Immigration Enforcement:

Better Controls Needed over Program Authorizing State and Local Enforcement of Federal Immigration Laws

GAO-09-109: Published: Jan 30, 2009. Publicly Released: Mar 4, 2009.

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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.

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.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In each 287(g) Memorandum of Agreement with state or local law enforcement, Immigration and Customs Enforcement has made it clear in Section XII (Reporting Requirements) and in Appendix D (Data Collection) 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.

    Recommendation: To help ensure that the ICE 287(g) program achieves the results intended, the Assistant Secretary for ICE should 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.

    Agency Affected: Department of Homeland Security: Directorate of Border and Transportation Security: Bureau of Immigration and Customs Enforcement

  2. Status: Closed - Implemented

    Comments: In each 287(g) Memorandum of Agreement with state or local law enforcement, Immigration and Customs Enforcement has specified and made clear in Appendix D (Task Force Model - Supervision) and (Detention Model - Supervision) the required ICE supervisory involvement in these programs.

    Recommendation: To help ensure that the ICE 287(g) program achieves the results intended, the Assistant Secretary for ICE should 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.

    Agency Affected: Department of Homeland Security: Directorate of Border and Transportation Security: Bureau of Immigration and Customs Enforcement

  3. Status: Closed - Implemented

    Comments: Clarification of how 287(g) authority is to be used by state and local law enforcement is now contained in Appendix D of all Memorandum of Agreements with state and local law enforcement agencies.

    Recommendation: To help ensure that the ICE 287(g) program achieves the results intended, the Assistant Secretary for ICE should clarify how and under what circumstances 287(g) authority is to be used by state and local law enforcement officers in participating agencies.

    Agency Affected: Department of Homeland Security: Directorate of Border and Transportation Security: Bureau of Immigration and Customs Enforcement

  4. Status: Closed - Implemented

    Comments: Immigration and Customs Enforcement has incorporated the objective of the 287(g) program in the purpose section of each Memorandum of Agreement made with local law enforcement agencies.

    Recommendation: To help ensure that the ICE 287(g) program achieves the results intended, the Assistant Secretary for ICE should document the objective of the 287(g) program for participants.

    Agency Affected: Department of Homeland Security: Directorate of Border and Transportation Security: Bureau of Immigration and Customs Enforcement

  5. Status: Closed - Implemented

    Comments: This recommendation is closed as implemented because U.S. Immigration and Customs Enforcement has detailed performance measures in its 287(g) Program Strategic Plan for FY2011-2016 and has created a 287(g) Program Performance Measures Guide.

    Recommendation: To help ensure that the ICE 287(g) program achieves the results intended, the Assistant Secretary for ICE should establish a plan, including a time frame, for the development of performance measures for the 287(g) program.

    Agency Affected: Department of Homeland Security: Directorate of Border and Transportation Security: Bureau of Immigration and Customs Enforcement

 

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