ICE Program Under Fire

A white bus pulled into Mariposa Port, the corridor between Nogales, Arizona, and Nogales, Mexico; and its passengers, mostly men, filed out of the vehicle and walked along the edge of the southbound highway. They had just been deported. Down the road, inside a plywood shack with a sign hanging in the doorway that reads "for migrants," Jesuit priests and few volunteers serve a warm dinner every evening at 5.

On a recent night, a hundred people came to eat; they squeezed around three long tables. Among them was a young man with gold streaks in his hair and thick black eyeliner that had smeared on his cheekbones. He went by the name Perla and explained that local police started questioning him outside a gay bar in Phoenix. They asked to see his identification card, and when he showed them one from Mexico they took him into the station. He was deported a month later. Perla attended both middle and high school in Phoenix and was anxious to get back. He tried but was detained by Immigration and Customs Enforcement (ICE) officers while trudging through the Arizona desert. He planned to try again, he said, but next time he would pay a coyote, a professional smuggler. His hands trembled as he slowly picked at his dinner.

At the next table sat Jorge, a lanky 23-year-old who had been living in California and working in construction. He was driving home from a job when local police pulled him over for a broken tail light and checked his immigration status. "I had a clean record. I paid taxes," said Jorge, who had been living in the United States for ten years. "They only pulled me over because they saw a Latino."

In the past year, Immigrations and Customs Enforcement detained 380,000 people who were in the United States illegally; 44,692 of them were turned over by local and state officers, authorized through a program called 287(g) to enforce immigration law. The program was created to investigate violent crimes, like gang activity and human smuggling; but contrary to the program's intent, many participating agencies use their 287(g) authority to detain undocumented immigrants who have committed minor offenses, like traffic infractions, or no crime at all.

The program was passed in 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act, yet it wasn't until after the September 11 attacks that police agencies began to participate. In 2002 Jay Bybee, the assistant attorney general at the time, wrote a memo opining that local police could arrest people for all immigration crimes, including minor citations and civil offenses, an interpretation that amounted to significant expansion of police powers. "Never in our history has the government unveiled a dramatic power of local law enforcement that we never knew it had before," said Jonathan Simon, a criminologist at UC Berkeley. At the end of George W. Bush's presidency, there were sixty-six police organizations with 287(g) agreements in place, scattered across the country from California to Massachusetts. More than half the participating agencies are based in the Southeast, a region that has seen sharp growth in its Hispanic population over the past two decades.

"I think it's misguided," said Tony Estrada, sheriff of Santa Cruz County, Arizona. "There's no way I could extend my staff to deal with a federal issue." His office is a low-slung building on a narrow road in Nogales, Arizona, about five miles from the soup kitchen in Mexico. He is a small man with a cotton-white helmet of hair and an unflappable manner--tending to shrug his shoulders when most people would raise their voice. "We have been dealing with everything that's been coming across this border, and it's been on our dime. And it's reflected on our quality of life, because we can't pay our officers what we should pay them; we can't give them equipment we should have. We can't have the playground, the park, the road." The idea of taking on greater responsibility in immigration enforcement, he said, was "out of the question." All 287(g) officers attend a four-week training program, the costs of which are covered by the federal government. All other expenses fall on local agencies.

On the wall of Estrada's office is a photo of him shaking hands with Janet Napolitano when she was first elected governor of Arizona, in 2002. The photo is signed, "To Tony, Thank you for all your help, Janet." Napolitano left the governor's office last year after being appointed by President Obama to head the Department of Homeland Security, which overseas ICE. As governor, she had developed an expansive partnership with the federal government that included more 287(g)-authorized officers than any state in the country.

Since arriving in Washington, Napolitano has maintained her commitment to the program. In July she announced an expansion of 287(g) to eleven additional local agencies; but first she required all participating organizations to sign a new agreement that included a few minor revisions. Signed contracts were due in Washington by October 14 and will be reviewed by ICE. In the weeks leading up to the finalization process, a number of organizations have urged Napolitano and ICE to rethink, and even repeal, the program. In late September the Southwest Border Task Force--a group Napolitano appointed--advised that 287(g) should be scaled back considerably. The Congressional Hispanic Caucus sent a letter to President Obama asking that he "immediately terminate" the program. Members of the immigration activist community suspect--perhaps too hopefully--that Napolitano's long-held support for the 287(g) has begun to unravel. As governor, she was an unflinching advocate for the program despite warnings from sheriffs, police officers and concerned residents--citizens and noncitizens--from all parts of the state.

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