Arizona immigration law has echoes of controversial federal act

Elements of the Arizona immigration law echo 1995's controversial Section 287(g) of the Immigration and Nationality Act, which gave some local law enforcement officials the authority to identify and detain immigration offenders.

Ross D. Franklin/AP
Phoenix police officer David Salgado looks out over the Phoenix skyline on Monday. Officer Salgado has sued the city over Arizona's new immigration law.

As critics assail Arizona's new immigration law, saying it is wrong to put federal immigration duties in the hands of local law enforcement, observers note that the country has been down this road before.

In 1995, the Immigration and Nationality Act's Section 287(g) allowed US immigration officials to train local law enforcement officers and authorize them to identity and – if necessary – detain immigration offenders. The program spread across the south of the United States from Florida to San Bernadino, Calif., to Arizona itself.

In many ways, 287(g) has become a litmus for the issues now playing out in the Arizona immigration law debate: specifically, the desire to rein in illegal immigration versus concerns about the potential for abuse and racial profiling. To proponents, 287(g) has been "enormously successful." To critics, "it has harmed, not served our public safety."

It is a microcosm of what has erupted from Arizona during the past month, and it points to the difficulty of finding a middle ground in what is an intensely polarizing topic.

“The 287(g) program has been enormously successful,” says Ira Mehlman, media director for the Federation for American Immigration Reform (FAIR). He says the program is used by more than 70 law enforcement agencies in 26 states and was responsible for identifying more than 160,000 “removable aliens” between January 2006 and January 2010.

Others say the 287(g) partnerships have seen local law enforcement get carried away. In Arizona's Maricopa County, Sheriff Joe Arpaio led the largest 287(g) operation in the US, says Aarti Shahani, an immigration expert at New York University’s Gallatin School. "He overstepped his bounds so profoundly that the Department of Homeland Security had to terminate his street enforcement powers,” she adds.

In a 2009 report for Justice Strategies, Ms. Shahani concludes that “the 287(g) program has failed.… It has harmed, not served our public safety.”

A chief concern of critics of both 287(g) and Arizona’s new law is that such programs lead to racial profiling.

A 287(g) program run by US Immigration and Customs Enforcement – called the Criminal Alien Program – seeks to ensure that "criminal aliens" serving time in federal, state, or local jails are not released into the community upon completion of their sentences, notes a September report by the Chief Justice Earl Warren Institute on Race, Ethnicity & Diversity at the University of California at Berkeley.

The 287(g) program "tacitly encourages local police to arrest Hispanics for petty offenses,” the report concludes.

The Justice Strategies study comes to similar conclusions: that 287(g)'s central targets were traffic violators and day laborers – suggesting that it was less a crime-fighting tool then a means of rounding up illegal immigrants based on ethnicity.

“The 287(g) program rests on a faulty assumption that the civil immigration mandate can be seamlessly absorbed into the crime-control mission shared by criminal-justice agencies,” writes Shahani.

Such claims are unwarranted, says Mr. Mehlman. “287(g) does not rely on profiling, but on training police officers to identify people who are in the country illegally, using the sort of object information that police use everyday to form reasonable suspicion that laws are being violated,” he says.

In this way, observers say, 287(g) is different from SB 1070, the Arizona immigration law: 287(g) agreements provide training for officers.

“SB 1070 and 287(g) laws are not precisely comparable,” says Jessica Vaughan, director of policy studies at the Center for Immigration Studies. “287(g) agreements put officers through a four-week training and they get the authority to arrest people for immigration violations. SB 1070 simply has the officers ask people about their immigration status.”

The 287(g) laws were revamped in 2009 to address concerns that individuals would be arrested for minor offenses as a guise to initiate removal proceedings.


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