Joe Arpaio Reined In? Homeland Security Revises 287(g) Agreements Nationally

Janet Napolitano's Department of Homeland Security has just issued a press release announcing new, standardized 287(g) agreements that all law enforcement agencies participating in the program will have to sign, including Sheriff Joe's MCSO, which boasts a massive 160-man 287(g)-trained force, the largest in the nation.

"DHS and ICE will begin working with their current 287(g) partner agencies to re-sign the standardized agreements," reads the press release. "Ultimately, only those agencies with newly signed agreements will be permitted to continue enforcing immigration law."

Furthermore, there will be provisions that might put a crimp in Arpaio's future anti-immigrant dragnets in Maricopa County.

"The new MOA aligns 287(g) local operations with major ICE enforcement priorities," states the announcement, "specifically, the identification and removal of criminal aliens."

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Speaking to me via phone from DC, DHS spokesman Matt Chandler said by "criminal aliens," DHS means "people who present a public safety threat." That is, persons suspected of "major crimes," such as rape, murder, drug running, etc.  Not car washers, landscapers, or folks running water slides.

Indeed, a side by side comparison provided by Chandler of the key aspects of the old agreements versus the new agreements details ICE's three levels of prioritization regarding criminal aliens. Currently, the MCSO does not make any such prioritization during its raids and sweeps.

Chandler also indicated that if Arpaio wanted to use his 287(g) authority in a sweep or worksite raid, an "ICE supervisor" would have to approve "a copy of the operation plan" for the action.

He told me DHS was asking for these new agreements to be signed within 90 days by the respective LEAs involved. 

The press release also makes clear that Arpaio cannot arrest someone on a bogus charge just so they can end up being turned over to ICE.

"To address concerns that that individuals may be arrested from minor offenses as a guise to initiate removal proceedings," says the release, "the new agreement explains that participating local law enforcement agencies are required to pursue all criminal charges that originally caused the offender to be taken into custody."

Chandler clarified that no matter what charge an individual is originally arrested for, the law enforcement agency will have to "see it through to the end," if 287(g) authority is used during the arrest. 

The bad news with announcement is that Arpaio will be able to keep his 287(g) agreement with ICE, if he accepts the new dictates. This, despite being under investigation by the U.S. Justice Department over civil rights violations that are a direct result of the use of his 287(g) authority.

Should Arpaio accept these new rules, he could still conduct sweeps and raids using his state authority, but using his federal authority in these situations would be problematic, and, subject to administrative approval by ICE and DHS.

These new rules are not only for Arpaio. ICE has 66 agreements with law enforcement agencies across the country, all of which will have to be redone. Eleven new agreements under the new language were announced today as well.

Will Arpaio accept this curtailment of his 287(g) power with a shrug? Or will he denounce the new rules, thumbing his bulbous nose once more at federal authority? Something tells me we won't have to wait long to find out.

In the meantime, here's the press release in its entirety:

U.S. Department of Homeland Security
Press Release
July 10, 2009

SECRETARY NAPOLITANO ANNOUNCES NEW AGREEMENT FOR STATE AND LOCAL IMMIGRATION ENFORCEMENT PARTNERSHIPS & ADDS 11 NEW AGREEMENTS

WASHINGTON - Department of Homeland Security (DHS) Secretary Janet
Napolitano announced today that U.S. Immigration and Customs Enforcement
(ICE) has standardized the Memorandum of Agreement (MOA) used to enter
into "287(g)" partnerships-improving public safety by removing criminal
aliens who are a threat to local communities and providing uniform
policies for partner state and local immigration enforcement efforts
throughout the United States. Additionally, today ICE announced eleven
new 287(g) agreements with law enforcement agencies from around the
country.

"This new agreement supports local efforts to protect public safety by
giving law enforcement the tools to identify and remove dangerous
criminal aliens," said Secretary Napolitano. "It also promotes
consistency across the board to ensure that all of our state and local
law enforcement partners are using the same standards in implementing
the 287(g) program."

The new MOA aligns 287(g) local operations with major ICE enforcement
priorities-specifically, the identification and removal of criminal
aliens. To address concerns that individuals may be arrested for minor
offenses as a guise to initiate removal proceedings, the new agreement
explains that participating local law enforcement agencies are required
to pursue all criminal charges that originally caused the offender to be
taken into custody.

The new MOA also defines the objectives of the 287(g) program, outlines
the immigration enforcement authorities granted by the agreement and
provides guidelines for ICE's supervision of local agency officer
operations, information reporting and tracking, complaint procedures and
implementation measures.

"The 287(g) program is an essential component of DHS' comprehensive
immigration enforcement strategy," said ICE Assistant Secretary John
Morton. "The new agreement strengthens ICE's oversight of the program
and allows us to better utilize the resources and capabilities of our
law enforcement partners across the nation."

DHS and ICE will begin working with their current 287(g) partner
agencies to re-sign the standardized agreements-ultimately, only those
agencies with newly signed agreements will be permitted to continue
enforcing immigration law. A "sunset clause" will keep the MOA in effect
for three years from the date of signing unless terminated by either
party.

To date, ICE has trained more than 1,000 officers operating under 66
local 287(g) agreements between DHS and law enforcement agencies
nationwide.  Since January 2006, these 287(g)-trained officers are
credited with identifying more than 120,000 individuals, predominantly
in jails, who are suspected of being in the country illegally.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 added Section 287(g) to the Immigration and Nationality Act, which authorizes the DHS Secretary to enter into agreements with state and local law enforcement agencies to perform
immigration officer functions.  Pursuant to these MOAs, designated
officers who receive appropriate training and function under the
supervision of sworn ICE officers are permitted to perform immigration
law enforcement duties.

The eleven new agreements are with the following jurisdictions: Gwinnett
(GA) County Sheriff's Department.; Monmouth (NJ) County Sheriff's
Office; Rhode Island Department of Corrections; Delaware Department of
Corrections - Sussex Correctional Institution; Houston Police

Department; City of Mesquite (NV) Police Department; Morristown (NJ)
Police Department; City of Mesa (AZ) Police Department; Florence (AZ)
Police Department; Guilford County (NC) Sheriff's Office; Charleston
County (SC) Sheriff's Office.

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