This post is fifth in a series on sanctuary cities. Access the full series here.
Sanctuary jurisdictions are defined as cities, counties, and states that limit the use of law enforcement resources to assist Immigration and Customs Enforcement in carrying out federal immigration responsibilities. These policies are a favorite target of the Trump administration. Still, few people focus on what collaboration between state and local law enforcement agencies (LEAs) and ICE looks like, and the spectrum of cooperation.
Agreements between federal immigration agencies and LEAs authorized in 1996 under Section 287(g) of the Immigration and Nationality Act (INA). Like sanctuary policies, these agreements are broad and can be adapted to each jurisdiction’s needs.
The oldest and most expansive form of these agreements is the Criminal Alien Program (CAP), which requires LEAs to provide ICE with biometric and biographic data to screen for removable individuals. The 287(g) program designates LEA officers to perform limited immigration law enforcement functions. Conversely, the goal of these partnerships (as stated by ICE) is to enhance safety and security in communities “by allowing local officials to act as a force multiplier in the identification, arrest, and service of warrants and detainers of incarcerated foreign-born individuals with criminal charges or convictions.”
Concerns over these collaboration agreements emerged soon after they were enacted. The primary criticism was that these programs delegated authority to state and local law enforcement agents over what many considered a federal responsibility solely, and allowed agents to use what is often perceived as undue discretion to shape immigration enforcement decisions. These agreements have resulted in deterioration of trust between community members and their police forces and a substantial legal liability for LEAs.
The Trump administration’s broad enforcement priorities and repeated attacks on immigrants and sanctuary cities have contributed to these agreements’ expanded use.As of January 2016, ICE had 287(g) agreements with 32 law enforcement agencies in 16 states. As of September 2020, ICE has 150 287(g) agreements in 32 states. The CAP program screens inmates in more than 4,300 federal, state, and local jails daily. With the end of the Obama-era Priority Enforcement Program and reinstatement of the more sweeping Secure Communities program, ICE more heavily depends on LEAs’ collaboration to carry out its deportation priorities.
These agreements leverage state and local LEAs to identify and detain deportable individuals, enhancing ICE’s enforcement capacity, but they also raise concerns about police-community relations and civil rights. The increased focus on deporting individuals based on arrest instead of convictions erodes the trust necessary for community members to report crimes or participate in policing activities. The ACLU found that when members of a community fear deportation, it impacts police officers’ ability to protect crime survivors and harms officer safety.
Deputizing LEA agents to carry out immigration enforcement also increases the risk of officers racially profiling community members. By ensuring that all arrestees are screened for immigration violations, regardless of a conviction, these agreements may incentivize officers to arrest individuals based on racial or ethnic characteristics. In 2010, fourteen years after the 287(g) program’s implementation, this occurred in many jurisdictions, which led to ICE increasing training requirements and supervision to reduce the risk of racial profiling and misuse of enforcement programs.
In addition to the harm these agreements do to communities, they also create massive legal liability for LEAs. Multiple courts have found that LEAs that detain individuals beyond their release dates violate the Fourth Amendment of the U.S. Constitution because a detainer request does not provide probable cause for arrest. Some jurisdictions justify complying with detainer requests while operating under 287(g) programs because their officers have been deputized to act as federal immigration officials and have independent authority to comply with detainers. However, courts ruled that officers’ operating under 287(g) agreements is not an adequate defense to alleged constitutional violations.
Local jurisdictions which operate under these agreements assume all legal risk. There is no stipulation in Section 287(g) of the INA or in Memorandum of Agreements (MOAs) that protects local jails or officers from litigation or legal liability for complying with detainers or possible constitutional violations. ICE has refused to identify local officials deputized under these agreements, leaving them liable and vulnerable to litigation.
ICE heavily relies on LEAs to locate deportable individuals in communities across the U.S. However, this places an unfair burden on local communities to use their resources and risk their public safety to fulfill ICE’s duties. Agreements between federal immigration authorities and local police forces create a climate of fear within communities and effectively turn local law enforcement agents into federal immigration agents.