When Sheriffs Choose to Help ICE

When people are arrested and booked into a local jail, they often end up on ICE’s radar. Sheriffs are a major reason why.

Jessica Pishko | June 9, 2020

President Trump hosts sheriffs from around the country at the White House (White House/flickr)

This article originally appeared on The Appeal, which hosted The Political Report project.

When people are arrested and booked into a local jail, they often end up on ICE’s radar. Sheriffs are a major reason why.

This is the sixth edition of The Badge, a series on the powers of sheriffs.

In 2018, voters in five of North Carolina’s seven largest counties elected new sheriffs who ran on restricting the sheriff’s department’s cooperation with Immigration and Customs Enforcement (ICE). The day after he was sworn in, Garry McFadden withdrew Mecklenburg County (Charlotte), the state’s largest jurisdiction, from 287(g), an ICE program that authorizes local deputies to act as immigration agents in the local jail. He also announced he would no longer honor ICE detainers, requests from ICE for sheriffs to keep holding people in jail beyond after their scheduled release.

In Buncombe, Durham, Forsyth, and Wake counties, the new sheriffs—all of whom are Black in a profession that remains largely white—made similar moves.

This has not been without conflict. McFadden ousted an incumbent in a contentious Democratic primary; he and the other incoming sheriffs have faced heavy pressure from federal and state officials; and the North Carolina Sheriffs’ Association called on the Republican legislature to require county sheriffs in the state to cooperate with ICE. The state’s Democratic governor ended up vetoing such a law.

Jails have been a major funnel into the nation’s deportation infrastructure. In North Carolina, as elsewhere, they are an area of heated focus for both ICE activities and for resistance to ICE.

They 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.

These activities rest in large part on the cooperation of local sheriffs. Sheriffs traditionally enjoy wide discretion in how much they cooperate with ICE, from how they engage in policing to whether they join immigration raids. And many of those choices—some highly visible, others buried in administrative protocol—center on what they will do with the people who are arrested and brought into their jails.

This has made sheriffs’ departments into offices ripe for political engagement.

In February, U.S. Attorney General William Barr was at a National Sheriffs’ Association conference when he expressed his intent to fight jurisdictions that do not assist ICE.

Meanwhile, immigration rights advocates have demanded less cooperation and more transparency from their sheriffs, in some cases contributing to turnover in elections and changes in local jail policies. Sheriffs like McFadden won in large part on the strength of local activists, and 2020 is seeing more sheriff’s elections fought over limiting cooperation with ICE. Cincinnati’s sheriff already lost in April to a challenger who promised to stop honoring ICE's detainer requests.

But the complexity of administrative practices, combined with the fact that many forms of ICE cooperation in jails stem from routine or informal policies rather than formal contracts, has made it hard to fully disentangle sheriffs’ practices from federal immigration enforcement.

Plus, many sheriffs embrace being “tough on immigration” as a core political identity. They have mirrored Trump’s warnings that targeting immigrants is key to ensuring safety, and pursued new ways to tighten the relationship between their jails and ICE.

This sixth edition of The Badge, an ongoing Appeal: Political Report series on the powers of sheriffs, probes this nexus between jails and immigration enforcement. How do sheriffs use jail procedures to facilitate federal immigration enforcement, whether through policy decisions or administrative rules? And, in light of the emerging demands from immigrants’ rights groups and pressure from the Trump administration, what would it even look like in practice for sheriffs to disentangle this nexus?

Identification: How ICE has virtually entered local jails

According to black-letter law, the immigration system is a civil process, separate from the criminal legal system. But scholars argue that, over time, the two systems have become intertwined in theory and practice. “Today, it is often hard to explain where the criminal justice system ends and the immigration process begins,” César Cuauhtémoc García Hernández, a professor and the author of the book “Crimmigration Law,” wrote in a 2017 essay.

Sheriffs typically run county jails, which are where people are brought after they are arrested; depending on the jurisdiction, the arrests can even be for traffic violations or other offenses not punishable by jail time. Once arrestees are brought to a jail, they are usually booked, and are then typically held in jail until they can post bail or are released.

This booking process provides many ways for sheriffs’ deputies or jails to put some people on ICE’s radar, especially if a sheriff’s policies do not include safeguards to limit an arrest’s potential immigration implications.

Current legal and administrative procedures make this entanglement inextricable to some extent. “Sheriffs really can’t get around the process. Jail booking requires the submission of information to federal agencies,” Felicia Arriaga, a professor at Appalachian State University, told The Badge.

That’s in large part because the Secure Communities Program, established in 2008, requires that county jails run the fingerprints of people who are booked into jail through Department of Homeland Security databases, which include information on anyone who has previously crossed paths with DHS or ICE for any reason. This may include undocumented immigrants known to federal agencies, people who have overstayed their visas or have not adjusted their status, or even U.S. citizens who may be in the databases by mistake or have common names.

Through Secure Communities, ICE gets alerted if there is a match, and can then typically ask jails to hold people through a detainer, explained more fully below. Between 2008 and 2011, the number of such requests nearly doubled. By 2013, ICE had enrolled all law enforcement agencies that weren’t already participants, which accomplished “a virtual ICE presence in every local jail,” in the words of former ICE Assistant Secretary Julie L. Meyers. As one report by the county government of Anne Arundel, Maryland, explained in 2018, “ICE knows who is in custody within an hour of when they are arrested through the live scan prints that are shared with the federal Department of Homeland Security.”

But Secure Communities is limited to the information in the databases. Sheriffs’ deputies can employ a variety of additional discretionary techniques to identify people who may be undocumented or have an immigration status of interest to federal authorities.

For example, people booked into jail are often asked about their birthplace, their citizenship, and their immigration status. A sheriff’s office may then use this information to voluntarily alert ICE, or in some cases conduct further questioning. People are not legally bound to answer these questions, but many sheriffs face no obligation to inform people of their legal rights, and few people have access to defense counsel at this point in the booking process.

Those flagged by ICE are treated differently than others who are facing the same charges. They may not be released pretrial while they fight the case, which increases their risk of a criminal conviction, and they may be barred access to the same programming others receive. That includes pretrial diversion, which affects people who need treatment for mental illness or substance use disorder.

Immigrants’ rights advocates say sheriffs’ entanglement with ICE endangers public safety. In some cases, witnesses and victims of crimes, too, are run through biometric databases or asked their immigration status.

“When people know that contact with the sheriff will result in them being put in immigration proceedings, they will be afraid of calling the police and reporting crime,” Brendan Greene, the campaigns director of the Colorado Immigrants Rights Coalition, told the Political Report in 2019. “This impacts women and survivors of domestic violence the most.”

Detention: Waiting for ICE, without a warrant

Once detainees are flagged for immigration review, ICE can respond by asking the jail to keep detaining these people beyond when they were scheduled to be released.

These administrative requests, which are known as detainers, are supposed to last a period of 48 hours (excluding weekends and holidays), though in practice people have been held beyond that time limit. When sheriffs honor detainers, people are held even if they have posted bail or charges are dropped. The intent behind a detainer is to give federal agents time to pick up the detainee.

Detainers are not signed by a judge like arrest warrants are. They are requests that sheriffs voluntarily hold someone. In practice, it has been up to sheriffs to decide whether to honor detainers, though in some places their discretion has been limited by state law or controlling court rulings, and some sheriffs who have done so have faced lawsuits.

Detainers have long been in use. ICE issued 320,000 in 2017 and 2018.

Critics denounce detainers as an abuse of power that violates the Fourth Amendment’s prohibition against unreasonable seizures. They entail law enforcement detaining someone on non-criminal grounds and based on requests that are not signed by a judge, at times for long periods. In Salt Lake County in 2011, a student was booked into jail, posted bail, and was still detained for another 46 days pursuant to an immigration detainer, even when a court tried to force his release.

Some courts have ruled that sheriffs are not allowed to honor detainers. In 2019, for instance, a federal judge in California ruled against detainers, a ruling that has since been used throughout the Ninth Circuit to pressure sheriffs not to honor detainers.

And some sheriffs agree that they lack the legal authority to honor detainers. Whether these sheriffs were spurred by the threat of litigation and financial liability or moved by local political organizing, they have announced they will not detain someone for ICE under such circumstances. “Outside of legally recognized exigent circumstances, we cannot hold persons in jail at the request of a local police officer or a federal agent,” said the County Sheriffs of Colorado in 2016. “To do so, would violate the 4th Amendment to the US Constitution.”

Colorado later adopted a law barring sheriffs from honoring detainers, as did California.

But in other states, many sheriffs honor ICE detainers voluntarily. Others do so because their state’s laws require it. Florida and Texas recently adopted such laws, although the extent of the cooperation they require is still undecided, as advocates contest the constitutionality of abiding by detainers.

To circumvent these legal disputes, the Trump administration has set up new programs. Its basic ordering agreements (BOAs) are meant to formalize the detainer process via invoices, whereby sheriffs are paid $50 per detainee for holding suspected undocumented immigrants.

The administration is drawing on a network of sheriffs who support its goals. Most Florida counties have formally entered into BOA agreements. A leading BOA proponent, Sheriff Bob Gualtieri of Pinellas County, was the National Sheriff Association’s 2019 Sheriff of the Year.

In addition, the administration is amping up political and legal pressure on noncooperative sheriffs, for instance by accusing agencies that don’t honor detainers of endangering public safety, and by issuing subpoenas for lists of people detained in jail. Studies have found no connection between crime and violations of immigration laws, however, and detainers can be issued against anyone, even those whose original criminal charges were dismissed or otherwise resolved.

How 287(g) contracts directly empower sheriffs

To further entangle sheriffs into immigration enforcement—and also to get around the legal battles over detainers and the practical limits on what sheriffs can learn about people at the booking stage—ICE uses 287(g) contracts. These deputize sheriffs’ officers (and other law enforcement officials, like some police departments) to act as federal immigration agents.

In counties whose sheriffs have entered 287(g) contracts, sheriffs’ deputies themselves can review intake information, interview jail detainees to assess their immigration status, and then place detainers on people already in jail without needing to go through ICE. The program stems from a 1996 law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). The current design of 287(g) is limited to actions within a jail; it no longer covers policing in the communities.

In most counties, sheriffs decide whether their county will enter into or terminate a 287(g) contract. (In some places, it is up to a broader jail board that may include a sheriff.) Perhaps as a result, this program is one of the most visible forms of cooperation with ICE.

Participation in the program remains rare and it is largely concentrated in certain states, such as Florida and Texas, but 24 states have at least one county sheriff who has joined the program. Those are typically in conservative counties, but some are also in Democratic-leaning areas such as Bristol County, Massachusetts, where Republican Sheriff Tom Hodgson is closely allied with ICE and has drawn sustained protests.

Of the more than 3,000 counties in the nation, 119 jurisdictions currently have 287(g) contracts, according to ICE. More than a third became members just over the past year by contracting into a narrower version of 287(g) that ICE created in 2019; called the Warrant Service Officer program, it is largely meant to authorize sheriffs’ deputies to execute ICE’s detainer requests.

Three states—California, Illinois, and New Jersey—have addressed what many consider the constitutional problems of 287(g) contracts by banning them, either through state legislation or through an order by the attorney general.

Elsewhere, immigrants’ rights advocates have pressured their sheriffs to terminate existing agreements, or to not enter new ones, and in some places they have succeeded in bringing into power new sheriffs who ran on promises to quit 287(g).

What would it mean to sever arrests from immigration?

Oliver Merino, who was part of the grassroots efforts that helped elect Sheriff Garry McFadden in Mecklenburg County in 2018, told The Badge that organizers knew how hard it would be to disentangle the criminal and immigration legal systems. So they focused on the most visible issues—287(g) and detainers—to show that change is possible.

“That was a step we had to take in order to figure out how entangled [the systems] were beyond 287(g) and detainers,” he said. He described the process as one of peeling back layers of cooperation, like an onion.

Merino, who now works at the Immigrant Legal Resource Center, emphasized that electing sheriffs who say they will not cooperate with ICE and ending 287(g) agreements are not the end of the road. “There are still other possible collaborations” between local law enforcement and ICE, he said, noting that some are required “by law, like data sharing,” while “others are more like policies they can change.” He also pointed to broader fights. “Officials ending ICE cooperation are experiencing retaliation,” he said.

Other scholars and activists agree that it is challenging to get ICE out of jails. System-wide change is hard for financial, legal, and administrative reasons. Information-sharing agreements between law enforcement agencies, for instance, make it difficult for a local sheriff to single-handedly end the transmission of information that may be used to identify immigrants. State legislation would help restrict how the information is used.

Arriaga, the Appalachian State professor, emphasized that fully disentangling ICE from local law enforcement requires changes to both state and county laws, as well as programs that reduce arrests altogether.

Some counties have increased the use of cite-and-release programs, in which people are issued citations for certain offenses, rather than being arrested and booked. These policies, which sheriffs can adopt in their own policing duties, limit opportunities for them to be identified at a jail as potential undocumented immigrants.

Austin, Texas, for instance, passed resolutions to reduce arrests by issuing tickets in some cases. Chris Harris, an Austin organizer, told the Political Report that these resolutions were born not just of concerns for criminal justice reform but also as a “consistent effort to unite in struggle people directly impacted by the criminal punishment and immigration systems.” He added that cite-and-release programs were “critical under SB 4 to limit ICE detentions, since sheriffs in Texas have to honor ICE detainers for anyone jailed.” Senate Bill 4 is the 2017 state law that requires some forms of ICE cooperation from local law enforcement.

Disentanglement from ICE is further complicated by the wide range of means local officials have at their disposal, many of which are less visible than the detainers or 287(g) agreements reviewed above.

In 2018, during another sheriff’s race dominated by ICE, longtime Hennepin County (Minneapolis) incumbent Rich Stanek was not assisting ICE in the formalized ways of his North Carolina counterparts; for instance, he had no 287(g) contract. Yet he, too, had been helping ICE use his county jail to target undocumented immigrants, just in more subtle ways. He shared sensitive information, notified ICE of some people’s release dates, and arranged meetings between ICE and foreign-born detainees. That fall, he lost to Dave Hutchinson, who has since stopped calling ICE when sheriff’s deputies learn that someone they have booked is foreign-born.

The picture is further muddled when either ICE or local officials bring private contractors into the picture. Los Angeles County Sheriff Alex Villanueva, who ran on a promise to keep ICE out of local jails, allows a private contractor to enter the jail and transport people to ICE facilities, a pattern that holds true in many places throughout California. In 2019, the ACLU of Northern California filed a lawsuit against G4S Secure Solutions for transporting ICE detainees in horrid conditions. Months later, Governor Gavin Newsom vetoed legislation that would have ended such private enforcement.

Deep-seated political assumptions about the links between immigration and criminalization hinder disentanglement as well. These are links the Trump administration has sought to exploit with fearmongering rhetoric, but which Johanna Calle, the director at the New Jersey Alliance for Immigrant Justice, asks people to question.

“As long as people assume immigration is a crime, cooperation with local law enforcement will continue,” Calle told The Badge. In 2016, Opal Tometi, executive director of the Black Alliance for Just Immigration, urged Congress to repeal the 1996 laws that permit consideration of immigration status as a factor in the criminal legal system. People suspected of being undocumented can face tougher obstacles to mounting an effective defense, as well as worse punishments.

“What we have created is this idea that immigrants should be treated differently,” Calle said.