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Before the Committee on Homeland Security, House of Representatives: 

United States Government Accountability Office: 

For Release on Delivery: 
Expected at 2:00 p.m. EST:
March 4, 2009: 

Immigration Enforcement: 

Controls over Program Authorizing State and Local Enforcement of 
Federal Immigration Laws Should Be Strengthened: 

Statement of Richard M. Stana, Director: 
Homeland Security and Justice: 


Mr. Chairman and Members of the Committee: 

I am pleased to be here today to discuss the Department of Homeland 
Security's (DHS) U.S. Immigration and Customs Enforcement's (ICE) 
management of the 287(g) program. Recent reports indicate that the 
total population of unauthorized aliens residing in the United States 
is about 12 million.[Footnote 1] Some of these aliens have committed 
one or more crimes, although the exact number of aliens that have 
committed crimes is unknown. Some crimes are serious and pose a threat 
to the security and safety of communities. ICE does not have the agents 
or the detention space that would be required to address all criminal 
activity committed by unauthorized aliens. Thus, state and local law 
enforcement officers play a critical role in protecting our homeland 
because, during the course of their daily duties, they may encounter 
foreign-national criminals and immigration violators who pose a threat 
to national security or public safety. On September 30, 1996, the 
Illegal Immigration Reform and Immigrant Responsibility Act was enacted 
and added section 287(g) to the Immigration and Nationality 
Act.[Footnote 2] This section authorizes the federal government to 
enter into agreements with state and local law enforcement agencies, 
and to train selected state and local officers to perform certain 
functions of an immigration officer--under the supervision of ICE 
officers--including searching selected federal databases and conducting 
interviews to assist in the identification of those individuals in the 
country illegally.[Footnote 3] The first such agreement under the 
statute was signed in 2002, and as of February 2009, 67 state and local 
agencies were participating in this program. 

My statement today is based on our January 30, 2009, report regarding 
the program including selected updates made in February 2009.[Footnote 
4] Like the report, this statement addresses (1) the extent to which 
Immigration and Customs Enforcement has designed controls to govern 
287(g) program implementation and (2) how program resources are being 
used and the activities, benefits, and concerns reported by 
participating agencies. To do this work, we interviewed officials from 
both ICE and participating agencies regarding program implementation, 
resources, and results. We also reviewed memorandums of agreement (MOA) 
between ICE and the 29 law enforcement agencies participating in the 
program as of September 1, 2007, that are intended to outline the 
activities, resources, authorities, and reports expected of each 
agency. We also compared the controls ICE designed to govern 
implementation of the 287(g) program with criteria in GAO's Standards 
for Internal Control in the Federal Government, the Government 
Performance and Results Act (GPRA), and the Project Management 
Institute's Standard for Program Management.[Footnote 5] More detailed 
information on our scope and methodology appears in the January 30, 
2009 report. In February 2009, we also obtained updated information 
from ICE regarding the number of law enforcement agencies participating 
in the 287(g) program as well as the number of additional law 
enforcement agencies being considered for participation in the program. 
We conducted our work in accordance with generally accepted government 
auditing standards. 

In summary, ICE has designed some management controls, such as MOAs 
with participating agencies and background checks of officers applying 
to participate in the program, to govern 287(g) program implementation. 
However, the program lacks other key internal controls. Specifically, 
program objectives have not been documented in any program-related 
materials, guidance on how and when to use program authority is 
inconsistent, guidance on how ICE officials are to supervise officers 
from participating agencies has not been developed, data that 
participating agencies are to track and report to ICE has not been 
defined, and performance measures to track and evaluate progress toward 
meeting program objectives have not been developed. Taken together, the 
lack of internal controls makes it difficult for ICE to ensure that the 
program is operating as intended. ICE and participating agencies used 
program resources mainly for personnel, training, and equipment, and 
participating agencies reported activities and benefits, such as a 
reduction in crime and the removal of repeat offenders. However, 
officials from more than half of the 29 state and local law enforcement 
agencies we reviewed reported concerns members of their communities 
expressed about the use of 287(g) authority for minor violations and/or 
about racial profiling. We made several recommendations to strengthen 
internal controls for the 287(g) program to help ensure that the 
program operates as intended. DHS concurred with our recommendations 
and reported plans and steps taken to address them. 

ICE Lacks Key Internal Controls for Implementation of the 287(g) 

ICE has designed some management controls to govern 287(g) program 
implementation, such as MOAs with participating agencies that identify 
the roles and responsibilities of each party, background checks of 
officers applying to participate in the program, and a 4-week training 
course with mandatory course examinations for participating officers. 
However, the program lacks several other key controls. For example: 

* Program Objectives: While ICE officials have stated that the main 
objective of the 287(g) program is to enhance the safety and security 
of communities by addressing serious criminal activity committed by 
removable aliens, they have not documented this objective in program- 
related materials consistent with internal control standards. As a 
result, some participating agencies are using their 287(g) authority to 
process for removal aliens who have committed minor offenses, such as 
speeding, carrying an open container of alcohol, and urinating in 
public. None of these crimes fall into the category of serious criminal 
activity that ICE officials described to us as the type of crime the 
287(g) program is expected to pursue. While participating agencies are 
not prohibited from seeking the assistance of ICE for aliens arrested 
for minor offenses, if all the participating agencies sought assistance 
to remove aliens for such minor offenses, ICE would not have detention 
space to detain all of the aliens referred to them. ICE's Office of 
Detention and Removal strategic plan calls for using the limited 
detention bed space available for those aliens that pose the greatest 
threat to the public until more alternative detention methods are 

* Use of Program Authority: ICE has not consistently articulated in 
program-related documents how participating agencies are to use their 
287(g) authority. For example, according to ICE officials and other ICE 
documentation, 287(g) authority is to be used in connection with an 
arrest for a state offense; however, the signed agreement that lays out 
the 287(g) authority for participating agencies does not address when 
the authority is to be used. While all 29 MOAs we reviewed contained 
language that authorizes a state or local officer to interrogate any 
person believed to be an alien as to his right to be or remain in the 
United States, none of them mentioned that an arrest should precede use 
of 287(g) program authority.[Footnote 6] Furthermore, the processing of 
individuals for possible removal is to be in connection with a 
conviction of a state or federal felony offense. However, this 
circumstance is not mentioned in 7 of the 29 MOAs we reviewed, 
resulting in implementation guidance that is not consistent across the 
29 participating agencies. A potential consequence of not having 
documented program objectives is misuse of authority. Internal control 
standards state that government programs should ensure that significant 
events are authorized and executed only by persons acting within the 
scope of their authority. Defining and consistently communicating how 
this authority is to be used would help ICE ensure that immigration 
enforcement activities undertaken by participating agencies are in 
accordance with ICE policies and program objectives. 

* Supervision of Participating Agencies: Although the law requires that 
state and local officials use 287(g) authority under the supervision of 
ICE officials, ICE has not described in internal or external guidance 
the nature and extent of supervision it is to exercise over 
participating agencies' implementation of the program. This has led to 
wide variation in the perception of the nature and extent of 
supervisory responsibility among ICE field officials and officials from 
23 of the 29 participating agencies that had implemented the program 
and provided information to us on ICE supervision. For example, one ICE 
official said ICE provides no direct supervision over the local law 
enforcement officers in the 287(g) program in their area of 
responsibility. Conversely, another ICE official characterized ICE 
supervisors as providing frontline support for the 287(g) program. ICE 
officials at two additional offices described their supervisory 
activities as overseeing training and ensuring that computer systems 
are working properly. ICE officials at another field office described 
their supervisory activities as reviewing files for completeness and 
accuracy. Officials from 14 of the 23 agencies that had implemented the 
program were pleased with ICE's supervision of the 287(g) trained 
officers. Officials from another four law enforcement agencies 
characterized ICE's supervision as fair, adequate, or provided on an as-
needed basis. Officials from three agencies said they did not receive 
direct ICE supervision or that supervision was not provided daily, 
which an official from one of these agencies felt was necessary to 
assist with the constant changes in requirements for processing of 
paperwork. Officials from two law enforcement agencies said ICE 
supervisors were either unresponsive or not available. ICE officials in 
headquarters noted that the level of ICE supervision provided to 
participating agencies has varied due to a shortage of supervisory 
resources. Internal control standards require an agency's 
organizational structure to define key areas of authority and 
responsibility. Given the rapid growth of the program, defining the 
nature and extent of ICE's supervision would strengthen ICE's assurance 
that management's directives are being carried out. 

* Tracking and Reporting Data: MOAs that were signed before 2007 did 
not contain a requirement to track and report data on program 
implementation. For the MOAs signed in 2007 and after, ICE included a 
provision stating that participating agencies are responsible for 
tracking and reporting data to ICE. However, in these MOAs, ICE did not 
define what data should be tracked or how it should be collected and 
reported. Of the 29 jurisdictions we reviewed, 9 MOAs were signed prior 
to 2007 and 20 were signed in 2007 or later. Regardless of when the 
MOAs were signed, our interviews with officials from the 29 
participating jurisdictions indicated confusion regarding whether they 
had a data tracking and reporting requirement, what type of data should 
be tracked and reported, and what format they should use in reporting 
data to ICE. Internal control standards call for pertinent information 
to be recorded and communicated to management in a form and within a 
time frame that enables management to carry out internal control and 
other responsibilities. Communicating to participating agencies what 
data is to be collected and how it should be gathered and reported 
would help ensure that ICE management has the information needed to 
determine whether the program is achieving its objectives. 

* Performance Measures: ICE has not developed performance measures for 
the 287(g) program to track and evaluate the progress toward attaining 
the program's objectives.[Footnote 7] GPRA requires that agencies 
clearly define their missions, measure their performance against the 
goals they have set, and report on how well they are doing in attaining 
those goals.[Footnote 8] Measuring performance allows organizations to 
track the progress they are making toward their goals and gives 
managers critical information on which to base decisions for improving 
their programs. ICE officials stated that they are in the process of 
developing performance measures, but have not provided any 
documentation or a time frame for when they expect to complete the 
development of these measures. ICE officials also stated that 
developing measures for the program will be difficult because each 
state and local partnership agreement is unique, making it challenging 
to develop measures that would be applicable for all participating 
agencies. Nonetheless, standard practices for program and project 
management call for specific desired outcomes or results to be 
conceptualized and defined in the planning process as part of a road 
map, along with the appropriate projects needed to achieve those 
results and milestones. Without a plan for the development of 
performance measures, including milestones for their completion, ICE 
lacks a roadmap for how this project will be achieved. 

Program Resources Are Used for Training, Supervision, and Equipment; 
Benefits and Concerns Are Reported by ICE and Participating Agencies: 

ICE and participating agencies used program resources mainly for 
personnel, training, and equipment, and participating agencies reported 
activities, benefits, and concerns stemming from the program. For 
fiscal years 2006 through 2008, ICE received about $60 million to 
provide training, supervision, computers, and other equipment for 
participating agencies. State and local participants provided officers, 
office space, and other expenses not reimbursed by ICE, such as office 
supplies and vehicles. 

ICE and state and local participating agencies cite a range of benefits 
associated with the 287(g) partnership. For example, as of February 
2009, ICE reported enrolling 67 agencies and training 951 state and 
local law enforcement officers. At that time, ICE had 42 additional 
requests for participation in the 287(g) program, and 6 of the 42 have 
been approved pending approval of an MOA. According to data provided by 
ICE for 25 of the 29 program participants we reviewed, during fiscal 
year 2008, about 43,000 aliens had been arrested pursuant to the 
program.[Footnote 9] Based on the data provided, individual agency 
participant results ranged from about 13,000 arrests in one location, 
to no arrests in two locations. Of those 43,000 aliens arrested 
pursuant to the 287(g) authority, ICE detained about 34,000, placed 
about 14,000 of those detained (41 percent) in removal proceedings, and 
arranged for about 15,000 of those detained (44 percent) to be 
voluntarily removed.[Footnote 10] The remaining 5,000 (15 percent) 
arrested aliens detained by ICE were either given a humanitarian 
release, sent to a federal or state prison to serve a sentence for a 
felony offense, or not taken into ICE custody given the minor nature of 
the underlying offense and limited availability of the federal 
government's detention space.[Footnote 11] 

Participating agencies cited benefits of the program including a 
reduction in crime and the removal of repeat offenders. However, more 
than half of the 29 state and local law enforcement agencies we 
reviewed reported concerns community members expressed about the 287(g) 
program, including concerns that law enforcement officers in the 287(g) 
program would be deporting removable aliens pursuant to minor traffic 
violations (e.g., speeding) and concerns about racial profiling. 

We made several recommendations to strengthen internal controls for the 
287(g) program to help ensure the program operates as intended. 
Specifically, we recommended that ICE (1) document the objective of the 
287(g) program for participants, (2) clarify when the 287(g) authority 
is authorized for use by state and local law enforcement officers, (3) 
document the nature and extent of supervisory activities ICE officers 
are expected to carry out as part of their responsibilities in 
overseeing the implementation of the 287(g) program, (4) specify the 
program information or data that each agency is expected to collect 
regarding their implementation of the 287(g) program and how this 
information is to be reported, and (5) establish a plan, including a 
time frame, for the development of performance measures for the 287(g) 
program. DHS concurred with each of our recommendations and reported 
plans and steps taken to address them. 

Mr. Chairman and Members of the Committee, this concludes my statement. 
I would be pleased to respond to any questions you or other Members of 
the Committee may have. 

GAO Contacts and Staff Acknowledgments: 

For questions about this statement, please contact Richard Stana at 202-
512-8777 or Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this statement. Individuals making key contributions to this 
statement include Bill Crocker, Lori Kmetz, Susanna Kuebler, and Adam 

[End of section] 


[1] Under section 101(a)(3) of the Immigration and Nationality Act, 8 
U.S.C. § 1101(a)(3), the term "alien" means any person not a citizen or 
national of the United States. It does not include foreign nationals 
who have become U.S. citizens. 

[2] Pub. L. No. 104-208, div. C, §133, 110 Stat. 3009-546, 3009-563 to 

[3] The change to the Immigration and Nationality Act is codified in 8 
U.S.C. §1357(g). 

[4] GAO, Immigration Enforcement: Better Controls Needed over Program 
Authorizing State and Local Enforcement of Federal Immigration Laws, 
[hyperlink,] (Washington, D.C.: 
January 2009). 

[5] GAO, Standards for Internal Control in the Federal Government, 
(Washington, D.C.: November 1999); and GAO, Executive Guide: 
Effectively Implementing the Government Performance and Results Act, 
[hyperlink,] (Washington, 
D.C.: June 1996). Additional program management standards we reviewed 
are reflected in the Project Management Institute's The Standard for 
Program Management (© 2006). 

[6] While law enforcement officers without 287(g) designation are not 
prohibited from contacting ICE to get information on the immigration 
status and identity of aliens suspected, arrested, or convicted of 
criminal activity, the statutory authority of an ICE officer to 
interrogate individuals as to their immigration status is one of the 
federal immigration enforcement functions specifically delegated to 
state and local officers who are certified to perform this function 
under the 287(g) program. 

[7] In general, performance measures are indicators, statistics, or 
metrics used to gauge program performance. 

[8] [hyperlink,]. 

[9] ICE provided data for 25 of the 29 participating agencies we 
reviewed. ICE also provided data for 4 other participating agencies, 
but we do not report them as they were not within the scope of our 
review. We used the data provided by ICE for illustrative purposes only 
and not to draw conclusions about the 287(g) program. 

[10] A voluntary removal (called voluntary departure) occurs when an 
alien is allowed to depart the country at his or her own expense 
(escorted by ICE) in lieu of formal removal proceedings or prior to 
completion of such proceedings. 

[11] Individuals arrested on administrative charges who may be sole 
caregivers or who have other humanitarian concerns, including those 
with serious medical conditions that require special attention, 
pregnant women, nursing mothers, parents who are the sole caretakers of 
minor children or disabled or seriously ill relatives, and parents who 
are needed to support their spouses in caring for sick or special needs 
children or relatives, may be released by ICE. As appropriate, if ICE 
is provided with new information regarding a humanitarian condition 
after an arrestee has been processed and detained, ICE may consider the 
possibility of release on humanitarian grounds based on such 
information. In general, aliens given a humanitarian release or not 
taken into custody due to limited detention space receive a notice to 
appear in immigration court at a later date for removal proceedings. 
Removable aliens serving a sentence in federal state prison are to be 
processed for removal at the end of their sentences. 

[End of section] 

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