Balkinization: Collateral Damage: Reforming the National Fugitive Operations Program

Collateral Damage: Reforming the National Fugitive Operations Program

Guest Blogger

Margot Mendelson
Shayna Strom
Mike Wishnie

In the past few years, a growing number of blogs, newspapers, and magazines have highlighted stories of immigration raids in communities throughout the country, from New Haven, Connecticut to Long Island, New York to Willmar, Minnesota. In each instance, SWAT-like teams entered homes in residential neighborhoods, often in the early hours of the morning, and arrested large numbers of people on charges of being in the U.S. illegally.

These raids were the undertaking of a well-funded governmental program, the National Fugitive Operations Program (NFOP), an initiative designed and funded for the purpose of arresting and removing “dangerous fugitive aliens.” The NFOP has expanded rapidly in recent years, and has been called the “Cadillac program” of the U.S.’s immigration enforcement efforts.

Yet in spite of the program’s dramatic growth and broad national security claims, NFOP may be the very antithesis of the Obama Administration’s professed commitment to “smart power”— the strategic deployment of resources to achieve important foreign policy goals. As we demonstrated in a recent report released by the Migration Policy Institute, the NFOP is an expensive program that diverts resources away from crucial national security efforts in an effort to catch easy targets. Over the program’s five-year lifespan, Fugitive Operations Teams (FOTs) across the country have primarily arrested unauthorized immigrants with no criminal background.

From its conception in 2003, NFOP was intended – and funded – as a national security program. Created in the wake of September 11, 2001, DHS Secretary Michael Chertoff and ICE Chief Julie Myers sold the NFOP to Congress and the public as an important component in the homeland security agenda. According to DHS, NFOP pursues and apprehends “dangerous fugitive aliens”: individuals with outstanding removal orders who have been convicted of violent crimes or whom Immigration & Customs Enforcement (ICE) deems to pose a threat to the community or national security. Since NFOP became operational more than five years ago, it has ballooned – expanding 2,300 percent in funding and 1,300 percent in personnel. Today, there are approximately 100 teams operating across the country, and FOTs have arrested more than 96,000 individuals.

As the NFOP’s size and price tag grow, so too does the chasm between its mandate and its practices. According to data collected from ICE, 73 percent of the individuals arrested by FOTs between mid-2003 and February 2008 had no criminal convictions at all. In fact, dangerous fugitive aliens accounted for only 9 percent of overall arrests in FY2007. According ICE records obtained by the Immigration Justice Clinic at Benjamin N. Cardozo School of Law through a Freedom of Information Act lawsuit, $625 million in funds and five years of nationwide operation have resulted in the arrest of precisely one fugitive alien deemed to be a national security threat.

Over time, the NFOP has strayed further from its national security mission, a result of the counterproductive impact of quota-driven law enforcement. In FY2003, 18 percent of FOT arrests in FY2007 were “ordinary status violators”—people who have never had their cases adjudicated by an Immigration Judge, and who fall outside of the NFOP’s priority structure entirely. By FY2007, that figure had risen to fully 40 percent. The report traces the rise in such “collateral arrests” to a specific shift in policy whereby ICE dropped its expectation that each FOT arrest 125 fugitive aliens per year, 75 percent of which were to be criminal aliens. Instead, in a series of official memos, ICE called upon teams to arrest 1,000 individuals and explicitly permitted collateral arrests to count towards the objective. The new quota does not reflect ICE’s stated priorities and merely incentivizes FOTs to arrest widely and indiscriminately.

We are gratified to see that our report has garnered significant interest in the media and by policymakers. The New York Times reported the study’s findings on February 3, 2009 and was followed by a story in the Washington Post the next day. According to the Washington Post, Rep. David E. Price (D-N.C.), chairman of the House Appropriations Subcommittee for Homeland Security, said he was “discouraged that ICE’s previous leadership misrepresented the goals of the expanded Fugitive Operations Program and chose not to use its additional resources as Congress instructed.” DHS Secretary Napolitano has not issued a formal statement, but rejected some criticisms that the report called for "amnesty for lawbreakers." Speaking to the Post, she noted that that such statements set up a "false dichotomy," arguing, “[I]t’s a matter of where you put your emphasis.”

The NFOP needs to be reformed so that its operations match its mission. Protecting national security through the current NFOP is like trying to carve a delicate sculpture with a chain saw—you may get an outcome, but it won’t look at all like the one you intended.

Posted 6:31 AM by Guest Blogger [link]