Feb. 27, 2021 – The different ways cooperation with ICE is incentivized or coerced, why this relationship is harmful, and changes we should consider.
Immigration policy in the U.S. has been a flashpoint for several years, with harmful misperceptions, inefficient processes, and ever-growing humanitarian crises churning debate on how we can better manage our borders and support our communities. The policies themselves are largely set at the federal level, but local governments and law enforcement play a big part in the finer details and in their implementation.
A local police department’s (including city PDs and county sheriff departments) procedures when detaining someone in their jail can be the difference in whether or not that person is flagged for Immigration and Customs Enforcement (ICE), federal law enforcement tasked with deportations. Three general circumstances determine that process:
- Whether the officer booking the person asks about their immigration status, which may be up to the officer’s discretion
- Whether the detained person’s immigration status is filed in one of several databases, which would alert ICE if they are undocumented
- Whether the sheriff or department head chooses to cooperate with ICE in detaining individuals, which depending on state or local laws actually might not be up to them
Let’s first understand what ways local law enforcement is involved in immigration before looking at some of the specific programs and laws that request, prompt, or even force local cooperation with ICE. At the end, we’ll consider why these models of cooperation are bad and look at some solutions.
How Local Law Enforcement Fits into Immigration
Since the federal government is the body charged with deporting undocumented immigrants, it’s easy to characterize other levels law enforcement as “support” or “incidental” actors. Still, local police departments and the people that run them have a significant impact on ICE operations.
Much of the relationship between ICE and local law enforcement (LLE from here) involves jails. These aren’t prisons—people in jails aren’t convicted, and many remain detained because they haven’t or can’t post bail.
Jails are run by cities or counties, making a sheriff or LLE head the primary manager here. They can have a great deal of authority on how detainees are booked—how they’re detained, what information is taken down during intake, and how that information is stored. The information that is taken is a crucial part of how LLE and ICE interact. When a person is booked, their info is shared to several databases and sometimes with specific agencies.
Suppose an undocumented person is arrested and taken to jail. The booking officer might ask about their immigration status. If they say they’re undocumented and this information is logged, ICE is usually notified even if the reason for their arrest has nothing to do with immigration. Here’s how The Appeal described it:
[Jails] provide federal immigration officials access to an already-captive population of massive size—hundreds of thousands of people are booked into county jails each year by police officers or sheriff’s deputies—and advances in biometric data collection make it easier to identify individuals who law enforcement believes might be undocumented or otherwise in violation of immigration law.
Often, jails will detain a person for longer than originally planned because ICE will learn the person is undocumented and request they be held longer. There are also several programs that compensate jails or even incentivize them to hold undocumented immigrants past their initial jail term, as well as those that effectively deputize LLE officers as immigration agents.
We’ll get to each of these in bit, but the point should be clear so far: Local police is an important part of our immigration system.
Specific Factors in ICE’s Relationship with Local Law Enforcement
Above gives you a broad idea of how local police can aid ICE. Below are some of the most important programs and procedures that prompt or force that cooperation. Each name is linked to ICE’s description of the program.
- Secure Communities Program – This takes a newly jailed person’s fingerprints, which are already sent to the FBI, and shares them with ICE. This program started in 2008, was expanded in 2011 but then shelved in 2014 due to opposition by states, local governments, and immigration advocacy groups. It was renewed in 2017.
- Criminal Alien Program – Similar to the Secure Communities Program, this is also an info-sharing program between state and local law enforcement agencies and the federal government. During the early 2010s, this was the primary driver of ICE arrests and deportations, specifically of noncitizens lacking any criminal record.
- Section 287(g) – A part of the Immigration and Nationality Act which lets the Department of Homeland Security deputize state and local law enforcement officers for the express purpose of immigration enforcement. As The Appeal piece linked earlier puts it, “This partnership directly implicates sheriffs in harming immigrant communities by authorizing their deputies to act like federal immigration agents. Only 145 counties in the nation have 287(g) contracts at this moment, but that pool includes very populous jurisdictions.”
- Warrant Service Officer Program – Consider this a mini-287(g) program—the program trains LLE officers to deliver warrants (“detainers”) to those in jail on ICE’s behalf. It was created in 2019 as a workaround of immigration sanctuary policies that barred local police from agreeing to 287(g) pacts with ICE. Like 287(g), the constitutionality of this program is subject to debate.
- ICE Detainers – When ICE learns a jail has an undocumented person in custody, it can ask the jail to hold them for up to 48 hours. These “detainers” are administrative warrants, which aren’t signed by a judge or are otherwise subject to due process. Still, detainers are often used like judicial warrants. Local jails have sometimes held people past the 48 hours, even despite bail being posted/lifted or the charges dropped.
- Intergovernmental Service Agreements – These are contracts (IGSAs) in which the federal government pays a state or local government to use jail and prison space for detaining undocumented people. This is an important part of how ICE relies on LLE as well as private prison companies; some noncitizens are detained in privately run facilities with the blessing of the local government, rather than held in existing jail space. Without an IGSA, sheriffs and LLE have more discretion on their cooperation with ICE.
- Basic Ordering Agreements – A bit like IGSAs, these BOAs are detainer agreements between ICE and sheriffs. Under these, the local police receive $50 for every person they detain and transfer to ICE’s custody.
The impact of these programs can be hard to quantify, but we know it’s significant. As of last January, 72 counties in 21 states had 287(g) agreements with ICE. Despite a steep decline in 2020 due to the pandemic, ICE still issued over 122,000 detainers to state and local jails.
Problems with this Model of Cooperation
Normally, cooperation between different levels of government would be something to celebrate. But in this capacity, it’s frankly gross when considering how many people detained and deported each year are nonviolent or otherwise pose no threat to their neighbors. In fiscal year 2019, before ICE was forced to narrow its scope due to the pandemic, nearly 14% of “administrative arrests” (i.e., without judge-signed warrants) were of those with no criminal conviction or pending criminal charges. Several thousand were only detained for lesser crimes like traffic violations—by no means cause for someone to run into ICE. Importantly, many of them were only put on ICE’s radar because of local jails and LLE, as ICE itself explained in this FY20 report.
The specific use of jails in this system is a problem in and of itself. Prominent racial disparities exist in who is stopped, arrested, and jailed by police, and the undocumented population in the U.S. is overwhelmingly Latino. When you throw in “tough on crime” behavior and incentives like the $50 per person BOAs or lucrative IGSAs, it’s no wonder we get bad actors like Joe Arpaio, who is infamous for his inhumane and anti-immigrant policies while sheriff in Maricopa County, Arizona.
(Also, bail can be expensive, meaning many people stuck in jail—including nonviolent people—are only there because they can’t afford it. Bail is called a “poor people’s tax” for a reason.)
Ironically, data shows that all of this does little to make communities safer. Contrary to what anti-immigrant people in power like Arpaio and Trump have said over the years, undocumented individuals are less likely to commit crimes and cities don’t experience more crime because of sanctuary policies. Local cooperation with ICE actually has been shown to hurt police’s relationship with immigrant communities. Programs like 287(g) agreements and detainer requests have been heavily litigated over the years, which is expensive for state and local law enforcement.
It’s not like sheriffs and other police haven’t noticed this stuff. In 2009, a survey from the National Police Foundation found that many law enforcement leaders and members thought the costs of this stuff far outweighed the benefits. (Granted, much of the landscape has changed since then; this issue is far more polarizing now.)
Some cities and states understand these problems, which is why we have sanctuary policies and non-federal laws that explicitly prevent sheriffs and local police from engaging in some of the practices outlined earlier.
However, other state and local governments have gone in the opposite direction despite the mounting evidence that these processes don’t work. They’ve banned sanctuary policies or otherwise required LLE to cooperate with ICE. Plus, the federal government has been known to coerce states, and by extension local governments, into cooperating with ICE. All the while, undocumented people are targeted for deportation despite being harmless and great friends, family, neighbors—great people. Many who get caught up in this web aren’t criminals; they don’t deserve to have their lives traumatically destabilized.
Solutions Proposed by Immigration Advocates
In any case, we need to decouple at least some of the ways LLE interacts with immigration policy. Short of abolishing or reforming ICE, here are some other solutions I found from various advocacy groups and experts
What Local Law Enforcement Can Do:
- If possible, simply stop asking about a person’s immigration status when jailing them, or require officers to tell the person that they’re allowed not to answer.
- If possible, stop or cancel any agreements with ICE like 287(g) agreements or Warrant Service Officer trainings.
What States and Local Governments Can Do:
- Legislate. This includes changes that allow sanctuary policies and those that restrict local governments and the state from agreeing to an IGSA with ICE.
- Cancel IGSAs and other contracts with private prison companies, which have a stake in detaining undocumented immigrants.
What the White House/Congress/the Federal Government Can Do (Quick Actions):
- Stop making federal funds to state and local governments contingent on their cooperation with ICE.
- Cancel IGSAs with private prison companies, states, and local governments.
- Cancel BOAs to stop incentivizing LLE to detain undocumented immigrants.
- Study this mess to seek alternatives, like by forming a commission to understand how the existing programs and policies harm us.
What the White House/Congress/the Federal Government Can Do (Difficult Actions):
- Eliminate ICE-LLE cooperation programs like the Warrant Service Officer, Secure Communities, and Criminal Alien programs as well as IGSAs, BOAs, and 287(g) agreements.
- Amend the Immigration and Nationality Act to make warrantless detention illegal.
- Of course, dramatically expand pathways to citizenship for undocumented immigrants instead of over-policing them.
Any one of these changes can have an impact, but it’s important to pursue them all and seek out other ones. Many of the programs listed earlier overlap or do similar things, so eliminating one wouldn’t go as far as desired. For instance, stopping the Secure Communities Program would be significant, but there would still be the Criminal Alien Program, which is similar in practice.
It’s a lot of work, but we have a clear moral imperative here. Local law enforcement should not be incentivized, prompted, or coerced into rounding up undocumented immigrants and helping ICE. Immigrant communities should not have cause to live in fear. And while these changes could improve the intersection of local law enforcement and immigration, we need to look beyond this relationship as well.
Related stuff from 101PC:
- This 2019 thesis paper from Brooke Williams at Trinity College looks closely at IGSAs.
- Severe policing and deportation of undocumented immigrants was already worsening before Trump, but he still found ways to leave his own mark.
- The Appeal explains how the stakes in this topic were especially high during the 2020 election cycle.
- Like this piece, the National Immigrant Justice Center from the Heartland Alliance takes a holistic look at policing and immigration.
- For a more technical look at this topic, consider this 2009 report from the Congressional Research Service.
- Some good news: The Biden administration has directed ICE to stop deporting undocumented individuals who were arrested for lower-level offenses.
- Some bad news: The Biden administration reopened a detention facility for undocumented migrant children.