Immigration Enforcement
Controls over Program Authorizing State and Local Enforcement of Federal Immigration Laws Should Be Strengthened Gao ID: GAO-09-381T March 4, 2009This testimony discusses the Department of Homeland Security's (DHS) U.S. Immigration and Customs Enforcement's (ICE) management of the 287(g) program. Recent reports indicate that the total population of unauthorized aliens residing in the United States is about 12 million. Some of these aliens have committed one or more crimes, although the exact number of aliens that have committed crimes is unknown. Some crimes are serious and pose a threat to the security and safety of communities. ICE does not have the agents or the detention space that would be required to address all criminal activity committed by unauthorized aliens. Thus, state and local law enforcement officers play a critical role in protecting our homeland because, during the course of their daily duties, they may encounter foreign-national criminals and immigration violators who pose a threat to national security or public safety. On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was enacted and added section 287(g) to the Immigration and Nationality Act. This section authorizes the federal government to enter into agreements with state and local law enforcement agencies, and to train selected state and local officers to perform certain functions of an immigration officer--under the supervision of ICE officers--including searching selected federal databases and conducting interviews to assist in the identification of those individuals in the country illegally. The first such agreement under the statute was signed in 2002, and as of February 2009, 67 state and local agencies were participating in this program. The testimony today is based on our January 30, 2009, report regarding the program including selected updates made in February 2009. Like the report, this statement addresses (1) the extent to which Immigration and Customs Enforcement has designed controls to govern 287(g) program implementation and (2) how program resources are being used and the activities, benefits, and concerns reported by participating agencies. To do this work, we interviewed officials from both ICE and participating agencies regarding program implementation, resources, and results. We also reviewed memorandums of agreement (MOA) between ICE and the 29 law enforcement agencies participating in the program as of September 1, 2007, that are intended to outline the activities, resources, authorities, and reports expected of each agency. We also compared the controls ICE designed to govern implementation of the 287(g) program with criteria in GAO's Standards for Internal Control in the Federal Government, the Government Performance and Results Act (GPRA), and the Project Management Institute's Standard for Program Management. More detailed information on our scope and methodology appears in the January 30, 2009 report. In February 2009, we also obtained updated information from ICE regarding the number of law enforcement agencies participating in the 287(g) program as well as the number of additional law enforcement agencies being considered for participation in the program. We conducted our work in accordance with generally accepted government auditing standards.
In summary, ICE has designed some management controls, such as MOAs with participating agencies and background checks of officers applying to participate in the program, to govern 287(g) program implementation. However, the program lacks other key internal controls. Specifically, program objectives have not been documented in any program-related materials, guidance on how and when to use program authority is inconsistent, guidance on how ICE officials are to supervise officers from participating agencies has not been developed, data that participating agencies are to track and report to ICE has not been defined, and performance measures to track and evaluate progress toward meeting program objectives have not been developed. Taken together, the lack of internal controls makes it difficult for ICE to ensure that the program is operating as intended. ICE and participating agencies used program resources mainly for personnel, training, and equipment, and participating agencies reported activities and benefits, such as a reduction in crime and the removal of repeat offenders. However, officials from more than half of the 29 state and local law enforcement agencies we reviewed reported concerns members of their communities expressed about the use of 287(g) authority for minor violations and/or about racial profiling. We made several recommendations to strengthen internal controls for the 287(g) program to help ensure that the program operates as intended. DHS concurred with our recommendations and reported plans and steps taken to address them.
GAO-09-381T, Immigration Enforcement: Controls over Program Authorizing State and Local Enforcement of Federal Immigration Laws Should Be Strengthened
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Testimony:
Before the Committee on Homeland Security, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 2:00 p.m. EST:
March 4, 2009:
Immigration Enforcement:
Controls over Program Authorizing State and Local Enforcement of
Federal Immigration Laws Should Be Strengthened:
Statement of Richard M. Stana, Director:
Homeland Security and Justice:
GAO-09-381T:
Mr. Chairman and Members of the Committee:
I am pleased to be here today to discuss the Department of Homeland
Security's (DHS) U.S. Immigration and Customs Enforcement's (ICE)
management of the 287(g) program. Recent reports indicate that the
total population of unauthorized aliens residing in the United States
is about 12 million.[Footnote 1] Some of these aliens have committed
one or more crimes, although the exact number of aliens that have
committed crimes is unknown. Some crimes are serious and pose a threat
to the security and safety of communities. ICE does not have the agents
or the detention space that would be required to address all criminal
activity committed by unauthorized aliens. Thus, state and local law
enforcement officers play a critical role in protecting our homeland
because, during the course of their daily duties, they may encounter
foreign-national criminals and immigration violators who pose a threat
to national security or public safety. On September 30, 1996, the
Illegal Immigration Reform and Immigrant Responsibility Act was enacted
and added section 287(g) to the Immigration and Nationality
Act.[Footnote 2] This section authorizes the federal government to
enter into agreements with state and local law enforcement agencies,
and to train selected state and local officers to perform certain
functions of an immigration officer--under the supervision of ICE
officers--including searching selected federal databases and conducting
interviews to assist in the identification of those individuals in the
country illegally.[Footnote 3] The first such agreement under the
statute was signed in 2002, and as of February 2009, 67 state and local
agencies were participating in this program.
My statement today is based on our January 30, 2009, report regarding
the program including selected updates made in February 2009.[Footnote
4] Like the report, this statement addresses (1) the extent to which
Immigration and Customs Enforcement has designed controls to govern
287(g) program implementation and (2) how program resources are being
used and the activities, benefits, and concerns reported by
participating agencies. To do this work, we interviewed officials from
both ICE and participating agencies regarding program implementation,
resources, and results. We also reviewed memorandums of agreement (MOA)
between ICE and the 29 law enforcement agencies participating in the
program as of September 1, 2007, that are intended to outline the
activities, resources, authorities, and reports expected of each
agency. We also compared the controls ICE designed to govern
implementation of the 287(g) program with criteria in GAO's Standards
for Internal Control in the Federal Government, the Government
Performance and Results Act (GPRA), and the Project Management
Institute's Standard for Program Management.[Footnote 5] More detailed
information on our scope and methodology appears in the January 30,
2009 report. In February 2009, we also obtained updated information
from ICE regarding the number of law enforcement agencies participating
in the 287(g) program as well as the number of additional law
enforcement agencies being considered for participation in the program.
We conducted our work in accordance with generally accepted government
auditing standards.
In summary, ICE has designed some management controls, such as MOAs
with participating agencies and background checks of officers applying
to participate in the program, to govern 287(g) program implementation.
However, the program lacks other key internal controls. Specifically,
program objectives have not been documented in any program-related
materials, guidance on how and when to use program authority is
inconsistent, guidance on how ICE officials are to supervise officers
from participating agencies has not been developed, data that
participating agencies are to track and report to ICE has not been
defined, and performance measures to track and evaluate progress toward
meeting program objectives have not been developed. Taken together, the
lack of internal controls makes it difficult for ICE to ensure that the
program is operating as intended. ICE and participating agencies used
program resources mainly for personnel, training, and equipment, and
participating agencies reported activities and benefits, such as a
reduction in crime and the removal of repeat offenders. However,
officials from more than half of the 29 state and local law enforcement
agencies we reviewed reported concerns members of their communities
expressed about the use of 287(g) authority for minor violations and/or
about racial profiling. We made several recommendations to strengthen
internal controls for the 287(g) program to help ensure that the
program operates as intended. DHS concurred with our recommendations
and reported plans and steps taken to address them.
ICE Lacks Key Internal Controls for Implementation of the 287(g)
Program:
ICE has designed some management controls to govern 287(g) program
implementation, such as MOAs with participating agencies that identify
the roles and responsibilities of each party, background checks of
officers applying to participate in the program, and a 4-week training
course with mandatory course examinations for participating officers.
However, the program lacks several other key controls. For example:
* Program Objectives: While ICE officials have stated that the main
objective of the 287(g) program is to enhance the safety and security
of communities by addressing serious criminal activity committed by
removable aliens, they have not documented this objective in program-
related materials consistent with internal control standards. As a
result, some participating agencies are using their 287(g) authority to
process for removal aliens who have committed minor offenses, such as
speeding, carrying an open container of alcohol, and urinating in
public. None of these crimes fall into the category of serious criminal
activity that ICE officials described to us as the type of crime the
287(g) program is expected to pursue. While participating agencies are
not prohibited from seeking the assistance of ICE for aliens arrested
for minor offenses, if all the participating agencies sought assistance
to remove aliens for such minor offenses, ICE would not have detention
space to detain all of the aliens referred to them. ICE's Office of
Detention and Removal strategic plan calls for using the limited
detention bed space available for those aliens that pose the greatest
threat to the public until more alternative detention methods are
available.
* Use of Program Authority: ICE has not consistently articulated in
program-related documents how participating agencies are to use their
287(g) authority. For example, according to ICE officials and other ICE
documentation, 287(g) authority is to be used in connection with an
arrest for a state offense; however, the signed agreement that lays out
the 287(g) authority for participating agencies does not address when
the authority is to be used. While all 29 MOAs we reviewed contained
language that authorizes a state or local officer to interrogate any
person believed to be an alien as to his right to be or remain in the
United States, none of them mentioned that an arrest should precede use
of 287(g) program authority.[Footnote 6] Furthermore, the processing of
individuals for possible removal is to be in connection with a
conviction of a state or federal felony offense. However, this
circumstance is not mentioned in 7 of the 29 MOAs we reviewed,
resulting in implementation guidance that is not consistent across the
29 participating agencies. A potential consequence of not having
documented program objectives is misuse of authority. Internal control
standards state that government programs should ensure that significant
events are authorized and executed only by persons acting within the
scope of their authority. Defining and consistently communicating how
this authority is to be used would help ICE ensure that immigration
enforcement activities undertaken by participating agencies are in
accordance with ICE policies and program objectives.
* Supervision of Participating Agencies: Although the law requires that
state and local officials use 287(g) authority under the supervision of
ICE officials, ICE has not described in internal or external guidance
the nature and extent of supervision it is to exercise over
participating agencies' implementation of the program. This has led to
wide variation in the perception of the nature and extent of
supervisory responsibility among ICE field officials and officials from
23 of the 29 participating agencies that had implemented the program
and provided information to us on ICE supervision. For example, one ICE
official said ICE provides no direct supervision over the local law
enforcement officers in the 287(g) program in their area of
responsibility. Conversely, another ICE official characterized ICE
supervisors as providing frontline support for the 287(g) program. ICE
officials at two additional offices described their supervisory
activities as overseeing training and ensuring that computer systems
are working properly. ICE officials at another field office described
their supervisory activities as reviewing files for completeness and
accuracy. Officials from 14 of the 23 agencies that had implemented the
program were pleased with ICE's supervision of the 287(g) trained
officers. Officials from another four law enforcement agencies
characterized ICE's supervision as fair, adequate, or provided on an as-
needed basis. Officials from three agencies said they did not receive
direct ICE supervision or that supervision was not provided daily,
which an official from one of these agencies felt was necessary to
assist with the constant changes in requirements for processing of
paperwork. Officials from two law enforcement agencies said ICE
supervisors were either unresponsive or not available. ICE officials in
headquarters noted that the level of ICE supervision provided to
participating agencies has varied due to a shortage of supervisory
resources. Internal control standards require an agency's
organizational structure to define key areas of authority and
responsibility. Given the rapid growth of the program, defining the
nature and extent of ICE's supervision would strengthen ICE's assurance
that management's directives are being carried out.
* Tracking and Reporting Data: MOAs that were signed before 2007 did
not contain a requirement to track and report data on program
implementation. For the MOAs signed in 2007 and after, ICE included a
provision stating that participating agencies are responsible for
tracking and reporting data to ICE. However, in these MOAs, ICE did not
define what data should be tracked or how it should be collected and
reported. Of the 29 jurisdictions we reviewed, 9 MOAs were signed prior
to 2007 and 20 were signed in 2007 or later. Regardless of when the
MOAs were signed, our interviews with officials from the 29
participating jurisdictions indicated confusion regarding whether they
had a data tracking and reporting requirement, what type of data should
be tracked and reported, and what format they should use in reporting
data to ICE. Internal control standards call for pertinent information
to be recorded and communicated to management in a form and within a
time frame that enables management to carry out internal control and
other responsibilities. Communicating to participating agencies what
data is to be collected and how it should be gathered and reported
would help ensure that ICE management has the information needed to
determine whether the program is achieving its objectives.
* Performance Measures: ICE has not developed performance measures for
the 287(g) program to track and evaluate the progress toward attaining
the program's objectives.[Footnote 7] GPRA requires that agencies
clearly define their missions, measure their performance against the
goals they have set, and report on how well they are doing in attaining
those goals.[Footnote 8] Measuring performance allows organizations to
track the progress they are making toward their goals and gives
managers critical information on which to base decisions for improving
their programs. ICE officials stated that they are in the process of
developing performance measures, but have not provided any
documentation or a time frame for when they expect to complete the
development of these measures. ICE officials also stated that
developing measures for the program will be difficult because each
state and local partnership agreement is unique, making it challenging
to develop measures that would be applicable for all participating
agencies. Nonetheless, standard practices for program and project
management call for specific desired outcomes or results to be
conceptualized and defined in the planning process as part of a road
map, along with the appropriate projects needed to achieve those
results and milestones. Without a plan for the development of
performance measures, including milestones for their completion, ICE
lacks a roadmap for how this project will be achieved.
Program Resources Are Used for Training, Supervision, and Equipment;
Benefits and Concerns Are Reported by ICE and Participating Agencies:
ICE and participating agencies used program resources mainly for
personnel, training, and equipment, and participating agencies reported
activities, benefits, and concerns stemming from the program. For
fiscal years 2006 through 2008, ICE received about $60 million to
provide training, supervision, computers, and other equipment for
participating agencies. State and local participants provided officers,
office space, and other expenses not reimbursed by ICE, such as office
supplies and vehicles.
ICE and state and local participating agencies cite a range of benefits
associated with the 287(g) partnership. For example, as of February
2009, ICE reported enrolling 67 agencies and training 951 state and
local law enforcement officers. At that time, ICE had 42 additional
requests for participation in the 287(g) program, and 6 of the 42 have
been approved pending approval of an MOA. According to data provided by
ICE for 25 of the 29 program participants we reviewed, during fiscal
year 2008, about 43,000 aliens had been arrested pursuant to the
program.[Footnote 9] Based on the data provided, individual agency
participant results ranged from about 13,000 arrests in one location,
to no arrests in two locations. Of those 43,000 aliens arrested
pursuant to the 287(g) authority, ICE detained about 34,000, placed
about 14,000 of those detained (41 percent) in removal proceedings, and
arranged for about 15,000 of those detained (44 percent) to be
voluntarily removed.[Footnote 10] The remaining 5,000 (15 percent)
arrested aliens detained by ICE were either given a humanitarian
release, sent to a federal or state prison to serve a sentence for a
felony offense, or not taken into ICE custody given the minor nature of
the underlying offense and limited availability of the federal
government's detention space.[Footnote 11]
Participating agencies cited benefits of the program including a
reduction in crime and the removal of repeat offenders. However, more
than half of the 29 state and local law enforcement agencies we
reviewed reported concerns community members expressed about the 287(g)
program, including concerns that law enforcement officers in the 287(g)
program would be deporting removable aliens pursuant to minor traffic
violations (e.g., speeding) and concerns about racial profiling.
We made several recommendations to strengthen internal controls for the
287(g) program to help ensure the program operates as intended.
Specifically, we recommended that ICE (1) document the objective of the
287(g) program for participants, (2) clarify when the 287(g) authority
is authorized for use by state and local law enforcement officers, (3)
document the nature and extent of supervisory activities ICE officers
are expected to carry out as part of their responsibilities in
overseeing the implementation of the 287(g) program, (4) specify the
program information or data that each agency is expected to collect
regarding their implementation of the 287(g) program and how this
information is to be reported, and (5) establish a plan, including a
time frame, for the development of performance measures for the 287(g)
program. DHS concurred with each of our recommendations and reported
plans and steps taken to address them.
Mr. Chairman and Members of the Committee, this concludes my statement.
I would be pleased to respond to any questions you or other Members of
the Committee may have.
GAO Contacts and Staff Acknowledgments:
For questions about this statement, please contact Richard Stana at 202-
512-8777 or stanar@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. Individuals making key contributions to this
statement include Bill Crocker, Lori Kmetz, Susanna Kuebler, and Adam
Vogt.
[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 U.S. citizens.
[2] Pub. L. No. 104-208, div. C, §133, 110 Stat. 3009-546, 3009-563 to
64.
[3] The change to the Immigration and Nationality Act is codified in 8
U.S.C. §1357(g).
[4] GAO, Immigration Enforcement: Better Controls Needed over Program
Authorizing State and Local Enforcement of Federal Immigration Laws,
[hyperlink, http://www.gao.gov/products/GAO-09-109] (Washington, D.C.:
January 2009).
[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); and 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] 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.
[7] In general, performance measures are indicators, statistics, or
metrics used to gauge program performance.
[8] [hyperlink, http://www.gao.gov/products/GAO/GGD-96-118].
[9] ICE provided data for 25 of the 29 participating agencies we
reviewed. ICE also provided data for 4 other participating agencies,
but we do not report them as they were not within the scope of our
review. We used the data provided by ICE for illustrative purposes only
and not to draw conclusions about the 287(g) program.
[10] A voluntary removal (called voluntary departure) occurs when an
alien is allowed to depart the country at his or her own expense
(escorted by ICE) in lieu of formal removal proceedings or prior to
completion of such proceedings.
[11] Individuals arrested on administrative charges who may be sole
caregivers or who have other humanitarian concerns, including those
with serious medical conditions that require special attention,
pregnant women, nursing mothers, parents who are the sole caretakers of
minor children or disabled or seriously ill relatives, and parents who
are needed to support their spouses in caring for sick or special needs
children or relatives, may be released by ICE. As appropriate, if ICE
is provided with new information regarding a humanitarian condition
after an arrestee has been processed and detained, ICE may consider the
possibility of release on humanitarian grounds based on such
information. In general, aliens given a humanitarian release or not
taken into custody due to limited detention space receive a notice to
appear in immigration court at a later date for removal proceedings.
Removable aliens serving a sentence in federal state prison are to be
processed for removal at the end of their sentences.
[End of section]
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