The American Immigration Council does not endorse or oppose candidates for elected office. We aim to provide analysis regarding the implications of the election on the U.S. immigration system.

Last Friday, Department of Homeland Security (DHS) Secretary Janet Napolitano announced changes to the controversial 287(g) program—a program which allows state and local police agencies to partner with ICE to enforce federal immigration laws. DHS also announced that, rather than waiting for the new policies to be implemented and tested, it has expanded the problematic 287(g) program with 11 new Memoranda of Agreement (MOAs).

The 287(g) program has been broadly criticized by immigrant and civil rights advocates, religious leaders, elected officials and the police themselves. Numerous reports from think tanks, academics, community organizations and police associations have shown that the 287(g) program costs valuable resources, results in mistakes and racial profiling, does not effectively control illegal immigration, and makes it more difficult for the police to serve and protect their communities. Even the government found fault with how the program was being implemented. A March 2009 report by the Government Accountability Office (GAO) found the 287(g) program did not have clear goals and objectives and lacked consistent supervision.

Yet rather than announce that the program would be suspended or significantly curtailed, DHS announced new guidelines that seek to address some of the most egregious errors in the program. Changes include:

  • ICE will more closely monitor and supervise the way local police agencies implement their authority to enforce immigration laws.
  • The partnerships will prioritize the most dangerous criminal immigrants, rather than broadly targeting large numbers of undocumented immigrants with no criminal violations.
  • ICE will implement a complaint mechanism so that individuals can report problems with the program.
  • All 287(g) local partners will be bound by all federal civil rights law and guidance, and they will be required to provide interpretation services for immigrants who do not speak English.

DHS has also re-written the MOAs between local police agencies and ICE. Currently each of the 66 MOAs is different. DHS announced that the new MOAs will be standardized and will expire after three years (at which time we assume they can be renewed). All current 287(g) MOAs are currently being renegotiated. Notably, if a local police agency is not abiding by the rules of the program, DHS can theoretically terminate or suspend the MOA with that agency.

The new MOAs have not been made public, so as of now, one can only go by the Administration’s word that they have made positive changes to the program.

While these new policies do show that DHS has been listening to criticisms and has made strides to address the various problems raised over the past months and years, the fact remains that 287(g) is still a very problematic program. No matter what changes are made, 287(g) arrangements still hinder the police’s ability to serve and protect their communities because communities will still fear sharing information with them. None of these changes can possibly make 287(g) an effective solution to our nation’s illegal immigration problem.

Nor will these changes matter if they are not properly implemented and monitored. For example, Sheriff Arpaio in Maricopa County, AZ, has blatantly stated that he is not interested in being supervised by ICE. In a statement of sheer defiance, Arpaio recently stated that he will no longer cooperate with the Department of Justice, which is investigating alleged misuse of immigration authority and related abuses by the sheriff. Sounds like an MOA prime for termination. But will DHS actually terminate the MOAs of those agencies that do not comply with the new guidelines?

It’s hard to know whether last week’s 287(g) announcement is policy or just more politics. We will be anxiously monitoring how the new guidelines are implemented. However, the mere fact that DHS expanded the program to 11 new partners before the new policies have been tested gives us pause. Addressing the ongoing concerns about the program simply does not do enough to justify a simultaneous effort to expand it.

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