ACLU-UNC Wrong on 287(g)

By Jon Feere and Jon Feere on April 16, 2009

The University of North Carolina School of Law recently joined forces with the ACLU and published a report aimed at stopping ICE cooperation with state and local law enforcement. The paper also advocates mass, illegal-alien amnesty.

Despite the fact that the report has been celebrated by a number of media outlets, the paper is quite an embarrassment for the law school as it provides no new data, no statistics, and very little analysis—even though the paper is a whopping 152-pages long. Instead, the paper is full of accusations, inaccuracies, and anecdotal evidence. It is heavy on conclusions, all of which seem to be cut-and-pasted from earlier ACLU publications aimed at perpetuating illegal immigration.

In all, the paper reads more like an ACLU press release than serious academic research.

Inaccurate Legal Analysis. When it comes to legal writing, lawyers are taught to cite every claim, especially those that are not easily recognized as absolute fact by the general public. But here’s one example of many where the UNC-ACLU authors make dramatic claims with no citation to any statistical research:

[S]ince the implementation of § 287(g), Hispanic-appearing residents in particular have reported discriminatory abuses related to the program’s implementation. These abuses include harassment of legal residents and citizens and subsequent alienation of ethnic communities from police authority and protection.

Unfortunately, the authors are attempting to change policy based on unsubstantiated anecdotes. This is becoming common practice for the open-border crowd.

One of the authors’ key claims is not only without citation, it’s also false. The authors want state and local enforcement to apply only to aliens who are convicted of felonies. They seek a “stay here illegally until someone is seriously injured” policy. The authors claim that the 287(g) program “was originally intended to target and remove undocumented immigrants convicted of violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.” That this claim was not cited is not an oversight. In fact, they can’t back this up with evidence: The 287(g) program was not created with a limited focus on criminal aliens. Here’s the statutory text:

[T]he Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. [8 U.S.C. §1357(g). The entire statute is available]

Clearly, the law does not require that aliens be violent, drug-peddling rapists for 287(g) to take effect. The statutory text and the Congressional record are exactly opposite from the claims being advanced by the amnesty crowd. At a recent Congressional hearing the original author of the statute, Congressman Lamar Smith (R-Tx.), explained this fact:

I was the House author of the 1996 immigration bill that included the 287(g) program and…there’s nothing in the legislation that limits the program to detaining those who committed serious crimes. The goal was not that at all; the goal was to enable those local law enforcement authorities who wanted to, to enforce the immigration laws in whatever way they thought best. And that might or might not include those who committed serious crimes.

Quite simply, the authors of the UNC-ACLU report are spreading inaccurate and/or dishonest legal analysis.

Fear and accusations. Perhaps the most unintentionally humorous statement in the piece is the following: “Instead of fear and prejudice, this policy review endeavors to approach the topic with qualitative and quantitative data.” But in making their argument, the authors compare the removal of illegal aliens to Japanese internment camps during World War II. They warn of “economic devastation” as a result of immigration law enforcement. They claim 287(g) creates “a fear of law enforcement,” “racial profiling and baseless stereotyping,” and “isolation of the Hispanic community.” The report is full of these scare tactics; qualitative and quantitative data is an afterthought.

Additionally, the UNC-ACLU paper includes 13 different “Proposals for Improvement” which seem to be aimed at creating as much red tape as possible with the end goal being “revision of all current 287(g) programs.” But even if one were to read these as honest “proposals for improvement,” the authors do not actually want localities to follow them; instead, the authors conclude that 287(g) is “an ineffective means of immigration enforcement… too problematic, too costly, and too difficult to implement.” Ending state and local enforcement altogether is the real goal and the UNC-ACLU authors are willing to craft a seemingly schizophrenic report in order to achieve their ends.

The authors are trying to frighten law enforcement officials so that they won’t participate in 287(g) agreements. This has become the ACLU’s modus operandi on immigration. The authors claim that law enforcement officers may—mind you, “may”—be violating “equal protection… the Civil Rights Act of 1964… Department of Justice Guidelines… Federal criminal procedure… [and] international treaty law.” With such a lengthy laundry list coming from a well-funded and powerful activist group, it’s surprising that more and more law enforcement officers are joining 287(g) every year. Clearly, the ACLU’s agenda is rightly seen as political more than anything else. There are currently more than 67 law enforcement agencies with active 287(g) agreements. More than 950 officers have been trained under the program.. More than 840 officers have been trained under the program.

North Carolina Targeted. This report is part of a broader ACLU effort in North Carolina to undermine state and local enforcement of immigration laws. The activist organization has threatened lawsuits against every law enforcement agency in the state involved in the 287(g) program if they don’t obey the ACLU’s demands for internal documents. So far, 12 of 13 police agencies have responded to the ACLU; the Alamance County Sheriff’s Department has not fully met the group’s demands, and the ACLU is suggesting the department has something to hide. But Sheriff Terry Johnson explains that he has spent around 200 hours trying to appease the ACLU, and says that requests amount to little more than an attempt to shut down the 287(g) program in Alamance County: “They’re trying to beat us down.”

In addition to taking up valuable time, opponents of state and local enforcement also attack law enforcement by making claims of racism, the most popular claim being that Latinos are “rounded-up” by law enforcement because of the way they look. But a recent killing shows that these accusations aren’t founded in fact. Lidia Monica Lopez, an illegal alien from Mexico, was recently charged with misdemeanor death by motor vehicle. On April 5th she allegedly ran a red light, slammed into on-coming traffic, injuring Pamela Coble, aged 60, and then struck and killed William Bryan Barber Sr. who was riding a motorcycle. Nine-year-old William Jr. was also knocked from the motorcycle and injured. Here’s the thing: Lopez had already been pulled over and cited for operating a vehicle without a license by an Alamance County sheriff on July 11th of last year. She was not “rounded up” or “racially-profiled.” She was just issued a citation and released. ICE was never contacted. Perhaps the ACLU’s intimidation techniques are already having an effect on state and local enforcement; perhaps law enforcement is not enforcing the law to the fullest extent possible out of fear of being labeled a racist by the ACLU. If this is the case, citizens of North Carolina are paying with their lives.

Real Agenda. If the ACLU and UNC were honestly only concerned about additional “oversight” of 287(g) programs, they could possibly convince the public to support their goal. Unfortunately, their real agenda, as outlined in the final section of the report, is not improving 287(g) — it’s eliminating immigration law enforcement altogether and passing an illegal alien amnesty. And that’s a proposition the American public overwhelmingly opposes. Any legitimate calls for improved oversight are simply swallowed by the authors’ amnesty agenda, legal myth-making, and race-baiting.