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January 31, 2011

Analysis of the 287(g) program

Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement. The Migration Policy Institute has issued a report on the 287(g) program, under which ICE delegates to local law enforcement departments authority to arrest individuals who are in violation of immigration laws. The report shows that implementation of these programs is very diverse, with some localities targeting only serious criminals and others picking up anyone at a traffic stop. The impact of traffic stop-like programs (which MPI called “universal” programs) on the entire undocumented population appears to be very high.

Excerpts from the MPI’s executive summary:

At the national level, the program is not targeted primarily or even mostly toward serious offenders. Nationally, about half of program activity (defined by the number of immigration detainers issued) involves people who have committed felonies and other crimes that ICE deems to be serious (Priority Level 1 and 2 in ICE’s terminology). The other half of detainers issued are on people who have committed misdemeanors (usually considered Level 3) and traffic offenses.

Some jurisdictions operate “targeted” models, aimed primarily at identifying serious criminal offenders, while others pursue “universal” models, designed to identify as many unauthorized immigrants as possible. In FY 2010, Las Vegas operated the most targeted program among our sites: officers placed 70 percent of detainers on Level 1 or 2 offenders.

By contrast, Cobb County (GA) and Frederick County (MD) placed about 80 percent of their detainers on Level 3 or traffic offenders, and officers there placed detainers universally (i.e., on every unauthorized immigrant booked into jail or encountered during policing operations).

Contrary to public perception, 287(g) is almost entirely a jail program. In the first ten months of FY 2010, jail models accounted for 90 percent of detainers issued, while hybrid models accounted for 8 percent and task force models just 2 percent. Under the jail model, 287(g) officers screen for immigration status and place detainers after people have been booked into jail. Jurisdictions with jail models are not substantially more likely to operate targeted programs than jurisdictions with task forces. Except for Colorado, which apprehends a large number of recent border crossers who are in transit on the state’s highways, task forces issued about half of their detainers on Level 1 and 2 offenders — a similar proportion to jail models.

Universal models are concentrated in the Southeast. The ten sites with the largest share of detainers placed on traffic violators are all located in the Southeast. Mecklenburg County (NC) initiated the first universal program in 2006, and our Southeastern study jurisdictions have followed Mecklenburg’s model.

The 287(g) jail model does not impose federal oversight on officers who make the initial arrests. Under the jail model, 287(g) officers screen for immigration status and place detainers after people have been booked into jail. Initial arrests are generally made by police officers working for agencies without 287(g) agreements and who lack federal oversight and training in immigration laws. The lack of federal control over arresting officers opens the door to racial profiling and pretextual arrests, especially in jurisdictions that place immigration detainers universally.

 The formal program changes issued by the Department of Homeland Security (DHS) in 2009 have not substantially affected implementation. Despite reduced program activity (from 60,000 detainers in FY 2009 to 48,000 in FY 2010), we found no evidence that the revised template and the new 287(g) agreements the Obama administration required participating jurisdictions to sign in 2009 have had any substantial effect on 287(g) priority setting, program operations, outcomes, or community impacts.

State and local officials operate 287(g) programs according to priorities shaped largely by political pressures. In many communities in the Southeast and Southwest, the immigrant population grew rapidly during the 1990s and 2000s, leading to a public backlash and putting pressure on sheriffs and other elected officials to pursue a set of enforcement strategies. These strategies include pursuing a 287(g) program alongside adoption of state and local laws that directly target unauthorized immigrants, such as Arizona’s Senate Bill 1070 and laws in Georgia imposing mandatory jail time for driving without a license.

ICE closely supervises 287(g) officers in our study sites, but allows state and local agencies to set enforcement priorities. ICE supervisors sign off on virtually all detainers issued by 287(g) officers, regardless of whether the detainers apply to large numbers of Level 3 and traffic offenders.

Resources drive 287(g) program goals and implementation in many jurisdictions. In all sites operating universal models, 287(g) officers and ICE supervisors report that ample ICE detention capacity, in tandem with the increase in personnel resulting from the training of state and local officials (the “force multiplier” effect), allows officials to place detainers on as many Level 3 and traffic offenders as they encounter.

Universal enforcement gives rise to substantial negative community impacts and downstream federal detention and removal costs. Our study respondents reported impacts on immigrants similar to those cited in reviews by others of the 287(g) program, including avoidance of public places, changes in driving behavior, fear and mistrust of authorities, and reluctance to report crimes. Respondents also reported racial profiling, but we did not investigate these claims due to data limitations. Downstream federal detention costs can be significant in universal enforcement jurisdictions, with ICE detainees averaging 81 days in detention at a cost of $60 per day in Georgia, for example.

Some immigrants have left jurisdictions with controversial 287(g) programs. Frederick County experienced a 61 percent drop in its Hispanic noncitizen population after it adopted the 287(g) program, and Prince William County (VA) witnessed a 23 percent decline, while neighboring counties — especially Montgomery County (MD) and Fairfax County (VA) — experienced an increase. The population drop in Cobb County was only 5 percent, and it is too early to observe population changes in Gwinnett County (GA), which implemented its 287(g) program in late 2009. Public school enrollment data show drops followed by rebounds in Hispanic student populations in Frederick, Cobb, and Prince William counties.

Some jurisdictions have targeted their enforcement and conducted outreach to explain its scope, thereby muting community criticism. Prince William County implemented its 287(g) program in a relatively targeted fashion and modified its ordinance from a requirement that police screen the immigration status of everyone encountered to a screening requirement after booking into jail. The police department issued bilingual brochures and conducted hundreds of briefings explaining the 287(g) program, restoring the Hispanic community’s trust in the police department to levels near those documented before the program and the initial local ordinance were implemented.

In sum, the statutory language of section 287(g), the Obama administration’s statements and guidelines, and ICE’s implementation practices allow jurisdictions to operate the 287(g) program in fundamentally different ways across the country. We find that the 287(g) program has had more significant negative impacts on immigrant communities in jurisdictions where a universal model is used and traffic offenders comprise a large share of persons channeled through the program than in targeted jurisdictions.


We therefore recommend that ICE take additional steps to ensure that the 287(g) program functions consistently across jurisdictions according to the targeted enforcement model promoted in the 2009 revised template and in public statements by DHS and ICE leadership — and that the agency reconfirm that the program is intended to target primarily serious criminals or people who have prior criminal convictions, represent a threat to national security, or have prior removal orders. To achieve this goal, ICE should:

1. Ensure that state and local 287(g) officers place detainers on noncitizens only after they have been convicted for Level 1 and 2 offenses, unless they have committed prior immigration violations.

2. Work with the US Department of Justice to investigate accusations of racial and ethnic profiling in 287(g) jurisdictions, including in law enforcement agencies that arrest those booked into 287(g) jails but do not themselves have agreements.

3. Discontinue 287(g) agreements with jurisdictions that operate universal models and do not focus on serious criminals, as well as with jurisdictions where evidence of racial profiling or other civil-rights violations emerges.
4. Limit new agreements to jurisdictions that can demonstrate no prior history of racial profiling by police as well as an intent and likelihood to operate the program in a targeted fashion.

5. Conduct a comparative cost-benefit analysis of the 287(g) program versus Secure Communities and other interior enforcement strategies, one that includes downstream detention, adjudication, and removal costs, as well as community impacts.

6. Create a real dialogue between ICE field offices and local communities by engaging in direct outreach, holding regular meetings with key constituencies, and establishing meaningful steering committees.

Secure Communities Program

Our findings and recommendations also apply to the Secure Communities program, which ICE plans to expand to every state prison and local jail by 2013. Through Secure Communities, ICE officers remotely screen immigration status by checking inmates’ fingerprints against federal databases. Like the 287(g) jail model, Secure Communities authorizes screening after inmates are booked into jail and lacks federal oversight or training of arresting officers. Unless ICE takes steps to ensure that it is a targeted program, Secure Communities may replicate many of the controversies and negative community impacts we observed in universal enforcement 287(g) jurisdictions.

January 18, 2011

workers comp benefits for injured illegal workers: where are we?

In yet another informative article on WorkCompCentral (subscription required), the legal status of illegal immigrants in the 50 states’ workers compensation systems is reviewed, with a case study from the District of Columbia. The article summaries the current situation, nationwide:

“Currently, Wyoming is the only state that expressly denies workers' compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers' compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval. Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes. Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.”

Court: Illegal Alien Eligible for Total Temporary Disability Benefits
By Greg Jones, reporter

Palemon Casarrubia Gonzalez can't legally work in the U.S., but an appellate court in Washington, D.C., ruled last week that he is entitled to temporary total disability benefits from the period he was injured until he was medically cleared to return to work.

The decision marks the first time a District of Columbia court has expressly stated that undocumented workers are entitled to participate in the workers' compensation system, according to attorney Manuel Rivera, the Virginia attorney who represented Gonzalez. The decision addressed only Gonzalez's entitlement to temporary disability benefits.

"It's a very important decision for D.C. because this is the first time the D.C. court expressed itself about the rights of undocumented aliens to workers' compensation," Rivera said. "It's a great decision and I think it is going to be cited again."

The case is Asylum Co. et al. v. District of Columbia Department of Employment Services et al., 08-AA-1158, published Dec. 23.

Gonzalez was working as a bus boy for a bar owned by Asylum Co. on June 30, 2005, when a customer threw a bottle that struck him in the eye. Gonzalez suffered a dislocated lens in his right eye that required immediate medical treatment and later needed surgery. He initially suffered from 100% total loss of vision in his right eye, and from blurry vision and increased pressure in his eye while he was recovering.

Gonzalez attempted to return to work in a part-time position at Asylum July 17, 2005. He was told the company learned he was an undocumented alien and could not rehire him.

During the trial, the company said Gonzalez applied for the position under the name of Armando Casarrubias. The company did not learn of his immigration status until it received hospital bills for Gonzalez rather than Casarrubias.

Gonzalez filed for workers' compensation benefits Aug. 15, 2005. Asylum neither started paying benefits nor filed a notice of controversion.

An administrative law judge ruled in August 2007 that Gonzalez was entitled to temporary total disability (TTD) wage loss benefits from the date of the injury until Jan. 26, 2006, when he was medically cleared for work.

The judge also found Asylum failed to file a timely notice of controversion and withheld payment in bad faith. Based on the finding of bad faith, the judge awarded TTD benefits in the amount of Gonzalez's average weekly wage of $362.66. The judge also awarded an additional 10% penalty against the employer as well as interest on accrued benefits.

The Compensation Review Board (CRB) reviewed the decision and Asylum appealed to the District of Columbia Court of Appeals.

Asylum did not ask the appellate court to determine whether an undocumented alien is generally entitled to workers' compensation benefits, but the court said it was required to answer that question before addressing other issues raised on appeal.

The appeals court said state law "neither excludes undocumented aliens nor makes a workers' immigration status relevant."

Rivera, an immigration lawyer who also handles workers' compensation cases, said "logic and common sense" told him that Gonzalez was entitled to benefits because of the humanitarian aspects of the D.C. workers' compensation program. He said proving that was more difficult.

Rivera pointed to decisions in New Jersey and Connecticut where courts found undocumented aliens meet the statutory definition of an "employee" under workers' compensation systems that were also silent on immigration status.

The court agreed, saying a finding that the D.C. Workers' Compensation Act does not apply to illegal aliens would create an incentive for employers to hire them because they would save on workers' compensation costs.

"Interpreting the Act to exclude undocumented aliens, thereby permitting employers to avoid payment of benefits to such workers, could undermine the goal of encouraging employers to foster a workplace that is safe for all workers," the court added. "Finally, as the CRB observed, interpreting the term 'employee' in the Act to include undocumented workers is consistent with the principle that the Act is to be construed liberally to achieve its humanitarian purpose."

The court then looked at the contention raised by Asylum that Gonzalez was not entitled to wage-loss benefits for the period after it learned of his immigration status on July 17, 2005. Asylum argued that Gonzalez's immigration status, and not the injury, prevented him from working at the time.

The court noted that Gonzalez was not medically cleared to return to work, but he attempted to do so anyway.

"To be sure, claimant's termination prevented him from working for the employer and his undocumented status prevented other employers in the United States from lawfully employing him," the court said. "But it was the work-related injury to claimant's eye, and the time required for claimant to recover from that injury and to adjust to his impaired vision, that made him physically unable to return to comparable wage-earning anywhere, thereby rendering him 'disabled' within the meaning of the Act."

The court also dismissed the argument made by Asylum that the full weekly wage payment imposed because of the finding of bad faith -- as opposed to the 66.66% of the average weekly wage Gonzalez would be entitled to without a finding of bad faith -- amounted to an award of back pay or constituted sanctions for hiring an illegal alien.

However, the court did say that the administrative law judge did not consider Asylum's evidence of good faith, which would have shifted the burden back to Gonzalez to prove the reasons for nonpayment were pretextual. Similarly, the review board should not have affirmed the finding of bad faith based on the same mistake.

An Asylum employee testified he did not know what a notice of controversion was, and the appeals court said if that claim was credited, it would be inappropriate to treat Asylum's failure to file such a notice as an act of bad faith. The appeals court said the administrative judge incorrectly assumed that failing to file notice of controversion is, in and of itself, an act of bad faith.

"Another fact that potentially was relevant to the issue of bad faith, but which the (administrative judge) did not discuss, is claimant's attempt to return to work on July 17, 2005 -- an effort that the (administrative judge) found was contrary to medical advice, but that may be relevant to whether the employer was aware of, or had a reason to be skeptical about, claimant's ongoing physical incapacity," the appeals court said.

The court affirmed the review board's determination that Gonzalez is entitled to temporary total disability benefits, but remanded the case for further proceedings to determine whether Asylum acted in bad faith.

Gonzalez's attorney said he has not reviewed this portion of the decision, but he is confident he will prevail on the issue of bad faith.

Rivera said additional evidence in the record shows the employer knew when it hired Gonzalez that he was an undocumented worker.

Rivera also said in this case, the employer might have delayed payments hoping the case might go away.

Rivera said he has encountered similar tactics used by other employers and insurance companies in cases dealing with illegal aliens. He said he has had to obtain default judgments and threaten to take legal action to get money for his clients in the past before insurance companies would pay approved claims.

"It's a rampant abuse to undocumented employees by employers and insurance companies as well that know if they delay the process, they can get away without paying benefits to an employee," he said. "They play the numbers and do it so often that at the end of the day they collect a profit because they have to pay one or two claims, but some lawyers might give up."

Currently, Wyoming is the only state that expressly denies workers' compensation benefits for injured workers. Lawmakers in Ohio talked earlier this year about passing legislation that would also prohibit illegals from participating in the workers' compensation system. Bills have been introduced in Arizona in each of the past two legislative sessions, but failed to win approval.

Alaska, Delaware, Indiana, Maine, Missouri, Rhode Island, South Dakota, Vermont, Washington, West Virginia and Wisconsin are silent on the issues, while the remaining states expressly include illegal aliens in their work comp statutes.

Courts in Oregon, California and Nebraska have upheld decisions to deny vocational rehabilitation benefits to undocumented workers.

January 11, 2011

"Close to Slavery" ; guest worker programs

“Close to Slavery”: Guest workers programs

I just stumbled across a 2007 study on guest worker programs, Close to Slavery, published by the Southern Poverty Law Center. As the SPLC says, “This report details the systematic exploitation of foreign workers who come to this country for temporary jobs under the nation's H-2 guestworker program. Based on dozens of legal cases and interviews with thousands of guestworkers, it documents how guestworkers are routinely cheated out of wages, forced to mortgage their futures to obtain low-wage, temporary jobs, and held virtually captive by employers.”

January 1, 2011

State house battles in 2011 over illegal immigration

Count on 2011 to see a lot of “Arizona-plus” legislative initiatives at the state level. These will be opposed by business lobbies, Democrats, and the Hispanic community. Below is an article in today’s NY Times:

Political Battle on Illegal Immigration Shifts to States

Legislative leaders in at least half a dozen states say they will propose bills similar to a controversial law to fight illegal immigration that was adopted by Arizona last spring, even though a federal court has suspended central provisions of that statute.

The efforts, led by Republicans, are part of a wave of state measures coming this year aimed at cracking down on illegal immigration.

Legislators have also announced measures to limit access to public colleges and other benefits for illegal immigrants and to punish employers who hire them.

Next week, at least five states plan to begin an unusual coordinated effort to cancel automatic United States citizenship for children born in this country to illegal immigrant parents.

Opponents say that effort would be unconstitutional, arguing that the power to grant citizenship resides with the federal government, not with the states. Still, the chances of passing many of these measures appear better than at any time since 2006, when many states, frustrated with inaction in Washington, began proposing initiatives to curb illegal immigration.

Republicans gained more than 690 seats in state legislatures nationwide in the November midterms, winning their strongest representation at the state level in more than 80 years.

Few people expect movement on immigration issues when Congress reconvenes next week in a divided Washington. Republicans, who will control the House of Representatives, do not support an overhaul of immigration laws that President Obama has promised to continue to push. State lawmakers say it has fallen to them to act.

“The federal government’s failure to enforce our border has functionally turned every state into a border state,” said Randy Terrill, a Republican representative in Oklahoma who has led the drive for anti-illegal immigration laws there. “This is federalism in action,” he said. “The states are stepping in and filling the void left by the federal government.”

But the proposals have already drawn opposition from some business groups. And they are forcing strategic soul-searching within the Republican Party nationwide, with a rising populist base on one side demanding tough immigration measures, and, on the other side, traditional Republican supporters in business and a fast-growing Latino electorate strongly opposing those measures.

In Utah, a state dominated by Republicans, leaders from business, law enforcement, several churches and the Latino community sought to bridge the divide by joining together in November in a compact urging moderation on immigration issues.

Some of the more contentious measures may not go into effect immediately, including Arizona-style bills and those intended to eliminate birthright citizenship for American-born children of illegal immigrants. Latino and immigrant advocate legal organizations are gearing up for a host of court challenges.

Among the states expected to introduce bills similar to Arizona’s are Georgia, Mississippi, Nebraska, Oklahoma, Pennsylvania and South Carolina.

The Arizona law authorized the state and local police to ask about the immigration status of anyone they detained for other reasons, if they had a “reasonable suspicion” that the person was an illegal immigrant.

Acting on a lawsuit filed by the Obama administration, a federal judge stayed central provisions of the law. In November, the United States Court of Appeals for the Ninth Circuit heard arguments on an appeal of that stay by Arizona.

“States will push ahead regardless of the Ninth Circuit,” said Kris Kobach, a law professor and politician from Kansas who helped many states devise immigration laws — including Arizona’s. “A lot of people recognize that the district judge’s decision is very much open to dispute.”

In Oklahoma, where Republicans won big majorities in both houses of the Legislature and the governor’s office, Mr. Terrill said he would introduce a bill he called “Arizona plus.” In addition to the terms of Arizona’s law, it would allow for the seizure of vehicles and property used to transport or harbor illegal immigrants.

In Georgia, an all-Republican commission of legislators plans to propose measures to enhance enforcement of tough laws already on the books. Georgia will also consider a bill to bar illegal immigrant students from all public universities.

The newly elected governor, Nathan Deal, a Republican, is expected to sign those bills. But the Georgia Farm Bureau, which represents the state’s powerful growers, voted to oppose any measures that would affect immigrant farm workers, most of whom do not have legal status.

In Kansas, Republicans won big majorities in both legislative houses and Sam Brownback, who just retired as a United States senator, was elected governor. Mr. Kobach, the law professor, was elected secretary of state after a campaign in which he vowed to pass a law requiring proof of citizenship for voters.

But the Kansas Chamber of Commerce has voiced its opposition, and Mr. Brownback has said he will focus on reducing unemployment.

The newest initiative is a joint effort among lawmakers from states including Arizona, Oklahoma, Missouri and Pennsylvania to pass laws based on a single model that would deny American citizenship to children born in those states to illegal immigrants. The legislators were to announce the campaign in Washington on Wednesday.

A leader of that effort is Daryl Metcalfe, a Republican state representative from Pennsylvania. At a recent news conference, Mr. Metcalfe said his goal was to eliminate “an anchor baby status, in which an illegal alien invader comes into our country and has a child on our soil that is granted citizenship automatically.”

The campaign is certain to run into legal obstacles. Courts have interpreted the 14th Amendment as guaranteeing birthright citizenship. Even among those who seek its repeal, debate has hinged on whether that would require a constitutional amendment, an act of Congress or a decision by the Supreme Court.

Some Republicans argue that the party is risking losing its appeal to Latino voters, the fastest-growing minority voter bloc.

“The Republican Party is divided between those who see that Hispanics are an essential constituency going forward, and those who don’t see that,” said Tamar Jacoby, a Republican who is the president of ImmigrationWorks USA, a business coalition that supports legalization for illegal immigrants.

Latino and immigrant advocate groups are resigned to being on the defensive for the next two years. “These laws are creating resentment within the Latino community that is going to last for decades,” said Tony Yapias, director of Proyecto Latino de Utah in Salt Lake City, an immigrant advocacy group.