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Homeland Security Continues Immigration Enforcement Program Without Meaningful Changes


New MOA Governing Federal 287(g) Initiative Does Not Address Program's Serious Flaws

July 17, 2009

Maria Archuleta, (212) 519-7808 or 549-2666;
Linda Paris, (202) 675-2312; 
WASHINGTON – After a congressional request and multiple Freedom of Information Act (FOIA) requests, including one from the American Civil Liberties Union, the Department of Homeland Security (DHS) released a new standardized Memorandum of Agreement (MOA) that it will use in its expanded 287(g) program granting state and local law enforcement agencies federal immigration enforcement authority. The 287(g) program has led to serious civil rights abuses and public safety concerns, and according to an analysis by the ACLU, the changes in the new MOA do nothing to solve these problems.

"The new standardized MOA makes no serious attempt at discouraging illegal racial profiling or reducing the conflict between sound community policing principles and the expansion of this program," said Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project. "The Department of Homeland Security has claimed that the new MOA contains many significant improvements, but now that we actually have the document, it is clear that many of the claimed changes are really not changes at all, that the remaining changes have little or no positive operative effect, and that the new MOA actually takes several disturbing steps backward, particularly in the area of transparency."

Section 287(g) of the Immigration and Nationality Act provides for the delegation of immigration enforcement authority in certain circumstances to specific state or local agencies. Previously, MOAs between U.S. Immigration and Customs Enforcement (ICE) and local law enforcement varied by jurisdiction, but the new standardized MOA would govern all 287(g) partnerships. 

In a comparison of the new standardized MOA to the MOA that ICE signed with Maricopa County, Arizona in February 2007, the ACLU found that the new MOA would do little or nothing to correct the egregious racial profiling and civil rights abuses that have occurred there, and in some respects, the new MOA is actually worse than the original from the Bush administration.

The new MOA includes a list of "priority levels" of different categories of suspected violators, but even assuming those priorities are sound, the MOA does not include any measures to ensure that its priorities translate into practice, such as requiring that arrest statistics reflect the priority levels, requiring agencies to implement an effective prioritization system or preventing the use of local resources to go after low-priority offenders.

A number of DHS's claimed improvements simply cannot be verified by comparing the old and new MOAs. For example, DHS claimed that the new MOA would reduce concerns that individuals are arrested for minor or pretextual violations by requiring that the arresting authority pursue any criminal charges that justified the original arrest. But the new MOA only "expect[s]," rather than "requires," the pursuit of charges. The old MOA contained the same "expectation." 

Some aspects of new MOA are clearly a step in the wrong direction. The new MOA reduces the amount of experience that a local law enforcement officer needs to become MOA-designated; expands the list of powers granted to task force personnel; attempts to remove 287(g) documents from public scrutiny by subjecting even state or local records to ICE control and claiming that documents related to the 287(g) are no longer public records; reduces the already-low data collection and tracking requirements under the old agreement; and authorizes the exclusion of civilian personnel from some program reviews. 
"Contrary to DHS's announcement, the new 287(g) Memorandum of Agreement is not substantially different from the Bush administration MOA, including the much abused agreement currently in place in Maricopa County, Arizona," said Joanne Lin, ACLU Legislative Counsel. "This new 287(g) MOA is not government reform. Cosmetic changes to a written agreement will not solve the fundamental problems associated with local police enforcement of federal civil immigration laws. Under the Bush administration 287(g) program, local law enforcement committed illegal profiling and civil rights violations under the cloak of federal immigration authority. Under the newly released 287(g) MOA, local law enforcement are free to continue the same abuse of power. It is time for the Department of Homeland Security and Congress to end, not mend, the 287(g) program."

The new standardized MOA, Maricopa County's MOA and the ACLU side-by-side comparison of the two can be found at:

The ACLU's FOIA request can be found at:

ACLU's submitted testimony on 287 (g) program can be found at:

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