Brewing Up a New 287(g) Lite, on ICE

By Dan Cadman on May 17, 2019

Not long ago, the Center published a post I wrote noting the lack of any real commitment within U.S. Immigration and Customs Enforcement (ICE) to restoring the usefulness and credibility of the 287(g) program, despite a presidential executive order mandating that the agency do so. 

The program, which is named after the section of the Immigration and Nationality Act (INA) that created it, permits cross-training and designation of state and local officers to perform certain immigration enforcement functions, serves the common interests of both the federal government, and states and local communities by removing alien criminals from the streets rather than releasing them to reoffend and create new victims of their crimes.

I won't delve again into the reasons for this failure on ICE's part, other than to comment on its inherent myopia given the ability of the 287(g) program to reverse the trend of state and local police organizations declining to work with ICE, many of which would do so if released from the fear of loathsome and budget-breaking civil actions against them. The program holds within it that possibility because state and local participants enjoy the same qualified immunity from lawsuits as federal agents, meaning that open borders advocates such as the American Civil Liberties Union (ACLU) and Southern Poverty Law Center (SPLC) cannot use the heavy hand of threatened legal actions to intimidate otherwise-willing state or local departments from cooperating with ICE.

I'm happy to report that there is some progress on this front. ICE has announced a new, limited version of the 287(g) program—let's call it “287(g) Lite”—that apparently was worked out in conjunction with various sheriffs and police departments, including specifically the Pinellas County, Florida Sheriff's Office whose boss, Sheriff Bob Gualtieri, has been a steadfast supporter of both the program and ICE's efforts to work cooperatively with state and local authorities to take alien criminals off the streets.

The new, limited version, called the “Warrant Service Officer Program”, will provide designated deputies and police officers enough training to be able to serve federal civil arrest warrants against aliens charged with being removable from the United States.  Such warrants are authorized by Section 236 of the INA (8 U.S.C. 1226).

The advantage of the program has to do with cost savings and minimal officer downtime, because the amount of training needed for this limited activity is also minimal. Yet, because it operates as a function of INA Section 287(g), participating officers retain their qualified immunity.

Needless to say, the ACLU, the scandal-rocked SPLC, and other such groups are deeply unhappy with the new program. That's a good thing. I'm always mindful of the irony when such groups, which are quick to file court actions for alleged violations of law, find themselves confounded by the application of existing provisions of the law that work against their philosophical interests.

We will see how the new 287(g) Lite warrant service officer program works out: well, I hope.

But it is, in the end, not a substitute for the two older prongs of more robust versions of Section 287(g)—the Jail Officer program overseen by ICE's Enforcement and Removal Operations Division and, most especially the now-dormant program overseen by ICE's other division, Homeland Security Investigations (HSI), which was tailored to provide training and cross-designation to state police and local patrol officers who are so invaluable in detecting and deterring alien smuggling/human trafficking rings on the highways, not to mention the detectives and uniformed officers who are in the perfect position to identify and act against migrant stash houses used by smugglers in the inner cities to hold their “clientele”, often under hostage conditions pending receipt of additional extorted fees.

Reviving that prong of the 287(g) program requires the commitment and will of ICE leadership which, as I've discussed so frequently, is sadly lacking at least where oversight of HSI is concerned. The president has just nominated a man to head ICE who has extensive prior experience as an FBI agent. One of his first chores, and certainly it will be a test of his will and credibility, is to ensure that HSI is fully committed to enforcing the immigration laws of the United States, along with the many other statutes that they so often choose to focus upon at the expense of the INA.