We discussed the costs jurisdictions shoulder when entering into 287(g) agreements that draft local police into the work of Immigrations and Customs Enforcement in our previous piece. This piece focuses on how agreements with ICE — 287(g) and others — set up localities and states for policies that increase the risk of mistaken detainment and deportation and that racially profile and discriminate against immigrant communities.

Mistaken detainment: Falling through the cracks with no due process

Since 2002, ICE has mistakenly identified at least 2,840 U.S. citizens for deportation and held at least 214 of these individuals in its custody. Many independent figures suggest this is a low estimate; higher estimates indicate that between 2003 and 2010, over 20,000 U.S. citizens were mistakenly detained or deported. These experiences can be devastating for individuals wrongly subjected to them.

In one case, Davino Watson, a U.S. citizen, was detained for over three years as a deportable alien as he tried to prove his citizenship status. During his detainment, he did not have legal representation, so it was not until after his release that he filed a complaint. By then, the statute of limitations had expired. 

An appeals court found that Watson was not entitled to any financial compensation for the three years he unjustly spent behind bars. “ICE did not follow their own procedures of what to do when the detained immigrant makes a claim of U.S. citizenship,” stated Mark Flessner, the lawyer who worked on Watson’s case. “It was crystal clear from the beginning, had (the Department of Homeland Security) done its homework properly, that he has been a U.S. citizen since 2002.”

In another case, Peter Sean Brown, a Florida resident, was mistaken for a Jamaican individual and detained in Florida for three weeks. During his detainment, he repeatedly stated that he was a U.S. citizen, but was mocked by correctional officers. An employee of the sheriff’s office in Florida’s Monroe County, where he was detained, reportedly told him, “It is not up to us to determine the validity of an ICE hold. That is between you, your attorney, and ICE.” During his detainment, Brown did not receive an appointed attorney and could not afford one. Eventually, Brown’s roommate sent ICE a copy of Brown’s birth certificate, and ICE released Brown with no means to get home. By the time he made it back, he had lost his job. 

These two cases illustrate an issue repeatedly faced by individuals facing mistaken detention and removal proceedings — the lack of representation. While all individuals in removal proceedings have the right to hire a lawyer, the state does not provide representation. 

Access to counsel in immigration court matters. According to a study by the American Immigration Council (AIC), only 14 percent of immigrants in detention pending removal have legal counsel, compared with two-thirds of immigrants who are in removal proceedings but not detained. AIC notes there are many reasons why immigrants in custody cannot access representation — limited phone use, regional variability in legal services, visitation rules, lack of access to evidence — but the ability to pay for a lawyer is the most obvious. 

Only a tiny proportion of cases in need of financial assistance ever receive pro bono representation; meanwhile, the government always has lawyers arguing in favor of deportation. The combined complexity and speed of removal proceedings compounds errors of mistaken identity. 

Due process in criminal courts includes the right to legal representation, to be advised of rights when arrested, and to have a case heard promptly. Immigration courts do not guarantee these rights to immigrants and asylum seekers. While the Supreme Court has ruled in certain circumstances that non-U.S. citizens are entitled to due process, immigrants’ removal proceedings do not reflect the universal right to legal access and due process. Instead, mistakenly detained U.S. citizens and immigrants alike must navigate a bewildering, costly, uphill climb to make their case to avoid removal. 

High litigation costs to localities

We’ve previously discussed the litigation costs associated with ICE detainers and mistaken detainment. While the implications for individuals mistakenly detained or deported by ICE can be enormous, localities often absorb the legal risk of holding individuals on behalf of ICE. 

ICE detainers are requests to hold individuals beyond their otherwise lawful incarceration in a local jail or prison. The legality of holding individuals in custody after they are eligible for release under the Fourth Amendment is still being litigated. Due to variation in state-to-state rulings on detention length, localities with 287(g) agreements risk breaking the law when complying with an ICE detainer. Local law enforcement may be liable if the arrestee is held beyond 48 hours — regardless of whether the jurisdiction is complying with an ICE detainer. We have a more extensive discussion on the legal liability of 287(g) agreements here.

Localities open themselves up to lawsuits when detaining individuals on behalf of ICE. In a review of 155 immigration detainers placed on U.S. citizens, the Cato Institute found that nearly 75 percent of individuals were detained, 15 percent of which resulted from mistaken identity. In at least 15 of these cases, where U.S. citizens were mistakenly detained, the individuals won a financial settlement either from ICE or the local government that held them. 

For example, after detaining a U.S. citizen for three days based on a detainer request that ICE mistakenly issued, the city of Allentown and Lehigh County in Pennsylvania were forced to pay a $145,000 settlement. Lehigh County subsequently declared that it would no longer honor ICE detainers without a court order. In another part of the state, Allegheny County paid a $25,000 settlement to Angelica Davila and agreed to stop honoring ICE detainers after she was detained because her detainer misspelled her name.  

In Michigan, the Grand Rapids City Commission paid a $190,000 settlement after the Kent County Sheriff’s Department detained Jilmar Ramos-Gomez, despite having his military ID, Marine Corps tags, U.S. passport, and Real ID driver’s license. 

While mistaken detainment and deportation can have dire and distressing effects on U.S. citizens, localities who follow through on ICE detainer requests often end up paying costly settlements at the expense of local taxpayers.

Racial profiling and discrimination

Discrimination based on race is not a new concern in U.S. immigration policy. The connection between race and immigration status in the U.S. began long ago via laws limiting or restricting immigration for persons of color or specified national origin. To name a few historical examples, the Chinese Exclusion Act of 1882, the national-origins quota system established in 1924, and the 2017 Muslim ban all prohibited or limited immigration for individuals based on their national origin.

Since the mid-1990s, Congress increased its focus on the U.S.-Mexico border and allocated considerable funds for infrastructure, technology, and people dedicated to limiting unauthorized immigration. Enforcement campaigns at the U.S.-Mexico border — Operation Blockade, Operation Hold the Line, and Operation Gatekeeper — focused on areas with high illegal border crossing levels, even though most unauthorized immigration occurs with overstay of properly issued visas. 

Nonetheless, rigorous attention remains fixed on the southern border, focusing on preventing authorized immigration from Mexico and the Northern Triangle. Over time, Department of Justice investigations into localities that participated in 287(g), Secure Communities, and the Criminal Alien Program — all of which shifted the responsibility of enforcement from federal to local officials — found they resulted in unlawful racial profiling against Latino-identifying individuals. These campaigns, programs, and agreements made investigation of U.S. residents’ legal status everyday routine, and ubiquitous

The damage this has caused in the immigrant community cannot be overstated. Law enforcement’s repeated focus on Latino individuals has created racist narratives about Latino immigrants and non-immigrants alike, often using humiliating, intrusive, and dangerous enforcement methods. These methods cost targeted Latino individuals their personal time, dignity, high legal fees, as well as lost job opportunities and time spent in detainment for individuals mistakenly detained. 

It has also caused chaos and heartbreak for the 16.7 million individuals in mixed-status families with at least one unauthorized family member living with them. These families face uncertainty about whether their families can stay together or whether parents and children will be suddenly separated. Children in these families often suffer psychological trauma, especially if they witness a parents’ arrest or if their parents are separated, which can have direct detrimental effects on early development. 

The threat of deportation alone puts pressure and stress on immigrant communities. Fear of being targeted becomes an everyday occurence. For example, individuals may choose to take the bus in states where they cannot access a legal driver’s license. Workers may experience employment abuse, with limited legal recourse, and are more likely to be part of an informal economy with no access to medical insurance for themselves and their families. Researchers refer to these stressors as “extrafamilial acculturative stress,” and find it is associated with poor physical and emotional health in both parents and children. 

Targeting Latino individuals with negative narratives and disproportionate immigration-related contact is part of a racist history, a narrow definition of who gets to claim ‘American’ identity. The reality of the United States, however, belies a narrow concept of a white America. Nearly 70 percent of U.S. cities have become more racially diverse over the past 10 years, and experts expect this trend to continue. An increasing proportion of Americans view increasing racial diversity positively, rather than negatively. It is past time for immigration law enforcement practices and behaviors to reflect these values rather than continue terrorizing immigrant communities. 

Erosion of immigrant rights under the Fourth Amendment

One place to start is to reexamine the historical erosion of immigrant rights under the Fourth Amendment and ensure that legal protections are extended to all U.S. residents. Criminologists studying injustice in the legal system examine changes to the Fourth Amendment and their effects on immigration policy. 

While the Fourth Amendment protects individuals from unreasonable searches and seizures, courts debate the definition of “reasonableness” when drivers and their passengers are ostensibly pulled over for traffic offenses. Law enforcement officers are allowed to conduct investigatory stops if the officer has reasonable suspicion that a crime has occurred, and immigration law enforcement must have reasonable suspicion that the occupants of a vehicle are undocumented. In any situation, “reasonable suspicion” must be based on something other than the occupants’ racial appearance. 

While law enforcement is not allowed to stop vehicles without “reasonable suspicion” and cannot rely on racial appearance alone, in practice, these restrictions are often ignored or misunderstood by immigration law enforcement. Near the U.S.-Mexico border, these issues are exacerbated: U.S. Customs and Border Patrol (CBP) has broad authority to stop and search individuals at checkpoints within 100 miles of the U.S. border. This creates significantly more opportunity for racial profiling in what is sometimes referred to as a “constitution-free zone.” 

In 1975, in a seminal case on the issue, United States v. Brignoni-Ponce, Felix Humberto Brignoni-Ponce’s car was stopped near the U.S.-Mexico border by Border Patrol agents because he and his passengers appeared to be of Mexican descent. After it was found that two of the car’s passengers were undocumented, they were arrested. Brignoni-Ponce was convicted on two counts of knowingly transporting undocumented individuals. 

While the Fourth Amendment requires law enforcement officers to have reasonable suspicion while stopping a vehicle to question individuals about their immigration status, the Supreme Court held that near the border, “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor,” though not one that agents can rely on in isolation. Since this case, CBP officers have consistently ignored remaining Fourth Amendment protections, operating outside the 100-mile zone and operating “roving patrol” stops without reasonable suspicion that violations have occurred. Compounding the issue is the consistent lack of agent accountability to CBP, inadequate agent training, and a lack of DHS oversight, which results in abuse and constitutional violations against immigrants and U.S. citizens alike.  

The erosion of rights under the Fourth Amendment is not limited to CBP’s authority at the border. Arizona’s infamous Senate Bill 1070 — signed into law as the Support Our Law Enforcement and Safe Neighborhoods Act — encouraged police to target people of color and immigrant communities by requiring officers to inquire about legal status if they have suspicion the individual might be undocumented. 

Arizona S.B. 1070 barred state or local officials or agencies from restricting federal immigration law enforcement, explicitly referencing United States v. Brignoni-Ponce to open up the door to use “Mexican appearance” as “a legitimate consideration” when stopping an individual. While it was partially struck down in 2012 by the Supreme Court, the cascading effect of S.B. 1070 has had long-lasting impacts — sudden deportation of immediate family members, the rapid emigration of undocumented individuals from Arizona, and decreased trust in local law enforcement, to name a few. S.B. 1070 went far beyond federal policies by requiring and legitimizing racially-motivated stops and searches.

State and local profiling — 287(g) agreements

Since the implementation of 287(g) agreements, racial profiling in immigration enforcement is no longer limited to federal agencies. State and local cooperation with ICE can lead to violations of an individual’s constitutional and civil rights. 287(g) agreements, which expand local law enforcement’s responsibilities to include enforcement of immigration laws, have been the subject of many racial profiling allegations. On the surface, 287(g) agreements are intended to be neutral policies. Still, as illustrated in the following examples, the agreements often target marginalized communities and weaken relationships between local law enforcement and immigrant communities. In fact, some law enforcement agencies have used 287(g) agreements as a cover for racial profiling, using a supposedly neutral policy tool to push racist, personal beliefs.

Joe Arpaio, former sheriff of Arizona’s Maricopa County, remains the most infamous example. In 2005, Arpaio conducted broad sweeps of Latino neighborhoods and arrested high numbers of undocumented individuals who had committed no criminal offenses; the DOJ conducted an investigation which led to ICE failing to renew its 287(g) agreement with Arpaio’s agency. However, the sheriff’s 287(g) jail enforcement program remained active until 2017, when due to litigation, Arpaio’s successor ended Maricopa County’s practice of honoring ICE hold detainers.  

In North Carolina in 2012, Alamance County Sheriff Terry Johnson was sued by the U.S. Department of Justice for systematically and unlawfully targeting Latino residents for investigation, traffic stops, arrests, seizures, and other enforcement actions. Sheriff Johnson was repeatedly quoted as encouraging his officers to target the Mexican community there. ICE terminated the Alamance County 287(g) agreement that same year, but partnered with the county again in 2019 to approve Sheriff Johnson’s $2.8 million budget increase for staffing needs and facility upgrades at the county detention facility to detain immigrants for ICE. While requesting this money, Johnson used racially charged, inaccurate statements about the local immigrant community.

Similar programs to 287(g) agreements also increased the number of Latino arrests for minor infractions compared to the number of arrests of members of other ethnic groups. The Criminal Alien Program (CAP) in Irving, Texas — similar to a 287(g) agreement — disproportionately targeted Latino individuals for arrest.

Even the potential for racial profiling causes harm in communities; local and state officials frequently cited a degradation of trust between the community and law enforcement. Local and state law enforcement have terminated or not renewed their agreements with ICE because of such problems. In a few cases, such as in Maricopa and Alamance counties, ICE ended contracts in cases where the DOJ concluded that local officials used their delegated authorities to engage in unlawful, discriminatory policing practices. 

Many police chiefs argue for ending 287(g) and similar agreements, finding that they reduce trust between the police and the local immigrant community. The Law Enforcement Immigration Task Force, an organization of over 100 sheriffs and police chiefs across the U.S., recommends explicitly communicating to the public that local law enforcement “does not ask about immigration status when community members contact the police about a crime or other matters.” 

A study by the University of Illinois at Chicago found that 70 percent of unauthorized immigrants and 40 percent of Latino-identifying individuals are less likely to deal with police if they will be questioned about their or someone else’s immigration status.

Chuck Wexler, executive director of the Police Executive Research Forum, stated, “Had these undocumented people, and countless others in cities across America, not stepped forward to report crime and cooperate with the police, we would have more dangerous offenders committing more crime — and more serious crime — against innocent victims.” 

Localities that want to prevent racial profiling and discrimination struggle to find policies that mitigate these effects. In Virginia, after the initial adoption of Prince William County (PWC)’s 287(g) agreement, the Jail Board passed an amended resolution to limit the scope of inquiry into an individual’s immigration status. The resolution mandated that police only inquire into the immigration status of people physically arrested by the police, rather than all detained persons for whom there was probable cause to ask. The Jail Board also expressly prohibited racial profiling for the PWC police. These changes were a pivotal moment in the policy’s history because it considerably lessened the risk that racial profiling might occur or appear to occur in implementing the policy. 

Nonetheless, PWC still saw a degradation of the relationship between local enforcement and the immigrant community. Tracy Lennox, a jail board member and president of the Prince William County Bar Association, supported pulling out the 287(g) agreement, “287(g) is just broken. The community has lost faith in it. This is an opportunity for you guys to send a message to your minority population — the black and brown people in your community — 287(g) has got to go.” 

PWC Police Chief Barry Barnard, who retired this past summer, also supported pulling out of the agreement, “We need to build trust with everyone in Prince William County, and we have a large immigration population. People tend to avoid the police because they don’t want to get caught up in a case and risk being deported. Some don’t want to be witnesses… they may be in the country legally, but they may have family who may not be.” 

PWC ended its 287(g) agreement with ICE in 2020, changing the relationship between local law enforcement and the local immigrant community. This aligns with the idea that 287(g) agreements are incompatible with localities interested in shifting to community policing practices. For localities like Prince William County, ending 287(g) agreements aligns with building a better relationship with their communities and reducing crime. 

Conclusion

The erosion of rights under the Fourth Amendment, combined with the racial profiling present in 287(g) agreements, denies all U.S. residents equal protection under the law. Law enforcement has an opportunity to help reduce crime by keeping the immigration status of crime victims off the table and communicating this policy clearly to the immigrant community.

Additionally, ICE errors in mistaken detainment push legal responsibility and cost onto localities that agree to detain those individuals. Localities shouldn’t participate in agreements that hold them legally and financially liable for ICE’s errors.

In our next piece, we will discuss the effectiveness of 287(g) agreements and whether they are the most appropriate solution to address and reduce crime.

Photo Credit: U.S. Immigration and Customs Enforcement (Department of Homeland Security), Public domain, via Wikimedia Commons