Immigration Enforcement
Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws Gao ID: GAO-09-109 January 30, 2009Section 287(g) of the Immigration and Nationality Act, as amended, authorizes the federal government to enter into agreements with state and local law enforcement agencies to train officers to assist in identifying those individuals who are in the country illegally. U.S. Immigration and Customs Enforcement (ICE) is responsible for supervising state and local officers under this program. GAO was asked to review this program. This report reviews (1) the extent to which ICE 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. GAO reviewed memorandums of agreement (MOA) between ICE and the 29 program participants as of September 1, 2007. GAO compared controls ICE designed to govern the 287(g) program with criteria in GAO's Standards for Internal Control in the Federal Government. GAO interviewed officials from both ICE and participating agencies on program implementation, resources, and results.
ICE has designed some management controls to govern 287(g) program implementation, such as MOAs and background checks of state and local officers, but the program lacks other controls, which makes it difficult for ICE to ensure that the program is operating as intended. First, the program lacks 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 narcotics smuggling committed by removable aliens; however, ICE has not documented this objective in program materials. As a result, of 29 program participants reviewed by GAO, 4 used 287(g) authority to process individuals for minor crimes, such as speeding, contrary to the objective of the program. Second, ICE has not described the nature and extent of its supervision over participating agencies' implementation of the program, which has led to wide variation in the perception of the nature and extent of supervisory responsibility among ICE field officials and officials from the participating agencies. ICE is statutorily required to supervise agencies participating in the 287(g) program, and internal control standards require an agency's organizational structure to clearly define key areas of authority and responsibility. Defining the nature and extent of the agency's supervision over this large and growing program would strengthen ICE's assurance that management's directives are being carried out. Finally, while ICE states in its MOAs that participating agencies are responsible for tracking and reporting data to ICE, in 20 of 29 MOAs GAO reviewed, ICE did not define what data should be tracked or how it should be collected and reported. 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 objective. ICE and program participants use resources for personnel, training, and equipment, and participants report activities, benefits, and concerns regarding the program. In fiscal years 2006-2008, ICE received about $60 million to train, supervise, and equip program participants. As of October 2008, ICE reported enrolling 67 agencies and training 951 state and local law enforcement officers. According to data provided by ICE for 25 of the 29 program participants reviewed by GAO, during fiscal year 2008, about 43,000 aliens had been arrested pursuant to the program, and of those, ICE detained about 34,000. About 41 percent of those detained were placed in removal proceedings, and an additional 44 percent agreed to be voluntarily removed. The remaining 15 percent of those detained by ICE were given a humanitarian release, sent to federal or state prison, or released due to the minor nature of their crime and federal detention space limitations. Program participants report a reduction in crime, the removal of repeat offenders, and other public safety benefits. However, over half of the 29 agencies GAO contacted reported concerns from community members that use of program authority would lead to racial profiling and intimidation by law enforcement officials.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-109, Immigration Enforcement: Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
January 2009:
Immigration Enforcement:
Better Controls Needed over Program Authorizing State and Local
Enforcement of Federal Immigration Laws:
GAO-09-109:
GAO Highlights:
Highlights of GAO-09-109, a report to congressional requesters.
Why GAO Did This Study:
Section 287(g) of the Immigration and Nationality Act, as amended,
authorizes the federal government to enter into agreements with state
and local law enforcement agencies to train officers to assist in
identifying those individuals who are in the country illegally. U.S.
Immigration and Customs Enforcement (ICE) is responsible for
supervising state and local officers under this program. GAO was asked
to review this program. This report reviews (1) the extent to which ICE
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. GAO reviewed memorandums
of agreement (MOA) between ICE and the 29 program participants as of
September 1, 2007. GAO compared controls ICE designed to govern the
287(g) program with criteria in GAO‘s Standards for Internal Control in
the Federal Government. GAO interviewed officials from both ICE and
participating agencies on program implementation, resources, and
results.
What GAO Found:
ICE has designed some management controls to govern 287(g) program
implementation, such as MOAs and background checks of state and local
officers, but the program lacks other controls, which makes it
difficult for ICE to ensure that the program is operating as intended.
First, the program lacks 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 narcotics smuggling committed by removable aliens; however, ICE
has not documented this objective in program materials. As a result, of
29 program participants reviewed by GAO, 4 used 287(g) authority to
process individuals for minor crimes, such as speeding, contrary to the
objective of the program. Second, ICE has not described the nature and
extent of its supervision over participating agencies‘ implementation
of the program, which has led to wide variation in the perception of
the nature and extent of supervisory responsibility among ICE field
officials and officials from the participating agencies. ICE is
statutorily required to supervise agencies participating in the 287(g)
program, and internal control standards require an agency‘s
organizational structure to clearly define key areas of authority and
responsibility. Defining the nature and extent of the agency‘s
supervision over this large and growing program would strengthen ICE‘s
assurance that management‘s directives are being carried out. Finally,
while ICE states in its MOAs that participating agencies are
responsible for tracking and reporting data to ICE, in 20 of 29 MOAs
GAO reviewed, ICE did not define what data should be tracked or how it
should be collected and reported. 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 objective.
ICE and program participants use resources for personnel, training, and
equipment, and participants report activities, benefits, and concerns
regarding the program. In fiscal years 2006–2008, ICE received about
$60 million to train, supervise, and equip program participants. As of
October 2008, ICE reported enrolling 67 agencies and training 951 state
and local law enforcement officers. According to data provided by ICE
for 25 of the 29 program participants reviewed by GAO, during fiscal
year 2008, about 43,000 aliens had been arrested pursuant to the
program, and of those, ICE detained about 34,000. About 41 percent of
those detained were placed in removal proceedings, and an additional 44
percent agreed to be voluntarily removed. The remaining 15 percent of
those detained by ICE were given a humanitarian release, sent to
federal or state prison, or released due to the minor nature of their
crime and federal detention space limitations. Program participants
report a reduction in crime, the removal of repeat offenders, and other
public safety benefits. However, over half of the 29 agencies GAO
contacted reported concerns from community members that use of program
authority would lead to racial profiling and intimidation by law
enforcement officials.
What GAO Recommends:
Among other things, GAO recommends that the Assistant Secretary for ICE
document the program objective, document and communicate supervisory
activities, and specify data each agency is to collect and report. DHS
and ICE agreed with our recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-09-109]. For more
information, contact Richard M. Stana at (202) 512-8777 or
stanar@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
ICE Lacks Key Internal Controls for the Implementation of the 287(g)
Program:
Program Resources Are Used for Training, Supervision, and Equipment;
Benefits and Concerns Are Reported by ICE and Participating Agencies:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Statutory Provision Governing the 287(g) Program:
Appendix II: Structured Interview Questions for All 29 Participants of
the 287(g) Program:
Appendix III: Objectives, Scope, and Methodology:
Appendix IV: Copy of ICE Pamphlet on ACCESS Programs:
Appendix V: Comments from the Department of Homeland Security:
Appendix VI: GAO Contact and Staff Acknowledgments:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
January 30, 2009:
Congressional Requesters:
Recent reports indicate that the total population of unauthorized
aliens residing in the United States is about 12 million.[Footnote 1]
Some of these aliens have committed one or more crimes, although the
exact number of aliens who have committed crimes is unknown. As of June
30, 2007--the most recent data available--about 31,000 of the
approximately 199,000 convicted felons in federal prisons, about 56,000
of the approximately 1,400,000 convicted felons in state prisons, and
about 39,000 of the approximately 504,000 inmates held in local jails,
were aliens.[Footnote 2] Removing those aliens who have committed
serious crimes is of particular concern for the safety of our nation's
communities. The Department of Homeland Security's (DHS) U.S.
Immigration and Customs Enforcement (ICE) is responsible for the
enforcement of immigration laws within the interior of the United
States, including the identification, apprehension, detention, and
removal of removable aliens who committed crimes. ICE does not have the
agents or the detention space that would be required to address all
criminal activities. According to DHS, criminal activity is most
effectively combated through a multiagency/multiauthority approach that
utilizes federal, state, and local resources, skills, and expertise.
State and local law enforcement officers play a critical role in
protecting our homeland because, during the course of 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 (INA).[Footnote 3] This section
authorizes the federal government to enter into agreements with state
and local law enforcement agencies; to train selected state and local
officers to perform certain functions of an immigration officer,
including searching selected federal databases and conducting
interviews to assist in the identification of those individuals in the
country illegally; and to carry out these activities under the
supervision of ICE officers.[Footnote 4] ICE is responsible for
managing the implementation of 287(g). The first such agreement under
the statute was signed in 2002, and as of October 2008, participation
in this program had increased to 67 state and local agencies. Most of
these state and local law enforcement agencies joined the program after
2007.
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. 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.
Given the growing interest of individual state and local entities in
participating in the 287(g) program, and congressional interest in
assisting state and local communities in addressing border security and
immigration enforcement issues, you requested that we review the 287(g)
program. This report addresses (1) the extent to which ICE 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 accomplish our objectives, we collected and analyzed information
from ICE and participating law enforcement agencies on the priorities,
objectives, and guidance for implementing the 287(g) program. To better
understand the parameters of the 287(g) program as agreed to by both
ICE and the participating agency, we reviewed program-related
documents, including program case files, the 287(g) brochure, training
materials, certain ICE position descriptions, and the memorandums of
agreement (MOA) between ICE and the 29 law enforcement agencies
participating in the program as of September 1, 2007. We also examined
the controls ICE designed to govern implementation of the 287(g)
program by requesting information on ICE's management policies and
practices as they relate to the 287(g) program and comparing these
controls 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.
[Footnote 5] We visited nine participating agencies to observe how they
are implementing the program. We selected these agencies based on the
type of enforcement authority granted by ICE and length of time they
have participated in the program, among other characteristics. Although
we are not able to generalize the information gathered from these
visits to all other participating law enforcement agencies, the visits
provided us with a variety of examples of how the program is being
implemented. We also interviewed officials from both ICE and the
participating law enforcement agencies to obtain their perspectives on
the activities, benefits, and concerns generated from the 287(g)
program as well as the resources used to implement the program,
including equipment, training, and assignment of supervisory ICE staff.
[Footnote 6] In addition, we examined budget and appropriations
documentation from the program's inception to the fiscal year 2009
budget request for the 287(g) program and inquired about future funding
requirements for this program from agency officials. More detailed
information on our scope and methodology appears in appendix III.
We conducted this performance audit from September 2007 through January
2009 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Results in Brief:
ICE has designed some management controls to govern 287(g) program
implementation, such as Memorandums of Agreement with participating
agencies and background checks of officers applying to participate in
the program, but the program lacks other controls. 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
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 crimes, such as carrying an open container of alcohol.
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 who pose the greatest threat to the public,
until more alternative detention methods are available. 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.
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 activities undertaken by participating agencies are in
accordance with ICE policies and program objectives. 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. 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 the agency's supervision over this large and
growing program would strengthen ICE's assurance that management's
directives are being carried out. Finally, while the MOAs state that
participating agencies are responsible for tracking and reporting data
to ICE, in 20 of 29 MOAs we reviewed, ICE did not define what data
should be tracked or how it should be collected and reported. Internal
control standards call for pertinent information to be recorded and
communicated to management in a form and within a time frame that
enables them 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.
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 October 2008, ICE reported enrolling 67 agencies and
training 951 state and local law enforcement officers. According to
data provided by ICE for 25 of the 29 program participants reviewed by
GAO, during fiscal year 2008, about 43,000 aliens had been arrested
pursuant to the program.[Footnote 7] 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 (41 percent) in removal proceedings, and arranged
for about 15,000 (44 percent) to be voluntarily removed.[Footnote 8]
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.[Footnote 9]
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 members of their communities 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.
To help ensure that ICE program managers for the 287(g) program achieve
the results intended by implementing this program, we are recommending
that the Assistant Secretary for 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 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, (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. We provided a draft of this report to
DHS for review and comment. DHS provided written comments on January
28, 2009, which are presented in appendix V. In commenting on the draft
report, DHS stated that it agreed with our recommendations and
identified actions planned or underway to implement the
recommendations. ICE also provided us with technical comments, which we
considered and incorporated in the report where appropriate.
Background:
Section 287(g) of the INA, as amended, authorizes ICE to enter into
written agreements under which state or local law enforcement agencies
may perform, at their own expense and under the supervision of ICE
officers, certain functions of an immigration officer in relation to
the investigation, apprehension, or detention of aliens in the United
States. The statute also provides that such an agreement is not
required for state and local officers to communicate with ICE regarding
the immigration status of an individual or otherwise to cooperate with
ICE in the identification and removal of aliens not lawfully present in
the United States. Thus, 287(g) agreements go beyond state and local
officers' existing ability to obtain immigration status information
from ICE and to alert ICE to any removable aliens they identify. Under
these agreements, state and local officers are to have direct access to
ICE databases and act in the stead of ICE agents by processing aliens
for removal. They are authorized to initiate removal proceedings by
preparing a notice to appear in immigration court and transporting
aliens to ICE-approved detention facilities for further proceedings.
Section 287(g) and its legislative history do not detail the exact
responsibilities to be carried out, the circumstances under which
officers are to exercise 287(g) authority, or which removable aliens
should be prioritized for removal, thus giving ICE the discretion to
establish enforcement priorities for the program. The statute does,
however, contain a number of detailed requirements or controls for the
program.[Footnote 10] It requires that:
* a written agreement be developed to govern the delegation of
immigration enforcement functions (e.g., MOA),
* ICE determine that any officer performing such a function is
qualified to do so (e.g., background security check),
* the officer have knowledge of, and adhere to, federal law relating to
immigration (e.g., training),
* officers performing immigration functions have received adequate
training regarding enforcement of federal immigration laws (e.g.,
written certification of training provided upon passing examinations),
* any officer performing such a function be subject to the direction
and supervision of ICE, with the supervising office to be specified in
the written agreement, and:
* specific powers and duties to be exercised or performed by state or
local officers be set forth in the written agreement.
Currently, the 287(g) program is the responsibility of ICE's Office of
State and Local Coordination (OSLC). The OSLC is responsible for
providing information about ICE programs, initiatives, and authorities
available to state and local law enforcement agencies. In August 2007,
OSLC organized its various programs to partner with state and local law
enforcement agencies as Agreements of Cooperation in Communities to
Enhance Safety and Security (ACCESS). ACCESS offers state and local law
enforcement agencies the opportunity to participate in 1 or more of 13
programs, including the Border Enforcement Security Task Forces, the
Criminal Alien Program, and the 287(g) program. More detailed
descriptions of the ACCESS programs appear in appendix IV. Under
ACCESS, OSLC officials are to work with state and local applicants to
help determine which assistance program would best meet their needs.
For example, before approving an applicant for 287(g) program
participation, OSLC officials are to assess first whether ICE has the
resources to support the applicant, such as available detention space
and transportation assets based on what historical patterns indicate
will be the approximate number of removable aliens apprehended per year
by the applying law enforcement agency. Based on an overall assessment
of these and other factors, such as the type of agreement requested,
availability of training, congressional interest, and proximity to
other 287(g) programs, ICE may suggest that one or more of the other
assistance programs under ACCESS would be more appropriate.
Within the 287(g) program, ICE has developed three models for state and
local law enforcement participation. One model, referred to as the
"jail model," allows for correctional officers working in state prisons
or local jails to screen those arrested or convicted of crimes by
accessing federal databases to ascertain a person's immigration status.
Another option, referred to as the "task force model," allows law
enforcement officers participating in criminal task forces such as drug
or gang task forces to screen arrested individuals using federal
databases to assess their immigration status. ICE has approved some
local law enforcement agencies to concurrently implement both models,
an arrangement referred to as the "joint model."
The 287(g) program has grown rapidly in recent years as more state and
local communities seek to address criminal activity by those in the
country illegally with specialized training and tools provided by ICE.
From its initiation 287(g) authority was viewed by members of Congress
as an opportunity to provide ICE with more resources--in the form of
state and local law enforcement officers--to assist ICE in the
enforcement of immigration laws. In 2005, the conference committee
report for DHS's appropriation encouraged ICE to be more proactive in
encouraging state and local governments to participate in the program.
[Footnote 11] Beginning in fiscal year 2006, DHS appropriations acts
expressly provided funds for the 287(g) program, and accompanying
committee reports provided guidance on program implementation. In
fiscal year 2006, the DHS Appropriations Act provided $5.0 million to
facilitate 287(g) agreements, and the accompanying conference report
noted full support for the program, describing it as a powerful force
multiplier to better enforce immigration laws and, consequently, to
better secure the homeland.[Footnote 12] In fiscal year 2007, ICE
received $5.4 million for the 287(g) program in its regular
appropriation and allocated $10.1 million in supplemental funding
towards the program.[Footnote 13] In fiscal year 2008, ICE received
$39.7 million for the program, and has received $54.1 million for
fiscal year 2009 to support the program. Accompanying committee reports
have emphasized that ICE should perform close monitoring of compliance
with 287(g) agreements, extensive training prior to delegation of
limited immigration enforcement functions, direct supervision of
delegated officers by ICE, and enrollment of correctional facilities in
the program to identify more removable aliens.
Participating state and local law enforcement agencies in the 287(g)
program may apply for financial assistance to cover some costs
associated with the program either directly from ICE or through grants
provided by the Department of Justice (DOJ). For example, for agencies
with contractual reimbursement agreements, ICE can reimburse law
enforcement agencies for (1) detention of incarcerated aliens in local
facilities who are awaiting processing by ICE upon completion of their
sentences and (2) transportation of incarcerated aliens, upon
completion of their sentences, from a jurisdiction's facilities to a
facility or location designated by ICE. In addition, state and local
law enforcement agencies may apply for grants from the DOJ's State
Criminal Alien Assistance Program (SCAAP) for a portion of the costs of
incarcerating certain removable aliens convicted of a felony or two or
more misdemeanors.[Footnote 14]
ICE Lacks Key Internal Controls for the Implementation of the 287(g)
Program:
The 287(g) program lacks several management controls that limit ICE's
ability to effectively manage the program. First, ICE has not
documented the program's objectives in program-related materials.
Second, program-related documents, including the MOA, lack specificity
as to how and under what circumstances participating agencies are to
use 287(g) authority, or how ICE will supervise the activities of
participating agencies. Third, ICE has not defined what program
information should be tracked or ensured that program information is
being consistently collected and communicated, which would help ensure
that management directives are followed. And finally, ICE has not
developed performance measures to assess the effectiveness of the
287(g) program and whether it is achieving its intended results.
ICE Has Not Documented the 287(g) Program Objective in Program-Related
Documents:
According to ICE senior program officials, the main objective of the
287(g) program is to enhance the safety and security of communities by
addressing serious criminal activity such as violent crimes, human
smuggling, gang/organized crime activity, sexual-related offenses,
narcotics smuggling and money laundering committed by removable aliens.
However, program-related documents, including the MOAs and program case
files for the initial 29 participating agencies, the 287(g) brochure,
training materials provided to state and local officers, and a
"frequently asked questions" document do not identify this as the
objective of the 287(g) program.[Footnote 15] Internal controls also
call for agencies to establish clear, consistent objectives. In
addition, GPRA requires agencies to consult with stakeholders to
clarify their missions and reach agreement on their goals. Successful
organizations we have studied in prior work involve stakeholders in
program planning efforts, which can help create a basic understanding
among the stakeholders of the competing demands that confront most
agencies, the limited resources available to them, and how those
demands and resources require careful and continuous balancing.
[Footnote 16]
The statute that established the 287(g) program and associated
legislative history do not set enforcement priorities for the program,
which leaves the responsibility to ICE. Therefore, ICE has the
discretion to define the 287(g) program objectives in any manner that
is reasonable. Although ICE has prioritized its immigration enforcement
efforts to focus on serious criminal activity because of limited
personnel and detention space, ICE officials told us they did not
document the stated 287(g) program objectives as such because a
situation could arise where detention space might be available to
accommodate removable aliens arrested for minor offenses. We identified
cases where participating agencies have used their 287(g) authority to
process for removal aliens arrested for minor offenses. For example, of
the 29 participating agencies we reviewed, 4 agencies told us they used
287(g) authorities to process for removal those aliens the officers
stopped for minor violations 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. Due to the rapid growth of the 287(g) program, an unmanageable
number of aliens could be referred to ICE if all the participating
agencies sought assistance to remove aliens for such minor offenses.
Another potential consequence of not having documented program
objectives is misuse of authority. The sheriff from a participating
agency said that his understanding of the 287(g) authority was that
287(g)-trained officers could go to people's homes and question
individuals regarding their immigration status even if the individual
is not suspected of criminal activity.[Footnote 17] Although it does
not appear that any officers used the authority in this manner, it is
illustrative of the lack of clarity regarding program objectives and
the use of 287(g) authority by participating agencies.
While agencies participating in the 287(g) program are not prohibited
from seeking the assistance of ICE for aliens arrested for minor
offenses, detention space is routinely very limited and it is important
for ICE to use these and other 287(g) resources in a manner that will
most effectively achieve the objective of the program--to process for
removal those aliens who pose the greatest threat to public safety.
According to ICE's Office of Detention and Removal (DRO) strategic
plan, until more alternative detention methods are available, it is
important that their limited detention bed space is available for those
aliens posing greater threats to the public. ICE's former Assistant
Secretary made this point in her congressional testimony in February
2008, stating that given the rapid growth of the program in the last 2
years, it is important to ensure that ICE's bed space for the 287(g)
program is used for the highest priority aliens.[Footnote 18] This may
not be achieved if ICE does not document and communicate to
participating agencies its program objective of focusing limited
enforcement and detention resources on serious and/or violent
offenders.
Program-Related Documents Lack Detail Regarding Program Implementation
and ICE Supervision Activities:
ICE has not consistently articulated in program-related documents, such
as MOAs, brochures and training materials, how participating agencies
are to use their 287(g) authority, nor has it described the nature and
extent of ICE supervision over these agencies' implementation of the
program. Internal control standards state that government programs
should establish control activities to help ensure management's
directives are carried out. According to ICE officials, they use
various controls to govern the 287(g) program, including conducting
background checks on officers working for state and local law
enforcement agencies that apply to participate in the 287(g) program,
facilitating a training program with mandatory examinations to prepare
law enforcement officers to carry out 287(g) program activities, and
documenting agreements reached on program operations in the MOA.
Use of 287(g) Authority Is Not Consistently Communicated to Program
Participants:
ICE has not consistently communicated, through its MOAs with
participating agencies, how and under what circumstances 287(g)
authority is to be used.[Footnote 19] Internal control standards state
that government programs should establish control activities, including
ensuring that significant events are authorized and executed only by
persons acting within the scope of their authority.[Footnote 20] For
the 287(g) program, ICE officials identified the MOA as a key control
document signed by both ICE and participating agency officials. The MOA
is designed to help ensure that management's directives for the program
are carried out by program participants. However, the MOAs we reviewed
were not consistent with statements by ICE officials regarding the use
of 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.[Footnote 21] 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
initial 29 participating agencies.[Footnote 22] Due to the rapid
expansion of the 287(g) program in the last 2 years, it is important
that ICE consistently communicate to participating agencies how this
authority is to be used to help ensure that state and local law
enforcement agents are not using their 287(g) authority in a manner not
intended by ICE.
Program-Related Documents Do Not Define Nature and Extent of ICE
Supervision:
ICE has also not defined in its program-related documents the
responsibilities required of ICE agents directing and supervising local
officers under the 287(g) program. Internal control standards state
that a good internal control environment requires that an agency's
organizational structure define key areas of authority and
responsibility. 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.
In our analysis of the 29 MOAs, we found little detail regarding the
nature and extent of supervisory activities to be performed by ICE
working with state and local law enforcement officers. For example, the
MOAs state that participating officers will be supervised and directed
by ICE regarding their immigration enforcement functions. The MOAs also
state that participating officers cannot perform any immigration
officer functions except when being supervised by ICE, and that those
actions will be reviewed by ICE supervisory officers on an ongoing
basis to ensure compliance and to determine if additional training is
needed. The MOAs further state that the participating state or local
agency retains supervisory responsibilities over all other aspects of
the officers' employment. However, details regarding the nature and
extent of supervision, such as whether supervision is to be provided
remotely or directly, the frequency of interaction, and whether reviews
are conducted as written assessments or through oral feedback, are not
described in the MOAs or in any documentation provided to us by ICE.
In response to our inquiry, ICE officials did not provide a clear
definition of the nature and extent of ICE supervision to be provided
to participating agencies. These officials also cited a shortage of
supervisory resources. The Assistant Director for the Office of State
and Local Coordination that manages the 287(g) program said the ICE
officer who supervises the activities of a participating agency's
officers is responsible for conducting general tasks, such as reviewing
and providing oversight over the information added to immigration
files; however, he also said the ICE official responsible for
supervising the activities of a participating agency's officers may not
have a supervisory designation within ICE. He added that documentation
of an ICE 287(g) supervisor's responsibilities may be included in the
position description of a Supervisory Detention and Deportation
Officer. We examined seven position descriptions provided by ICE,
including this position. Some of the activities described in this
position description address such issues as level of supervision or
direction and expectations setting for subordinates. For example, the
position description for a Supervisory Detention and Deportation
Officer establishes guidelines and performance expectations that are
clearly communicated, observes workers' performance and conducts work
performance critiques, provides informal feedback, assigns work based
on priorities or the capabilities of the employee, prepares schedules
for completion of work, gives advice and instruction to employees, and
identifies developmental and training needs, in addition to other
duties. However, because supervision activities specific to the 287(g)
program (or more generally, state and local law enforcement officers
carrying out immigration enforcement activities) were not contained in
the description, it is unclear the extent to which the supervisory
activities enumerated in those position descriptions would apply to the
supervision of state and local officers in the 287(g) program.[Footnote
23]
Further, ICE officials in headquarters noted that the level of ICE
supervision provided to participating agencies has varied due to a
shortage of supervisory resources. The officials said it has been
necessary in many instances for ICE to shift local resources 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. For example, agents from ICE's Office of Investigations (OI)
and DRO have been detailed to the 287(g) program to fulfill the
requirement within section 287(g) of the INA, which mandates that ICE
supervise officers performing functions under each 287(g) agreement.
Officials explained that these detailees have been taken away from
their permanent positions, which affects ICE's ability to address other
criminal activity. ICE officials noted that the small number of
detailed agents does not have a significant impact on ICE's overall
ability to supervise the 287(g) program in the field.
In addition to the views by ICE officers in headquarters, we asked ICE
field officials about 287(g) supervision. There was wide variation in
the perceptions of what supervisory activities are to be performed. 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 the computer systems are
working properly. Officials at another field office described their
supervisory activities as reviewing files for completeness and
accuracy.
We also asked state and local officers about ICE supervision related to
this program. Officials from 14 of the 23 agencies that had implemented
the program gave positive responses when asked to evaluate ICE's
supervision of their 287(g)-trained officers. Another four law
enforcement agencies characterized ICE's supervision as fair, adequate,
or provided on an as-needed basis. Three agencies said they did not
receive direct ICE supervision or that supervision was not provided
daily, which one agency 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. One of these officials noted that it was difficult to
establish a relationship with the relevant managers at the local ICE
office because there was constant turnover in the ICE agents
responsible for overseeing the 287(g) program. Given the rapid growth
of the program and ICE's limited supervisory resources, defining
supervision activities would improve ICE's ability to ensure management
directives are carried out appropriately.
ICE Has Not Ensured Information Regarding the 287(g) Program Is
Obtained and Communicated:
Collection and Reporting Requirements Are Not Defined:
While ICE states in its MOAs that participating agencies are
responsible for tracking and reporting data, the MOA did not provide
details as to what data needs to be collected or in what manner data
should be collected and reported. For example, in 20 of the 29 MOAs we
reviewed, ICE generally required participating agencies to track data,
but the MOA did not define what data should be tracked, or how data
should be collected and reported to ICE.
Specifically, the reporting requirements section in 20 of the MOAs
states:
The LEA [law enforcement agency] will be responsible for tracking and
maintaining accurate data and statistical information for their 287(g)
program, including any specific tracking data requested by ICE. Upon
ICE's request, such data and information shall be provided to ICE for
comparison and verification with ICE's own data and statistical
information, as well as for ICE's statistical reporting requirements
and to help ICE assess the progress and success of the LEA's 287(g)
program.
Furthermore, results of our structured interview with 29 program
participants indicated confusion regarding reporting requirements. For
example, of the 20 law enforcement agencies we reviewed whose MOA
contained a reporting requirement:
* 7 agencies told us they had a reporting requirement and reported data
to ICE;
* 3 agencies told us they had a requirement, but were not sure what
specific data was to be reported;
* 3 agencies told us they were not required to report any data;
* 2 agencies told us that while ICE did not require them to report
data, they submitted data to ICE on their activities anyway; and:
* 5 agencies did not respond directly regarding a reporting
requirement.
Of the nine program participants we interviewed without a reporting
requirement in the MOA:
* 5 agencies told us they reported data to ICE;
* 2 agencies told us they were not required to report data to ICE, but
did so anyway;
* 1 agency told us they do not report data to ICE; and:
* 1 agency did not know if they were required to report data to ICE.
According to internal control standards, pertinent information should
be recorded and communicated to management and others within the entity
that need it in a form and within a time frame that enables them to
carry out internal control and other responsibilities. Consistent with
these standards, agencies are to ensure that information relative to
factors vital to a program meeting its goals is identified and
regularly reported to management. For example, collecting information
such as the type of crime for which an alien is detained could help ICE
determine whether participating agencies are processing for removal
those aliens who have committed serious crimes, as its objective
states. Without clearly communicating to participating agencies
guidance on what data is to be collected and how it should be gathered
and reported, ICE management may not have the information it needs to
ensure the program is achieving its objective.
Performance Measures to Fully Evaluate the 287(g) Program Are Lacking:
While ICE has defined the objective of the 287(g) program--to enhance
the safety and security of communities by addressing serious criminal
activity by removable aliens--the agency has not developed performance
measures for the 287(g) program to track the progress toward attaining
that objective.[Footnote 24] 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.
[Footnote 25] 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.
Our previous work has shown that agencies successful in evaluating
performance had measures that demonstrated results, covered multiple
priorities, provided useful information for decision making, and
successfully addressed important and varied aspects of program
performance.[Footnote 26] Internal controls also call for agencies to
establish performance measures and indicators. 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. In accordance
with standard practices for program and project management, specific
desired outcomes or results should 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.[Footnote 27]
ICE officials told us that, although they have not yet developed
performance measures, in an effort to monitor how the program is being
implemented, they are beginning to conduct compliance inspections based
on information provided in the MOA in locations where the 287(g)
program has been implemented. ICE's Office of Professional
Responsibility (OPR) was recently directed to conduct field inspections
of all participating 287(g) program agencies. OPR officials state that
the inspections are based on a checklist drawn from participating
agencies' MOAs as well as interviews with state and local law
enforcement agencies and ICE officials who are responsible for
overseeing these agencies. OPR's checklists include items such as the
review of the arrest and prosecution history of undocumented criminals,
relevant immigration files, and ICE's Enforcement Case Tracking System
(ENFORCE) entries, as well as review of any complaints by those
detained pursuant to the 287(g) program directed towards ICE, state and
local law enforcement officers. OPR officials use this checklist to
confirm whether the items agreed to in the MOA have been carried out.
As discussed earlier in this report, the 29 MOAs we reviewed did not
contain certain internal controls to govern program implementation
consistent with federal internal control standards. According to OPR
officials, they have completed six compliance inspections, and have a
seventh inspection underway. In addition, OPR officials told us that
they are planning to complete compliance inspections for the rest of
the initial 29 program participants within the next 2 years. Although
ICE has initiated compliance inspections for the 287(g) program, ICE
officials stated that the compliance inspections do not include
performance assessments of the program.
ICE officials stated that developing performance 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, these
measures are important to provide ICE with a basis for determining
whether the program is achieving its intended results. 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.
Program Resources Are Used for Training, Supervision, and Equipment;
Benefits and Concerns Are Reported by ICE and Participating Agencies:
Program Resources Are Used for Training, Supervision, and Equipment:
ICE and participating agencies used program resources mainly for
personnel, training, and equipment. From fiscal years 2006 through
2008, ICE received approximately $60 million to provide 287(g)
resources for 67 participating agencies nationwide as follows:
* Training. Once officers working for state and local law enforcement
participating agencies pass a background investigation performed by
ICE, they are also required to attend a 4-week course and pass
mandatory examinations to be certified. Training is focused on
immigration and nationality law, and includes modules on identifying
fraudulent documents, understanding removal charges, cross-cultural
communications, and alien processing (e.g., accessing federal
databases). Of the 27 participating agencies that had received training
at the time of our interviews 20 said the training prepared them to
perform their 287(g) activities; four of these agencies also reported
that their participation in the program was delayed due to problems
with scheduling training. ICE provided information reflecting an
average training cost per student of $2,622 using the on-site training
facility--the Federal Law Enforcement Training Center--and $4,840 using
off-site facilities. These average costs include travel, lodging,
books, meals, and miscellaneous expenses. As of October 2008, ICE had
trained and certified 951 state or local officers in the 287(g)
program.[Footnote 28]
* Equipment. ICE is to provide the equipment necessary to link
participating state and local law enforcement agencies with ICE to
assist these agencies in performing their immigration enforcement
activities. ICE estimates that, on average, for each participating
agency it spends $37,000 for equipment set-up and installation, and
about $43,000 for equipment hardware. These costs include installation
of a secure transmission line, which connects the participating agency
to ICE databases, one or more workstations, one or more machines that
capture and transmit fingerprints electronically, and personnel labor
and support costs. In addition, it spends on average about $107,000
annually for recurring equipment operations and maintenance costs for
each participating agency.
* Supervision. ICE is to provide supervision to state and local law
enforcement agencies participating in the 287(g) program. However, as
mentioned earlier in this report, ICE has not identified what
responsibilities are required of ICE agents directing and supervising
local officers under the 287(g) program, and comments about program
supervision from ICE officers at headquarters and in field offices, as
well as officers from participating agencies, differ widely. Therefore,
we are unable to provide more detail as to this 287(g) resource
provided by ICE.
In addition to the resources provided by ICE, state and local law
enforcement agencies also provide resources to implement the 287(g)
program. For example, state and local law enforcement agencies provide
officers, space for equipment, and funding for any other expenses not
specifically covered by ICE, such as office supplies and vehicles. Of
the 29 state and local participating agencies we interviewed, 11 were
able to provide estimates for some of their costs associated with
participating in the 287(g) program; however, the data they provided
was not consistent. Therefore, it was not feasible to total these
costs. Those law enforcement agencies able to identify costs may be
able to recover some of these expenses through an intergovernmental
service agreement, or through DOJ's SCAAP grant process. When we asked
state and local law enforcement participating agencies whether they
received federal reimbursement from any source for costs associated
with the 287(g) program (e.g., detention or transportation), 18 of the
29 reported that they did not.[Footnote 29] Six participating state and
local agencies said they received SCAAP funding for some of these
costs, and another five said they received federal reimbursements for
some costs related to detention, transportation, and hospitalization.
The rapid growth of the 287(g) program has presented resource
challenges that ICE has begun to address. For example, 11 of the 29
participating agencies we contacted told us of equipment-related
problems. Specifically, two of these agencies did not have equipment to
carry out the 287(g) program for several months after their staff had
received training on how to use it, and they had concerns that
refresher training would be needed, while another agency received more
equipment than it needed. ICE has worked with participating agencies to
address the problems with program equipment distribution. ICE
headquarters and field staff also told us that their resources to
supervise activities of program participants are being stretched to
their maximum capacities to manage the increased growth of the program.
To address these issues, ICE has detailed agents from OI and DRO to
meet supervisory and other program requirements. ICE is also
considering other ways to address the challenges presented by program
growth. As discussed earlier in this report, the 287(g) program is 1 of
13 ICE programs to partner with state and local law enforcement
agencies under ACCESS. ICE officials are working with state and local
participants and applicants to help determine whether a different
ACCESS program would better meet their needs, and as a result, ICE has
reduced the backlog of applications to the 287(g) program from
approximately 80 applications to 29 as of October 2008.
Program Activities Are Reported by ICE and Participating Agencies
Reported Benefits and Concerns:
Both ICE and state and local law enforcement agencies participating in
the 287(g) program have reported activities, benefits, and concerns
associated with the program. As of October 2008, ICE reported that 67
state and local law enforcement agencies had enrolled in the 287(g)
program, and that about 25 state and local jurisdiction program
applications were pending. In addition, ICE reported that 951 state and
local officers received training in immigration law and enforcement
functions and were certified to use 287(g) authority. ICE's data show
that for 25 of the 29 participating agencies we reviewed in fiscal year
2008 that about 43,000 aliens had been arrested under the 287(g)
program authority, with individual agency participant arrests ranging
from about 13,000 in one location to no arrests in two locations.
[Footnote 30] Of those 43,000 aliens arrested by program participants
pursuant to the 287(g) authority, ICE detained about 34,000 and placed
about 14,000 (41 percent) of those detained in removal proceedings, and
arranged for about 15,000 (44 percent) to be voluntarily removed. 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 detention space.
State and local law enforcement agencies we interviewed have reported
specific benefits of the 287(g) program, including the reduction of
crime/making the community safer, identifying/removing repeat
offenders, improving the quality of life for the community, and giving
law enforcement officers a sense of accomplishment related to
immigration enforcement. On the other hand, 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 concerns that law enforcement officers in the
287(g) program would be deporting removable aliens because of minor
traffic violations (e.g., speeding); fear and apprehension in the
Hispanic community about possible deportation; and concerns that
officers would be performing increased enforcement of immigration laws
at worksites and would engage in racial profiling. To help mitigate
these fears and concerns, 27 of the 29 law enforcement agencies we
reviewed reported that they had conducted outreach in their communities
regarding the program (e.g., newspaper articles, press releases, TV and
radio spots, speaking engagements, and public meetings).
Conclusions:
Removing aliens who have committed violent crimes is of great
importance to the safety of the community at large. Through the 287(g)
program and its partnerships with state and local agencies, ICE has an
opportunity to identify and train additional law enforcement resources
that could help it meet this challenge. However, the lack of internal
controls governing the program limits ICE's ability to take full
advantage of this additional resource. For example, without documenting
that the objective of the program is to remove aliens who have
committed serious crimes or pose a threat to public safety,
participating agencies may further burden limited detention resources
by continuing to seek ICE assistance for aliens detained for minor
crimes. According to ICE, it is important to ensure that their limited
detention bed space is available for those aliens posing the greatest
threat to the public. Moreover, without consistently communicating to
participating agencies how and under what circumstances 287(g)
authority is to be used, participating agencies may use this authority
in a manner that is not intended by ICE. Additionally, given the rapid
growth of the program, the lack of defined supervision activities could
hamper ICE's ability to ensure management directives are being carried
out appropriately. Furthermore, without guidance for what data
participating agencies are to collect and how this information is to be
gathered and reported, ICE may not have the information it needs to
help ensure participating agencies are adhering to program objectives.
Finally, performance measures are important to provide ICE with a basis
for determining whether the program is achieving its intended results.
While it is encouraging that ICE is working to develop these measures,
without establishing a plan, including a time frame for development,
ICE lacks a roadmap for how it will achieve this goal.
Recommendations for Executive Action:
To help ensure that the ICE 287(g) program achieves the results
intended, we are recommending that the Assistant Secretary for ICE take
the following five actions:
* Document the objective of the 287(g) program for participants,
* Clarify how and under what circumstances 287(g) authority is to be
used by state and local law enforcement officers in participating
agencies,
* 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,
* 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:
* Establish a plan, including a time frame, for the development of
performance measures for the 287(g) program.
Agency Comments:
We provided a draft of this report to DHS for review and comment. DHS
provided written comments on January 28, 2009, which are presented in
appendix V. In commenting on the draft report, DHS stated that it
agreed with our recommendations and identified actions planned or
underway to implement the recommendations.
ICE also provided us with technical comments, which we considered and
incorporated in the report where appropriate.
As agreed with your office, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies to the
Secretary of Homeland Security, the Secretary of State, the Attorney
General, and other interested parties. In addition, the report will be
available at no charge on the GAO Web site at [hyperlink,
http://www.gao.gov].
If you or your staff has any questions about this report, please
contact me at (202) 512-8777 or at stanar@gao.gov. Contact points for
our Offices of Congressional Relations and Public Affairs may be found
on the last page of this report. Key contributors to this report are
acknowledged in appendix VI.
Signed by:
Richard M. Stana, Director:
Homeland Security and Justice Issues:
List of Congressional Requesters:
The Honorable Joseph I. Lieberman:
Chairman:
The Honorable Susan M. Collins:
Ranking Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The Honorable Bennie G. Thompson:
Chairman:
Committee on Homeland Security:
House of Representatives:
The Honorable Christopher P. Carney:
The Honorable Mike Rogers:
The Honorable Mark E. Souder:
House of Representatives:
[End of section]
Appendix I: Statutory Provision Governing the 287(g) Program:
8 U.S.C. § 1357(g):
(g) Performance of immigration officer functions by State officers and
employees:
(1) Notwithstanding section 1342 of title 31, the Attorney General
[Footnote 31] may enter into a written agreement with a State, or any
political subdivision of a State, pursuant to which an officer or
employee of the State or subdivision, who is determined by the Attorney
General to be qualified to perform a function of an immigration officer
in relation to the investigation, apprehension, or detention of aliens
in the United States (including the transportation of such aliens
across State lines to detention centers), may carry out such function
at the expense of the State or political subdivision and to the extent
consistent with State and local law.
(2) An agreement under this subsection shall require that an officer or
employee of a State or political subdivision of a State performing a
function under the agreement shall have knowledge of, and adhere to,
Federal law relating to the function, and shall contain a written
certification that the officers or employees performing the function
under the agreement have received adequate training regarding the
enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or
employee of a State or political subdivision of a State shall be
subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or
employee of a State or political subdivision of a State may use Federal
property or facilities, as provided in a written agreement between the
Attorney General and the State or subdivision.
(5) 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.
(6) The Attorney General may not accept a service under this subsection
if the service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a
State or political subdivision of a State performing functions under
this subsection shall not be treated as a Federal employee for any
purpose other than for purposes of chapter 81 of title 5 (relating to
compensation for injury) and sections 2671 through 2680 of title 28
(relating to tort claims).
(8) An officer or employee of a State or political subdivision of a
State acting under color of authority under this subsection, or any
agreement entered into under this subsection, shall be considered to be
acting under color of Federal authority for purposes of determining the
liability, and immunity from suit, of the officer or employee in a
civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State
or political subdivision of a State to enter into an agreement with the
Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an
agreement under this subsection in order for any officer or employee of
a State or political subdivision of a State:
(A) to communicate with the Attorney General regarding the immigration
status of any individual, including reporting knowledge that a
particular alien is not lawfully present in the United States; or:
(B) otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.
[End of section]
Appendix II: Structured Interview Questions for All 29 Participants of
the 287(g) Program:
United States Government Accountability Office:
Washington, DC 20548:
Review of Immigration and Customs Enforcement's 287(g) Delegation of
Authority Program:
The United States Government Accountability Office (GAO), an
independent, nonpartisan agency of Congress, is reviewing the U.S.
Immigration and Customs Enforcement's (ICE) 287(g) Delegation of
Authority Program. GAO is undertaking this work in response to a
request from the U.S. Congress. The questions below are designed to
identify how this program is meeting its intended objectives, and to
provide a better understanding of the role of the participants and
their views about the program.
As a participant in the 287 (g) program, your feedback is an important
source of information. ICE provided us your name as the local point of
contact. GAO appreciates your agreeing to address the questions below
during the teleconference. We anticipate that a discussion of these
issues may take between 60-90 minutes.
Questions for 287(g) Participating Jurisdictions:
I. Purpose:
a. What motivated your jurisdiction to participate in the 287(g)
Program?
b. In deciding to participate in the 287(g) program, was your primary
interest in immigration enforcement, anti-terrorism activities, public
safety or other issues?
c. When you first considered joining the 287(g) program, what did you
think it would allow state and local law enforcement to do?
d. Is there a difference between what you initially thought and what
the agreement as implemented is?
e. How long did it take you to negotiate your MOA? What do you consider
the starting point? When did you actually start implementing the
Agreement? That is on what date did your trained officers actually
begin to exercise 287(g) authority?
f. What factors, if any, delayed your participation in the 287(g)
Program?
g. Did ICE suggest or mention any other ICE partnerships at the time
you discussed your eligibility and participation in the 287(g) program?
II. Statutory or Legal Authorities:
a. Besides Section 287(g) of the Immigration and Nationality Act (INA)
and your Memorandum of Agreement (MOA) with ICE, are there any other
statutory or legal authorities at the state or local level that govern
your ability to enforce immigration laws?
b. Is there any requirement on the state or local level that you
participate in the 287(g) program?
III. Program Statistics:
a Will you please provide us with documentation on immigration
enforcement statistics in your jurisdiction?
b. How do you assess the benefit of this program to your jurisdiction?
c. Does ICE require you to report data from your immigration related
law enforcement activities? Please describe.
IV. Immigration Enforcement Activities Covered Under the Agreement:
a. Why did you choose the (Task Force Officer (TFO)/Jail Enforcement
Officer (JEO)/Mix) model for your 287(g) Agreement?
b. Can you please describe what tasks participating officers carry
out - please differentiate if your model includes both task force and
jails.
c. Have the activities designated in the MOA met your needs in carrying
out your duties under 287(g)?
d. What activities currently covered by your MOA do you feel may be
unnecessary or haven't you used? Why or why not?
e. Are you the individual who is in charge of this program for the
participating jurisdiction? Are you the person who selected and
supervises the officers who have 287(g) authority?
V. 287(g) Participants:
a. How many candidates were initially nominated to participate in the
287(g) program?
i. How many candidates were approved or not approved by Fiscal Year
(October 1 through September 30)?
b. How many participants are currently carrying out functions outlined
in the 287(g) Agreement?
c. What is the size of your law enforcement agency? What is the size of
the pool of individuals who would be eligible to carry out 287(g)
responsibilities?
d. How does the certification renewal process work?
i. Is it automatically renewed?
ii. Is renewal conditional on additional training?
iii. How long is the subsequent certification good for?
e. Have any certified participants at any time had their authorization
revoked? Why?
VI. Training:
a. Did participating officers think the training provided by ICE
prepared them to take the exam?
b. Where did the initial training take place?
c. In the year or years following the initial training, did ICE provide
additional training and guidance?
i. When did this follow up training occur (date)?
d. How was this training administered? (classroom, teleconference,
written guidance, computer)
e. Did the instructor who provided the initial training provide any
additional training?
f. Has the training been sufficient for the activities participants
carry out?
g. Have you received any training on a local basis from ICE
supervisors?
VII. Supervision and Steering Committee Review of the 287(g) Program:
a. How many ICE officers do you interact with related to your 287(g)
activities, and where are they located? We are interested in the
location you call for Detention as well as Office of Investigations
assistance.
b. How would you evaluate ICE's supervision of your participating
officers?
c. According to the MOA, ICE provides ongoing reviews of participating
officers. What does it entail?
d. Since your participation in the 287(g) program, has ICE's response
to your calls for assistance changed? If so, are you getting more,
less, or the same level of support from ICE?
e. The 287(g) MOA mentions a Steering Committee.
i. Who sits on the committee?
ii. What kind of oversight activities does the committee conduct, if
any? What authority do the committee and its committee membership have?
iv. Do participating officers have an opportunity to meet with the
committee about their activities?
f. Have you made modifications to your 287(g) agreement? Have you made
any modifications based on Steering Committee reviews?
g. How often does the Steering Committee meet?
VIII. Costs and Expenditures:
a. What costs does your jurisdiction incur as a result of its
participation in the 287(g) program? Is there any additional cost to
participating in the 287(g) Program for your jurisdiction (annually by
fiscal year)?
i. What are the elements you consider as part of this cost?
b. Have costs increased or decreased since the Agreement went into
effect?
c. Do you receive any federal reimbursement for costs associated with
the 287(g) Program?
d. Do you receive any state or local reimbursement for costs associated
with the 287(g) Program?
e. Have you entered into any Inter-Governmental Service Agreements with
ICE as a result of your participation in the 287(g) Program?
f. Has ICE provided any equipment to your jurisdiction for the 287(g)
Program? If yes, please specify.
i. Does the equipment/technology/material provided by ICE allow you to
carry out your agreed upon activities?
ii. Who provided/installed the equipment?
iii. Who do you call for technical support?
iv. Did ICE specify what equipment was necessary or did the
jurisdiction provide a list of necessary equipment/technology/material
in order to carry out its activities under the agreement?
g. What additional support has ICE provided for the 287(g) Program?
h. Has ICE's support satisfied the jurisdiction's needs for the 287(g)
Program?
i. Has your participation in the 287(g) program generated any cost
savings? If so, in what particular areas are you seeing cost savings?
IX. Complaint Procedures:
a. How do you track complaints related to this program? (specific
complaints about the implementation of the program by officers)
b. Can you provide statistics on the number and type of complaints you
have received?
c. Does ICE require you to report complaints related to the 287(g)
Program?
X. Community Outreach:
a. How do you inform the community about your participation in the
287(g) Program?
b. If requested, has ICE assisted you in community outreach?
c. Has the community raised any questions about the 287(g) program and
your law enforcement activities? Have you received any general
complaints from the community about your participation in the 287(g)
Program?
XI. Other ICE Partnerships:
a. Does your jurisdiction participate in any other partnerships with
ICE outside of the 287(g) program?
i. Border Enforcement Security Task Forces;
ii. Criminal Alien Program;
iii. Customs Cross Designation;
iv. Document and Benefit Fraud Task Forces;
v. Equitable Sharing/Joint Operations;
vi. Fugitive Operation Teams;
vii. Intellectual Property Rights Coordination Center;
viii. Law Enforcement Support Center;
ix. Operation Community Shield;
x. Operation Firewall;
xi. Operation Predator.
Document #: GAOHQ 2147417:
[End of section]
Appendix III: Objectives, Scope, and Methodology:
Objectives:
This report addresses (1) the extent to which ICE has designed controls
to govern 287(g) program implementation and (2) how program resources
are being used and the program activities, benefits, and concerns
reported by participating agencies.
Scope and Methodology:
To address our objectives, we contacted and obtained information from
key people and organizations associated with the arrest, detention, and
removal of aliens, and U.S. Immigration and Customs Enforcement's (ICE)
287(g) program, including the following:
* ICE headquarters officials from the following offices: Office of
Investigations, Office of the Principal Legal Advisor, Office of
Detention and Removal, Office of the Chief Financial Officer/Budget
Office, Office of State and Local Coordination, and Office of
Professional Responsibility.
* ICE officials from ICE Field Offices in Phoenix, Arizona, and in the
California offices of Los Angeles, Santa Ana, Riverside, and San
Bernardino in conjunction with our site visits to state and local law
enforcement agencies in these areas.
* Officials from all 29 state and local law enforcement agencies that
had entered into agreements with ICE as of September 1, 2007, listed
below. Six of these agencies reported that they had not yet begun
implementing the program. Our analysis includes information from these
six agencies as appropriate.[Footnote 32] We conducted structured
interviews with officials from these organizations from October 2007
through February 2008. By interviewing officials from all participating
agencies, we were able to obtain information and perspectives from
participating agencies that had been involved in the program for the
longest period of time as well as from those agencies that had just
started participating to learn how law enforcement agencies get their
program implemented.
State and local law enforcement agencies that had entered into
agreements with ICE as of September 1, 2007:
Alabama Department of Public Safety;
Arizona Department of Corrections;
Arizona Department of Public Safety;
Maricopa County Sheriff's Office (Arizona);
Los Angeles County Sheriff's Office (California):
Orange County Sheriff's Office (California);
Riverside County Sheriff's Office (California);
San Bernardino County Sheriff's Office (California);
Colorado Department of Public Safety/State Patrol;
El Paso County Sheriff's Office (Colorado);
Collier County Sheriff's Office (Florida);
Florida Department of Law Enforcement;
Cobb County Sheriff's Office (Georgia);
Georgia Department of Public Safety;
Barnstable County Sheriff's Office (Massachusetts);
Framingham Police Department (Massachusetts);
Massachusetts Department of Corrections;
Alamance County Sheriff's Office (North Carolina);
Cabarrus County Sheriff's Office (North Carolina);
Gaston County Sheriff's Office (North Carolina);
Mecklenburg County Sheriff's Office (North Carolina);
Hudson Police Department (New Hampshire):
New Mexico Department of Corrections;
Tulsa County Sheriff's Office (Oklahoma);
Davidson County Sheriff's Office (Tennessee);
Herndon Police Department (Virginia);
Prince William-Manassas Adult Detention Center (Virginia);
Rockingham County Sheriff's Office (Virginia); and:
Shenandoah County Sheriff's Office (Virginia).
We also conducted site visits with nine state and local law enforcement
agencies that entered into an agreement with ICE as of September 1,
2007, and had begun implementing the program. These sites were selected
to represent variation in length of partnership with ICE, type of model
(e.g., jail, task force, or joint), geographic location, size of
jurisdiction, and proximity to ICE Special-Agent-in-Charge or regional
office. The offices from which we interviewed officials about their
participation in the 287(g) program, include Rockingham County
Sheriff's Office, Shenandoah County Sheriff's Office, Los Angeles
County Sheriff's Office, Orange County Sheriff's Office, San Bernardino
County Sheriff's Office, Riverside County Sheriff's Office, Arizona
Department of Corrections, Maricopa County Sheriff's Office (including
the Enforcement Support, Human Smuggling Unit), and Arizona Department
of Public Safety (including the Gang Enforcement Bureau and the
Criminal Investigations Division). Although we are not able to
generalize the information gathered from these visits to all other
participating law enforcement agencies, they provided us with a variety
of examples related to program implementation.
To determine what the 287(g) program's objectives are and to what
extent ICE has designed controls to govern implementation, we collected
and analyzed information regarding the program's objective and obtained
information from both ICE and the participating law enforcement
agencies we interviewed and visited to determine if ICE objectives for
the program were clearly articulated to law enforcement agencies. We
reviewed available program-related documents, including program case
files for the initial 29 participating agencies, the 287(g) brochure,
training materials provided to state and local officers to become
certified in the program, and a "frequently asked questions" document
on the program. In addition, we analyzed the MOAs of each state and
local agency participating in the 287(g) program as of September 1,
2007. Specifically, we examined sections of the MOAs related to program
authority, designation of enforcement functions, and ICE supervision
responsibilities, among other areas of these written agreements. We
completed a content analysis of responses to structured interviews that
were conducted with key officials from each of the participating law
enforcement agencies in this review and from information gathered from
site visits. Our content analysis consisted of reviewing the responses
to the structured interview questions and identifying and grouping
responses by theme or characterization. These themes were then coded
and tallied. For some questions, participating agencies gave multiple
responses or characterizations, therefore responses are not always
mutually exclusive. Selection of themes and coding of responses were
conducted separately by two analysts; any discrepancies were resolved.
We also compared controls ICE told us they designed to govern
implementation of the 287(g) program, including conducting background
checks, providing formal training with qualifying exams for the
applicants' officers, and agreeing with state and local agencies to
MOAs, with criteria in GAO's Standards for Internal Control in the
Federal Government, the Government Performance and Results Act (GPRA)
and standard practices for program management.[Footnote 33] To
corroborate the information we received from the law enforcement
agencies through both the structured interviews and site visits, we
interviewed officials from ICE both at headquarters and in the field,
and examined documentation on guidance given to both ICE and state and
local participants about the implementation of the program, as well as
reviewed all 29 case files created and maintained by ICE on program
participants. We identified for what purposes ICE relies on data
collected from law enforcement agencies, and how data reliability
checks are performed for data collection associated with the 287(g)
program. We interviewed ICE officials and participating law enforcement
agencies to determine what guidance ICE has provided to law enforcement
agencies on how data are collected, stored, and reported to ICE. We
interviewed officials and examined documentation from ICE to determine
the measures established to monitor performance and improvements made
to the program. We reviewed reports that use data from ICE's
Enforcement Case Tracking System or the ENFORCE database, which
automates the processes associated with the identification,
apprehension, and deportation of removable aliens. During our review,
we learned that some data regarding the 287(g) program may not have
been included in ENFORCE, and therefore, we are unsure of the
completeness of the information relevant to this program in this
database. We used this data to a limited extent in our Objective II
discussion related to activities, benefits, and concerns of the 287(g)
program. The data used was for illustrative purposes only and not used
to draw conclusions about the program.
To determine what resources ICE and participating law enforcement
agencies provide to the program including the equipment and training
for program participants, and the assignment of ICE supervisory staff
for this program, we examined ICE's budget for the 287(g) program,
including how ICE calculates the funding requirements for each
additional agreement. We also interviewed officials from the
participating law enforcement agencies, analyzed information collected
from these agencies to determine what resources they reported using to
implement the program and the activities, benefits, and concerns they
reported associated with the program. In addition, we examined budget
and appropriations documentation from the program's inception to the
fiscal year 2009 budget request for the 287(g) program. We collected
and analyzed information on the activities reported by ICE stemming
from the program. Through our structured interviews, we gathered and
analyzed the participating state and local agencies views on the
activities, benefits, and concerns related to the program. We did not
conduct a fiscal examination of the cost of detention facilities, nor
review the budgetary effect on law enforcement agencies implementing
the 287(g) program.
[End of section]
Appendix IV: Copy of ICE Pamphlet on ACCESS Programs:
U.S. Immigration and Customs Enforcement:
Report Suspicious Activity:
1-866-DHS-2-ICE:
1-866-347-2423:
[hyperlink, http://www.ice.gov]:
ICE Agreements of Cooperation in Communities to Enhance Safety and
Security:
ICE Access: Fact Sheet:
ICE Agreements of Cooperation in Communities to Enhance Safety and
Security (ACCESS) provides local law enforcement agencies an
opportunity to team with ICE to combat specific challenges in their
communities. ICE developed the ACCESS program in response to the wide-
spread interest from local law enforcement agencies who have requested
ICE assistance through the 287(8) program. This program cross-
designates local officers to enforce immigration law as authorized
through section 287(g) of the Immigration and Nationality Act.
The 287g program is only one component under the ICE ACCESS umbrella of
services and programs offered for assistance to local law enforcement
officers.
ICE agents and officers will meet with agencies requesting ICE ACCESS
assistance to assess local needs and to draft appropriate plans of
action. Based upon these assessments, ICE and local agencies will
determine which type of partnership is most beneficial and sustainable
before entering into an official agreement.
Law enforcement agencies interested in reviewing the enforcement
programs under the ICE ACCESS program are encouraged to call their
local ICE office or visit [hyperlink, http://www.ice.gov] for more
information.
ICE ACCESS Support and Programs:
Asset Forfeiture. Criminal organizations that conduct cross-border
crimes earn illicit proceeds that sustain their criminal activity and
fund other criminal endeavors. Asset forfeiture laws allow ICE agents
to seize and forfeit these illicit proceeds of the criminal illicit
proceeds and other criminally derived assets. ICE uses asset forfeiture
to disrupt and dismantle these organizations across all ICE
investigative areas, such as money laundering, bulk cash smuggling,
worksite enforcement and alien and drug smuggling investigations. The
proceeds of these forfeitures are deposited into the Treasury
Forfeiture Fund and are returned to member agencies to pay for a
variety of important law enforcement operations.
Border Enforcement Security Task Forces (BEST). The concept of the
Border Enforcement Security Task Forces (BEST) is that DHS law
enforcement agencies, working cooperatively with other law enforcement
entities, develop a comprehensive approach to identify, disrupt and
dismantle criminal organizations posing significant threats to border
security. BEST forces are currently located in Arizona, California and
Texas.
Criminal Alien Program (CAP). The Criminal Alien Program (CAP) focuses
on identifying criminal aliens who are incarcerated within federal,
state and local facilities, thereby ensuring that they are not released
into the community by securing a final order of removal prior to the
termination of their sentence.
Customs Cross-designation (Title 19). Title 19 United States Code 14-01
(I) allows for federal, state, local and foreign law enforcement
officers who participate primarily on ICE task force operations to be
cross designated as "customs officers" and be granted the authority to
enforce U.S. customs law. These cross-designated task force officers
supplement ICE's investigative mission of combating narcotics
smuggling; money laundering; human smuggling and trafficking; and an
fraud related activities to disrupt and dismantle criminal
organizations threatening U.S. borders.
Document and Benefit Fraud Task Forces. ICE created Document and
Benefit Fraud Task Forces (DBFTFs) to target, dismantle and seize
organizations that threaten national security and public safety by
exploiting the immigration process through fraud. The DBFTFs provide an
effective platform from which to launch anti-fraud initiatives using
existing manpower and authorities. Through DBFTFs, ICE partners with
other federal agencies, state and local law enforcement. These task
forces focus their efforts on detecting, deterring and disrupting both
benefit fraud and document fraud. DBFTFs are located in Atlanta,
Boston, Dallas, Denver, Detroit, Los Angeles, New York, Newark,
Philadelphia, St. Paul, Washington, D.C., Baltimore, Chicago, Miami,
Phoenix, San Francisco and Tampa.
Equitable Sharing/Joint Operations. Asset forfeiture has been, and
remains, a highly effective tool for taking the profit out of crime.
State, local and foreign law enforcement support of federal
investigative and prosecutorial initiatives is essential; and the
sharing program has proved invaluable in fostering enhanced cooperation
among the law enforcement agencies. In fiscal year 2006 (FY06), ICE
coordinated payments of $5.65 million in overtime costs for state and
local police officers working alongside ICE agents throughout the U.S.,
and provided $43.46 million in direct payments of equitable sharing of
forfeited assets to 362 state and local agencies, four federal agencies
and one foreign government. These payments allow agencies to
cooperatively combat crimes in their jurisdictions through joint
operations with ICE and have increased goodwill and partnership with
these agencies.
Fugitive Operation Teams (FOTs). The primary mission of FOTs is to
identify, locate, apprehend, process and remove fugitive aliens from
the United States with the highest priority placed on those fugitives
who have been convicted of crimes. Further, the FOTs goal is to
eliminate the backlog of fugitives and ensure that the number of aliens
deported equals the number of final orders of removal issued by the
immigration courts in any given year. ICE relies on the assistance of
all federal, state and local law enforcement agencies in this endeavor.
Immigration Cross-designation (Title 8)-287g Program. The 287(g)
program cross-designates local officers to enforce immigration law as
authorized through section 287(g) of the Immigration and Nationality
Act. To date, more than 60 municipal, county and state agencies
nationwide have requested 287(g) memorandums of agreement with ICE and
more than 400 local and state officers have been trained under the
program.
IPR Center. The ICE-led National Intellectual Property Rights
Coordination Center (IPR Center) is the government's central point of
contact in the fight against violations of intellectual property rights
and the flow of counterfeit goods into the U.S. Commerce. The Center
operates as a multi-agency facility responsible for coordinating a
unified response regarding IPR enforcement issues. Core staffing is
provided by investigative and intelligence personnel from ICE.
Particular emphasis is given to protecting the public health and safety
of consumers, investigating major criminal organizations engaged in
transnational intellectual property crimes, and pursuing the illegal
proceeds derived from the manufacture and sale of counterfeit
merchandise.
Law Enforcement Support Center (LESC). The mission of the Law
Enforcement Support Center (LESC) is to protect the U.S. and its people
by providing timely accurate information and assistance to the federal,
state and local law enforcement community The LESC serves as a national
enforcement operations center by providing immigration status and
identity information on aliens suspected, arrested or convicted of
criminal activity. The LESC operates 24 hours a day, 7 days a week
assisting law enforcement agencies with information gathered from 8 DHS
databases, the National Crime Information Center (NCIC), the Interstate
Identification Index (III) and other state criminal history indices.
Operation Community Shield. In February 2005, ICE launched Operation
Community Shield, a national law enforcement initiative that brings all
of ICE's law enforcement powers to bear in the fight against violent
gangs that threatening the public safety of our communities. Operation
Community Shield is part of a comprehensive approach of working with
our law enforcement partners at the federal, state and local level to
combat transnational gangs. Under this initiative, ICE is using its
broad authorities, both criminal and administrative, against gangs and
gang members. This authority includes conducting investigations
involving narcotics and human smuggling, money laundering and
racketeering violations.
Operation Firewall. The smuggling of bulk currency out of the U.S. has
become a preferred method of moving illicit proceeds across our
borders. To combat the increasing use of Bulk Cash Smuggling (BCS) by
criminal organizations, the ICE Financial, Narcotics and Public Safety
Division and the CBP Office of Field Operations, Tactical Operations
Division, developed a joint strategic RCS initiative referred to as
Operation Firewall, which began in August 2005, and has expanded
through FY06 and FY07. Operation Firewall has resulted in the seizure
of more than $80 million in U.S. currency and negotiable instruments of
suspected narcotics and other criminal proceeds.
Operation Predator. Operation Predator is a program designed to
identify, investigate and, as appropriate, administratively deport
child predators. ICE routinely coordinates and integrates investigative
efforts with foreign law enforcement, in order to identify, arrest and
prosecute the those involved in international pedophilic groups or who
derive proceeds from commercial child exploitation ventures.
[End of section]
Appendix V: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
[hyperlink, http://www.dhs.gov]:
January 28, 2009:
Mr. Richard M. Stana:
Director, Homeland Security and Justice Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Stana:
Re: Draft Report GAO-09-109, Immigration Enforcement: Better Controls
Needed over Program Authorizing State and Local Enforcement of Federal
Immigration Laws (GAO Job Code 440641):
The Department of Homeland Security (Department) appreciates the
opportunity to review and comment on the draft report referenced above.
The report contains five recommendations. The Department, specifically
U.S. Immigration and Customs Enforcement (ICE), agrees with the
recommendations. ICE has made a number of improvements that promote or
otherwise reinforce the maintenance of internal management control.
Actions taken and planned are included in the responses.
While internal management controls can be improved, the program itself
is working. For example, 43,000 aliens arrested by 25 participants in
the 287(g) program during fiscal year 2008 resulted in 34,000 aliens
being detained by ICE. Of the 34,000 detained, approximately 41% were
placed in removal proceedings, approximately 44% agreed to voluntary
removal, and the remaining approximately 15% were either given a
humanitarian release, sent to a federal or state prison to serve a
sentence for a felony conviction, or not taken into ICE custody due to
the minor nature of the underlying offense and limited federal
government detention space. As noted by the U.S. Government
Accountability Office (GAO), participating agencies cited benefits of
the program that included reduction in crime and removal of repeat
offenders. Public safety and the quality of community life have
improved as a result. The dollar savings associated with crime
reduction may not be easily quantified but there has been a positive
impact. Further, as of October 2008, about 25 state and local
applications were pending in addition to the 67 state and local law
enforcement agencies enrolled in the 287(g) program. The expanding
interest reflects community concerns associated with criminal illegal
migration. Additional resources will help make this program more
effective.
GAO recommended that the Assistant Secretary for ICE take the following
five actions to help ensure that the ICE 287(g) program achieves the
results intended.
Recommendation 1: Document the objective of the 287(g) program for
participants.
Response:
ICE completed strategic planning exercises in October 2008 and has
drafted a proposed Office of State and Local Coordination (OSLC)
Strategic Plan. Once published, the plan will align the strategic
objectives of the application of 287(g) authority at all levels and be
consistent with the Secretary's strategic goals. To ensure the
strategic objectives are consistently promulgated to participating
state and local jurisdictions, ICE will develop and implement an
accompanying strategic communications plan. The communications plan
shall include the tools, tactics and information needed to facilitate
state and local understanding of the overall ICE strategy.
Recommendation 2: Clarify how and under what circumstances 287(g)
authority is to be used by state and local law enforcement officers in
participating agencies.
Response:
While the Memoranda of Agreement (MOA) delineate the provision of
287(g) authorities, guidance for the specific application of those
authorities must be tailored from jurisdiction to jurisdiction.
Clarifying specific uses of 287(g) authority will be accomplished by
OSLC developing a standard national-level template of procedures and
requirements that may be enhanced at the field level to address
regional and local law enforcement needs and circumstances of the
jurisdiction. These will form the Standard Operating Procedures (SOP).
The template will outline the basic requirements necessary to ensure
the delegated authorities are clear, that the right training is
provided, and that necessary supervision is committed. ICE intends or
anticipates that all new MOAs will require the execution of
accompanying SOP within 90 days from the date the MOA is signed. The
SOPs are to be tailored to the local jurisdiction, and necessarily
include all the minimum procedures and requirements mandated in the
standard template.
In addition, clarifying how such authority may be utilized in specific
situations is best effected through ICE's mandatory 287(g) training
program. ICE continues to provide and refine this training in order to
ensure officers understand how to properly apply 287(g) authority
consistent with federal law and the specific provisions of the
governing MOA. Through this training, 287(g) candidates obtain a
working knowledge of the specific circumstances under which officers
are authorized to exercise the delegated authority in their
jurisdiction. Further, the previously mentioned communications plan
will reinforce this training and promote greater awareness within local
jurisdictions of the proper application of 287(g) authority while
encouraging use that supports strategic law enforcement efforts.
ICE also will continue to mandate that only ICE personnel are
authorized to sign charging documents. ICE officials have never granted
any jurisdiction the authority to perform this task.
Recommendation 3: 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.
Response:
ICE concurs that 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 should be
documented and communicated to both ICE officers and state and local
participating agencies. As stated above, OSLC is developing a standard
template of procedures and requirements. This template will also detail
the mandatory required supervisory activities which will be augmented
and tailored by the local ICE office to fit the specific needs of the
local jurisdiction. The resulting supervisory activity requirements
will be memorialized in the SOPs which, as stated above, are to be
agreed upon at the field level and incorporated by reference in the
MOA. The development and issuance of the SOP between ICE field
personnel and state and local police officers will ensure that all
understand the role of ICE field personnel in overseeing the proper
application of 287(g) authority. The SOP will also provide the
flexibility necessary for the day-to-day details of supervision
consistent with the obligations circumscribed generally within the MOA
and by OSLC, and permits the flexibility necessary to suit the varying
circumstances of each area.
Additionally, as referenced in the draft report, ICE has implemented a
regular inspection process conducted by the ICE Office of Professional
Responsibility (OPR) that is aimed at assessing a local law enforcement
agency's compliance with the terms of the applicable MOA. OPR completes
an inspection report after each inspection that will be used to address
any control deficiencies identified.
Finally, it is important to note that ICE's authority to operationally
supervise individual police officers does not extend beyond actions
undertaken using delegated Title 8 authority for a specific immigration-
related purpose, and for which ICE has provided training. Neither does
ICE displace the law enforcement agency's obligation to supervise and
maintain control of its officers at all times.
Recommendation 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.
Response:
ICE has determined that each MOA jurisdiction shall use ICE's ENFORCE
system consistently with all ICE personnel authorized to arrest and
process persons suspected of violating immigration law. Participating
state and local law enforcement agency jurisdictions will be notified
of any changes to ENFORCE to ensure that data reporting remains
consistent and accurate. Upon approval of proposed performance measures
as noted in the proposed OSLC Strategic Plan, ICE will be better
postured to distill essential statistics which will further the
approved performance goals of the program. As outlined above, a
standard template of procedures and requirements will be drafted and
disseminated which will specify sustainable reporting requirements for
each jurisdiction. Administration of these core reporting requirements
will be addressed in the SOPs accompanying the MOA.
Recommendation 5: Establish a plan, including a time frame, for the
development of performance measures for the 287(g) program.
Response:
With the completion of strategic planning exercises in October 2008,
ICE defined high-level performance measures for OSLC to gauge its
progress toward achieving its performance goals. These measures will be
incorporated into ICE's overall performance management program.
Details of the corrective management action noted in this response will
be reported through an ICE Mission Action Plan within 60 days of GAO
publishing its final report. Suggested technical corrections to improve
the usefulness of the report have been provided verbally and under
separate cover.
Sincerely,
Signed by:
Jerald E. Levine:
Director
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Richard M. Stana, (202) 512-8777 or stanar@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Bill Crocker, Assistant
Director, and Lori Kmetz, Analyst-in-Charge, managed this assignment.
Susanna Kuebler, Carolyn Garvey, and Orlando Copeland made significant
contributions to the work. Michele Fejfar assisted with design,
methodology, and data analysis. Katherine Davis, Linda Miller, Adam
Vogt and Peter Anderson provided assistance in report preparation, and
Frances Cook provided legal support.
[End of section]
Footnotes:
[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 naturalized U.S. citizens.
[2] U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Statistics Bulletin, June 2008. The data for local jails is
based on 2,416 reporting jurisdictions.
[3] Pub. L. No. 104-208, div. C, §133, 110 Stat. 3009-546, 3009-563 to
64.
[4] The change to the Immigration and Nationality Act is codified in 8
U.S.C. §1357(g). The complete text of 8 U.S.C. § 1357(g) appears in
appendix I.
[5] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999). These standards, issued pursuant to
the requirements of the Federal Managers' Financial Integrity Act of
1982 (FMFIA), provide the overall framework for establishing and
maintaining internal control in the federal government. Also pursuant
to FMFIA, the Office of Management and Budget issued Circular A-123,
revised December 21, 2004, to provide the specific requirements for
assessing the reporting on internal controls. Internal control
standards and the definition of internal control in Circular A-123 are
based on GAO's Standards for Internal Control in the Federal
Government. GPRA is the primary legislative framework through which
agencies are required to set strategic goals, measure performance, and
report on the degree to which goals were met. GAO, Executive Guide:
Effectively Implementing the Government Performance and Results Act,
[hyperlink, http://www.gao.gov/products/GAO/GGD-96-118] (Washington,
D.C.: June 1996). Additional program management standards we reviewed
are reflected in the Project Management Institute's The Standard for
Program Management © (2006).
[6] We contacted 29 state and local law enforcement agencies with
regard to their implementation of the 287(g) program between October
2007 and February 2008. However, for purposes of reporting the results
of our structured interviews, only 23 of the 29 initial participating
law enforcement agencies we contacted had been in the program long
enough to report on their implementation experiences. The structured
interview tool used to collect information from the law enforcement
agencies we reviewed appears in appendix II.
[7] 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.
[8] 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.
[9] 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 and state prison are to
be processed for removal at the end of their sentences.
[10] 8 U.S.C. § 1357(g); see appendix I.
[11] H.R. Conf. Rep. No. 109-241, at 48 (2005).
[12] Department of Homeland Security Appropriations Act, 2006, Pub. L.
No. 109-90, 119 Stat. 2064, 2068 (2005); H.R. Conf. Rep. No. 109-241,
at 48 (2005).
[13] Department of Homeland Security Appropriations Act, 2007, Pub. L.
No. 109-295, 120 Stat. 1355, 1361 (2006). In fiscal year 2006, a
supplemental appropriation provided $50.0 million in 2-year funding for
immigration enforcement training, information technologies, and
additional detention beds. The 287(g) program was allotted $10.1
million from this supplemental funding.
[14] Authorized in 1994 by the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 20301, 108 Stat. 1796,
1823-24, and administered by the Bureau of Justice Assistance, the
SCAAP grant program reimburses states and localities that incur
correctional officer salary costs for incarcerating undocumented
criminals (as defined by statute) who: (1) have at least one felony or
two misdemeanor convictions for violations of state or local law, and
(2) are incarcerated for at least 4 consecutive days.
[15] In some portions of the ICE Web site, there is discussion about
the 287(g) program as a tool to pursue investigations related to aliens
involved with violent crimes, human smuggling, gang/organized crime
activity, sexual-related offenses, narcotics smuggling, and money
laundering.
[16] [hyperlink, http://www.gao.gov/products/GAO/GGD-96-118].
[17] However, this officer's agency established its own criteria about
whom to detain, limiting it to those who have committed a violent
offense or crimes such as drug activity and driving-under-the-influence
violations, to prevent serious overcrowding in their jail.
[18] Julie Myers, Assistant Secretary, Immigration and Customs
Enforcement, Department of Homeland Security in testimony to House
Appropriations Subcommittee on Homeland Security, February 26, 2008.
[19] Section 287(g) and its legislative history do not specify the
exact enforcement responsibilities authorized or the circumstances
under which they are to be exercised, giving ICE the discretion to make
reasonable determinations regarding these aspects of program
implementation.
[20] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1].
[21] 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.
[22] The seven MOAs that did not specify that the 287(g) authorities be
carried out to process individuals convicted of a felony offense were
signed prior to 2007, and as of October 2008, they had not been amended
to reflect the change found in the 2007 MOAs.
[23] Additionally, a senior ICE officer commented that, unlike position
descriptions, an employee's work performance plan contains the specific
duties of an ICE officer and describes the supervisory activities;
however, such a work performance plan for a 287(g) supervisory officer
was not provided by ICE.
[24] In general, performance measures are indicators, statistics, or
metrics used to gauge program performance.
[25] [hyperlink, http://www.gao.gov/products/GAO/GGD-96-118].
[26] GAO, Tax Administration: IRS Needs to Further Refine Its Tax
Filing Season Performance Measures, [hyperlink,
http://www.gao.gov/products/GAO-03-143] (Washington, D.C.: November 22,
2002).
[27] The Project Management Institute, The Standard for Program
Management © (2006).
[28] According to ICE officials, a total of 994 state and local
officers started 287(g) training: 13 failed the mandatory examinations,
30 officers removed themselves from the training, and 951 were
certified for the 287(g) program.
[29] The question was not limited to possible reimbursements from DHS/
ICE. GAO also did not independently verify whether these law
enforcement agencies met criteria for federal reimbursement agreements.
[30] 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.
[31] Under the Homeland Security Act of 2002, this and other
immigration enforcement functions of the Attorney General were
transferred to the Department of Homeland Security upon its creation in
March 2003 and were delegated to ICE pursuant to the Department of
Homeland Security Reorganization Plan of November 25, 2002, as
modified. See 6 U.S.C. § 251; Reorganization Plan Modification for the
Department of Homeland Security, H. Doc. 108-32, at 3 (Feb. 4, 2003).
[32] Law enforcement agencies that could not provide complete
information during our structured interviews because they had not
implemented or had little experience with the 287(g) program included:
Georgia Department of Public Safety, Massachusetts Department of
Corrections, El Paso County Sheriff's Office (Colorado), Cabarrus
County Sheriff's Office (North Carolina), Barnstable County Sheriff's
Office (Massachusetts), and the New Mexico Department of Corrections.
[33] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]
(Washington, D.C.: November 1999). These standards, issued pursuant to
the requirements of the Federal Managers' Financial Integrity Act of
1982 (FMFIA), provide the overall framework for establishing and
maintaining internal control in the federal government. Also pursuant
to FMFIA, the Office of Management and Budget issued Circular A-123,
revised December 21, 2004, to provide the specific requirements for
assessing the reporting on internal controls. Internal control
standards and the definition of internal control in Circular A-123 are
based on GAO's Standards for Internal Control in the Federal
Government. GPRA is the primary legislative framework through which
agencies will be required to set strategic goals, measure performance,
and report on the degree to which goals were met. GAO, Executive Guide:
Effectively Implementing the Government Performance and Results Act,
[hyperlink, http://www.gao.gov/products/GAO/GGD-96-118] (Washington,
D.C.: June 1996). Additional program management standards we reviewed
are reflected in the Project Management Institute's The Standard for
Program Management © (2006).
[End of section]
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