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Policy Brief | Spmb 2009
The C.A.P. effeCT: RACiAl PRofiling in The iCe CRiminAl Alien PRogRAm |
Septeber 2009
BerkeleyLaw
UNIVERSITY OF CALIFORNIA
The Chief JusticeEarl WarrenInstitute on Race,Ethnicity & Diversity
Berkeley Law Ceter frResearc ad Adiistrati2850 Telerap Ave.,Suite 500Berkeley, CA 94705Pe: (510) 642-8568Fax: (510) 643-7095www.warreistitute.r
At t Warristtt
Te Cief Justice EarlWarre Istitute Race,Eticity & Diversityis a ultidiscipliary,cllabrative veture tprduce researc,researc-based plicyprescriptis, adcurricular ivati issues f racial adetic justice i Califriaad te ati.
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The C.A.P. effeCT:
RACIAL PRoFILIng In ThE ICE CRImInALALIEn PRogRAm
Trevr garder II ad Aarti Kli*
SUMMAry
The goal o the Criminal Alien Program (CAP)is to improve saety by promoting ederal-local partnerships to target serious criminaloenders or deportation.
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Indeed, the U.S.Congress has made clear that Immigrationand Customs Enorcement (ICE) “shouldhave no greater immigration enorcement priority than to remove deportable aliens with serious criminal histories rom the UnitedStates, …”
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The Warren Institute’s analysis o arrest data pursuant to an ICE-local partner-ship in Irving, Texas demonstrates that ICEis not ollowing Congress’ mandate to ocusresources on the deportation o immigrants with serious criminal histories.This study also shows that immediately ater Irving, Texas law enorcement had24-hour access (via telephone and videoteleconerence) to ICE in the local jail, dis-cretionary arrests o Hispanics or petty oenses — particularly minor trafc oenses— rose dramatically. This report probes themarked rise in low-level arrests o Hispanics.Specifcally, the report examines whetherthere was an increase in lawless behavior inthe Hispanic community in Irving or whetherthere was a change in local policing priorities.The Warren Institute’s study o arrest datafnds strong evidence to support claims that Irving police engaged in racial profling
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o Hispanics in order to flter them through theCAP screening system.In September 2006, the Irving PoliceDepartment ofcially partnered with ICEthrough the agency’s popular Criminal AlienProgram. Pursuant to CAP, local jail ofcialshold people in jail until ICE can screenarrestees and issue a detainer against those who cannot prove lawul presence. The datashows that ICE consistently issued detainersor ewer individuals than were reerred by the local police, indicating that local ofcials were likely reerring lawul residents to ICE.
* The Warren Institute acknowledges the very generoussupport o the Atlantic Philanthropies, which has made thisresearch possible. Trevor Gardener, a ormer public deender,is currently a Ph.D. student in the Department o Sociology at the University o Caliornia, Berkeley. Aarti Kohli is Directoro Immigration Policy at the Warren Institute.1. U.S. Immigration and Customs Enorcement. “State/LocalCoordination,” accessible at
ttp://www.ice.v/pi/ews/factseets/secti287_.t
(last viewed August 12, 2009).2. House Committee on Appropriations,
Department of Homeland Security Appropriations Bill, 2010,
111th Cong. 1st sess., 2009, H. Rep. 111-157, 49-50.3. The study defnes racial profling as the racially disparateexercise o police discretion in the decision to stop,investigate and/or arrest.
Septeber 2009
| The C.A.P. effeCT: RACiAl PRofiling in The iCe CRiminAl Alien PRogRAm
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Moreover, the Warren Institute’s anal- ysis demonstrates that once CAP wasimplemented in Irving, elony chargesonly accounted or
2%
o ICE detain-ers, while 98% o ICE detainers wereissued or individuals charged withmisdemeanor oenses.The data analysis also reveals that with the 24-hour access to ICE, localpolice arrested Hispanics or Class-Cmisdemeanor oenses in signif-cantly higher numbers than Whitesand Arican-Americans. The Class-Cmisdemeanor oense — the least seri-ous class o misdemeanor — aordsofcers a substantial amount o discre-tion in the decision to stop, investigateand/or arrest local residents.
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recoMMendAtionS
1. Congress should order aninvestigation of the implementationof the Criminal Alien Program inother jurisdictions before allocatingadditional sums for the expansionof the program.
Particularly, theinvestigation should concentrate on whether local law enorcement isincreasing its ocus on high-level crim-inal alien oenders as a result o theCAP program.
2. ICE should institute a bright-line rule prohibiting CAP screeningsfor individuals arrested for non-felony offenses, in order to eliminateracial proling in the implementationof the Criminal Alien Program.
Thisrecommendation is in line withCongress’s mandate to ocus onserious criminal oenders.
3. Congress should mandate thatlocal jurisdictions who partner withICE record stop and arrest data byrace, ethnicity and level of offense.
In addition, ICE should disclose on its website where it has implemented theCriminal Alien Program to provide ulldisclosure to local communities whomay be impacted by police practices.
introdUction
Traditionally, immigration enorce-ment has been a unction o theederal government. Since 2006, how-ever, the Immigration and CustomsEnorcement (ICE) agency has begunto partner more requently with locallaw enorcement agencies, ostensibly,to “prioritize the removal o dangerouscriminal aliens”.
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The Criminal AlienProgram (CAP)
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is one o thirteenederal-local immigration enorce- ment programs that are includedin ICE ACCESS (Agreements o Cooperation in Communities toEnhance Saety and Security). At itsinception, CAP deployed ICE agentsin teams to visit detention acilitiesand identiy undocumented immi-grants or deportation. The programexpanded when ICE agents began toreview cases by video teleconerence,as an alternative to in-person con-tact.
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While ICE detainer decisions were initially made in-person at theIrving Jail, in late 2007, ICE of-cers began making these decisionsremotely. ICE reers to this practice o remote communication with Bureauo Prisons (BOP) and local jail acili-ties as the Detention Enorcement and Processing Oenders by RemoteTechnology (DEPORT) program. TheDEPORT program allows ICE ofcialsto screen and process detainees in87 BOP acilities and an increasingnumber o local jails rom its hub inChicago, Illinois.In an eort to maximize its lim-ited resources, ICE split the 4,259BOP and state prison acilities intoour tiers (Tier 1, Tier 2, Tier 3 andTier 4) according to each acility’s sus-pected “criminal alien” population.ICE now claims screening capabilitiesin all Tier 1 and Tier 2 acilities, thetwo tiers with the highest concentra-tion o suspected undocumentedimmigrants. These two tiers make up13.8% o the total prison acilities.ICE hopes to achieve 100% cover-age across the our tiers by attractingadditional ederal and local resourcesand orging new ederal-local bureau-cratic partnerships through initiativeslike CAP. The systematic expansiono CAP appears to be central to ICE’simmigration enorcement strategy.
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4. This study analyzes Irving arrest data, not the broader categories o stopsand cursory investigations, many o which do not involve an arrest.5. Senate Committee on Judiciary, Subcommittee on Immigration.
Securing the Borders and America’s Points of Entry, What Remains to be Done,
111 Cong., 1st sess.,2009, Statement o John P. Torres. Deputy Assistant Secretary, U.S. Immigra-tion and Customs Enorcement, Department o Homeland Security.6. ICE now claims to have CAP or CAP-equivalent programs in 10% o the3,100 jails in the U.S. Programs include Asset Foreiture, Fugitive OperationTeam, and Document and Beneft Fraud Task Force. See U.S. Immigration andCustoms Enorcement, “ICE Access: State/Local Coordination,” at
www.ice.v/parters/dr/iceaccess.t
(last viewed July 24, 2009).7. Carrie L. Arnold, “Racial Profling in Immigration Enorcement: State andLocal Agreements to Enorce Federal Immigration Law,”
Arizona Law Review,
Vol. 49 (Spring 2007), 128.8. U.S. Immigration and Customs Enorcement, “Secure Communities: Fact Sheet,” accessible at
www.aila.r/ctet/default.aspx?dcid=25045
(last viewed March 29, 2009).
The C.A.P. effeCT: RACiAl PRofiling in The iCe CRiminAl Alien PRogRAm |
Septeber 2009
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Though ormal ederal-localpartnerships,
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requiring a Memor-andum o Agreement and trainingo local police, were authorized by Congress in 1996, other immigrationenorcement collaborations did not attract much interest until 2006. In2006, ICE ederal-local partnershipssprouted up across the country andimmigrant detentions, detainers anddeportations increased substantially.For example, in 2006, ICE charged67,000 persons detained or criminaloenses with immigration violations.That number rose to 164,000 in 2007,and ICE charged more than 220,000persons detained or criminal oenses with immigration violations in 2008.
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Immigration detainers will continueto rise as technological innovationsdeveloped by ICE accelerate localimmigration investigations andreerrals. At the local level, 30 lawenorcement agencies now haveDepartment o Homeland Security (DHS) databases, which allow locallaw enorcement to begin removalproceedings without ICE consulta-tion. ICE currently seeks to distribute“integrated technology” as widely aspossible to streamline the detainer/deportation process. In the nearuture, every detainee fngerprint will be processed through the DHSbiometrics database, allowing DHS tosystematically search the nation’s poolo criminal detainees or suspectedundocumented immigrants.
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Withthe advent o increased cooperationand technological innovations, thereneeds to be a greater understanding o the profle o arrestees who are beingreerred to ICE and the impact thesepartnerships have on local policing.
cAP in irving, texAS
Irving is a city in Dallas County witha population o just over 196,000.In 2006, Hispanics made up 41.2%o the general population inIrving. Non-Hispanic whites werethe second largest ethnic group at 34.4%, ollowed by Arican-Amer-icans (12.2%) and Asian-Americans(10.1%).
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The city o Irving beganits Criminal Alien Program in the allo 2006. The partnership with ICE spe-cifcally granted the city the authority to investigate the immigration statuso persons detained at the Irving Jail.Local police initiated ICE reerrals orthose arrestees whom they suspectedo being undocumented. Ater a tele-phone or video teleconerence, ICEthen issued detainers or a subset o arrestees who were reerred by localpolice. These detainers
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are requestsrom the ederal government to localpolice to retain custody o the individ-ual or up to 48 hours so that ICE may determine whether to take custody once his or her local criminal case isdismissed or otherwise resolved.The American Civil LibertiesUnion (ACLU) o Texas provided the Warren Institute with a raw data fleo arrest records obtained through apublic records request rom Irving,Texas spanning a 23-month periodrom January 2006 to November2007. The Irving Police Department ormally began its immigrationenorcement partnership with ICE inSeptember o 2006, the ninth montho the 23-month data time series.The Irving arrest records areunique or a number o reasons. First,it is extremely rare to obtain policedepartment arrest data. Departmentsear that such data will be used toscrutinize department policy or revealpatterns o misconduct. Second,to our knowledge, the Irving dataoers the frst opportunity or a
9. U.S. Immigration and Customs Enorcement. “Delegation o Immigra-tion Authority Section 287g,” accessible at
ttp://www.ice.v/parters/287/Secti287_.t
(last viewed August 12, 2009).10. Department o Homeland Security, “Border Security and ImmigrationEnorcement Fact Sheet,”
accessible at
ttp://www.ds.v/xews/releases/pr_1224777640655.st
(last viewed August 13, 2009).11. U.S. Immigration and Customs Enorcement, “Secure Communities:Fact Sheet,” accessible at
www.aila.r/ctet/default.aspx?dcid=25045
(last viewed March 29, 2009).12. 2006 American Community Survey – Irving, Texas.13. 8 C.F.R. § 287.7
See also
American Civil Liberties Union o Florida, “ACLUICE Detainers Unlawul and Pose Risks to Local Governments,”
accessible at
ttp://www.aclu.r/ews_evets/?acti=viewRelease&eailAlertID=3763.
(last viewed August 14, 2009)
Tis study ffers cpelli evidecetat te Criial Alie Prra tacitlyecuraes lcal plice t arresthispaics fr petty ffeses.
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