REPORT ON IMMIGRATION IN THE UNITED STATES:  DETENTION AND DUE PROCESS

b.         Immigration enforcement at the state and local levels

i.          Immigration detention of noncitizens convicted of crimes or arrested on criminal charges (The Criminal Alien Program and Secure Communities Program)

173.          Undocumented immigrants are generally transferred to ICE after any incarceration, regardless of the seriousness of the case that led to the arrest, because they are likely removable even when there is no criminal conviction on their record.  Legal permanent residents and other noncitizens who have a valid immigration status are often transferred to ICE custody after having served a criminal sentence, since many crimes that result in a sentence of imprisonment are potentially grounds for deportation and may require mandatory detention.[266]  Therefore, any noncitizen in jail who is undocumented or any alien who has a criminal conviction that would make him deportable despite LPR or other lawful status, will have an ICE “detainer”[267] placed on him, meaning that he will be released into ICE custody immediately upon his release from criminal custody, at which point he will be placed in immigration detention during his deportation proceedings.[268]  Under U.S. immigration law, neither bond nor parole is available for many detained noncitizens who have criminal convictions on their records.[269]

174.          U.S. federal immigration officials have greatly expanded their partnerships with state and local law enforcement in order to identify immigrants who may be unauthorized or deportable owing to criminal convictions.[270]  ICE’s two principal initiatives to coordinate immigration information sharing with state and local law enforcement are the Secure Communities program and the Criminal Alien Program.

175.          The Secure Communities program was initiated in October 2008 and seeks to install biometric fingerprint database with search capabilities in all local jails and booking locations.[271]  This will allow local law enforcement to ascertain the immigration status of each arrestee at the time of booking.[272]  If the biometric test shows an individual is deportable, the local law enforcement contacts ICE.  As of August 30, 2009, the Secure Communities program was installed in 81 jurisdictions in 9 states.[273]  In November 2009, ICE reported that in its first year the Secure Communities program had identified 111,000 deportable migrants in local jails.[274]  ICE noted that of the total of migrants identified under  the Secure Communities program, approximately 11,000 were charged or convicted of violent crimes or other serious crimes (Level 1 crimes), while the other 100,000 were charged or convicted of Level 2 or 3 crimes.[275] Unfortunately, ICE does not provide a breakdown between level 2 and level 3, as the range of crimes that fall under these categories varies significantly in severity.[276]  Likewise, it does not provide a breakdown between the number of identified, deportable immigrants who were charged with a crime versus those convicted of a crime.

176.          Under ICE’s Criminal Alien Program (CAP), by contrast, ICE officials are stationed at various federal, state and local jails and detention facilities or monitor the detention population, sometimes remotely by telephone or video teleconferencing,[277] to identify deportable noncitizens.[278]  Under CAP, participating local law enforcement agencies (LEAs) notify the supervising ICE official when they have arrested or convicted an individual who they have reason to believe may be deportable.[279] The ICE official then conducts the investigation into the person’s immigration status.[280] In FY2008, ICE reports that CAP identified and charged 221,085 noncitizens in prisons for removal from the United States.[281]

177.          In FY2009, ICE reported that 178,605 (48%) of the immigration detainees were identified under CAP.[282]  Again during FY2009, ICE reported that the Secure Communities program had identified 111,000 unauthorized or deportable immigrants who had been either charged with or convicted of criminal offenses.[283]  The Inter-American Commission observes that state and local law enforcement partnerships account for a significant majority of the aliens encountered and detained in the United States.[284]

178.          The IACHR’s main concern with respect to state and local law enforcement agencies’ involvement in immigration enforcement is that it can lend itself to discriminatory practices in the wide range of interactions between police and the general public.  This situation is primarily due to ICE’s lack of oversight, data collection, and sufficient review to be able to monitor the way in which local and state law enforcement agencies identify which persons they will report to ICE as potentially unauthorized or deportable noncitizens. 

179.          By way of example, the Inter-American Commission was disturbed by a recent study published by the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity of UC-Berkeley Law School (“the Warren Institute Study”) which examined whether racial profiling was being used in the Criminal Alien Program (CAP) in Irving, Texas.[285]  The Warren Institute Study looked at the number of arrests of Hispanics in Irving, Texas (in the Dallas suburbs) over a 23-month period: from January 2006 to November 2007.[286]  The city of Irving became a partner in the CAP in September 2006, which made it possible to compare the arrest rate among Hispanics, mainly for Class C misdemeanors,[287] before and after Irving’s participation in the CAP.[288]

180.          The study found that once the CAP was implemented in Irving, arrests of Hispanics for Class C misdemeanors increased dramatically, far outstripping the number of Class C misdemeanor arrests among non-Hispanics, even though the total number of non-Hispanics arrested in Irving was higher than the number of Hispanics.[289]  Statistically speaking, these figures should be a warning signal that at least some of these Class C misdemeanor charges against Hispanics might have simply been an excuse to detain undocumented immigrants.   Even more troubling is the fact that under the CAP, ICE consistently issued detainers for fewer persons than were referred by the local police.[290]  It is possible that this discrepancy can be explained by the discretion that ICE has not to issue detainers for immigration-related matters against persons charged with misdemeanors.[291]  However, the Warren Institute Study shows that 98% of the detainers issued by the CAP Program in Irving were for persons charged with or convicted of misdemeanors.[292]  This statistic shows that ICE was not exercising its discretionary authority not to issue detainers for undocumented persons charged with Class C misdemeanors; on the contrary, it issued detainers for all the illegal aliens that it identified through the Irving police’s CAP referrals.

181.          It is apparent that the Irving police referred to ICE many lawful residents who had been charged with a Class C misdemeanor.  Given the discrepancies between the number of Irving CAP referrals and the fewer number of detainers issued by ICE as a result of those referrals, the disproportionate increase in the number of Hispanics charged with Class C misdemeanors  is an example of the use of racial profiling in that particular CAP partnership.[293]  In fact, in response to a number of appeals, in November 2007[294] ICE issued a memorandum for the Dallas area police departments (including that of Irving), reminding them that “[t]he intention to pursue prosecution leading to convictions of alien criminals arrested on state charges must be a critical consideration in referrals under the CAP Program.”[295]  The ICE memorandum instructed local law enforcement agencies that referrals to the Dallas ICE Detention and Removal Operations under the CAP Program should mainly be foreign nationals arrested and prosecuted (or referred to the district attorney for prosecution) for a criminal offense that was a Class B misdemeanor or higher.[296]

182.          The IACHR is concerned that what happened with the CAP Program in Irving County might not be an isolated case.  A report that the Immigration Policy Center published in February 2010 found a similar pattern in the Travis County CAP Program in Texas.[297]  Like the Warren Institute Study, the Immigration Policy Center report found a similar drastic increase in the number of immigration detainers for persons charged with Class C misdemeanors, as well as a growing presence of ICE agents in Travis County jails under the CAP program.[298]

183.          ICE recently indicated that it intends to expand its partnerships with state and local law enforcement agencies in the enforcement of federal civil immigration laws.  ICE intends to continue the planned expansion of the Secure Communities program, with the goal of having biometric search capabilities available in all county and local jails by 2013.[299]  ICE has requested US$200 million in FY2010 for the program, a 30% increase.[300]  An ICE official has estimated that if Secure Communities is expanded to all local jails, approximately 1.4 million deportable immigrants would be identified annually.[301]

184.          In the response submitted to the draft version of this report, the United States explains that the Secure Communities Program, which relies on fingerprints, is used by ICE to deploy technology to state and local agencies, and that it allows the federal immigration authorities to identify aliens who are booked on criminal charges.  The United States considers that the IACHR’s perception that this program can lead to discriminatory practices in the communities where it is deployed is “not accurate”:

In fact, Secure Communities reduces the potential for racial or ethnic profiling because, as it relies on biometric -not biographic- information.  The program is neutral and does not target people based on physical appearance or other considerations which could lend themselves to concerns over racial profiling.  Indeed, the program checks the fingerprints of all people arrested and booked, whether U.S. citizen, lawful permanent resident, visa holder, or person unlawfully present.

To date, ICE has not received any formal complaints or allegations of racial profiling as a result of the Automated Biometric Identification System/Integrated Automated Fingerprint Identification System (IDENT/IAFIS) interoperability activation.  Existing processes are in place at the local, State and Federal levels to report allegations of racial profiling or abuse occurring in local law enforcement agencies.  Because DHS is serious about responding to reported allegations of racial profiling, due process violations, or other violations of civil rights or civil liberties relating to Secure Communities, DHS CRCL expanded the existing complaints process to include Secure Communities.  Information on the complaint process, including how a claimant can file a complaint, is readily available to the public and can be found on the Secure Communities website at: http://www.ice.gov/secure_communities/complaint_process.htm

185.          The IACHR appreciates this constructive response and the serious attention to these issues, especially with increased oversight by the federal immigration authorities over local agencies where the potential for abuse could eventually be greater.  However, faced with the above mentioned reports, the Inter-American Commission must reiterate the concerned expressed above and again call on the United States to do everything to ensure that race does not become a factor in local and state identification of potentially unauthorized noncitizens and other removable noncitizens.  Because accurate information on the enforcement of these programs is essential to ensuring that they are not enforced in a discriminatory manner, the IACHR is troubled by the fact that the Memorandum of Agreement template under ICE’s Secure Communities Program and the Standard Operating Procedures (SOP) template do not prescribe or analyze the way in which data are compiled.[302]

ii.         Delegation of Civil Immigration Enforcement to State and Local Law Enforcement (State and local partnerships for enforcing civil immigration laws under 287(g) agreements))

186.          ICE has also developed a program that authorizes civil immigration enforcement by state and local law enforcement agencies. The 287(g) program, which oversees the creation of Memorandums of Agreement (MOAs) with state and local law enforcement agencies, is named for the section of the Immigration and Nationality Act which authorizes these types of agreements.

187.          An MOA is essentially a contract between ICE and the local or state law enforcement agency, which establishes the law enforcement agency’s authorization to enforce civil immigration laws, the tracking and reporting requirements to ICE, and ICE’s supervising obligations, to name just some of the more important aspects of an MOA.  There are two types of MOAs:  Taskforce Officers and Jail Enforcement Officers.[303]  The Taskforce Officers MOAs permit local and state law enforcement agencies to conduct civil immigration searches and arrests in their normal course of duties—from traffic stops to criminal investigations.[304]  Under the MOAs for Jail Enforcement Officers, on the other hand, state and local law enforcement agencies are only allowed to charge noncitizens already in custody or criminally convicted and being held in state and local facilities.[305]

188.          Historically, civil immigration enforcement was the exclusive purview of federal authorities.[306] The 1996 immigration laws included the 287(g) provision that opened up the possibility, for the first time, of state and local enforcement of federal civil immigration laws under MOAs.[307]  After September 11, 2001, ICE decided to exercise its 287(g) authority to address threats to national security and to give “state and local officers [the] necessary resources and latitude to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.”[308] The federal government entered into its first MOA in 2002.[309]  During the debate for comprehensive immigration reform in 2006-2007, many localities with rising immigrant populations sought to take civil enforcement of immigration laws into their own hands.[310] As of January 2009, 66 state and local law enforcement agencies in at least 20 different states had entered into 287(g) agreements;[311] by the end of 2008, ICE had trained 1,075 state and local law enforcement officers.[312]

189.          ICE reports that 44,692 (12%) alien apprehensions in FY2009 were the product of 287(g) partnerships.[313]  It also reports that since January 2006, approximately 130,000 potentially removable aliens have been identified under the 287(g) program.[314]

190.          As in the case of the CAP and Secure Communities Programs, the 287(g) agreements open up the possibility of racial profiling.  The failure to segregate civil law enforcement from criminal law enforcement invites abuse, as will be explained in the following paragraphs.

191.          ICE has stated that the goal of the 287(g) program is to combat all serious and violent criminal acts committed by an undocumented or removable noncitizen.[315] However, even before the 287(g) program was instituted, state and local law enforcement agencies had the authority to investigate those criminal acts and institute criminal proceedings.  What this program does is to give state and local authorities additional tools that are not for criminal investigations; were they to be so used they would constitute violations of basic constitutional rights.  The 287(g) agreements allow state and local law enforcement to incarcerate a person for violations of civil immigration laws, often without any possibility of bond.  They can also make administrative arrests and issue administrative removal warrants without having to get an independent judge’s okay.[316]  As observed in the February 2009 report published by Justice Strategies: “The 287(g) program is useful precisely when an arrestee is not a ‘criminal illegal alien’ and an officer lacks reasonable suspicion for a crime.”[317]  Although claiming to be pursuing criminals, under the 287(g) program agents appear to have the authority to get undocumented immigrants that they would have been unable to detain otherwise.

192.          Another indication of the situation is the mismatch between the state and local law enforcement agencies that are partners in the 287(g) program and the crime rates within their respective jurisdictions.  According to the Justice Studies report, some 61% of the 287(g) partner law enforcement agencies have a violent crime rate and property crime rate that is below the national average and the vast majority saw a drop in violent crime and property crime between 2000 and 2006.[318]  However, the same report observed that 87% of the jurisdictions that the 287(g) partner agencies serve had a Latino population growth rate that was higher than the national average between 2000 and 2006.[319]  This suggests that the involvement of many local and state law enforcement agencies in the 287(g) program could be out of their concern over the increase in the Hispanic population and not because of any evidence of an increase in crime rates among the immigrant population.

193.          These concerns are also supported by the figures obtained by the Inter-American Commission and the practices that law enforcement officers engage in under these programs.

194.          The figures suggest that a high percentage of the immigrants arrested under the 287(g) program are initially detained for minor infractions.  For example, it has been reported that 95% of the persons arrested under the 287(g) program in Gaston, North Carolina, were arrested for misdemeanors, 60% of which were non-DWI traffic violations; in Alamance County in North Carolina, 80% of the persons arrested under the 287(g) program were charged with misdemeanors, 45% of which were non-DWI traffic violations.[320]  In all, between 2006 and 2008, 86.7% of the immigrants arrested under the 287(g) program in North Carolina (eight counties and one city) were charged with minor infractions.[321]

195.          The local law enforcement agency whose conduct under the 287(g) program has stirred the most controversy among the public over the alleged use of racial profiling is the Office of the Sheriff of Maricopa Country (MCSO),[322]  to which the IACHR was denied access, as explained in the introduction to this report.  The IACHR must again go on record to underscore its profound concern over the federal government’s lack of authority to grant a visit to immigration detainees who are accused of violations of federal immigration law and are being held in the facilities of agencies that are partners in the 287(g) program.  The Inter-American Commission notes that the United States Department of Justice has a federal investigation underway to look into violations of civil rights in the MCSO’s enforcement of federal immigration laws.[323]  This might suggest the absence of timely and adequate oversight of the condition of persons who, in the final analysis, are the legal responsibility of ICE.

196.          While the MOA with the MCSO clearly provided that MCSO personnel could not perform immigration enforcement functions without the supervision of an ICE officer,[324] an investigation that the East Valley Tribune conducted in 2008 found that the ICE agent who oversees the 287(g) partnership with the MCSO stated: “We obviously don’t supervise them doing their operations.”[325]   

197.          This apparent lack of oversight is particularly troubling, as the IACHR has been informed that the MCSO has a reputation for exercising its civil immigration authority through controversial methods like “criminal sweeps”[326] which as a rule last for two days and involve dozens of officers ‘saturating’ a specific area of the county and making traffic stops in marked and unmarked cars.[327]

198.          Based on a strained interpretation of Arizona’s criminal law by Maricopa County Attorney Andrew Thomas regarding human smuggling,[328] the MCOS has arrested undocumented immigrants on the grounds that any person who pays a “coyote” or other criminal organization[329] is a felony conspirator in his or her own trafficking into the United States.[330]  According to the February 2009 report prepared by Justice Strategies, the Maricopa County Attorney’s Office used the charge of “conspiracy to commit human smuggling,” a class 4 felony, to persuade undocumented immigrants to plead guilty to a lesser criminal charge.[331]  According to investigative reporting done by the East Valley Tribune, in 2006 and 2007 the MCSO arrested 578 illegal immigrants during traffic stops; 498 of them were then charged under state human smuggling laws by virtue of the fact that they had paid “coyotes”.[332]  The Inter-American Commission observes that a similar strategy was used by federal prosecutors in the Postville worksite raid and Operation Streamline.          

199.          According to an analysis done by the Arizona Republic of the records of arrests made between March and July 2008 by eight crime suppression patrols, Hispanics accounted for the largest number of arrests made per “criminal sweep”, even when the operation was conducted in an area where non-Hispanics account for the majority of the population.  Furthermore, the Arizona Republic’s analysis suggests that the enforcement of civil immigration laws was one of the main goals of the “criminal sweeps” since in five of the eight sweeps the immigration arrests outnumbered arrests of other kinds.[333]

200.          A troubling example is the “criminal sweeps” that the MCSO conducted in Cave Creek, Arizona, an area known for the presence of “day laborers.”[334]  On December 12, 2007, a suit was filed in federal court against the MCSO on behalf of a legal immigrant who accused the MCSO of overstepping its authority and enforcing federal immigration law in a discriminatory manner.[335]  In February 2010, a federal judge imposed sanctions on the MCSO for destroying the records of the “criminal sweep” at Cave Creek and erasing e-mail messages between employees that made reference to the operation.[336]  Nevertheless, the IACHR observed that a number of e-mail messages sent at the time of the Cave Creek “criminal sweep” are attached to the previous 287(g) MOA between ICE and Maricopa County, available at the FOIA ICE website.[337]  In response to the legal proceedings instituted against it, the MCSO circulated an internal e-mail that provides unmistakable evidence to the effect that in the Cave Creek “criminal sweep” the MCSO conducted traffic stops as a pretext for checking the immigration status of the persons stopped.[338]

201.          Like all earlier and recent MOAs, the Maricopa County MOA states that the 287(g) partners are legally bound by all federal civil rights laws and by the United States Department of Justice’s  “Guidance regarding the Use of Race by Federal Law Enforcement Agencies”  of June 2003 (DOJ Guidance).[339]  The information recounted here paints a very disturbing picture of how the MCSO has used its civil immigration enforcement authorities under the 287(g) program, particularly the serious evidence of the use of discriminatory practices.         

202.          The Inter-American Commission welcomes ICE’s decision to discontinue the authorization of the “Task Force” model in the case of the MCSO[340] and the Department of Justice’s decision to open an investigation into alleged civil rights violations in the MCSO’s police practices.[341]

203.          Regarding this matter, the State also confirms that the Sheriff of Maricopa County “had been the subject of a number of complaints, including some from local city majors and members of the U.S. Congress” and that on September 2, 2010, the United States filed a suit against that County, the Sheriff’s Office and Sheriff Arpaio (“the Defendants”) to “enforce Title VI of the Civil Rights Act of 1964, the Title VI implementing regulations issued by the United States Department of Justice, and related contractual assurances”.  The United States also indicates that since March 2009 it has been attempting to “secure the Defendants’ voluntary cooperation with the United States’ investigation of alleged national origin discrimination in Defendants’ police practices and jail operations”.  However, the Defendants have refused to do so, despite their obligation to comply in full with the United States’ requests for information. The United States further indicates that the “Defendants’ refusal to cooperate with reasonable requests for information regarding the use of federal funds is a violation of Defendants’ statutory, regulatory, and contractual obligations” and that accordingly it is “seeking a judgment granting declaratory and injunctive relief for Defendants’ violations of the law”. 

204.          The United States asserts that DHS “is fully committed to enforcing the nation’s immigration laws while respecting the rights of all individuals encountered during such enforcement efforts”.  With respect to this specific issue, however, the IACHR learned that after the Task Force authorization was rescinded, Maricopa County Sheriff Joseph Arpaio stated that he would continue to exercise authority to enforce federal immigration laws in the field.  Arpaio cited a non-existent federal statute that he had allegedly distributed in a handout at a press conference in reaction to ICE’s decision.[342]  The handout read as follows:

Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S.  Specific facts constituting a reasonable suspicion include evasive, nervous or erratic behavior; dress or speech indicating foreign citizenship, and presence in an area known to contain a concentration of illegal aliens.  Hispanic appearance alone is not sufficient.[343]

205.          It was later discovered that the contents of the handout came from a website of the Federation for American Immigration Reform (FAIR), an organization that advocates restriction of immigration policies.[344]  When confronted about the false document, the MCSO responded that “[a]lthough the citation and language does not appear in the U.S. code, Title 8 does exist, and the Sheriff's Office believes that it still has the authority under federal law to detain illegal aliens during the course of their duties.”[345]

206.          When the delegation from the Inter-American Commission asked the ICE State and Local Coordination Team about the document, the Team stated that it was unaware of the document.[346]  The day after ICE officials withdrew the MCSO’s authorization, the latter conducted another “criminal sweep”.  In February 2010, Sheriff Joseph Arpaio asserted that he would continue to enforce federal immigration law in the field and that he planned to train 881 of his agents in immigration enforcement.[347] 

207.          The IACHR, therefore, finds it troubling that ICE continues to maintain a contract with the MCSO for enforcement of civil immigration law.

208.          Even more alarming is the recent passage of a new criminal immigration law in the state of Arizona on April 23, 2010 and set to take effect on July 23, 2010. That law has content similar to the handout that Sheriff Arpaio circulated, as it requires the Arizona police to ask for the immigration status of any person where “reasonable suspicion” exists that the person is an alien who is unlawfully present in the United States.  Likewise, the law establishes in effect that the presence of an undocumented immigrant in Arizona is a criminal offense, which carries a prison sentence.

209.          The Inter-American Commission reiterates what it stated in its Press Release No. 47/10 of April 28, 2010 to the effect that this law constitutes an unacceptable criminalization of the presence of undocumented persons and is incompatible with the United States’ international obligations in the area of nondiscrimination, especially inasmuch as it invites racial profiling and its implementation will likely have a disproportionate impact on certain immigrant groups.

210.          In its October 2010 response to the draft version of this report, the United States agrees with the unconstitutional and discriminatory nature of certains provisions of the law passed by the Arizona legislature, and describes the actions taken by the Obama Administration to challenge it in court:  

As the Commission has noted, in April of 2010, the state of Arizona enacted Senate Bill 1070 (S.B. 1070) a law which, among other things, required police to make a reasonable attempt, when practicable, to determine the immigration status of a person when in the course of a lawful stop, detention, or arrest a reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, unless that determination may hinder or obstruct an investigation.  On July 6, 2010 the Department of Justice (DOJ) filed a legal challenge to S.B. 1070 in the United States District Court for the District of Arizona on grounds that it is preempted under the Constitution and federal law, because it unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy.  In particular, DOJ submitted that the law’s mandate on Arizona law enforcement to verify immigration status is preempted because it will result in the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status, and impermissibly burden federal resources and impede federal enforcement priorities.  The suit, which requested that the court issue a preliminary injunction to enjoin enforcement of the law, was filed on behalf of DOJ, DHS, and the Department of State, which share responsibilities in administering federal immigration law.  On July 28 a federal judge issued a preliminary injunction blocking sections of the law, including those which raised most concern about potentially discriminatory effects.  The injunction has been appealed, and the Justice Department will continue to challenge the law.  The United States continues to maintain a firm position against racial profiling in all of its enforcement activities, including in the delegation of immigration authority to its State and local partners.

211.          In press release 47/10 issued by the IACHR to express concern over this law, the IACHR “exhort[ed] U.S. authorities to find adequate measures to modify the recently approved law in the State of Arizona in order to bring it into accordance with international human rights standards for the protection of migrants”.  The Inter-American Commission considers that the legal actions initiated by the Federal Government of the United States, described above, represent a highly positive initiative and a concrete example of compliance with international human rights standards by that country.

212.          On the other hand, the IACHR is also deeply concerned that what happened in the case of the MCSO is an example of a more pervasive problem with ICE’s lack of oversight and of the lack of accountability of the agencies that enforce federal civil laws on ICE’s behalf under 287(g) partnerships. This concern is consistent with a January 2009 report of the Government Accountability Office (GAO), which found a considerable lack of supervision over the participating agencies’ implementation of the 287(g) program.[348]

213.          During its visits to Texas and Arizona, the Inter-American Commission learned of other disturbing law enforcement methods used by the 287(g) partner agencies.  The delegation from the IACHR had an opportunity to meet with persons who had been interrogated by 287(g) partner LEAs about their immigration status.  In some cases, the persons alleged that local law enforcement officers, acting on ICE’s behalf under the 287(g) program, had insisted that they sign documents without having an opportunity to read them and deceived others who believed they were signing “voluntary departure” documents.[349] In one case, a person told the Inter-American Commission that he was placed in a small cell with officers seated on either side of him, while a third officer told him over and over to sign the documents.[350]

214.          Finally, the IACHR learned of certain figures that might suggest that state and local law enforcement agents under the 287(g) program are not only using criminal prosecution as a façade to justify the detention of undocumented immigrants without taking into account the eminently civil nature of their infractions, but also could be distracting the public’s attention away from public safety issues that truly need to be addressed, thereby adversely affecting the safety of the population in their jurisdictions.[351] For example, the MCSO told the United States Federal Bureau of Investigations (FBI) that between 2004 and 2007, violent crime reported in the County increased by 69% and that homicides were up by 166%.[352]  By contrast, the cities of Phoenix and Mesa, which are within Maricopa County but do not participate in the 287(g) program, reported an increase of from 5% to 15% in violent crime during that same period.[353]  The East Valley Tribune’s 2008 investigative report concluded that, subsequent to the 287(g) partnership, the response time of MCSO officers to top priority emergencies increased considerably.[354]  The Goldwater Institute reported that 66 positions in the Patrol Division went unfilled to cover a deficit of $1.3 million, due mainly to Maricopa County’s immigration enforcement activities.[355]  The Goldwater Institute reports that the MCSO had an alarmingly low rate of cleared cases that resulted in arrests, at just 18%.[356]

215.          ICE has announced plans to expand its local law enforcement partnerships under the 287(g) program, albeit with a number of changes.  In this regard, the  United States includes the following information in its response to the draft version of this report:

DHS continues to add and incorporate safeguards, which will aid in the prevention of racial profiling and civil rights violations and improve accountability for protecting human rights under the program.  In July 2009, ICE revised the memoranda of agreement with State and local law enforcement agencies to narrow the scope of the delegated authority, improve oversight and performance review, and require that all ICE partners commit to the new standards and use the authority consistent with ICE priorities.  In addition, ICE will soon issue guidance to partners on how to create and sustain local steering committees to solicit the input from a variety of audiences on how to improve the program in the area.  This guidance is currently under review by the agency’s NGO advisory groups in order to ascertain their feedback before final implementation.  These reforms are designed to ensure that State and local officers who exercise 287(g) authority focus on convicted criminal aliens and those who endanger our communities.

Additionally, comprehensive civil rights instruction and training are provided to all State and local law enforcement officers prior to, and during, their assumption of immigration authority.  For example, all law enforcement officers authorized to perform 287(g) functions must attend and graduate from a 4-week training course at the ICE Academy which includes courses in civil rights and civil liberties and racial profiling.  DHS CRCL has also worked with the Federal Law Enforcement Training Center (FLETC) to strengthen the training provided to all initial entry trainee federal law enforcement officers, and DHS has developed training materials for in-service personnel entitled, “Guidance Regarding the Use of Race for Law Enforcement Officers.”  These training materials, which are provided to all employees in web-based and CD-ROM format, provide a tutorial on DOJ guidance and DHS policy, as well as practical tips drawn from real life situations on how law enforcement personnel can avoid engaging in racial profiling.  This thorough preparation specifically addresses ICE’s stance against racial profiling and the constitutional concerns regarding the use of race in domestic law enforcement activities.

ICE also has developed an inspection program to audit the agreements of ICE’s State and local partners.  The ICE Office of Professional Responsibility (OPR) conducts these inspections and reports the results to ICE management for any corrective actions.

Also, the 287(g) program has a detailed complaint process in place that is articulated in each agreement.  Complaints are accepted from any source and can be directed to the DHS Office of the Inspector General or to ICE OPR.  In addition, any complaints that ICE receives directly are immediately forwarded to DHS CRCL.

216.          The Inter-American Commission also observes that in October 2009, as part of an effort to lend continuity to its 287(g) partnerships and bolster accountability, ICE announced issuance of standardized MOAs authorizing enforcement of immigration laws by both task force officers and jail enforcement officers.[357]

217.          As a general issue, the IACHR observes that the ambiguity with respect to the exercise of criminal law enforcement functions and purely immigration enforcement functions are still there.  The objectives spelled out in the 287(g) program --i.e., identification and removal mainly of  immigrants with serious criminal records-- do not match the performance indicators that ICE uses to assess the partner agencies under the new MOAs, which include the number of aliens encountered by 287(g) officers.[358]  The Inter-American Commission is concerned that this could keep the main focus on the number of immigrants arrested, irrespective of the seriousness of the offenses they may have committed.   Nor does it do anything to eliminate the possibility for pretextual arrests on charges that are later  withdrawn or not prosecuted as an excuse to check a person’s immigration status.[359]

218.          Although the IACHR welcomed the statements made by the ICE State and Local Coordination Team during the October 2009 briefing concerning the reforms and accountability mechanisms,[360]  the language of the new, standardized MOA establishes few measures to identify and avoid the possible use of racial profiling and in some respects expands the civil immigration authority of the state and local partners without proper ICE oversight.

219.          The new MOA provides greater latitude with respect to the circumstances under which LEAs acting on ICE’s behalf are authorized to question an individual about his or her immigration status.  The typical language of the old MOAs was as follows:

The power and authority to interrogate any alien or person believed to be an alien as to his right to be or remain in the United States (…) and to process for immigration violations those individuals who are convicted of State or Federal felony offenses[361] (emphasis added).

220.          This language indicates that in the context of a criminal arrest and the removal process the LEA agent acting on ICE’s behalf may only interrogate an individual about his or her immigration status if the person in question has been convicted of a felony.[362]  The new MOA states the following in this regard:

The power and authority to interrogate any person reasonably believed to be an alien about his right to be or remain in the United States and to process an alien solely based on an immigration violation (…) will be delegated only on a case-by case basis. (…). When an alien is arrested for the violation of a criminal law, a TFO may process that alien for removal subject to ICE supervision as outlined in this agreement[363] (emphasis added).

221.          The Inter-American Commission appreciates the language requiring that ICE give its preapproval for interrogation of an individual based solely on a civil violation of immigration law; however, it is unclear precisely how this requirement will be implemented in practice.  The IACHR finds it troubling that if an immigrant is arrested for a lesser infraction, such as a traffic violation, the language of the new MOA unequivocally permits the participating local enforcement agency (LEA) to question that person about his or her immigration status.  The Inter-American Commission deems that without proper ICE oversight, this broad interrogation authority can be exercised in such a way as to leave noncitizens and citizens in a vulnerable situation and at risk of becoming the victim of racial profiling.[364]

222.          The IACHR also finds other amplifications of the LEAs’ civil immigration authorities under the new MOA template.  The Inter-American Commission is particularly concerned by the fact that under the new MOA template, the LEAs’ authority to conduct searches and to issue arrest warrants for immigrants, both of which come under federal civil immigration law.[365]  The burden of proof for an administrative search is less exacting than the “probable cause” standard required for a criminal search warrant.[366]  ICE has now empowered LEA partners to conduct these two principal functions of civil immigration investigation and enforcement, with minimal, required ICE oversight.[367] 

223.          The Inter-American Commission is pleased that the MOA template includes specific language to the effect that in their activities under the 287(g) program, LEAs are bound by federal civil rights law.[368]  However, the Inter-American Commission is concerned that the MOA does not make provision for mechanisms whereby the LEAs would have to answer to ICE and to the community in general.  Specifically, the language used in the MOA template is more aspirational than binding.[369]

224.          While the MOA template provides that personnel of a participating LEA must be under ICE supervision for purposes of exercising their immigration authority, it does not specify the extent and the manner of ICE’s supervision.[370] A March 2010 report by the DHS OIG found significant disparities in ICE’s supervision of 287(g) program officers.[371]  The new MOA regulations regarding ICE supervision mainly concern the processing of unauthorized immigrants once they have been identified, rather than oversight at the time when the racial factor may come into play.[372]

225.          The IACHR is also concerned that the new MOA template eliminates the provision requiring LEAs to compile information on the exercise of civil immigration authority under the 287(g) program.[373]  A March 2010 report by the DHS OIG mentioned this concern and recommended that ICE require that information of this kind be collected and reported.[374]  The Inter-American Commission must point that this was the only of the 33 recommendations made by the DHS OIG that ICE rejected,[375] despite how important information of this kind is to ensure that discrimination in the form of racial profiling does not make its way into these programs.

226.          Finally, the IACHR observes that the new MOA template curtails transparency because ICE approval is required for the release of any information related to 287(g) programs and disclosure of such information must be done be in accordance with federal regulations—eliminating the applicability of states’ open records laws.[376]  Consequently, the new MOA template may frustrate the ability of civil society organizations and the general public to ensure that LEAs are exercising 287(g) authorities appropriately, are accountable to ICE, and that ICE is performing its oversight function. 

            4.         Bond

227.          Under certain circumstances noncitizens who are taken into preventive custody during removal proceedings may apply for release on bond[377] provided they are not “arriving aliens” and are not subject to mandatory detention on criminal or terrorism grounds.  The amount can be recovered at the end of the proceedings.  The detainee can seek review of his custody and the bond amount before an immigration judge.[378]  The minimum bond amount prescribed by U.S. immigration law is US$1,500.[379] However, ICE can establish an initial bond amount that is significantly higher than this minimum threshold.[380]  In the United States, the average immigration bond is US$5,941.[381] Either side —the noncitizen or the government—may appeal a bond determination and order of release.[382] In most cases, the noncitizen may pay the bond set and obtain release while the appeal proceeds.

228.          The United States explains the following in its observations to the draft version of this report:

As to the concerns on immigration bonds, the vast majority of aliens in immigration proceedings are not detained in ICE custody.  The vast majority of unauthorized aliens are not detained during their immigration proceedings.  If a bond is deemed necessary to ensure the appearance of an alien or to protect the safety of the community, standardized criteria are used to determine the bond amount, including, but not limited to, the alien’s criminal history, flight risk, danger to the community or to national security, and family ties.

As noted by the Commission, the average bond is under $6,000 and therefore is not subject to the automatic stay if the bond determination is appealed.  See 8 C.F.R. § 1003.19(i)(2) (requiring an automatic stay of any custody order when bond is set by DHS at $10,000 or more).  Accordingly, the automatic stay concern referenced in the Commission’s report is likely to affect only the most dangerous aliens whose release into the community is unwise.  Moreover, aliens offered release on bond may post it by paying a small percentage of the total amount (generally 10 percent), meaning that the average alien can post bond by paying just $600.

229.          The State, however, has not contested that it is in fact very difficult for immigrants to pay the average bond amount.  Based on the U.S. Census Bureau’s March 2005 Current Population Survey data, the average unauthorized male worker earned an annual salary of approximately US$25,000.[383] Immigration attorneys have reported that many of their detained clients are unable to pay them.[384]     

230.          If ICE establishes an initial bond amount of US$10,000 or higher, an immigration judge’s ruling that seeks to reduce that amount or release the detainee on parole will be automatically stayed, which means that the detainee may not be released on bond or any other procedure until the appeal filed by the government with the Board of Immigration Appeals (BIA) is decided.[385] Immigration attorneys complained to the Inter-American Commission that they feel at times ICE abuses this provision of the statute and moreover sometimes the BIA declines to review a bond appeal until it receives the merits of the case, which effectively prevents a detainee’s release throughout immigration proceedings.

231.          Finally, in order to ensure release on bond, the noncitizen has to demonstrate that he or she poses no threat to other persons, property or national security and is not a flight risk, thus ensuring that he or she will report for all future immigration proceedings.[386]

232.          Detention of unauthorized immigrants is not criminal detention, must not be punitive and should only happen in the exceptional circumstances where detention is warranted.  Absent those circumstances, detention of unauthorized immigrants is incompatible with the right to personal liberty.  Therefore, because undocumented immigrants should as a general rule remain at liberty, detention for a protracted period owing to the inability to post bond –which is what happens in most cases- becomes arbitrary.  The IACHR urges the State to order the necessary measures to make detention for immigration violations the exception rather than the rule and so that the bond system does not become another obstacle that undocumented immigrants have to surmount in order to obtain the liberty to which they are, as a general rule, entitled.

5.         Indefinite detention of noncitizens who cannot be deported

233.          Noncitizens ordered deported generally remain in detention until they are removed from the United States.[387]  Under U.S. immigration law, ICE is required to conduct a review of the post-order custody of any immigrant detainees who are still in ICE custody 90 days after the order of removal.[388] Prior to that review, within 30 days of post-order detention, ICE is required to notify a detainee of his or her obligation to cooperate with the deportation process and the consequences of failing to do so.  Within 60 days of the post-order of removal detention, ICE is required to provide information with respect to the 90-day custody review.[389]  The 90-day period can be suspended if the government determines that the person ordered deported fails or refuses to make timely application in good faith for travel or other documents necessary for the person’s departure or acts to prevent his or her removal.[390]  After the 90 days expire, ICE is permitted to detain an individual for an additional 90 days upon a custody review by ICE officials.[391]  A February 2007 DHS OIG report found that ICE complied with these notification requirements in only 50% of cases.[392] Moreover, that same report found that 19% of post-order removal detainees did not receive a timely 90-day custody review.[393] 

234.          In 2001, the U.S. Supreme Court held that post-order of removal detention cannot be indefinite.  In Zadvydas v. Davis, the U.S. Supreme Court held that the applicable immigration laws did not authorize indefinite detention and designated six months as the time period beyond which a noncitizen cannot be held after issuance of a final removal order, absent evidence that removal is reasonably foreseeable.[394]

235.          Despite the U.S. Supreme Court’s ruling, detention beyond the six-month period still occurs.[395] Some of these cases are due to an individual’s failure to cooperate in the removal process or because the person falls under one of the exceptions to release.[396] Nevertheless, there are cases where persons are detained beyond the 180-day period, in clear violation of the U.S. Supreme Court’s decision.[397]  The DHS Office of Inspector General (OIG) reported that of the 150 files it reviewed of persons who were entitled to these statutory custody reviews, 64 (43%) had been in detention with a final order for more than 180 days but had not received a custody review in the last 90 days.[398]  Of these 150 persons, 36 (24%) had not received a review in the last 180 days.[399]  The MPI’s September 2009 study found that ICE data from January 25, 2009 showed 992 persons who had been detained for more than six months after receiving their final order of removal.[400]

236.          In its October 2010 observations, the United States explains that “ICE proactively attempts to remove aliens following the entry of a final removal order by an immigration judge” but clarifies that the removal process “can take up to several months to complete, depending on several factors, including but not limited to, the country of removal, whether or not the alien is cooperative throughout the removal process, and/or whether or not the alien has any ongoing appeals”.  The State further indicates that in the above mentioned Zadvydas v. Davis decision, the U.S. Supreme Court understood this possibility, and therefore established that “six months is a presumptively reasonable period for the agency to complete the removal process on behalf of a given alien”.  The Supreme Court also noted in its decision that “[t]his 6-month presumption, of course, does not mean that every alien not removed must be released after six months” but that “to the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” 

237.          The Inter-American Commission is deeply troubled that the 180-day custody determination is not conducted by an independent immigration or federal judge.  Indeed, the IACHR received information indicating that post-order of removal detainees must affirmatively file a habeas corpus petition in order to be released after the 180 days of post-order detention have expired.  Further, ICE regulatory requirements regarding the oversight and review of these detainees’ cases diminish considerably after 180 days.[401]  Without assistance of legal counsel, these detainees face tremendous obstacles in securing their release.  Even so, immigration attorneys report that they often have limited knowledge of everyone detained at a given detention facility.[402]

238.          In this regard, the United States points out that in order to remain diligent throughout the removal process, the agency “regularly conducts post-order custody reviews in accordance with the regulatory requirements in 8 C.F.R. § 241.4; ICE also regularly releases aliens when the agency has determined, upon its completion of such reviews, that there is no significant likelihood of removal in the reasonably foreseeable future”.  The State submits that it is not necessary for aliens to file a habeas petition in order to be released after 180 days of post-order detention have expired

239.          The IACHR welcomes this information, as well as all actions adopted by the United States to guarantee the right to personal liberty of migrants as protected by the American Declaration.

240.          Finally, the Inter-American Commission must express its deep concern over the indefinite detention to which noncitizens are subjected when their countries refuse to accept them (e.g., Vietnam, Laos, Cambodia, and the People’s Republic of China) or when their countries do not maintain normal diplomatic relations with the United States (e.g., Cuba and Iran), or they are simply stateless.[403]