When Local Law-Enforcement Officers Become ICE Deputies: 287(g) Agreements

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by Kendra Sena*

The Government Law Center’s explainers concisely map out the law that applies to important questions of public policy. This explainer was updated on Mar. 18, 2019.

Introduction

The role of state and local law enforcement in carrying out federal immigration law varies from one municipality to another.  Traditionally a federal power, immigration enforcement is increasingly dependent upon willing state and local law enforcement agencies to execute federal priorities.  While the vast majority of state and local law enforcement agencies have remained neutral—neither accepting nor declining to enforce federal immigration law—some state and local law enforcement agencies have willingly taken up the charge.

Shortly after his inauguration, President Trump issued two executive orders that expressed his intention to prioritize formal agreements between federal immigration-enforcement officials and state and local law enforcement.  One of those programs is known as 287(g).[1]  The 287(g) program (named for the section where it appears in the Immigration and Nationality Act) is a formal cooperative agreement that delegates federal authority to local law enforcement agents to carry out specified federal immigration functions.  Under the Trump administration, the number of these agreements has increased dramatically. 

But questions remain about the 287(g) program and its effect on the local agency.  Many jurisdictions that have entered into a 287(g) agreement have done so with the expectation that it will be a financial benefit to the locality.  Critics argue that the program erodes trust between law enforcement and the community and ultimately nets few criminals.  This Explainer will outline the basic contours of the 287(g) program, the financial impact of the program on the locality, and the potential legal liabilities that it creates.

I.  Background - What is the 287(g) program?

The 287(g) program was created in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act, an act of Congress signed into law by President Clinton, amending the Immigration and Nationality Act.  The law creates a way in which a state or local law enforcement agency may enter into a formal agreement with the Department of Homeland Security (DHS) to execute specified immigration enforcement actions.  The program is voluntary; the federal government cannot impose a 287(g) agreement upon a local agency, nor can it coerce a local agency to enter into a 287(g) agreement.  The agreement is also cancelable; once a local agency enters into a 287(g) agreement, it may be terminated at any time by either party.

Each 287(g) agreement is memorialized in a standardized Memorandum of Agreement between the local agency and Immigration and Customs Enforcement (ICE), a component of DHS.  Historically, there have been three types of Memoranda of Agreement: "task force" models, "jail enforcement" models, and "hybrid" models. The task force and hybrid models were suspended in 2012.[2]  Under the jail enforcement model, deputized officers of the local agency are authorized to interrogate alleged noncitizens who are being held in the local agency's detention facility, as well as to process them for removal by ICE. 

The processing may include the preparation of a Notice to Appear, the charging document that initiates proceedings against an alleged noncitizen in federal immigration court, and other charging documents.  Deputized local officers may also issue a detainer request—a document asking the local agency to notify ICE before the person is released from custody and to hold the person for up to 48 hours beyond their release date in order for ICE to take them into custody.[3]  There are currently 78 jail-enforcement-model agreements in effect in 20 states.[4] 

Notably, the scope of the Memorandum of Agreement only extends to the specified actions of officers while acting in their official capacity at the detention facility.  The Memorandum of Agreement does not authorize immigration enforcement outside of the detention facility, and local agencies that engage in immigration enforcement actions outside of their detention facilities—for example, asking about immigration status at a routine traffic stop—are acting outside the scope of the 287(g) Memorandum of Agreement.   

II. Financial Implications - What are the costs associated with the 287(g) program?

A number of local agencies have expressed interest in the 287(g) program on the assumption that there is a potential financial gain from becoming deputized.  But the Memorandum of Agreement is clear that it covers very few costs.  Under the terms of the 287(g) Memorandum of Agreement,[5] ICE agrees to provide instructors and training materials to train the local agents who will participate in the program, and (subject to the availability of funds) a computer and fingerprinting and photographing hardware and software used to execute the agreement.  The local agency agrees to be responsible for all other costs, which have proven to be significant.

The required training consists of a four-week basic training program and a one-week refresher training program (completed every two years), held at the Federal Law Enforcement Training Center ICE Academy in Charleston, South Carolina.[6]  The local agency agrees to pay for travel, housing, and per diem for the officers who attend the training, as well as for all salaries and benefits (including overtime) of the officers who attend the training and the officers who will perform the functions of those who will be trained while the latter are away at training.  The local agency also agrees to be responsible for any facility requirements, such as cabling, power upgrades, and installation and recurring costs associated with communication lines like the phone and internet required to implement the program.  The Memorandum of Agreement even makes clear that the local agency will be responsible for administrative supplies like paper, toner, pens, and pencils.  And, the local agency agrees to cover the costs of security equipment such as handcuffs, leg restraints, and flexi cuffs necessary to implement the program.

The costs associated with the 287(g) program have proven insurmountable for some local agencies.  Sheriffs in Texas and Wisconsin recently ended their counties' 287(g) programs, stating that they did not have the resources to continue.[7]  In North Carolina, two jurisdictions participating in the 287(g) program each spent around $5 million in the first year to implement the program.[8]  Maricopa County, Arizona, had created a $1.3 million deficit after implementing the program for only three months.[9]  One county in Virginia had to raise property taxes and take money from its rainy-day fund to implement its 287(g) program, which cost $6.4 million in its first year.[10]

The Memorandum of Agreement is clear that ICE will cover only minimal costs and the financial impact has played out across a number of jurisdictions over time.  So why might a state or local agency be persuaded that the program provides a financial benefit? 

Does entering into a 287(g) agreement increase the likelihood that a local agency will be awarded additional federal grants?

The 287(g) program represents only one of many formal agreements that operate between federal immigration and state and local law enforcement agencies.  ICE routinely contracts with local agencies to detain or transport people in ICE custody by entering into an Inter-Governmental Service Agreement under which ICE compensates the local agency for providing the specified service.  The 287(g) Memorandum of Agreement states that a cooperating local agency may enter into a separate agreement to provide detention facilities or transportation services for ICE detainees. 

While some local agencies that enter into 287(g) agreements also enter into Inter-Governmental Service Agreements, ICE has said that the two are not connected.  An ICE official stated that "having a 287(g) program [does not] act as a bridge to a detention contract with ICE.  The two processes are distinct and governed separately;" and while "[t]here are facilities with an operational need for both programs, in which ICE has established both a 287(g) [agreement] and a detention contract… in all situations, ICE ultimately makes the determination of all enforcement actions, to include detention."[11]  Indeed, it is quite common for a local agency to have an Inter-Governmental Service Agreement and not a 287(g) agreement; the number of Inter-Governmental Service Agreements nationally dwarfs the number of 287(g) agreements,[12] demonstrating that a 287(g) agreement is not a necessary antecedent to an Inter-Governmental Service Agreement.

Local agencies often receive significant funding from the federal government in the form of grants that are unrelated to immigration enforcement.  These grants cover assistance to victims of crime, training and technical assistance, substance-abuse courts, and other local initiatives.  The U.S. Department of Justice recently announced that it will express a preference in making certain law-enforcement-related grants for applicants that cooperate with the federal government—including through programs like 287(g).[13]  But that kind of preference has been struck down as unconstitutional in other contexts.  Last year, the DOJ announced that it would cut grant funds to state and local governments that failed to meet certain conditions, including complying with detainer requests and permitting DHS to access local detention facilities.  But a number of courts have ruled against the U.S. Department of Justice (DOJ), because only Congress (and not the Executive) may condition grants in such a way.[14]  Moreover, the DOJ's attempts to bar state and local governments from enacting laws that restrict local communication with DHS have been found to violate the Tenth Amendment, which prohibits the federal government from requiring state and local governments to adopt or enforce federal policies.[15]  Litigation is ongoing.

At the time of this writing, the grant applications that express a preference for 287(g) are still open, and no litigation has yet been filed on the issue.  But as courts consider the constitutionality of grant-making preferences in other contexts, it seems likely that a preference for 287(g) participation will be subject to judicial review.

III. Legal Liabilities - Does the 287(g) program subject the local agency to legal liabilities?

Participation in the 287(g) program is not without legal risk.  The 287(g) program has been widely criticized for enabling civil-rights violations and a number of local agencies have been subject to litigation based on their actions implementing the program.  The 287(g) agreement binds the parties to comply with all federal, state, and local laws, including anti-discrimination laws that prohibit racial profiling.  And while all police action is bound in this way, because the program requires that local officers investigate and interpret complex federal immigration laws—likely outside of their typical portfolio—the risk of racial profiling and other unconstitutional acts increases.[16]  DHS itself has raised concerns about its own ability to provide adequate oversight of the program after its rapid expansion in the last year.[17]  

In 2011, the DOJ conducted an investigation of the program operating in Maricopa County, Arizona, and found, among other things, systemic constitutional violations under the Fourteenth and Fourth Amendments.[18]  The county was found to have engaged in widespread racial profiling, discriminatory treatment both in the field and in the jail, and unreasonable searches and seizures.[19]  In light of the DOJ's findings, DHS revoked its 287(g) agreement with Maricopa County.[20]

Sheriff Joe Arpaio, the Sheriff's Office, and the County were all named as defendants in a high-profile suit based on the practices detailed in the DOJ investigation.[21]  Although the county was ultimately dismissed as a defendant, as of last year the lawsuits had already cost the municipality $70 million in legal fees and court-ordered monitoring costs, which are ongoing.[22]

In a separate investigation, the DOJ found similar violations in Alamance County, North Carolina, where officers implementing the 287(g) program engaged in discriminatory policing and unreasonable searches and seizures in violation of the U.S. Constitution.[23]  Similar results have been found in other 287(g) jurisdictions.[24] 

In light of these problems, DHS suspended its "task force" model of 287(g) agreements, in which deputized officers of the local agency were authorized to carry out immigration enforcement in the field, such as questioning and arresting people whom they suspected of having violated federal immigration law.[25]  But significant potential for liability remains for jurisdictions that sign a jail-enforcement 287(g) agreement.

Under a 287(g) jail-enforcement agreement, one of the roles for the local agency is to issue and comply with detainer requests.  A detainer request communicates to the local agency that DHS intends to take custody of a person held in local custody.  A detainer request asks the local agency to notify ICE before the person is released from custody and to hold the person for up to 48 hours beyond their release date in order for ICE to take them into custody.

But detainers are highly controversial and a number of courts have found them to be unlawful under state and federal laws.[26]  This is because a detainer specifically requests that the local agency hold an incarcerated person beyond the date that they would otherwise be released, usually after having posted bail, been ordered released on recognizance, having completed a sentence, or after criminal charges have been dropped.[27]  In other words, it asks the local agency to extend a person's arrest after their legal basis for arrest has expired.  A number of courts have found that a detainer violates the Fourth Amendment of the U.S. Constitution because holding someone past their release date constitutes an arrest requiring probable cause, and a detainer does not provide probable cause for arrest.[28] 

Local agencies operating 287(g) programs risk violating the law when they comply with a detainer request, particularly in states where courts have ruled on the matter.  In Massachusetts, where the highest court ruled that detainers are unlawful under state law, a number of local agencies operating under 287(g) agreements continue to issue and comply with detainers.  They reason that because their officers have been deputized to act as federal immigration officials, they have independent authority to comply with detainers.[29]  But this logic has failed in other jurisdictions where courts have been clear that "acting under color of federal law does not provide [officers acting pursuant to 287(g)] an adequate defense to alleged Constitutional violations."[30]  Thus, the potential for litigation against local agencies that are merely complying with the terms of the 287(g) Memorandum of Agreement is quite high.

Conclusion

Federal immigration enforcement is increasingly reliant on willing state and local law enforcement agencies to carry out federal enforcement actions.  The number of law-enforcement agencies that have elected to formalize their role by entering into a 287(g) agreement is increasing.  But the legal landscape in this area is shifting, and municipalities and law enforcement bodies should carefully consider the financial and legal implications of their decision to devote local resources to federal immigration enforcement.

Resources

The 287(g) program is one of several that operate between federal immigration and state and local law enforcement agencies.  For more on these programs, see:
Kandel, William A., Congressional Research Service, "Interior Immigration Enforcement: Criminal Alien Programs," (Sept. 8, 2016), available at: https://fas.org/sgp/crs/homesec/R44627.pdf

There are a number of pending cases that consider the lawfulness of conditioning federal grants on cooperation with federal immigration enforcement.  For a list of these cases, see:
National Immigration Forum, "Case Status of Sanctuary Jurisdiction Litigation," May 2018

For a summary of cases that have considered the lawfulness of detainers, see:
Immigrant Legal Resource Center, "Immigration Detainers Legal Update," July 2018, available at: https://www.ilrc.org/immigration-detainers-legal-update-july-2018

Endnotes

*Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.  Research assistance by Mehtasim Mahfuz '19.

[1] Executive Order 13767, Border Security and Immigration Enforcement Improvements, January 25, 2017, available at https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements/  and Executive Order 13768, Enhancing Public Safety in the Interior of the United States, January 25, 2017, available at https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/.

[2] Under the task force model, deputized officers of the local law enforcement agency were authorized to carry out immigration enforcement in the field, such as questioning and arresting people whom they suspected of having violated federal immigration law.  They hybrid model combined both field work and detention work.  ICE announced that it would discontinue the task force model at the end of 2012, stating that, "other enforcement programs… are a more efficient use of resources for focusing on priority cases."  U.S. Immigration and Customs Enforcement, News Release, "FY 2012: ICE announces year-end removal numbers, highlights focus on key priorities and issues new national detainer guidance to further focus resources," Dec. 20, 2012, available at: https://www.ice.gov/news/releases/fy-2012-ice-announces-year-end-removal-numbers-highlights-focus-key-priorities-and#statement.

[3] See 8 C.F.R. § 287.7 (2017); U.S. Immigration & Customs Enf't, Policy Number 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers 2 (2017), available at: https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.

[4] ICE maintains a list of all of the active 287(g) enforcement agreements, available at: https://www.ice.gov/287g.

[5] All 287(g) MOAs are substantively identical.  The template is available on ICE's website: https://www.ice.gov/doclib/detention-reform/pdf/287g_moa.pdf. 

[6] Id.

[7] James Pinkerton and St. John Barned-Smith, Sheriff Cuts Ties with ICE Program Over Immigrant Detention, Houston Chronicle, Feb. 21, 2017, available at: https://www.houstonchronicle.com/news/houston-texas/houston/article/She….  

Testimony of Sheriff Eric Severson, "The Effects of Border Insecurity and Lax Immigration Enforcement on American Communities: Hearing Before the Senate Comm. on Homeland Security and Governmental Affairs," 115th Cong. (2017).

[8] Mai Thi Nguyen and Hannah Gill, The 287(g) Program: The Costs and Consequences of Local Immigration Enforcement in North Carolina Communities, (Chapel Hill: University of North Carolina, 2010), 44-45, available at

[9] Ryan Gabrielson, Overtime led to MCSO budget crisis, records show (Reasonable Doubt: Part II), East Valley Tribune, July 10, 2008, available at: http://www.eastvalleytribune.com/special_reports/reasonable_doubt/.

[10] Audrey Singer, Jill H. Wilson, and Brooke DeRenzis, (Metropolitan Policy Program at the Brookings Institute), "Immigrants, Politics, and Local Response in Suburban Washington," Feb. 2009, available at: https://www.brookings.edu/wp-content/uploads/2016/06/0225_immigration_singer.pdf.

[11] Sean Collins Walsh, How two ICE programs let sheriffs cash in on immigration crackdown, Austin American Statesman, July 15, 2017.

[12] In response to a FOIA lawsuit, ICE provided a list of all its detention facilities operating in 2017, totaling 201 facilities.  Detention Watch Network and Center for Constitutional Rights, "New Information from ICE ERO's July Facility List," July 2017, available at: https://www.detentionwatchnetwork.org/sites/default/files/DWN%20Spreadsheet%20Memo.pdf.

[13] These grants are: 1) Supporting Innovation: Field-Initiated Programs to Improve Officer and Public Safety; 2) Justice Accountability Initiative (JAI): Pilot Projects Using Data-Driven Systems to Reduce Crime and Recidivism; 3) Gang Suppression Planning: Build Capacity for a Multilateral Data-Driven Strategy to Promote Public Safety; and 4) A Law Enforcement and Prosecutorial Approach To Address Gang Recruitment of Unaccompanied Alien Children program.

The announcement states, "The grants also allow for preferential consideration of a grant application where the applicant plans to use immigration-cooperation tactics to address public safety in their jurisdiction." United States Department of Justice, "Department of Justice Announces New Immigration Compliance Requirements for FY 2018 Grants," June 28, 2018, available at: https://www.justice.gov/opa/pr/department-justice-announces-new-immigration-compliance-requirements-fy-2018-grants.

The application form elaborates:

An applicant may receive priority consideration by explaining how it would address the problem area identified in its application through cooperation with immigration authorities, including compliance with 8 U.S.C. §§ 1373, 1644, and 1324, participation in a 287(g) or other cooperation program, honoring requests for notice of release, transfers of custody, and/or short term extensions of custody, and providing access to detention centers so federal immigration authorities may conduct interviews.

(emphasis added).  See, e.g., Supporting Innovation: Field-Initiated Programs to Improve Officer and Public Safety FY 2018 Competitive Grant Announcement, July 21, 2018, available at: https://www.bja.gov/funding/Field18.pdf. 

[14] See, e.g., City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018); City of Chicago v. Sessions, --- F. Supp. 3d. ---, Case No. 17–5720, 2018 WL 3608564, at *5 (N.D. Ill. July 27, 2018); City of Los Angeles v. Sessions, 293 F. Supp. 3d 1087, 1098 (C.D. Cal. 2018).

[15] Id.

[16] See American Immigration Council, et al., "Assumption of Risk: Legal Liabilities for Local Governments that Choose to Enforce Federal Immigration Laws," (Mar. 2018), available at: http://immigrantjustice.org/AssumptionofRisk.

[17] See, Dep't of Homeland Sec., Office of the Inspector Gen., Lack of Planning Hinders Effective Oversight and Management of ICE's Expanding 287(g) Program, Sept. 19, 2018, available at: https://www.oig.dhs.gov/sites/default/files/assets/2018-09/OIG-18-77-Sep18.pdf.

[18] Letter form Thomas E. Perez, Assistant Attorney General, U.S. Dep't of Justice, to Bill Montgomery, Cty. Attorney, Maricopa Cty., Ariz., (Dec. 15, 2011), available at: https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_findletter_12-15-11.pdf.

[19] Id.

[20] U.S. Dep't of Homeland Security, Statement by Secretary Napolitano on DOJ's Findings of Discriminatory Policing in Maricopa County, (Dec. 15, 2011), available at: https://www.dhs.gov/news/2011/12/15/secretary-napolitano-dojs-findings-discriminatory-policing-maricopa-county.

[21] Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025 (D. Ariz. 2009).

[22] Meghan Cassidy, Taxpayer tab up to $70M in Joe Arpaio racial-profiling case, The Arizona Republic, Aug. 17, 2017, available at: https://www.azcentral.com/story/news/local/phoenix/2017/08/17/taxpayer-tab-up-70-m-joe-arpaio-racial-profiling-case/576878001/.

[23] Letter form Thomas E. Perez, Assistant Attorney General, U.S. Dep't of Justice, to Clyde B. Albright, Cty. Attorney, Alamance Cty., N.C., (Sept. 18, 2012), available at: https://www.justice.gov/iso/opa/resources/171201291812462488198.pdf.

[24] See Amanda Armenta, Between Public Service and Social Control: Policing in the Era of Immigration Enforcement, 63 SOC. PROBS. 11, 114-23 (2016) (reporting findings from a study of the 287(g) program operating in Nashville, TN), available at: https://academic.oup.com/socpro/article/63/1/111/1843255.

[25] U.S. Immigration and Customs Enforcement, News Release, supra n.2.

[26] See People ex rel. Wells v. DeMarco, 88 N.Y.S.3d 518 (App. Div. 2018) (holding that state law does not permit officers to comply with detainer requests and any such arrests are thus unlawful); Lunn v. Commonwealth, 477 Mass. 517, 527 (2017) (same); Cisneros v. Elder, No. 18CV30549 (D. Colo., El Paso Cty. Mar. 19, 2018) (same).

[27] Lunn, supra n. 26.

[28] See, e.g., Morales v. Chadbourne, 996 F.Supp.2d 19 (D.R.I. filed Feb. 12, 2014) (the First Circuit Court of Appeals upheld the district court's finding that detaining someone beyond their release date is an arrest under the Fourth Amendment and requires probable cause; the District Court concluded that the ICE detainer did not provide probable cause); Vohra v. United States, 2010 U.S. Dist. LEXIS 34363 (C.D. Cal. 2010) (finding that complying with a detainer constituted a warrantless arrest); Miranda-Olivares v. Clackamas Co., No. 3:12-cv-02317 (D. Or. Apr. 11, 2014).

[29] Shannon Dooling, National Public Radio, "Why ICE Detainers Are Still Being Executed In Mass. Almost A Year After SJC Rules Them Unlawful," May 18, 2018, available at: http://www.wbur.org/news/2018/05/18/ice-detainers-executed-despite-sjc-ruling.

[30] Ortega Melendres v. Arpaio, 836 F. Supp. 2d 959, 990 (D. Ariz. 2011) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)).