The Kafkaeque world of 287(g)

Tuesday, May 3rd, 2011
By: Jonathan MontagJ.D.

My father believes that in every large organization there was a smart person in charge somewhere in a back room with a lot of common sense to whom you could appeal to straighten out problems. If he saw the 287(g) operation in San Diego, his belief would be shaken.

The 287(g) program is the program defined in Section 287(g) of the Immigration and Nationality Act, which provides for federal-state cooperation in enforcing the immigration laws. This is a small part of what 287(g) says:

[t]he 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, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

One aspect of the program in San Diego is that people who are born outside the United States who are being released from jail are not released to the street, but rather the sheriff arranges for their transfer to Immigration and Customs Enforcement custody. Conversely, before Immigration and Customs Enforcement releases someone, they check to see if other agencies want him or her.

You would think with the resources required to take people into custody – identifying the foreigners, coordinating between agencies, preparing rosters, timing deliveries of detainees to the facilities, meshing schedules, meshing work procedures – efforts would be made to limit the number of unnecessary transfers.

Au contraire. Such is what one detainee, call him or her “A”, recently experienced in San Diego. A was convicted of a crime that makes the person deportable and subject to mandatory detention. After A finished with state custody, ICE came and placed A in its custody. A remained detained by ICE for more than six months while waiting for a hearing with an immigration judge to decide whether A would be allowed to stay in the United States. [Despite assurances made by the Attorney General to the Supreme Court that six-month detentions are a rarity and the upper limit on the length of detention, in reality this is a standard period of time for a detainee to be detained awaiting a hearing.]

While in ICE custody, A was unable to meet with the probation officer assigned to the case or go to the criminal court for status hearings. Despite the fact that the sheriff handed A over to ICE and the fact that A was mandatorily detained, and despite the fact that anyone can look up if an alien is detained, no one told the court and the court did not check to see if A was in ICE detention. As a result, a warrant was issued for A’s arrest. After A was able to be released from ICE, instead of being allowed to go home to family, A transferred back to the sheriff’s custody to answer for the failure to appear. The absurdity continued when the sheriff processed A into the jail. One would think the sheriff’s intake would notice that they handed A over to ICE six months earlier and now they were taking A back from ICE, and thus there was a strong likelihood that A was in ICE detention the entire time. A quick telephone call would have confirmed this. You would think the wise man with common sense in the back room would make a phone call or two to other men (or women) in other back rooms and A would be able to go home. No way. Instead, A spent another week in custody – this time the custody of the sheriff – before A could see a judge and straighten out the failure to appear issue. In the meantime, no public defender screened her case. With the cost of detention what it is, not only was this cruel and needless treatment of A, but it cost the government a lot of money.

But that was not the end of it. Guess what happened after the criminal court ordered A’s release? ICE had a new hold on A and A was brough back to ICE’s custody. It necessitated yet another night of confinement before A was finally released to the street.

It should not have been so hard for the sheriff to figure out or ascertain that if they bring someone to ICE and then bring that same person back from ICE six months later, that person was probably in ICE custody for that period. It should also not be that hard to figure out that this would explain a failure to appear. It also should not have been that hard for ICE to realize the reason A had to appear again in court.  In the interests of justice and economy, there should be a system to avoid the needless detention of a person for the “crime” of being detained since there is no one with common sense to stop it. Posted May 3, 2011.



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