Case Deported, 
        Under the Auspices of INA  287(g) Agreements
    The practice of deputizing State and local police to enforce 
Federal immigration laws has proven to be highly ineffective and 
dangerous. No case illustrates this better than that of Pedro Guzman, a 
U.S. citizen born in California who was deported to Mexico because an 
employee of the Los Angeles County Sheriff's Office determined that Mr. 
Guzman was a Mexican national. Mr. Guzman, cognitively impaired and 
living with his mother prior to being deported, ended up being dumped 
in Mexico--a country where he had never lived--forced to eat out of 
trash cans and bathe in rivers for several months. His mother, also a 
U.S. citizen, took leave from her job to travel to Mexico to search for 
her son in jails and morgues. After he was located and allowed to 
reenter the United Statets, Mr. Guzman was so traumatized that he could 
not speak for some time. The illegal deportation of Mr. Guzman occurred 
pursuant to a INA  287(g) MOA between Los Angeles County and ICE. Mr. 
Guzman and his mother have filed a lawsuit against ICE.\4\
---------------------------------------------------------------------------
    \4\ Paloma Esquivel, ``Suit Filed Over Disabled U.S. Citizen's 
Deportation Ordeal,'' Los Angles Times, February 28, 2008, available at 
http://articles.latimes.com/2008/feb/28/local/me-guzman28.
---------------------------------------------------------------------------
    In Alamance County, North Carolina, State troopers--who were not 
authorized under an INA  287(g) MOA--stopped and boarded a bus 
destined for Mexico. On-board were two bus drivers, one who spoke 
English and one who did not. The troopers refused to talk to the driver 
who spoke English. One of the troopers called the Alamance County 
Sheriff's Office and requested assistance from the INA  287(g) 
officers. When the sheriff deputies arrived, they boarded the bus and 
asked everyone on board for ``papers,'' including the U.S. citizen 
passengers. The deputies ordered that the bus driver pull off the 
highway to a local motel, where all the passengers including U.S. 
citizen children were detained in the motel lobby all day while 
deputies and later ICE agents questioned them. In the end, five 
passengers were arrested by ICE, and the rest of the passengers were 
allowed to continue their trip to Mexico, but not after losing the 
better part of a day of travel. It is important to note that the INA  
287(g) program in Alamance County is a jail model, not a task force or 
field model. But as illustrated in this case, the INA  287(g) MOA--
though designed to be limited to jails only--has negatively shaped the 
conduct of law enforcement in the field and on the roads, in this case 
involving both deputized sheriffs as well as undeputized State 
troopers.
INA  287(g) Agreements Undermine Community Policing and Public Safety
    There are legitimate concerns that INA  287(g) is not being used 
to keep communities safer by removing dangerous, violent criminals; 
rather people who do not pose a serious threat to public safety are 
being deported under the guise that they are dangerous criminals. In 
the absence of empirical evidence as to the number and types of crimes 
committed by undocumented immigrants before and after the 
implementation of INA  287(g), it would be impossible to evaluate the 
program's appropriateness and effectiveness. Before making the decision 
to implement a program that has such large fiscal and social impacts, 
it would be wise to consider whether INA  287(g) truly makes our 
communities safer and whether it comports with DHS's overall priorities 
in immigration enforcement.
    The Major Cities Chiefs' Association, which represents large cities 
across the country, has expressed concern about entering into INA  
287(g) programs. The Association has stated that the programs work 
counter to community policing goals by undermining the trust and 
cooperation of immigrant communities, stress the cities' already 
reduced resources, and leave cities vulnerable to civil liability 
claims.\5\
---------------------------------------------------------------------------
    \5\ See Major City Chiefs' Immigration Committee Recommendations 
for Enforcement of Immigration Laws by Local Police Agencies, June 
2006, available at http://www.majorcitieschiefs.org/pdfpublic/
mcc_position_statement_revised_cef.pdf.
---------------------------------------------------------------------------
    INA  287(g) programs impose additional costs on communities that 
are being severely affected by the downturn in the economy. While local 
authorities may apply for an INA  287(g) MOA believing that it will 
bring additional fiscal resources to their community, in fact, by 
statute, it is an unfunded program that will likely add additional 
costs to a department's budget. For example, the Sheriff's Department 
of Morristown, New Jersey evaluated a proposed INA  287(g) program and 
found that it would add an additional $1,331,876 to its budget. As a 
result of this cost, plus additional liability risks, the Sheriff's 
Department recommended that the county not go forward with the proposed 
application.\6\
---------------------------------------------------------------------------
    \6\ ``An Impact Review of the United States Bureau of Immigration 
and Customs Enforcement 287(g) Program Upon the County of Morris,'' 
Morris County Sheriff's Office, October 19, 2007.
---------------------------------------------------------------------------
    Without adequate oversight, it is difficult to determine if this 
costly program is meeting its goals. ICE has not developed or 
instituted a standardized statistical report that delineates, for 
example, offenses and/or the disposition of cases involving non-
citizens encountered through an INA  287(g) jail enforcement model 
program. In April 2006, the Mecklenburg County Sheriff's Office in 
North Carolina took the initiative to develop its own tracking report 
to record the crimes for which non-citizens were arrested.\7\ Other 
sheriffs in North Carolina use this template and modify it to fit their 
own needs. ICE requests that sheriffs in North Carolina send the 
reports to them. ICE's reliance on these non-uniform and voluntary 
reports highlights a lack of oversight in the current INA  287(g) 
program.
---------------------------------------------------------------------------
    \7\ Presentation to the Joint Legislative Corrections, Crime 
Control and Juvenile Justice Oversight Committee, North Carolina 
General Assembly, November 18, 2008, Illegal Immigration Project, North 
Carolina Sheriffs' Association.
---------------------------------------------------------------------------
INA  287(g) Programs Target Individuals Who Do Not Pose a Risk to the 
        Community
    The INA  287(g) program in Mecklenburg County has targeted 
individuals who are not serious criminals. Of the 2,321 undocumented 
immigrants in Mecklenburg County who were put into removal proceedings 
in 2007, fewer than 5 percent of the charges against them were 
felonies.\8\ Over 16 percent of the total charges were traffic 
violations.
---------------------------------------------------------------------------
    \8\ ``Immigration and Crime in North Carolina: Beyond the 
Rhetoric,'' Lindsay Haddix, Department of City and Regional Planning, 
UNC Chapel Hill, Master's Project, Spring 2008.
---------------------------------------------------------------------------
    Similarly, in Alamance County, North Carolina of the 434 
undocumented immigrants who were put into removal proceedings in 2007, 
less than 10 percent of the charges against them were felonies. Nearly 
25 percent of the charges were traffic violations. In at least one 
case, the overzealous immigration enforcement by Alamance County 
deputies has resulted in the endangerment of children. On June 14, 
2008, around 2 a.m. Maria Chavira Ventura was pulled over by Alamance 
County deputies on Interstate 85 near Burlington, North Carolina. In 
the vehicle were her three young children and an adult male who was a 
fellow church parishioner but unrelated to the family. The deputies 
arrested Ms. Ventura for driving without a license and false vehicle 
tags. When they took Ms. Ventura away, the deputies also took the car 
keys, leaving her three children with the adult male in the car. 
Shortly thereafter, he left, looking for help. Alone, frightened and 
crying, the children called their father in Baltimore (the family was 
en route to visit him). He immediately drove down to get them, but it 
took over 6 hours to drive from Baltimore to Burlington, North 
Carolina. During those 7 hours the children were stranded in the car on 
Interstate 85, with one water bottle to share. No deputy or law 
enforcement official returned to the car to check on them; nor did the 
deputies take the children's mobile telephone number to confirm they 
returned home safely.
    In Wake County, North Carolina, a man was arrested during a traffic 
stop by local police, who were not authorized to act under the INA  
287(g) MOA. The MOA in Wake County covers the Sheriff's department. As 
the police arrested the man, they told his two young children that 
their father would be deported and they would never see him again. All 
of this was heard by the children's mother, who was on the mobile 
telephone, left on in ``speaker phone'' mode. The police officer picked 
up the telephone and told the mother that her children would be left in 
the car on the side of the road, waiting for her.
    In Colorado, the Rocky Mountain Immigrant Advocacy Network (RMIAN) 
encountered a woman who was arrested by the Colorado State Patrol 
during a routine traffic stop. Because the Colorado State Patrol has 
entered into an INA  287(g) agreement with ICE in Colorado, the woman 
was almost immediately deported to Mexico without the opportunity to 
speak to an attorney or learn about her legal rights. Unfortunately, 
because of the officer's likely unfamiliarity with immigration law, he 
did not explain to the woman that she might be eligible for relief from 
removal from the United States. Rather, the woman believed her only 
option was leaving the county as soon as possible, and believed the 
officer was doing her a favor by allowing her to sign a voluntary 
removal order rather than putting her into proceedings before an 
immigration judge. However, the woman had been the victim of severe 
domestic violence in the United States and had helped law enforcement 
in the prosecution of that criminal case, and thus was eligible for a U 
Visa. Nonetheless, she only learned about her rights and her 
eligibility after calling RMIAN from Mexico, subsequent to her 
deportation and separation from her family in the United States. This 
is but one example of individuals who have relief or may have relief 
being removed under an INA   287(g) program.\9\
---------------------------------------------------------------------------
    \9\ Correspondence from the Rocky Mountain Immigrant Advocacy 
Network.
---------------------------------------------------------------------------
    Return immigration enforcement responsibility to the Federal 
Government.--Without statutory authority for any program beyond the 
memoranda of understanding envisaged by INA  287(g), DHS has marshaled 
an array of State and local immigration law enforcement programs 
collectively referred to as ICE ACCESS (ICE Agreements of Cooperation 
in Communities to Enhance Safety and Security). Involvement of State 
and local police in immigration enforcement under INA  287(g) and 
other ICE ACCESS programs occurs without adequate oversight or review. 
These programs are not an effective, efficient way to enforce Federal 
immigration laws; do not respect the rights of citizens and immigrants; 
and undermine community policing and public safety.
Recommendations
   Mandate a thorough independent review of current agreements 
        and similar programs during which time no new INA  287(g) 
        agreements or other ICE ACCESS agreements should be entered 
        into.
   Actively enforce anti-discrimination civil rights 
        protections and implement policies and funding that support 
        community policing and effective law enforcement.
   Re-assert Federal authority over national immigration laws 
        and policies and reject the authority of States and localities 
        to adopt these Federal responsibilities by taking the specific 
        steps outlined below.
   Train State and local officials about their proper role in 
        the enforcement of criminal laws related to immigration rather 
        than civil immigration enforcement.
            Policy Recommendations: INA  287(g)
   DOJ should rescind the 2002 Bush Administration Office of 
        Legal Counsel opinion that reversed longstanding agency 
        interpretation about the limits of State and local enforcement 
        of civil immigration laws and issue a new opinion reaffirming 
        that State and local police cannot enforce civil immigration 
        laws except where there is specific statutory authorization for 
        them to do so (e.g., 8 U.S.C.   1103(a)(10), providing for 
        certain enforcement upon certification of ``an actual or 
        imminent mass influx of aliens . . . '') The 2002 opinion is 
        fundamentally flawed from a legal standpoint, and it 
        complicates and obstructs Federal efforts to oversee and 
        coordinate immigration enforcement and to effectuate a uniform 
        national immigration enforcement policy.
   DHS Office of Policy should issue guidance to State and 
        local law enforcement entities explicitly clarifying that their 
        authority to engage in immigration enforcement is limited to 
        narrow circumstances (i.e. where there is sufficient suspicion 
        that an individual has committed a criminal immigration 
        violation, such as illegally re-entering the United States as a 
        previously deported felon, that would provide police with 
        arrest authority, provided that any State-law limitations on 
        authority are also satisfied) and that any decision to assist 
        DHS or participate in immigration enforcement must be voluntary 
        and must comport with State and/or local laws and policies.
   DHS should commission independent experts to undertake a 
        comprehensive, detailed review and evaluation of existing INA  
        287(g) agreements to determine whether and to what extent these 
        programs:
     Enhance public safety;
     Undermine community policing efforts;
     Increase racial profiling;
     Result in the arrest, detention, or deportation of U.S. 
            citizens or permanent residents;
     Reduce individuals' likelihood of reporting crimes or 
            serving as witnesses;
     Reduce access to education, health, emergency/fire 
            department, and other services by immigrants and members of 
            their families and communities;
     Exceed the limitations established in the MOU/MOA;
     Are sufficiently supervised by ICE personnel;
     Collect data necessary to enable proper oversight;
     Are subject to sufficient community, municipal, State and 
            Federal oversight;
     Result in costs to the State/local participants;
     Are cost-effective from the Federal Government's 
            perspective; and
     Undermine Federal prosecutorial discretion or the ability 
            of DHS and ICE to effectively set priorities in immigration 
            enforcement.
   DHS should require and fund meaningful training including on 
        the complexity of immigration laws, limitations of State/local 
        authority, ICE enforcement priorities, and problems with 
        profiling, as a precondition to any officer's participation in 
        ICE ACCESS, Secure Communities, CAP, or other programs 
        envisioning state and local participation in immigration 
        enforcement and to all officers operating in an INA  287(g) 
        jurisdiction, regardless of whether the particular officer is 
        actually provided with authority under the MOA.
   DHS should stop entering civil immigration violations 
        including records relating to so-called ``absconders'' and 
        ``NSEERS violators'' into the NCIC database and remove those 
        records that have previously been entered. FBI should mandate 
        that all NCIC entries comply with the accuracy standards of the 
        Privacy Act.
            DHS Should Use the Following Operational Guidance for INA  
                    287(g) Programs
   DHS should not conduct joint operations with State or local 
        entities that are credibly alleged to have engaged in 
        profiling.
   DHS should consider the direct and indirect effects on 
        public safety and community policing before requesting State or 
        local participation in any enforcement operation.
   DHS should only issue immigration detainers to State and 
        local agencies to retain custody of persons held on criminal 
        charges where: (1) Interviewing and taking custody of the 
        individual in question is impossible for ICE; (2) the 
        individual's identity and removability are positively 
        confirmed; (3) the individual would ordinarily be placed into 
        removal proceedings if ICE exercised its prosecutorial 
        discretion; and (4) the individual would actually be subject to 
        continued detention if he had been apprehended and processed by 
        ICE.
   DHS should issue guidance clarifying that an immigration 
        detainer is not the equivalent of a criminal arrest warrant or 
        criminal detainer and is simply a non-mandatory request that 
        police maintain custody of an individual for a maximum of 48 
        hours to facilitate DHS picking that person up. Any detainer 
        request should clarify that the institution is not authorized 
        under any circumstance to detain the subject for a period 
        exceeding 48 hours, excluding weekends and holidays.
   All INA  287(g) MOUs must include:
     Specific mandate;
     Sunset provision;
     On-going training requirement;
     Specific circumstances under which officers can make 
            arrests for immigration violations;
     Means of information and referral for victims of domestic 
            violence, crime victims and trafficking victims;
     Systematic tracking and reporting requirements: how many 
            arrests, how many criminal convictions, how many detained, 
            how long it takes ICE to respond, race/ethnicity of those 
            arrested, number of complaints, number of U.S. citizens and 
            permanent residents arrested or detained, countries of 
            origin of those arrested/detained, training, all funding 
            spent on execution of MOU;
     The establishment of a community advisory commission;
     Complaint and redress procedures;
     Public education and outreach campaign;
     Oversight;
     Specified ICE response time to requests for assistance for 
            State and local officials;
     Prohibition on racial profiling;
     Penalties for noncompliance.
                         b. secure communities
    The Secure Communities Program was created as part of the ICE 
ACCESS program to give ICE technological access to the 3,100 local 
jails throughout the United States to identify removable aliens. The 
Secure Communities Program was announced through ICE press releases, 
``fact sheets,'' and blog entries on the ICE web site, but no complete, 
coherent description of the program has been made available. No 
regulations have been issued for its operation, no guidance to State 
and local authorities has been made public, and no criteria for how ICE 
will exercise the authority granted to it under the program have been 
announced. To date, there is no system in place to track those 
individuals against whom detainers are issued, including the crimes for 
which identified non-citizens are arrested, the disposition of the 
underlying criminal case, and the nationality and ethnicity of 
identified non-citizens.
    Under the Program, criminal arrestees' fingerprints are 
automatically checked against DHS databases as well as FBI criminal 
databases. ICE is automatically notified of a ``hit.'' According to 
ICE, the program will allocate its resources against those convicted of 
crimes, in accordance with the following:
   Level 1.--Individuals who have been convicted of major drug 
        offenses and violent offenses such as murder, manslaughter, 
        rape, robbery, and kidnapping;
   Level 2.--Individuals who have been convicted of minor drug 
        offenses and property offenses such as burglary, larceny, 
        fraud, and money laundering; and
   Level 3.--Individuals who have been convicted of other 
        offenses.\10\
---------------------------------------------------------------------------
    \10\ U.S. Immigration and Customs Enforcement, ``Secure 
Communities: A Comprehensive Plan to Identify and Remove Criminal 
Aliens, Nov. 19, 2008, available at http://www.ice.gov/pi/news/
factsheets/secure_communities.htm.
---------------------------------------------------------------------------
    DHS claimed that Secure Communities would be phased in, beginning 
with Level 1 criminal aliens. However, it is unclear how or if the 
prioritization is taking place. Statements by ICE officials raise 
questions about how the program is working in practice. Julie Myers, 
former Assistant Secretary for ICE stated that while the program 
focuses on those who have committed serious crimes, in cases involving 
less serious offenses ICE would consider its staffing levels and 
resources in deciding how to proceed.\11\ Myers also stated that those 
who have not had contact with DHS may not be included in the database, 
making additional investigation necessary to determine if the person 
has permission to be in the United States.\12\ It remains unclear 
whether this means that ICE will seek to hold these individuals in 
detention until their status can be determined.
---------------------------------------------------------------------------
    \11\ Anabelle Garay, ``Dallas County to Check Immigration 
Database,'' Associated Press, Nov. 12, 2008, available at http://
www.dallasnews.com/sharedcontent/APStories/stories/D94D2RS00.html.
    \12\ Id.
---------------------------------------------------------------------------
    ICE has not clearly stated what it will do when Level 2 or 3 aliens 
are identified. It is unclear whether ICE considers someone having 
entered without inspection (EWI) sufficient to be considered a 
``criminal'' under this program or whether that EWI will generate a 
``hit'' and/or a detainer under a Secure Communities program. It is 
also unclear whether ICE will consider the lawfulness of an arrest and 
whether it was made under purported (and disputed) ``inherent 
authority'' to arrest for civil immigration violations.
    While Secure Communities is ostensibly directed at those convicted 
of crimes, the identification process is actually focused on those 
arrested for crimes, before they have been either tried or convicted. 
This creates an incentive for agents to arrest persons on pretextual 
grounds or to arrest persons who might otherwise have received a 
warning or a ticket. It also leads to individuals being held by ICE who 
have been arrested for minor crimes but not yet tried or convicted. 
Questions that have been raised about collateral arrests in the context 
of Fugitive Operations have also been raised with regard to Secure 
Communities.\13\
---------------------------------------------------------------------------
    \13\ Margot Mendelson, Shayna Strom, and Michael Wishnie, 
``Collateral Damage: An Examination of ICE's Fugitive Operations 
Program,'' Migration Policy Institute, February 2009, available at 
http://www.migrationpolicy.org/pubs/NFOP_Feb09.pdf.
---------------------------------------------------------------------------
    Reports suggest that when ICE takes custody of arrested 
individuals, they are frequently prevented from exercising their right 
to go to criminal court and challenge their criminal charges. It may 
also mean that individuals who would otherwise be released are 
ineligible for release on bail. In addition to raising obvious due 
process problems, this causes courts to issue warrants of arrest or 
judgments of conviction. This in turn makes the individuals ineligible 
for future immigration benefits.
    Individuals who have committed minor offenses may be held without 
bond in criminal custody because of ICE intervention through Secure 
Communities. For example, in North Carolina there are reports of no 
bond for minor traffic violations, as well as arrests without cause 
(which have included in North Carolina: failure to signal, failure to 
dim headlights, walking in a neighborhood at night without showing a 
driver's license to an officer, non-cooperation with an officer while 
riding a bicycle (refusing to show driver's license), fishing without a 
(fishing) license).
    Jails routinely hold detainees well in excess of the 48 hours 
period permitted by regulation. In some counties, reports have 
indicated that non-citizens are held for weeks before ICE assumes 
custody. Detainers are being filed indiscriminately with no apparent 
attempt to distinguish serious criminal offenders from those who have 
committed minor offenses.
    U.S. citizens are swept up in this broad net. Mr. O, a U.S. citizen 
from Colorado, is serving a criminal sentence at Bent County 
Correctional Facility in Colorado. He has an immigration detainer that 
is preventing his entry into a halfway house. Several years ago, Mr. O 
was placed into removal proceedings. The immigration judge terminated 
the proceedings at the request of the Government when it realized that 
Mr. O had derived citizenship from his American parents. Nonetheless, 
Mr. O has not been able to convince ICE to lift the immigration 
detainer despite being a U.S. citizen.\14\
---------------------------------------------------------------------------
    \14\ Correspondence from the Immigrant Defense Project, New York.
---------------------------------------------------------------------------
    Anecdotal evidence from advocates in locations with pilot programs 
suggests that Secure Communities does not require an MOU between ICE 
and the local jail, sheriff, or police department. As a result, the 
level of training or instruction provided to jail or law enforcement 
personnel remains murky. According to ICE's web site and fact sheet, 
the plan is to eventually install the system in all State and local 
detention facilities Nation-wide. It is unclear whether the program 
will be mandatory or optional for all law enforcement agencies.
    It is unclear whether ICE requires the consent or participation of 
local officials in implementing Secure Communities programs. It may be 
possible that ICE can simply connect its IDENT system to the jail's 
fingerprinting system, and ICE therefore can automatically access 
information about anyone being fingerprinted, possibly without the 
approval of local officials. ICE would then determine whether it has 
the resources to issue a detainer and pick up the individual within the 
48-hour time frame, leaving local authorities out of the process 
entirely. If this is the current structure of the program, Secure 
Communities raises serious questions about the relationship between 
Federal and local law enforcement agencies, and about a local 
community's ability to weigh in on important decisions affecting the 
community.
    Because Secure Communities involves creating automatic data links 
between booking databases and immigration enforcement systems, it 
deprives police of the discretion to choose when to run ICE checks. 
This raises questions about local police authorities' ability to build 
strong, trusting relationships with their communities. For example, 
many police report that it is important to assure crime victims that 
they will not suffer immigration consequences if they call or talk to 
the police. But a Secure Communities jurisdiction may lose this 
flexibility with regard to ICE checks. Needlessly running names through 
the ICE databases will result in local law enforcement losing the trust 
of the immigrant community, a significant cost for police who depend 
upon the community to fight and solve crime.
    The existence of various ICE programs in a State or locality also 
makes recordkeeping difficult. If an inmate has a detainer, it is 
impossible to determine if the detainer is the result of a 287(g) 
agreement, Secure Communities, or if the individual simply confessed to 
an immigration status violation. This makes it extremely difficult to 
determine the effectiveness of any one program or initiative.
    In sum, Secure Communities denies due process to those arrested by 
ICE. The program's description makes no mention of protection of civil 
rights, redress when an individual is wrongly identified, auditing or 
monitoring of its operation, measurement of racial or ethnic profiling, 
effect of detainers, or measurement of whether it in fact complies with 
the levels established for use of ICE resources.
    There are also many reports from advocates across the country of 
inappropriate actions by State and local enforcement officials where it 
is unclear if the officials are working under the guise of Secure 
Communities or other ICE ACCESS programs. For example, in Washington 
State, public defenders report that ICE agents routinely peruse the 
jails to single out Latino males for interrogation.\15\ It is common 
practice for ICE agents to simply place detainers on any defendant on 
the booking sheets provided by the jail without interviewing them. 
Since the majority of defendants arrested are for low-level misdemeanor 
offenses the majority of people being apprehended by ICE do not fit 
within the priorities of the Secured Communities initiative. In the 
municipality of Lynwood, Washington it is standard practice for 
individuals in traffic court to be interviewed by ICE officers. If 
believed to be undocumented, they are taken into ICE custody. Again, 
such tactics are akin to a fishing expedition and divert resources from 
more pressing law enforcement goals.\16\
---------------------------------------------------------------------------
    \15\ Letter from Washington Defender Association's Immigration 
Project to Secretary Napolitano, February 16, 2009 regarding ``Issues 
and Impacts of ICE Enforcement In Washington State Jail Facilities.''
    \16\ Id.
---------------------------------------------------------------------------
Recommendations
   Given ICE's history of misdirecting its enforcement 
        resources, and the lack of supervision and auditing of racial 
        and ethnic profiling under 287(g) agreements, DHS should 
        measure the impact of the program before expanding it further. 
        No further expansion of the Secure Communities should take 
        place until the program is thoroughly audited and clear 
        guidelines are set forth.
   Secure Communities initiatives, including data processing 
        initiatives, should ensure that in every instance the State, 
        local, or tribal police retain the discretion to determine 
        whether ICE should be sent an individual's data.
   All jurisdictions participating in Secure Communities should 
        receive training and guidance prohibiting illegal racial or 
        other profiling. The DHS Office for Civil Rights and Civil 
        Liberties should oversee the development of this training, with 
        periodic review from the Department of Justice. The DOJ has 
        made eliminating racial profiling a priority, and their 
        oversight of this program would be an asset.
   ICE should issue reports to Secure Communities partners and 
        Congress on a regular basis with statistics on the crimes for 
        which identified non-citizens are arrested, the disposition of 
        the underlying criminal case, and the nationality and ethnicity 
        of identified non-citizens.
   The program should be independently evaluated to determine 
        if the enforcement criteria have been met, the effects on 
        community policing and willingness of witnesses and victims to 
        report crimes, and the extent of racial or ethnic profiling.
   All jurisdictions participating in Secure Communities should 
        at the same time report periodically to ICE supervisors their 
        arrest and identification statistics for oversight and 
        management purposes. Any jurisdictions whose statistics 
        indicate a racial profiling pattern should be suspended from 
        the program.

    Ms. Clarke. There being no further business, the committee 
stands adjourned.
    [Whereupon, at 5:01 p.m., the committee was adjourned.]


                            A P P E N D I X

                              ----------                              

 Questions From Chairman Bennie G. Thompson of Mississippi for William 
    F. Riley, Acting Executive Director, Office of State and Local 
   Coordination, Immigration and Customs Enforcement, Department of 
                           Homeland Security
    Question 1. During the hearing, the committee was reassured that a 
number of the issues raised in the GAO report (GAO, Better Controls 
Needed Over Program Authorizing State and Local Enforcement of Federal 
Immigration Laws, GAO-09-109, January 30, 2009 ) would be addressed in 
a strategic plan currently under development. Please outline the issues 
that will be addressed in the plan. What is the time frame for the 
plan? How will the modifications in the strategic plan be implemented?
    Answer. In addition to revising the Memorandum of Agreement (MOA) 
to ensure that 287(g) agreements operate consistently with ICE 
priorities, ICE anticipates that the Strategic Plan for the Office of 
State and Local Coordination (OSLC) will be approved and published on 
or about September 4, 2009. The intent of the OSLC Strategic Plan is to 
better articulate OSLC's mission, objectives, goals and priorities 
while detailing the framework for management of OSLC programs such as 
the ICE Agreements of Cooperation in Communities to Enhance Safety and 
Security (ACCESS), of which the delegation of 287(g) immigration 
authority is a part.
    Specifically, the OSLC Strategic Plan will establish a body of 
performance measures in support of improved management of ICE's 287(g) 
partnerships. The plan establishes performance targets and identifies 
metrics to support them. These metrics presently include the number of 
287(g) partnerships, the number of partnerships terminated or suspended 
due to lack of activity, types and level of criminal activity being 
encountered by 287(g) partners, and the number of criminal 
prosecutions. To further support internal control, the plan 
synchronizes with Department of Homeland Security priorities and 
includes provisions for compliance monitoring in the form of one or two 
program reviews per month by the ICE Office of Professional 
Responsibility (ICE OPR). Control activities will also include weekly 
review of each partner's ENFORCE statistical data, which includes 
country of birth, gender, and age. The control activities and 
compliance monitoring set forth in the strategic plan will help further 
provide reasonable assurance of management control of the local 
application of 287(g) authority.
    Question 2. Please provide the committee with arrest statistics 
made under the 287(g) program for fiscal year 2007 and fiscal year 2008 
by jurisdiction and nature of crime.
    Answer. OSLC tracks encounters and not arrests. The purpose for the 
use of encounter is that a 287(g) trained individual typically 
``encounters'' a foreign national subsequent to another law enforcement 
activity.
    During the time period covering the request, the primary interface 
used to collect data entered by field users was not designed to capture 
the ``nature of crime''. During the stated time period, ENFORCE, the 
primary data collection tool, relied and still relies heavily on user-
provided information. This leads to data being entered in an 
inconsistent manner.
    Prior to October 2008, OSLC relied on generic data pulls provided 
by DRO and/or OI. Since October 2008, OSLC has taken the lead in 
collecting and reporting its own statistical data. Since October 2008, 
changes/enhancements to ENFORCE have been requested and are being 
implemented to help track the nature of criminal activity under the 
287(g) program. Previously this data was left to the user to input. 
Once the changes are in effect, the data entry fields will be mandatory 
and will require users to enter 287(g) driven information.
    Attached is the weekly summary dated April 5, 2009 which identifies 
the number of encounters by jurisdiction.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      2009
            State              287(g) Office     2006      2007      2008   --------------------------------------------------------   2009     Program
                                                 Total     Total     Total     Oct     Nov     Dec     Jan     Feb     Mar     Apr     Total     Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
AL..........................  ...............  ........  ........  ........  ......  ......  ......  ......       1       1  ......         2          2
                              AL State Police  ........  ........  ........  ......  ......  ......  ......       1       1  ......         2          2
AR..........................  ...............  ........         8       871      88      62      59      54      82      69      12       426      1,305
                              Benton County    ........         3       413      26      26      22      19      35      15       5       148        564
                               Sheriff's
                               Office.
                              City of          ........  ........       140      28      11       8      18      20      23       2       110        250
                               Springdale
                               Police
                               Department.
                              Rogers Police    ........         2       103      12       6      12       5      13      15       2        65        170
                               Department.
                              Washington       ........         3       215      22      19      17      12      14      16       3       103        321
                               County
                               Sheriff's
                               Office AR.
AZ..........................  ...............       418     5,208    16,129   1,343   1,274   1,185   1,313   1,260   1,344     431     8,150     29,905
                              AZ Department         418     1,913     2,485     275     234     244     326     274     346     149     1,848      6,664
                               of Corrections.
                              AZ Department    ........         1         2  ......  ......      28  ......  ......  ......  ......        28         31
                               of Public
                               Safety.
                              Maricopa County  ........     3,294    13,340   1,040     998     882     943     940     937     251     5,991     22,625
                               Sheriff's
                               Office.
                              Pinal County     ........  ........        45       6       4       4       8      25      43       1        91        136
                               Sheriff's
                               Office.
                              Yavapai County   ........  ........       257      22      38      27      36      21      18      30       192        449
                               Sheriff's
                               Office.
CA..........................  ...............     5,219    12,147    11,589   1,113     931     900   1,079     987   1,204     469     6,683     35,638
                              Los Angeles         3,650     4,544     3,854     442     409     329     442     378     423     224     2,647     14,695
                               County
                               Sheriff's
                               Office.
                              Orange County    ........     3,558     4,168     307     254     253     254     254     396     122     1,840      9,566
                               Sheriff's
                               Office.
                              Riverside             338     2,116     1,545     163      91     106     175     159     193      49       936      4,935
                               County
                               Sheriff's
                               Office.
                              San Bernardino      1,231     1,929     2,022     201     177     212     208     196     192      74     1,260      6,442
                               County
                               Sheriff's
                               Office.
CO..........................  ...............  ........       198       961     151      92      47      62      78      81      15       526      1,685
                              CO Department    ........       198       786     120      62      26      39      54      56       7       364      1,348
                               of Public
                               Safety.
                              El Paso County   ........  ........       175      31      30      21      23      24      25       8       162        337
                               Sheriff's
                               Office.
FL..........................  ...............  ........        21       832     158     165     178     178     220     217      81     1,197      2,050
                              Bay County       ........  ........         7      19      26      24       3      18      14       2       106        113
                               Sheriff's
                               Office.
                              Brevard County   ........  ........  ........  ......  ......  ......       2       5      13       9        29         29
                               Sheriff's
                               Office.
                              Collier County   ........        18       813     104      82      96     118     148     129      56       733      1,564
                               Sheriff's
                               Office.
                              FL Department    ........         3        12  ......  ......       1       1       2       1  ......         5         20
                               of Law
                               Enforcement.
                              Jacksonville     ........  ........  ........      31      49      43      51      41      52       9       276        276
                               Sheriff's
                               Office.
                              Manatee County   ........  ........  ........       4       8      14       3       6       8       5        48         48
                               Sheriff's
                               Office.
GA..........................  ...............  ........       128     4,732     347     343     319     355     291     338     125     2,118      6,978
                              Cobb County      ........       128     3,750     247     216     207     229     187     221      77     1,384      5,262
                               Sheriff's
                               Office.
                              GA Deptartment   ........  ........         9       2  ......       3       2       2  ......       1        10         19
                               of Public
                               Safety.
                              Hall County      ........  ........       873      79     100      76      94      56      75      35       515      1,388
                               Sheriff's
                               Office.
                              Whitfield        ........  ........       100      19      27      33      30      46      42      12       209        309
                               County
                               Sheriff's
                               Office.
MA..........................  ...............  ........  ........        76       9       1       5       2       5       3       3        28        104
                              MA Department    ........  ........        76       9       1       5       2       5       3       3        28        104
                               of Corrections.
MD..........................  ...............  ........  ........       232      33      23      26      22      31      33      10       178        410
                              Frederick        ........  ........       232      33      23      26      22      31      33      10       178        410
                               County
                               Sheriff's
                               Office.
MO..........................  ...............  ........  ........         1       1  ......  ......  ......  ......  ......  ......         1          2
                              MO State         ........  ........         1       1  ......  ......  ......  ......  ......  ......         1          2
                               Highway Patrol.
NC..........................  ...............       518     2,695     4,064     549     539     500     509     486     568     234     3,385     10,662
                              Alamance County  ........       299       523      47      19      26      41      32      32      22       219      1,041
                               Sheriff's
                               Office.
                              Cabarrus County  ........  ........       221      27      25      23      19      18      15       6       133        354
                               Sheriff's
                               Office.
                              Cumberland       ........  ........        27       1       1      10       5       9      11       7        44         71
                               County
                               Sheriff's
                               Office.
                              Durham Police    ........  ........        33       2  ......       4       5       4  ......  ......        15         48
                               Department.
                              Gaston County    ........       195       402      32      35      26      21      23      24      14       175        772
                               Sheriff's
                               Office.
                              Henderson        ........  ........       104      21      30      67      70      40      39      11       278        382
                               County
                               Sheriff's
                               Office.
                              Mecklenburg           518     2,201     2,213     189     209     170     176     183     236     110     1,273      6,205
                               County
                               Sheriff's
                               Office.
                              Wake County      ........  ........       541     230     220     174     172     177     211      64     1,248      1,789
                               Sheriff's
                               Office.
NH..........................  ...............  ........  ........         5  ......  ......  ......  ......  ......  ......  ......  ........          5
                              Hudson City      ........  ........         5  ......  ......  ......  ......  ......  ......  ......  ........          5
                               Police
                               Department.
NJ..........................  ...............  ........  ........  ........  ......  ......  ......  ......      10      10       7        27         27
                              Hudson County    ........  ........  ........  ......  ......  ......  ......      10      10       7        27         27
                               Department of
                               Corrections.
NM..........................  ...............  ........  ........         5  ......  ......  ......  ......  ......  ......  ......  ........          5
                              NM Department    ........  ........         5  ......  ......  ......  ......  ......  ......  ......  ........          5
                               of Corrections.
NV..........................  ...............  ........  ........  ........      10     130     139     230     236     251      82     1,078      1,078
                              Las Vegas        ........  ........  ........      10     130     139     230     236     251      82     1,078      1,078
                               Metropolitan
                               Police Dept.
OH..........................  ...............  ........  ........       347      42      56      38      25      33      36       8       238        585
                              Butler County    ........  ........       347      42      56      38      25      33      36       8       238        585
                               Sheriff's
                               Office.
OK..........................  ...............  ........        40     1,346      88     115      95      94     105      97      29       623      2,009
                              Tulsa County     ........        40     1,346      88     115      95      94     105      97      29       623      2,009
                               Sheriff's
                               Office.
SC..........................  ...............  ........  ........       363      28      28      34      37      45      39      17       228        591
                              Beaufort County  ........  ........        11       5       4       4       6      10      11       7        47         58
                               Sheriff's
                               Office.
                              York County      ........  ........       352      23      24      30      31      35      28      10       181        533
                               Sheriff's
                               Office.
TN..........................  ...............  ........     1,739     2,650     191     219     190     204     174     210      77     1,265      5,654
                              Davidson County  ........     1,739     2,650     191     219     185     199     172     207      76     1,249      5,638
                               Sheriff's
                               Office.
                              TN Department    ........  ........  ........  ......  ......       5       5       2       3       1        16         16
                               of Safety.
TX..........................  ...............  ........  ........  ........  ......     252     711     646     573     864     325     3,371      3,371
                              Harris County    ........  ........  ........  ......     252     711     646     573     864     325     3,371      3,371
                               Sheriff's
                               Office.
UT..........................  ...............  ........  ........  ........  ......      17      33       7      18      10       2        87         87
                              Washington       ........  ........  ........  ......  ......       2       1       4  ......  ......         7          7
                               County
                               Sheriff's
                               Office UT.
                              Weber County     ........  ........  ........  ......      17      31       6      14      10       2        80         80
                               Sheriff's
                               Office.
VA..........................  ...............  ........       158     1,224     111     112     108     108     115     100      26       680      2,062
                              City of          ........  ........         1  ......  ......  ......  ......  ......  ......  ......  ........          1
                               Manassas
                               Police
                               Department.
                              Herndon Police   ........  ........        72      13       3       9       5       5       2       2        39        111
                               Department.
                              Loudoun County   ........  ........         2       3       5       4       9       5       3  ......        29         31
                               Sheriff's
                               Office.
                              Prince William   ........  ........        30       5      11       8       8       5       3  ......        40         70
                               County Police
                               Department.
                              Prince William   ........  ........         2  ......  ......  ......  ......  ......  ......  ......  ........          2
                               County
                               Sheriff's
                               Office.
                              Prince William-  ........       114       929      81      83      74      75      91      88      24       516      1,559
                               Manassas Adult
                               Detention
                               Center.
                              Rockingham       ........        32       163       9      10      12      11       7       4  ......        53        248
                               County
                               Sheriff's
                               Office.
                              Shenandoah       ........        12        25  ......  ......       1  ......       2  ......  ......         3         40
                               County
                               Sheriff's
                               Office.
                                              ----------------------------------------------------------------------------------------------------------
                              Program Total..     6,155    22,342    45,427   4,262   4,359   4,567   4,925   4,750   5,475   1,953    30,291    104,215
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of States Reporting: 22.
No. of Offices Reporting: 58.
The above ICE enforcement data/statistics reflect a ``snapshot'' of the data in the respective ICE Law Enforcement System (LES) at the time the report
  was compiled by the Executive Information Reporting Section. ICE enforcement data within the ICE LES may be modified at any given time by authorized
  personnel owning the data, which may result in an increase or decrease of ICE data/statistics previously reported.

    Question 3. According to statements made by Sheriff Jenkins, 
Frederick County, Maryland is currently reimbursed $83 per day for each 
detainee held in its jail through its intergovernmental service 
agreement (IGSA) with ICE. However, Sheriff Jenkins has stated the 
actual cost for the county to hold and detain persons average $7 per 
day. How does ICE determine IGSA reimbursement rates and how often are 
these rates evaluated?
    Answer. Before ICE enters into an agreement with a county for 
detention space, a rate is negotiated with the county for the per diem 
costs of the detainee care and custody. Before negotiating a rate, the 
county must submit a Jail Services Cost Statement (JSCS). The JSCS 
outlines the facility's entire operational costs for the jail. ICE 
determines the reimbursement rate by examining the cost elements from 
individual documents in the JSCS as submitted by the county. Cost 
components are examined and analyzed to determine whether they are 
allowable, can be allocated, and are reasonable in accordance with 
Office of Management and Budget (OMB) Circular A-87. Items reimbursed 
under this agreement include personnel costs, personnel benefits, 
consultant costs, on-site medical care expenses, and other direct costs 
as well as indirect costs and depreciation based on the purchase price 
for the county's building. If a county provides transportation service, 
the county is reimbursed separately for this service. After examining 
actual costs of these components, a per diem rate is determined and 
negotiated with county officials.
    In accordance with Article XII of the IGSA, Adjusting the Detainee 
Day Rate, ICE shall reevaluate/adjust the detainee rate every twelve 
(12) months after the agreement becomes effective. If ICE does not 
receive an official request for a detainee day rate adjustment with a 
new JSCS, the fixed detainee day rate as stated in the agreement will 
remain in place indefinitely.
    In the last JSCS submitted by Frederick County to ICE, Frederick 
County proposed a per diem rate of $92.36. The JSCS supported rate is 
$83.00 per day. ICE will contact Frederick County to discuss the $7.00 
figure you cite and determine whether a reevaluation is appropriate.
    Question 4. Section 12 of the Maricopa County MOA places reporting 
requirements on the Maricopa County Sheriff Office. Pursuant to that 
section of the agreement, has ICE requested data and statistical 
information on the ``progress and success of the [Maricopa County] 
287(g) program?''
    Answer. ICE frequently relies on ENFORCE, the administrative 
immigration booking system, to gather statistical information related 
to the 287(g) program. Agencies use ENFORCE when processing individuals 
who are subject to removal. Because ICE gathers information from 
ENFORCE on a real time basis, ICE has not frequently requested 
information directly from the Maricopa County Sheriff's Office. 
However, the ENFORCE system historically had limited data fields 
related primarily to processing an alien.
    Based on an internal review and the recent GAO audit, ICE has 
requested several system changes to enable ICE to extract more detailed 
information from ENFORCE about the type and severity of the charges 
lodged against removable aliens identified by 287(g) officers. In 
addition, ICE is working to modify the MOA template to mandate the 
entry of certain mandatory data and ensure the partner agencies with 
287(g) authority exercise that authority in accordance with ICE's 
priorities.
    Question 5. Section 14 of the Maricopa County MOA outlines a 
Complaint Procedure. Earlier this month, 5,000 people marched to 
complain about the program. What has ICE done to monitor and respond to 
complaints about the Maricopa County Sheriff's use of the 287(g) 
program?
    Answer. The Maricopa County Sheriff's Office (MCSO) MOA provides 
that complaints against MCSO personnel relating to their immigration 
enforcement should be reported to the ICE OPR and the MCSO's Internal 
Affairs Division. ICE OPR forwards complaints to the Department of 
Homeland Security's Office of Inspector General (DHS OIG) as 
appropriate for review, and will refer all allegations of racial and 
ethnic profiling, police misconduct, race and national origin 
discrimination, and limited language access to the U.S. Department of 
Justice Civil Rights Division (DOJ CRT) and the DHS Office of Civil 
Rights and Civil Liberties.
    Complaint reporting procedures are posted within all facilities 
under MCSO's jurisdiction in English and Spanish in order to ensure 
that individuals are aware of the availability of such procedures.
    Additionally, ICE OPR created a 287(g) Inspection Group to conduct 
inspections of the 287(g) cross-designated State and local law 
enforcement agencies. These inspections are designed to determine if 
agencies are operating in compliance with MOA. In fiscal year 2008, ICE 
OPR inspected four 287(g) programs; and in fiscal year 2009, ICE OPR 
anticipates reviewing an additional 20 sites. OSLC reviews the ICE OPR 
audit report for any area identified as non-compliant with the MOA. The 
OSLC program will then consult with ICE Office of Investigation (ICE 
OI) and ICE Office of Detention and Removal (DRO) to address issues 
identified in the ICE OPR reports. If any concerns with racial and 
ethnic profiling, police misconduct, race and national origin 
discrimination, and limited language access are raised as a result of 
an OPR review, OSLC will also consult with the DHS Office for Civil 
Rights and Civil Liberties and will refer all allegations to DOJ CRT.
    In September 2008, the ICE Office of Personnel Responsibility (OPR) 
conducted an audit of the MCSO 287(g) Delegation of Authority Program. 
MCSO utilizes both the Jail Enforcement Officer (JEO) program in which 
officers working in a detention environment (jail) that are trained to 
identify foreign nationals amenable to removal proceedings, after they 
have been arrested or convicted of violating criminal laws and the Task 
Force Officer (TFO) model in which officers work in an investigative 
setting and are trained to identify foreign nationals amenable to 
removal proceedings during the course of their duties. The OPR audit 
included interviews with ICE management, employees, in addition to 
interviews with MSCO management and their employees. The overall 
findings of the ICE Office of Professional Responsibility (OPR) audit 
support that MSCO is in compliance with the MOA. Recommendations were 
made to improve effectiveness and efficiency of the MOA, which included 
the establishment of a standard operation procedure (SOP) within the 
MOA specific to both the JEO and TFO model and the establishment of a 
uniform requirement for collecting and reporting specific statistical 
data. ICE has begun to apply such recommendations to the MCSO and other 
Law Enforcement Agencies (LEAs), which have 287(g) agreements with ICE 
to improve efficiency, reduce complaints, and better monitor the 
existing MOA. Finally, pursuant to the Secretary of Homeland Security's 
action directives, ICE is currently re-drafting the standard MOA 
template to increase oversight and accountability. The revised MOA will 
also work to further ensure that 287(g) MOAs operate consistently with 
ICE arrest and detention priorities.
    Question 6. Section 16 of the Maricopa County MOA mandates the 
formation and maintenance of a steering committee to ``ensure 
compliance with the terms of the Memorandum of Agreement.'' Who is on 
that committee? Has it met? What has it met about? Did ICE and Maricopa 
hold a review meeting within 9 months of the start of the program as 
mandated by the agreement?
    Answer. The Maricopa County MOA was signed on February 24, 2007. 
The first Steering Committee meeting was held on September 6, 2007, 
which was within the required 9-month guideline as outlined in the MOA. 
The second Steering Committee meeting was held on October 21, 2008. The 
next steering committee meeting is scheduled to be held in October 
2009.
    The September 6, 2007, meeting was held at the MCSO Executive 
Conference Room in Phoenix, Arizona. The Representatives from the 
following ICE offices were in attendance:
ICE
Special Agent in Charge, ICE OI, SAC Office Phoenix; Deputy Special 
Agent in Charge, ICE OI, SAC Office Phoenix; Group Supervisor ICE OI, 
SAC Office Phoenix; Chief Counsel, Phoenix Office of the Chief Counsel 
Office, ICE Office of the Principal Legal Advisor (OPLA); Assistant 
Field Office Director, ICE DRO, Phoenix; Assistant Field Office 
Director, ICE DRO, Phoenix; and Supervisory Deportation Officer, ICE 
DRO Phoenix.
    MCSO officers were also present.
MCSO
Sheriff; Super Chief; Chief Deputy; Lieutenant; Lieutenant; Lieutenant; 
Joe Sousa.
    The issues discussed included, but were not limited to, the 
following topics: background investigations/vetting; computer equipment 
for five additional sites; training completion; media coordination 
under the MOA; ICE Fusion Center; statistics; and MCSO 287(g) 
successes.
    The October 21, 2008, meeting was held at MCSO in the Executive 
Conference Room in Phoenix, Arizona. ICE and MCSO representatives were 
in attendance.
ICE
Special Agent in Charge, ICE OI, SAC Office Phoenix; Assistant Special 
Agent in Charge, ICE OI, SAC Office Phoenix; Assistant Special Agent in 
Charge, ICE OI, SAC Office Phoenix; Deputy Field Office Director, DRO; 
Senior Attorney, Phoenix Office of the Chief Counsel Office, ICE, OPLA; 
Public Affairs Officer, ICE; Senior Special Agent, ICE OI, SAC Office 
Phoenix; Special Agent, ICE OI, SAC Office Phoenix; Special Agent, ICE 
OI, SAC Office Phoenix; Staff Assistant, ICE OI, SAC Office Phoenix.
MCSO
Chief; Captain; Captain; Lieutenant; Sergeant; Sergeant; Lieutenant.
    A roundtable introduction of all members was initiated by SAC 
Matthew Allen. SAC Allen reiterated the reason behind the Steering 
Committee meetings. He explained that per the MOA, ICE is required to 
have these meetings at least once a year. Additionally, Chief Sheridan 
commented that MCSO has an excellent working relationship with ICE.
    The issues discussed included, but were not limited to arrest 
statistics and progress of the program; future training; 287(g) Letters 
of Authorization and credentials; Virtual University recurring 
training; ICE OPR and MCSO Internal Affairs; 287(g) property inventory; 
and media relations.
    Question 7. Section 15 of the Maricopa County agreement binds 
Maricopa County Sheriff's Officers to U.S. civil rights laws and 
specifically to the U.S. Department of Justice ``Guidance Regarding the 
Use of Race by Federal Law Enforcement Agencies.'' Given complaints 
from Phoenix Mayor Phil Gordon, from community members, and from media 
outlets that the 287(g) program is being used to racially profile 
Latinos, what steps has ICE taken to ensure compliance with this 
section of the MOA?
    Answer. We understand that the Department of Justice has initiated 
an investigation of allegations of discriminatory police practices and 
unlawful searches and seizures by the Maricopa County Sheriff's Office 
(MCSO). DOJ will thus be in the best position to determine, following 
that investigation, whether the MCSO is in fact in compliance with 
applicable civil rights laws.
    ICE provides a 4-week training program to LEAs who are authorized 
to receive training under the 287(g) MOA. The training is held at the 
Federal Law Enforcement Training Center (FLETC) Advanced Training Site 
in Charleston, SC, where certified instructors conduct the training. 
The 287(g) Training Program includes guidance, mandated by the DOJ, 
regarding the Use of Race by Federal Law Enforcement Agencies. An 
overview on civil rights is also part of the 287(g) Training Program 
and training program participants receive a 2-hour lesson on Alien 
Encounters. This lesson includes instruction on the levels of 
encounters, as well as the primary line of questioning to establish 
alienage and removability.
    Racial profiling and civil rights issues are also covered in the 
``Use of Race'' and ``Officer Liability'' courses as part of the 287(g) 
Training Program. These courses specifically cover racial profiling 
practices and the Constitutional concerns regarding the use of race in 
the conduct of law enforcement activities. These courses outline the 
necessity to establish or observe more than one articulable fact, not 
based on race, that leads the officers to believe that the subject(s) 
is/are in the United States illegally, and have no right to be in, 
remain or reside in, or transit through United States lawfully.
    It should also be noted that ICE is currently in the process of 
incorporating a racial profiling training module into the Virtual 
University annual refresher training curriculum that will be mandatory 
for all 287(g) officers to take.
 Questions From Chairman Bennie G. Thompson of Mississippi for Richard 
 M. Stana, Director, Homeland Security and Justice Issues, Government 
                         Accountability Office
    Question 1. According to your report, there seemed to be 
significant confusion among 287(g) program participants about what they 
could or could not do pursuant to their 287(g) authority. What should 
ICE do to ensure local agencies understand the limitations and scope of 
their 287(g) agreements? Does ICE review program participants to ensure 
they are acting within the scope of their authority pursuant to 287(g)?
    Answer. Currently, the Memorandum of Agreement (MOA) between State 
and local 287(g) participants and Immigration Customs Enforcement (ICE) 
are broadly written and do not consistently communicate the objective 
of the 287(g) program or under what circumstances 287(g) authority is 
to be used. For example, ICE officials told us that the objective of 
the program is to enhance the security and safety of communities by 
addressing serious crime such as narcotics smuggling committed by 
removable aliens. However, ICE has not documented these objectives in 
program materials. We identified instances where participating agencies 
have used their 287(g) authority to process for removal aliens arrested 
for minor offenses. All of the MOA's we reviewed contained language 
that authorizes State or local officers to interrogate ``any person'' 
believed to be an alien as to his right to be or remain in the United 
States, but none specified when or how this authority was to be used. 
Some program participants we interviewed interpreted this as giving 
them broad powers to enforce immigration law. According to ICE 
officials and other ICE documents, 287(g) authority is to be used in 
connection with an arrest for a State offense; however, we noted that 
none of the MOAs state that any use of 287(g) authority should be 
preceded by an arrest. And while the processing of individuals for 
possible removal is to be done in connection with a conviction for a 
State or Federal felony offense, seven MOAs we examined were void of 
this language (these were earlier MOAs that have never been revised). 
We recommended that ICE document the objective of the 287(g) program 
for participants and clarify and document how and under what 
circumstances 287(g) authority is to be used by State and local law 
enforcement officers in participating agencies.
    According to ICE, its Office of Professional Responsibility (OPR) 
has implemented a regular inspection process to assess local law 
enforcement agencies' compliance with the terms of the MOA. Currently, 
the OPR inspections are conducted using checklists developed primarily 
from information in the applicable MOA. According to OPR officials, it 
completes an inspection report after each inspection that will be used 
to address any deficiencies identified. At the time of our review, ICE 
had performed only a limited number of these inspections and none of 
the inspection reports had been finalized. As noted in our report, 
these inspections do not include performance assessments of the 
program. ICE has not yet developed performance measures from which to 
monitor how the program is being implemented. Performance measures are 
important to provide ICE with a basis for determining whether the 
program is achieving its intended results.
    Question 2. According to your report, over half of the 29 agencies 
GAO contacted conveyed concerns from community members that use of 
287(g) program authority would lead to racial profiling and 
intimidation by law enforcement officials. To what do you attribute 
this concern? Could ICE do more to ensure that profiling and 
intimidation will not occur under 287(g)? If so, what?
    Answer. The enforcement of immigration law by State and local 
officials has raised concerns among some community and immigrants' 
rights groups about the proper role of such law enforcement officials. 
As noted in our report, 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 fear 
and apprehension that law enforcement officers would engage in racial 
profiling. Groups are also concerned that such activities could lead to 
apprehension in immigrant communities and less inclination to report 
crimes out of fear that officers with 287(g) authority would inquire 
about crime victims' immigration status. Groups said that these 
concerns may reduce the effectiveness of the program and other law 
enforcement initiatives, which they believe were intended to target 
serious criminal activity.
    These concerns underscore the importance of ICE having management 
controls to help ensure that the program was operating as intended; 
however, we found that key controls were lacking. First, while ICE 
officials have stated that the main objective of the 287(g) program is 
to enhance the safety and security of communities by addressing serious 
criminal activity committed by removable aliens, they have not: (1) 
Documented this objective in 287(g)-related materials for participants; 
(2) clarified when the 287(g) authority is authorized for use by State 
and local law enforcement officers; (3) documented 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. As a result, some 
participating agencies are using their 287(g) authority to process for 
removal aliens who have committed minor crimes, such as carrying an 
open container of alcohol. Second, ICE has not consistently articulated 
in program-related documents how participating agencies are to use 
their 287(g) authority. For instance, although the processing of 
individuals for possible removal is to be conducted in connection with 
a conviction of a State or Federal felony offense, this issue is not 
mentioned in 7 of the 29 MOAs we reviewed. Third, ICE has not described 
the nature and extent of the agency's supervision over participating 
agencies' implementation of the program. This has led to wide variation 
in the perception of the nature and extent of supervisory 
responsibility among ICE field officials and officials from 23 of the 
participating agencies that provided information on ICE supervision.
    We made recommendations for ICE to improve its management controls 
in these areas. Specifically, we recommended that ICE document the 
objective of the 287(g) program for participants, clarify when the 
287(g) authority is authorized for use by State and local law 
enforcement officers, and 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. One of these supervisory 
activities would be to ensure that State and local officers are 
exercising their 287(g) authority in full compliance with Federal law.
    Another way to help address community concerns is through community 
outreach. Each of the MOAs we reviewed discusses engaging in community 
outreach with individuals and organizations expressing an interest in 
the 287(g) program. However, community outreach is not a requirement of 
the program, and the nature and extent of outreach is left to the 
discretion of the State or local agency. Nearly all of the 29 
jurisdictions we reviewed told us they engaged in community outreach 
and that doing so helped address concerns about the 287(g) program.
    Question 3. How are complaints about the 287(g) program processed 
at ICE? Do you believe there is sufficient transparency in the 287(g) 
program? ICE has stated there have been no complaints made related to 
the program. Yet, the media has highlighted various troubling accounts 
of program management. How would you explain this gap?
    Answer. According to the MOAs, complaints involving participating 
State and local personnel with regard to 287(g) immigration enforcement 
actions will be accepted from any source (e.g., ICE, the State or local 
agency, personnel operating under 287(g) authority, and the public). 
The complaints can be reported to ICE Headquarters Office of 
Professional Responsibility (ICE OPR) or to the participating agency 
telephonically or by mail. Each MOA includes the office names, 
addresses, and telephone numbers for ICE OPR and the State or local 
agency where complaints can be reported.
    The MOAs state that regardless of where the complaint is initially 
received, ICE OPR and the State or local agency are to coordinate 
complaint receipt and investigation. ICE OPR is to follow its 
established procedures relating to the review, reporting, and 
resolution of allegations of employee misconduct. In this regard, ICE 
OPR is to forward complaints to the Department of Homeland Security's 
Office of Inspector General (DHS OIG), as appropriate, for review, and 
ensure notification as necessary to the U.S. Department of Justice 
Civil Rights Division. ICE OPR may also refer complaints it receives 
involving participating State and local personnel to the agency for 
resolution. For its part, the State or local agency is to follow its 
own applicable policies and procedures, personnel rules, State 
statutes, and any other operating guidelines, and is to inform ICE OPR 
of the disposition and resolution of any complaints referred by ICE 
OPR.
    The MOAs state that complaint-reporting procedures shall be 
disseminated as appropriate by the participating agency within 
facilities under its jurisdiction in order to ensure that individuals 
are aware of the complaint procedures. We observed that the complaint 
procedures were posted at selected locations we visited, but we did not 
assess the public exposure to avenues for filing a complaint. The 
complaint-reporting procedures pertaining to the 287(g) program are not 
posted on the ICE web site.
    In response to our inquiries, neither ICE OPR nor the 29 
participating jurisdictions we reviewed told us they received any 
complaints of officer misconduct related to the 287(g) program. We do 
not know why the apparent discrepancy exists between media reports of 
program problems and the lack of formal complaints to ICE OPR or the 
participating State and local agencies.
    Question 4. My understanding is that under 287(g), State and local 
law enforcement participants are ``supervised'' by an ICE agent. Based 
on your review, what does ICE's supervision consist of? Do you believe 
that supervision is adequate to ensure participants are abiding by the 
requirements of the program? If not, what more does ICE need to do?
    Answer. 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. Based on our interviews with officials from the 29 
participating jurisdictions we reviewed, there was wide variation in 
the type and amount of supervision provide by ICE. Some participants 
expressed satisfaction with the ICE supervision they received, while 
others expressed dissatisfaction. According to ICE officials, 
supervision of participating agencies varied due to shortages of 
supervisory resources. These officials said it has been necessary in 
many instances to shift local ICE resources from other programs 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. We recommended that ICE document 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 to ensure that this information is communicated to 
both ICE officers and the State and local participating agencies.
    Question 5. What efforts on the part of DHS, ICE, and State/local 
agencies are being undertaken to ensure that the training provided to 
State and local law enforcement agents is comparable to the complex and 
voluminous body of immigration law training ICE agents receive? How did 
the participants you interviewed for your report view their training? 
What kind of continuing education requirements exist for the officers? 
How does ICE monitor completion of ``refresher'' training?
    Answer. State and local officers participating in the 287(g) 
program attend a mandatory 4-week training program at the Federal Law 
Enforcement Training Center. This program includes training in areas 
consistent with that given to ICE agent, although more condensed--
immigration and criminal law, document examinations, cross-cultural 
communications and intercultural relations, alien status, ICE 
operations, statutory authority, removal charges, ICE use of force 
policy, and avoidance of racial profiling. In order to become certified 
to exercise certain authorities of an immigration officer, participants 
are required to pass written examinations which, according to ICE, are 
equivalent to those given to ICE officers. While we did not 
specifically evaluate training program content, officials from the 29 
participating jurisdictions we reviewed consistently told us that the 
ICE prepared them to perform their 287(g) activities. The MOAs that we 
reviewed state that, approximately 1 year after participating agencies 
personnel are trained and certified, ICE will provide those personnel 
with additional updated training. However, at the time of our review, 
ICE had not yet established a continuing-education requirement or 
refresher training for 287(g) participants.

                                 
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