Federal programs available to states
Somewhat overlooked in the immigration debate are several federal programs that either authorize state and local law enforcement agencies to act as federal immigration agents, or that provide access to federal databases with information about immigration status. Like everything else associated with immigration, the programs have their supporters and their critics.
A program known as "287(g)" (its designation in federal law) allows officers with state and local law enforcement agencies to act as Immigration and Customs Enforcement (ICE) agents provided they are trained by ICE. In effect, it gives local law enforcement some of the powers and authority state lawmakers across the country are seeking with new state laws. Participation in 287g, which was enacted in 1996, grew after the 9/11 attacks but remains spotty for a number of reasons. As of mid-2010, 71 agencies in 25 states were participating. In Florida, despite a jump in unauthorized immigration over the past decade, few agencies participate. ICE data show three Florida counties (Bay, Collier, and Duval) and the Florida Department of Law Enforcement participated in 2010.
One reason for the low participation rate is that local law enforcement agencies are wary of having their officers and deputies enforce immigration law, fearing it will turn the immigrant population against their agencies and keep them from cooperating in criminal investigations unrelated to immigration. In addition, some agencies are reluctant to divert time and manpower away from their core mission of enforcing local laws.
Critics accuse the program of promoting racial profiling, and claim it targets immigrants stopped for minor infractions like traffic offenses rather than focusing on arresting violent immigrants who pose a threat to the community. An overhaul of 287(g) by the Obama administration in 2009 focused on ICE's oversight of participating agencies. But two federal government audits in 2010 revealed ongoing administrative problems, adding fuel to calls to abolish the program. The audits found weak management controls, and a failure to verify that funds given to ICE by Congress are being used as required. In addition, the report found inadequate training and supervising of 287(g) officers.
Two other federal programs have been created to determine the legal status of workers or criminal suspects detained by law enforcement. One of them, E-Verify, is a free federal database that contains Social Security and Homeland Security records. Public and private employers can plug the names and Social Security numbers of newly hired employees into the system to determine their eligibility to work in the United States. About 225,000 employers across the country , including 11,000 in Florida, use E-Verify, according to Homeland Security statistics. Participation is voluntary, although some companies may be required by state law or federal regulation to use E-Verify. For example, public and private employers in Arizona, Mississippi and Utah are required to use E-Verify, and the check is mandatory for many employers with federal contracts or subcontracts, the Homeland Security website said. A dozen states, Florida included, now require the use of E-Verify when state agencies hire an employee. The order Florida Gov. Rick Scott signed requires not only checks on new hires but checks on all current state employees, although federal E-Verify guidelines do not allow for current employees to be checked in most instances. The governor's office did not respond to a request for clarification.
Critics question the accuracy of the E-Verify database and the complications for immigrants in the country legally but mistakenly flagged by the system. A 2010 Government Accounting Office audit found improvements from two years earlier, but noted problems persist. "In June 2008, we testified that ( the U.S. Citizenship and Immigration Service) USCIS and (the Social Security Administration) SSA had taken actions to enhance the E-Verify program but continued to face challenges. One challenge was related to USCIS’s ability to reduce instances in which work authorized employees are not automatically confirmed by E-Verify. This situation could occur for several reasons, such as employees not updating their naturalization status in SSA databases in a timely manner or not informing SSA of a change in name." The audit continued, "Another challenge was related to USCIS’s ability to detect the use of fraudulent and stolen identity documents, and identify and curb employer fraud and misuse of the program. An evaluation report issued by the Westat Corporation (Westat) in December 2009 stated, among other things, that E-Verify could not detect identity fraud in the majority of cases where unauthorized workers presented their employers with valid documents that were stolen or borrowed."
While the 2010 audit found improvements, "E-Verify errors persist," the report said. Because those errors are more likely to affect foreign-born employees, the system can appear to be discriminatory. "Furthermore, the audit said, "E-Verify remains vulnerable to identity theft and employer fraud. Resolving these issues will be important in combating fraud in the employment verification process."
The federal government points to a steady decrease in the number of erroneous mismatches over the past two years, and the program's rate of successful outcomes. Government statistics show 98.3 percent of the new hires plugged into E-Verify are automatically confirmed as authorized to work either instantly or within 24 hours, requiring no employee or employer action. Of the 1.7 percent of employees flagged for mismatched information, 0.3 percent are later authorized to work after contesting the mismatch, and the remainder are found to be unauthorized to work. In FY 2010, more than 16 million queries passed through E-Verify, a surge in usage that is expected to continue as states push measures to reduce unauthorized immigrants.
The other program, Secure Communities, runs a fingerprint check through FBI and Department of Homeland Security databases after someone is booked into a local jail. The intent is to quickly alert federal immigration authorities to the presence of jailed immigrants who have been convicted of crimes. The program has been in use across Florida since mid-2010. As of early 2011, more than 1,000 local jurisdictions in 39 states were taking part in the program, which is expected to be in use nationwide in 2013. In all, about 59,000 immigrants with criminal convictions on their records have been removed from the country after being flagged by the fingerprint check, according to Immigration and Customs Enforcement.
While these programs give options to local law enforcement agencies, they don't address the underlying causes of illegal immigration. And with no significant federal legislation on the horizon, states can be expected to continue to explore ways to expand their enforcement role.