State and Local Cooperation on Immigration Enforcement: ICE Access

July 2014

There are several programs that currently facilitate cooperation between the Department of Homeland Security (DHS) and state and local law enforcement agencies. Most of these programs managed by DHS’s Immigration and Customs Enforcement (ICE) branch are grouped under the rubric of ICE Access. The ICE Access programs most often in the news are Secure Communities and 287(g).

Secure Communities — The Secure Communities (S-Comm) program involves the identification of aliens wanted for deportation through checking electronically collected fingerprints at the local level and matching them with fingerprints on file at DHS for persons sought for deportation. The S-COMM program was created late in the second term of the Bush Administration. There were 14 agreements with local jurisdictions at the beginning of the Obama Administration,1 and by September 2010 there were 574 jurisdictions in 30 states participating in the program.2 The announced goal of DHS is to have this program apply to all jurisdictions across the country by 2012.

The defenders of illegal aliens oppose S-Comm arguing that it may be used discriminatorily to round up Hispanics to be screened for possible deportation.3  As a result, some jurisdictions — like Washington, D.C — have announced policies of non-participation in Secure Communities, but DHS has responded that these reservations will not stop DHS from receiving the fingerprints of foreign-born arrestees that are already shared with the FBI.4 The only option apparently available to these so-called “sanctuary” localities is to not receive reports from the DHS on deportable aliens they have arrested. The complaints against S-Comm ignore the fact that the program is based on electronic fingerprinting and those fingerprints are collected when an individual is charged with an offense, not just detained for questioning. Nevertheless, DHS remains under pressure from jurisdictions that self-identify as sanctuary jurisdictions to restrict the program to only identify deportable aliens convicted of serious crimes or other high priority threats to the public.

287(g) - This program was established by law in 1996. Its title refers to the provision in the Immigration and Nationality Act that authorizes it. In this program, state and local law enforcement officers are trained by the federal government in immigration law enforcement and then are deputized to act as immigration agents. As originally designed, the persons locally identified as illegal and deportable aliens were — if confirmed by federal authorities — taken into custody by the federal authorities and put into deportation proceedings.

The 287(g) program has been also attacked by defenders of illegal aliens as permitting racial profiling by allowing local law enforcement agencies to target Latinos or non-English Speakers who have committed no other offense other than being illegally in the country.5  As a result, DHS has circumscribed this program in order to decrease the apprehension and deportation of illegal aliens who have not committed major crimes.

Other ICE Access programs include the following:

• Customs Cross-Designation (Title 19) is a program similar to 287(g) in that it cross-designates local law enforcement officers to give them the authority to enforce U.S. customs laws and to perform the duties of ICE special agents. After receiving standardized ICE training, the local officials are. “…authorized to conduct customs searches at the border for merchandise being imported into or exported from the U.S. and to effect seizures and arrests of persons or articles in violation of U.S law.” This program has not received opposition from illegal alien support groups like that in opposition to the 287(g) program.
• The Criminal Alien Program (CAP) identifies, processes, and removes criminal aliens incarcerated in federal, state and local prisons and jails. It attempts to arrange for a final removal (deportation) order, prior to the termination of a detained criminal alien’s sentence. This program also has been criticized by defenders of illegal aliens as resulting in a “climate of fear”, e.g. “…the program has a negative impact on communities because it increases the community’s fear of reporting crime to police, is costly, and may encourage racial profiling.”6
•  REPAT (Removal of Eligible Parolees Accepted for Transfer) is a  program in which ICE works with prison and jail authorities to alleviate local incarceration expenditures by identifying criminal aliens not convicted of a crime of violence for early release in exchange for voluntarily returning to their country of origin.
• Task Forces that include local and federal officials and sometimes foreign official have been created to address other specific law enforcement challenges. Among these is Operation Community Shield  that is focused on gang violence by groups that often include deportable aliens such as the MS-13 gang, Operation Firewall that targets smuggled bulk cash shipments being transported along domestic interstate highways, and the Document and Benefit Fraud Task Forces.
• The Law Enforcement Support Center (LESC) — “…provides immigration status and identity information and assistance to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity.”

SCAAP - Another program between ICE local law enforcement agencies and the U.S. Department of Justice is termed the State Criminal Alien Assistance Program (SCAAP). This program was established in 1994 at a time when the federal government was being sued by several states seeking compensation for the fiscal costs of illegal immigration. SCAAP contributes to ICE’s collection of information on incarcerated deportable aliens. In exchange for this reporting, the state and local detention facilities receive a pro-rated reimbursement for the costs of incarceration, The SCAAP program has been targeted for elimination by both the Bush and Obama administrations on the basis that the federal government does not significantly benefit from it. Nevertheless, Congress has continued to fund the program in order to keep federal reimbursement flowing to the states to compensate them for the burden of incarcerating illegal aliens.

Finally, in addition to these federal-local cooperative programs there are other ad hoc cooperative programs created from time to time to address specific issues. For example, in the aftermath of the 9/11 attacks the immigration authorities who were tasked with locating and interviewing foreign students in the country who came from the same countries as the 9/11 terrorists had no idea where or how many of these students there were. In the course of that investigation, the immigration authorities enlisted local police agencies across the country to help them in locating and interviewing the foreign students.

Similarities and Dissimilarities: Complementary or Duplicate Programs?

The ICE Access and SCAAP programs have in common that they help DHS identify deportable aliens and remove them when released by the local authorities.

In CAP, ICE agents are stationed at or visit state or local detention sites to interview and identify deportable aliens. ICE had a presence in 10 percent of local jails nationwide in 2008.7 Information from this screening is used to issue detainers on aliens so that upon release ICE will be able to take them into custody for deportation.

The Secure Communities program identifies deportable aliens based on matching electronic fingerprint records taken by law enforcement personnel of persons arrested. Those records, that in the past were forwarded to the FBI to identify any suspects being sought by that agency or by other jurisdictions, are now being forwarded also to ICE. A limitation in this system is that electronic fingerprints have only been collected systematically since 2005 and aliens with records earlier than that may slip through the cracks. An effort to fill in the cracks by electronically scanning old fingerprint cards was announced in 2011. Another limitation is that many local jurisdictions do not yet have an electronic fingerprinting capability.

The two programs [referring to S-Comm and 287(g)] complement each other and … have different implementations. — ICE spokesman Richard Rocha.8

The difference between the two latter programs is that the S-Comm program has the capability to identify only illegal aliens who have previously been digitally fingerprinted. This means that if an alien has succeeded in entering the country illegally without being apprehended, fingerprint records will not exist in the DHS database and an alien arrested for a local crime will not be identified by that program. The 287(g) program, on the other hand, may identify aliens by interviews and document reviews who are illegally in the country who have not previously been fingerprinted. And SCAAP identifies incarcerated aliens that ICE may be unaware of and can interview to establish whether they are deportable. These programs are complementary in enabling state and local law enforcement agencies to combat the presence of illegal aliens in their jurisdictions and to facilitate federal efforts to identify and remove those aliens.

Obama Administration favors Secure Communities

The Secure Communities program is being promoted by the DHS and the Obama Administration as a major effort to identify and remove criminal aliens who have been arrested by state and local officials. At the same time, DHS has acted to limit the 287(g) program that was aggressively expanded by the Bush Administration.

The Obama Administration claimed a record level of deportation of aliens in 2010 — nearly 400,000 — in part because of the increased number of aliens placed in the hands of ICE by jurisdictions participating in the 287(g) and S-Comm programs. DHS announced in 2010 that the record level of deportations had saturated its infrastructure capabilities, but announced a target of 404,000 deportations for 2011.9

Immigrant rights advocacy organizations have opposed the 287(g), S-COMM and the CAP programs. They argue that illegal aliens should not be deported unless they have been convicted of a serious crime. They in effect attempt to avoid the deportation of any illegal alien who might benefit from the future adoption of an amnesty.

In response to this argument, DHS Secretary Napolitano announced in July 2009 that 287(g) programs were going to be circumscribed to require the participating local agencies to restrict their use of the programs to the enforcement priorities of ICE.10

Those priorities were enumerated earlier by DHS/ICE director John Morton as:

Priority 1. Aliens who pose a danger to national security or a risk to public safety

• Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
• Aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
• Aliens not younger than 16 years of age who participated in organized criminal gangs;
• Aliens subject to outstanding criminal warrants; and
• Aliens who otherwise pose a serious risk to public safety.

Priority 2. Recent illegal entrants

Priority 3. Aliens who are fugitives or otherwise obstruct immigration controls

• Fugitive aliens, in descending priority as follows:
  • fugitive aliens who pose a danger to national security;
  • fugitives aliens convicted of violent crimes or who otherwise pose a threat to the community;
  • fugitive aliens with criminal convictions other than a violent crime;
  • fugitive aliens who have not been convicted of a crime;
• Aliens who reenter the country illegally after removal, in descending priority as follows:
  • previously removed aliens who pose a danger to national security;
  • previously removed aliens convicted of violent crimes or who otherwise pose a threat to the community;
  • previously removed aliens with criminal convictions other than a violent crime;
  • previously removed aliens who have not been convicted of a crime; and
• Aliens who obtain admission or status by visa, identification, or immigration benefit fraud.

Secretary Napolitano characterized this prioritization as needed to focus ICE resources on the greatest threat to the public. At the same time, it undercut the ability of local law enforcement personnel deputized as immigration agents by 287(g) to shape priorities to local conditions. Locally law enforcement officials are being forced by the federal authorities to release back into the community illegal aliens if they do not meet the DHS criteria.

When ICE identifies an illegal alien from the fingerprints sent to it by the local agency, or is advised of the detention of an illegal alien suspect by a 287(g) trained local officer, it will ignore that identification unless the alien’s offense meets the agency’s priority criteria. Only if ICE decides that a detained alien meets the agency’s criteria will it take jurisdiction of the individual for deportation.