The small town of Troy (pop. 2,130) has made a name for itself in immigration enforcement. Its police chief, setting to work under an agreement for local cooperation with Immigration and Customs Enforcement, straightaway arrested 13 suspected unauthorized immigrants.
His roundup also made a name for the state, prompting a Boston Globe article headlined “Attorneys warn immigrants … ‘Avoid going to New Hampshire.’” When pressed for comment on the chief’s actions, the town’s select board chair sidestepped, saying “We had nothing to do with that contract.”
The chair had that right. What are called 287(g) Memorandums of Agreement, deputizing state, municipal and county law enforcement officers to carry out the functions of federal immigration agents, are signed between ICE and law enforcement agencies, rather than political authorities. Why should this be? There are two immediate, but by no means final, answers to that question.
The first is this is the way ICE prefers to handle the arrangement. In its publications, no mention is made of elected officials or state/local government units. Law enforcement agencies are invited to partner directly with ICE and urged to apply for 287g MOAs through an online portal. The process involves little more than plugging the name of the agency into the template provided.
In New Hampshire, where 13 such partnerships have been sealed to date, a state law has also come into play. RSA 106-P, passed last year, does mention local government units, but only to bar them from interfering in the process by which MOAs are transacted: “Neither the state nor any county, municipality, or other political subdivision of the state shall prohibit or impede any state, county, or local law enforcement agency from applying for or entering into [a 287g agreement].”
As to the lack of finality: It turns out that both ICE publications and state law refer to a specific federal statute, namely section 287g of the 1996 Immigration and Nationality Act (now Title 8 U.S. Code, sec. 1357g), as the ultimate authority for their policies. Here is what this statute actually says: “…the 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 [can be] qualified to perform as an immigration officer….”
Note that the “political subdivisions,” ignored in ICE materials and prevented by RSA 106-P from coming between ICE and law enforcement, are the units with which these agreements with the federal government (now represented in most immigration matters by the Department of Homeland Security) are to be made. In other words, both ICE procedures and the law appear to stand in flat contradiction of the very statute they claim as their foundation.
This contradiction is more than a legal glitch. It is a recipe for bad public policy. The decision whether to participate or not in federal enforcement efforts, in 1996 and even more so today, is a consequential one for a community. It deserves to be made in the governmental realm, where other consequential decisions are made, where public input can be formally solicited, and where officials are electorally accountable for the outcomes — conditions which are not in place for a decision made by plugging in a department name on an online form.
The downsides of leaving this matter to law enforcement agencies go beyond the pitfalls of convenience. These organizations typically do not have access to the legal expertise, and frequently to the training, needed to execute a document filled with complexity and nuance. This can lead to major liability claims against local governments. And when a department’s 287g expenses exceed its budget, it falls on the taxpayers to make good on an unfunded mandate they did not approve.
In short, to allow the choice regarding ICE collaboration to be made solely by the law enforcement branch, rather than the duly constituted political authority, is to let the tail wag the dog. The procedure runs counter both to common sense and to operative federal law. Legal action is needed to correct it.
Possible targets for this action are not far to find: signed MOAs, state law, ICE practices and publications. Likewise, there would seem to be opportunities for a range of actors — attorneys, lawmakers, advocacy organizations, local governments and individual citizens —to devise strategies and initiate proceedings. The door is wide open for any willing to step up!
Of course, with a national debate raging over immigration issues, the aim of placing in proper hands communities’ decisions to participate or not in federal enforcement efforts, is not the most glamorous cause to champion. But it is a feasible and important one. Making it happen could help to temper the fast and loose dealings that have too often prevailed under 287g. It would uphold the law in this case, and by extension the rule of law. And it could restore a measure of democracy to our local decision making.
So if Troy, say, should choose to participate in the enforcement program, or Manchester wants no part of it, it will be the people’s choice, not the police chief’s.
Gerald Burns is a Emeritus Professor of English of English at Franklin Pierce University and volunteers with the Monadnock Democracy Alliance Immigration Task Group. He lives in Marlborough.