Section 287g: Authorization of Unqualified Officers to Enforce Immigration
By Danielle Beach-Oswald
Due to a violation of human rights in 2008, a female immigrant has received a settlement of $490,000. After being detained, Ms. Villegas’ hands and feet were shackled to her hospital bed while giving birth. Six days prior to her hospitalization, a state police officer realized Villegas was illegally residing in the country when he pulled her over at a routine traffic stop. The state officer was able to detain her using section 287g of the Immigration and Nationality Act, an agreement written between certain states and the Attorney General, which gives certain state officers training, certification, and permission to enforce immigration state-wide as opposed to federally. Villegas had been deported once and has been living in the U.S since 1996.
After she gave birth, her baby was taken from her. She later developed a painful breast infection in jail because she was not allowed to take a breast pump back with her. In 2011, a federal judge in Tennessee ruled that Villegas receive monetary compensation for her suffering and additionally that she obtain a visa normally given to crime victims. This article argues that section 287g of the Immigration and Nationality Act should never have been implemented because state officers should not be enforcing this federal law, as the act does not specify how they will give state officers the proper training, knowledge, or oversight to conduct this process properly. Therefore, this act’s failure to specify the extent to which state officers will be prepared for enforcing immigration law, as well as the act’s potential misuse, entitled Ms. Villegas to the compensation she received for her violation of human rights. In addition, I propose the abolishment or modification of section 287g of the INA.
Section 287g of the Immigration and Nationality Act written by Immigration Customs and Enforcement (ICE), says that state police officers deemed by the Attorney General “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 extent consistent with State and local law” (uscis.gov). This section of the act does not in any way mention how the Attorney General will determine the capabilities of state officers or deem them qualified to enforce federal law. The act merely states, “an officer or employee of a state or political subdivision of a state performing a function under the agreement shall have knowledge of, and adhere to, federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws” (uscis.gov). It seems as though the act deliberately left out the length of time needed to train officers in immigration law and the extent to which state officers would be trained in enforcing an issue in which they otherwise would have little to no knowledge of how to enforce.
I firmly believe that the act deliberately neglects to elaborate on how the Attorney General intends to prepare state officers for enforcing federal law. Both parties of this agreement want the freedom to give state officers the discretion to enforce immigration whenever it is needed, and potentially get away with merely giving state officers the certification in certain areas where the detention of illegal immigrants is most required. Through the ambiguous language of section 287g of the Immigration and Nationality Act, it is clear that the federal government wants the power to give authorization to unsupervised state officers based not especially on the officers’ knowledge or training, but for the purposes of clearing out illegal immigrant “hot spots.” After the court ruled in favor of Ms. Villegas, the Obama Administration thankfully reduced this section of the act nationwide and has declined to sign new agreements in addition to declining to renew existing ones.
However, the fact that a state officer given “training” and permission to enforce immigration by the Attorney General violated the human rights of a pregnant female proves that section 287g of this act, as it stands, fails to address the method of training and preparation for state officers to deal with illegal immigrants properly. Ms. Villegas’s case is the reason why such elaboration is needed on this act. The lack of specification in regard to the training and authorization process has the potential to foster too much discretion and corruption in the federal government when assigning state officers the power to enforce federal law.
Ms. Villegas’s international human rights were violated when jail officers shackled her hands and feet to the hospital bed while she was giving birth. It is important to note that I do not agree with the judge that her civil rights were violated, since she was never a legal citizen of the U.S. However, there is a set of international human rights that every country apart of the United Nations is required to follow, set forth by the United Nation’s Human Rights Committee. The committee made the text for the Convention for the Protection of Human Rights and Fundamental Freedoms, which indicates the provisions each country must refer to. The article established in this document that the jail officials clearly violated is Article 3, or Prohibition of Torture, which states, “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” While the act of shackling Ms. Villegas to her hospital bed was arguably not torture, it was certainly “inhuman or degrading treatment.” This section gives the Attorney General too much discretion in authorizing state officers to enforce immigration when unsupervised. The wording of the agreement does not specify, and therefore does not plan or promote, thorough federal immigration training to state officers. It is possible that the state officer who detained Ms. Villegas would have had more knowledge as how to handle the situation without violating international human rights had the wording of the agreement been more specific, or had the process of how state officers were to be trained elaborated on, to promote officers’ thorough understanding of immigration law and procedure.
Section 287g should either be expunged from the Immigration and Nationality Act altogether, or modified to include more specifically how certain state officers’ training will be conducted to ensure more appropriate knowledge of immigration law, and thereby hopefully avoiding violations of international human rights. Had section 287g of the act promoted immigration knowledge and training by specifying how state officers were to be taught, rather than simply giving the Attorney General the power to authorize certain state officers when needed, Ms. Villegas’s human rights may not have been violated. Section 287g of the act currently does not promote thorough immigration training, and gives the Attorney General too much power in authorizing potentially unqualified state officers to oversee federal law.