Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States (Redacted)

Audit Report 07-07
January 2007
Office of the Inspector General


Chapter 2 – SCAAP Recipientsí Cooperation with ICE

The first congressional question asked us to determine whether there are recipients of SCAAP funds that do not fully cooperate with the efforts of DHS to remove undocumented criminal aliens from the United States. Congress did not define “fully cooperate,” nor did our review of immigration legislation disclose any specific steps that localities are required to take to help effect the removal of criminal aliens from the United States.

Views of ICE Officials

We asked ICE officials to identify SCAAP recipients that they believe do not fully cooperate with ICE in the removal of undocumented criminal aliens from the United States. Because ICE does not maintain any records describing SCAAP recipients that do not cooperate in the effort to remove criminal aliens, they noted that any information they might provide us would be anecdotal.

We also contacted officials at ICE headquarters on several occasions and solicited their views first about the cooperativeness of SCAAP recipients generally and later about the seven jurisdictions where we performed field work.

Some ICE headquarters officials expressed the opinion that jurisdiction over SCAAP should rest with ICE rather than BJA and that payments should be contingent upon the recipient’s taking of certain affirmative steps, such as participation in the “287(g)” program, to assist immigration enforcement. Section 287(g) of the Immigration and Nationality Act provides that ICE “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... 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.”45

Enforcing immigration law remains primarily a federal responsibility, but Section 287(g) provides a mechanism for enlisting the help of state and local law enforcement entities in this effort. Under Section 287(g), ICE provides participating state and local law enforcement officers with the training and subsequent authorization to identify, process, and when appropriate, detain immigration offenders who are encountered during regular, daily law-enforcement activity. States or localities that wish to participate in the program enter into a Memorandum of Understanding (MOU) with ICE.

Other ICE officials questioned why SCAAP applications are based on a custody period in the year prior to the one in which payments are sought. In the view of those officials, this payment for the past costs of incarceration does not further the removal of undocumented criminal aliens currently in the United States.

ICE headquarters officials also stated they would like to have graduated payments based on the SCAAP recipient taking steps toward the removal of criminal aliens from the United States. Larger payments could be provided to a jurisdiction when a final order of removal is obtained and for participating in the “Section 287(g)” program to determine alienage. Those officials believe this would result in payment for assisting ICE in identifying and removing criminal aliens rather than merely housing them.

When we asked ICE headquarters officials specifically about the seven sites where we intended to perform field work, they declined to suggest alternative sites. They also commented favorably about the cooperation ICE received from every jurisdiction, except the City and County of San Francisco. The ICE responses on the seven sites we visited included the following observations:

Clark County, Nevada – ICE has a very good working relationship with the Clark County Sheriff's Office, including the county jail. The jail sends information about foreign-born subjects to ICE on a 24-hour a day basis. This information is processed, and, if appropriate, a detainer is placed on the subject.

Cook County, Illinois – The ICE Office of Investigations Special Agent in Charge of the Chicago field office has had a good working relationship with the Cook County jail for the last several years.

New York, New York – The ICE Detention and Removal Operations (DRO), New York Field Office, has received full cooperation from the participating SCAAP local and state entities.

State of California Department of Corrections and Rehabilitation – In 1994, the State of California amended the Penal Code to include Section 834(b), which requires all cities and localities within the State of California to verify the immigration status of individuals arrested and to contact [ICE] when appropriate.

State of Oregon Department of Corrections – All state facilities have been very cooperative with respect to identifying, holding, and transferring foreign nationals to ICE custody.

State of Texas Department of Criminal Justice – The DRO Houston Field Office reports significant cooperation with the Texas Department of Criminal Justice in both the Texas Prison System and the Texas state jail system. The Texas Department of Criminal Justice works closely with ICE in assisting in identifying foreign-born aliens within the Texas prison and state jail system and transports the prisoners to one central location in [SENSITIVE INFORMATION REDACTED], Texas, where they can be interviewed as well as presented for court proceedings. ICE has received cooperation from operations at [SENSITIVE INFORMATION REDACTED] regarding the state prisoners system. In addition to providing transportation and identification assistance, the Texas Department of Criminal Justice provides an entire facility for exclusive use by ICE.

City and County of San Francisco – The San Francisco ICE Field Office has encountered difficulties in its attempt to expand the Criminal Alien Program (CAP). According to an agent working at ICE headquarters, the San Francisco County Jail and its administration appear to have implemented a “bare minimum of cooperation with ICE and the CAP to ensure they are compliant with state rules and the SCAAP regulations.” Agents employed by ICE are not permitted to access jail records without the authorization and approval of the Sheriff. ICE agents are authorized to enter the jails to interview prisoners and to access the “all-jail alphabetical list” of inmates. However, ICE agents do not have the authorization to access booking cards, housing cards or other jail records, including computers.

Results of OIG Survey

We also surveyed 164 of the 752 state, county, and local agencies that received SCAAP funding from the FY 2005 appropriation.46

Our criteria for selecting the SCAAP recipients we surveyed involved grouping them into three categories: those that received at least $500,000, those that received between $50,000 and $499,999, and those that received less than $50,000.

There were 59 entities that received at least $500,000, and we selected all of them for our sample. Collectively, those 59 jurisdictions received $256.9 million, or approximately 90 percent of all the SCAAP payments made from FY 2005 funds. There were 157 entities that received between $50,000 and $499,999 and 536 that received less than $50,000. We judgmentally selected and surveyed 50 of the former group and 55 of the latter. Together these groups received $7.9 million, or nearly 3 percent of the SCAAP payments from FY 2005 funds.

Our survey inquired whether the state or local agency asked arrestees about their immigration status, informed ICE about criminal aliens in local custody, accepted detainers from ICE, or alerted ICE prior to releasing criminal aliens from local custody.47 In our judgment, affirmative answers to these questions would indicate a degree of cooperation in the effort to remove criminal aliens from the United States. However, it is important to note that a negative response by itself to one or more questions would not necessarily establish a lack of cooperation on the part of the SCAAP recipient.

Survey responses were received from 99 (60 percent) of the 164 SCAAP recipients that we surveyed. The respondents received a total of $205.4 million, or 71.6 percent of the SCAAP payments from FY 2005 funds.

Immigration Status of Arrested Individuals

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

If law enforcement officers from your jurisdiction arrest an individual on state or local charges, do they generally ask the subject about his or her immigration status?

Yes

No

N/A

Unknown

DNR

59

34

4

0

2

Source: Responses from SCAAP recipients to the OIG questionnaire

Thirty-four respondents reported that they do not generally ask the subject of an arrest about his or her immigration status. However, many of those jurisdictions qualified their response. The following comments were offered by some of the respondents who replied “no.”

The responses from several localities emphasized the absence of federal or state law requiring them to inquire into the immigration status of arrestees.

Informing ICE About Aliens in Custody

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

If law enforcement officers from your jurisdiction have reason to believe that someone they arrest may be an undocumented alien, do they generally inform the ICE that the individual is in their custody?

Yes

No

N/A

Unknown

DNR

78

17

3

0

1

Source: Responses from SCAAP recipients to the OIG questionnaire

Seventeen respondents reported they do not generally inform ICE when they have someone in custody who they believe may be an undocumented criminal alien. However, many of those 17 jurisdictions added qualifying remarks. In some instances, they were critical of a perceived lack of response on the part of ICE, but there were other explanatory factors as well.

Accepting Detainers from ICE

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

Do the detention facilities in your jurisdiction generally accept detainers from ICE for undocumented criminal aliens in their custody?

Yes

No

N/A

Unknown

DNR

94

3

1

0

1

Source: Responses from SCAAP recipients to the OIG questionnaire

One possible measure of cooperation with ICE would be if the respondent accepted detainers from ICE and continuing to hold criminal aliens until ICE agents can take physical custody of them. The responses to our questionnaire disclosed a widespread willingness to accept detainers from ICE. Ninety-four of the 99 respondents reported that they accept such detainers and the 3 that responded negatively added comments indicating that they may have misinterpreted the question as asking about the lodging of ICE prisoners.

Alerting ICE Before Releasing Aliens from Custody

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

Do the detention facilities in your jurisdiction generally alert ICE prior to releasing any undocumented criminal aliens in their custody?

Yes

No

N/A

Unknown

DNR

78

18

1

1

1

Source: Responses from SCAAP recipients to the OIG questionnaire

In answer to our question about alerting ICE before releasing undocumented criminal aliens from local custody, 78 respondents reported that they notify ICE and 18 stated they do not. We asked those that alert ICE to report how much advance notice they provide and the responses ranged from the date of release to substantially longer periods, as the following comments illustrate:

The jurisdictions that stated they do not notify ICE offered varying explanations. For example, [SENSITIVE INFORMATION REDACTED], stated it does not notify ICE in advance, “unless ICE asks us to.” However, as previously noted, the county also reported that ICE agents regularly visit the county facility and review the records of undocumented aliens. That being the case, it would appear that additional notification by [SENSITIVE INFORMATION REDACTED] may not be necessary. The [SENSITIVE INFORMATION REDACTED] reported that “releases must occur on a timeline of minutes and hours after the court issues the ruling.” [SENSITIVE INFORMATION REDACTED], stated “in most cases we are unaware of [the] status.”

We asked two additional questions related to the cooperativeness of SCAAP recipients in the effort to remove criminal aliens from the United States. These questions deal with the transportation of criminal aliens to ICE offices and participation in the Section 287(g) program.

Transporting Undocumented Criminal Aliens to the Nearest ICE Office

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

If ICE agents cannot transport an undocumented criminal alien from your facility, do your officers transport the alien to the nearest ICE office?

Yes

No

N/A

Unknown

DNR

23

70

2

0

4

Source: Responses from SCAAP recipients to the OIG questionnaire

We are not aware of any requirement for states, counties, or localities to transport undocumented criminal aliens to an ICE office. Therefore, an answer of “no” to our question does not imply any lack of cooperation on the part of the locality. However, we included this question because an answer of “yes” may be reasonably considered an indicator of cooperation. In response to the questionnaire, 23 respondents stated they would transport undocumented criminal aliens to the nearest ICE office if ICE agents could not do so, and 70 respondents reported they would not.

The comments provided in reply to our question included the following.

Participation in the 287(g) Program

Survey Results
Legend: N/A=Not Applicable; DNR=Did Not Respond to this Question.

Are you aware of the program under Section 287(g) of the Immigration and Nationality Act by which local officers may be trained and authorized to perform certain immigration enforcement tasks?

Yes

No

N/A

Unknown

DNR

50

45

1

0

3

Is your jurisdiction currently participating in the Section 287(g) program?

Yes

No

N/A

Unknown

DNR

1149

84

1

1

2

If your jurisdiction does not currently participate in the Section 287(g) program, are you interested in entering into a Memorandum of Understanding with ICE to participate in the Section 287(g) program?

Yes

No

N/A

Unknown

DNR

33

41

6

6

13

Source: Responses from SCAAP Recipients to OIG Questionnaire

As mentioned previously, some ICE officials expressed a desire to place SCAAP under the control of ICE and make SCAAP payments contingent upon participation in the “287(g)” program. Regardless of which agency has responsibility for SCAAP, we believe that participation in the “287(g)” program may be considered evidence of cooperation with ICE in the removal of criminal aliens from the United States. For this reason we included questions about the “287(g)” program in a questionnaire we sent to 164 recipients of FY 2005 SCAAP funding. We received responses from 99 jurisdictions and 33 of them indicated an interest in entering into an MOU to participate in the “287(g)” program.

Our questionnaire asked if the respondents were aware of the “287(g)” program, whether they participated in it, and, if not, whether they were interested in receiving information about it. In response to our three questions, we received very few comments. The following are examples of the comments provided by respondents.

Results of Field Work

Interviews with Local ICE Officials

At each of the sites where we performed field work, we asked local ICE officials about the cooperativeness of the SCAAP recipient in question. The views of those officials mirrored the views previously obtained from ICE headquarters. Local ICE officials offered favorable comments about each of the jurisdictions, except the City and County of San Francisco. Those ICE officials stated that the San Francisco Sheriff’s Department accepts detainers from ICE and promptly notifies ICE when criminal aliens are about to be released from custody, but neither the Sheriff’s Department nor the Police Department [SENSITIVE INFORMATION REDACTED]. Moreover, the process for interviewing aliens in the jail was described as “uncooperative” by the local ICE officials, who also characterized relations with the Sheriff’s Department as unfriendly and marked by “much animosity.”

Interviews with State and Local Officials

We interviewed officials and reviewed files at seven jurisdictions that received funding from the FY 2005 appropriation for SCAAP. The officials whom we interviewed included local officials knowledgeable in the areas of SCAAP and detention. Local officials from all seven jurisdictions reported that their detention facilities: (1) accept ICE detainers for undocumented criminal aliens in their custody; and (2) alert ICE before releasing undocumented criminal aliens from custody.

We asked whether law enforcement officers ask arrestees about their immigration status and received mixed responses, but none that indicated an unwillingness to cooperate with ICE in the removal of criminal aliens from the United States. For example:

We also asked about notification of ICE when local jurisdictions have someone in custody who may be an undocumented alien. The following are some responses:

Local officials at two jurisdictions indicated a willingness to transport criminal aliens from their facilities to the nearest ICE office if ICE agents could not do so.

Officials at all seven of the sites we visited were aware of the “287(g)” program, but none of the jurisdictions were participating in it. When asked if they were interested in participating in the program, local officials offered the following comments.

File Reviews

We reviewed a total of 76 files relating to criminal aliens who had been recently discharged from local custody at the 7 locations where we performed field work. Our review disclosed that:

This limited review of local files did not disclose evidence of any local policy or procedure that we would consider less than fully cooperative with ICE in the removal of criminal aliens.

Statement of Major Cities Chiefs of Police

The complexity of determining whether jurisdictions fully cooperate with ICE is further illustrated by a statement issued in June 2006, by the Major Cities Chiefs of Police (MCC) organization.50 This document describes illegal immigration as a problem that “must be dealt with at the national level” and details certain concerns that local agencies have. A key paragraph states, “local police agencies must balance any decision to enforce immigration laws with their daily mission of protecting and serving diverse communities, while taking into account: limited resources; the complexity of immigration laws; limitations on authority to enforce; risk of civil liability for immigration enforcement activities and the clear need to foster the trust and cooperation from the public including members of immigrant communities.”

The MCC statement also observes that “assistance and cooperation from immigrant communities is especially important when an immigrant, whether documented or undocumented, is the victim of or witness to a crime. These persons must be encouraged to file reports and come forward with information. Their cooperation is needed to prevent and solve crimes and maintain public order, safety, and security in the whole community.... Immigration enforcement by local police would likely negatively effect (sic) and undermine the level of trust and cooperation between local police and immigrant communities. If the undocumented immigrant’s primary concern is that they will be deported or subjected to an immigration status investigation, then they will not come forward and provide needed assistance and cooperation. Distrust and fear of contacting or assisting the police would develop among legal immigrants as well.”

The MCC statement taken as a whole articulates a two-pronged position that we frequently encountered in our review, namely that many state, county, and local law enforcement agencies are unwilling to initiate immigration enforcement but have policies that suggest they are willing to cooperate with ICE when they arrest individuals on state or local charges and learn that those individuals may be criminal aliens.

Additional Research

We further examined the issue of cooperation between SCAAP recipients and ICE by researching the policies of localities that may have laws, resolutions, or other policies limiting the role of local agencies in the enforcement of immigration legislation. In some cases, those localities have designated themselves with terms such as a “sanctuary city” or a “civil liberties safe zone.” Our research revealed much anecdotal information, but little in the way of formal policies.

We were guided initially in our research by listings of sanctuary cities posted on the websites of several organizations.51 Later, we focused our search on jurisdictions that received SCAAP funding of at least $1 million from the FY 2005 appropriation. We searched the websites for those jurisdictions in an effort to locate policy statements affecting how local law enforcement agencies interact with ICE in the effort to remove criminal aliens from the United States.

We were able to locate an official “sanctuary” policy for only two jurisdictions that received at least $1 million in SCAAP funding, the State of Oregon, which received $3.4 million, and the City and County of San Francisco, which received $1.1 million and has designated itself as a “City and County of Refuge.” We also located an Executive Order issued by the Mayor of New York limiting the activities of local law enforcement agencies and officers in the enforcement of immigration law.52 However, in each instance, the local policy either did not preclude cooperation with ICE or else included a statement to the effect that those agencies and officers must assist ICE or share information with ICE as required by federal law.

The Oregon policy begins by stating, “No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.” However, the policy goes on to state that a law enforcement agency may exchange information with federal immigration authorities to “verify the immigration status of a person if the person is arrested for any criminal offense;” or to “request criminal investigation information with reference to persons named in [federal] records.”53

San Francisco has designated itself as a “City and County of Refuge” and has limited the extent to which municipal agencies and employees may assist in immigration enforcement. The City Administrative Code states that “no department, agency, commission, officer or employee... shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals... unless such assistance is required by federal or state statute, regulation or court decision.” [Emphasis added.] The proviso requiring compliance with federal law reinforces our view that there is insufficient evidence to conclude that San Francisco fails to cooperate with ICE’s efforts to remove undocumented aliens.

We did not locate a “sanctuary city” designation for the City of New York, which received $15.9 million in SCAAP funding. However, we located a Mayor’s Executive Order that enunciates a policy that local law enforcement officers will not initiate immigration enforcement but will cooperate with federal immigration authorities in some respects. The Mayor’s Executive Order 41 addresses local law enforcement as it relates to immigration matters and states, “Law enforcement officers shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.” However, in the next paragraph it states, “Police officers and peace officers, including members of the Police Department and the Department of Correction, shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity.”54



Footnotes
  1. 8 U.S.C. § 1357(g) (1996).

  2. The sample was selected judgmentally, and the results cannot be projected to the universe of SCAAP recipients. See Appendix IV for a list of the jurisdictions we surveyed and those that responded.

  3. A detainer is a notice from ICE asking officials at the detention facility of notify ICE before releasing a detainee.

  4. We believe the respondent from [SENSITIVE INFORMATION REDACTED] misinterpreted the California Attorney General’s opinion, which clearly states that federal law preempts state law and requires state and local government entities to cooperate with federal immigration agents. During a follow-up interview, the county official who gave this response confirmed that he may have misinterpreted the opinion. See Appendix IX for the opinion.

  5. Although 11 respondents stated they participate in the “287(g)” program, ICE officials told us only 7 jurisdictions have current MOUs. Other jurisdictions are negotiating with ICE to participate in the “287(g)” program.

  6. See Appendix V for the MCC’s “Nine-Point Position Statement.” The MCC describes its membership as t he 57 Chief Executive Officers of police departments located within metropolitan areas with a population of more than 1.5 million population and that employ more than 1,000 law enforcement officers.

  7. In using the information posted by these organizations, we do not endorse any position they may advocate regarding immigration enforcement. We simply used their lists as leads pointing toward jurisdictions that may have policies such as those described in our congressional mandate.

  8. See Appendix VII.

  9. See Appendix VI.

  10. See Appendix VII.



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