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County Involvement in Immigration Enforcement

June 22, 2017

New Mexico Association of Counties

Hadi Sedigh – [email protected]

mailto:[email protected]


June 22, 2017Slide 2 @NACoTweets

How are local govs. involved in immigration enforcement?

• Receive immigration detainers from the federal government/ICE

• Detainers traditionally flowed through a program called Secure Communities, was

replaced by the Priority Enforcement Program (PEP) in 2014

• Can enter into voluntary 287(g) agreements with the federal government under

which local officers are deputized to perform immigration enforcement functions,

which are otherwise federal authority. 64 agreements at peak.

287(g) agreements

Immigration detainers



Primer on 287(g) Agreements



287(g) agreements – federal-local enforcement partnership

• Established in 1996 under federal immigration legislation

• Permits local officers to perform immigration law enforcement functions

• Requires MOU between ICE Director and Sheriff or equivalent – VOLUNTARY!

• Local officers must be trained and must be supervised by ICE officials

• Four-week training, with one-week refresher every two years

• Currently 42 agreements in 17 states, none in New Mexico



287(g) agreements – authorities granted to local officers

• Interview individuals to ascertain their immigration status

• Check DHS databases for information on individuals

• Issue immigration detainers to hold individuals until ICE takes custody

• Initiate removal process by issuing “Notice to Appear”

• Transfer noncitizens into ICE custody



287(g) agreements – different models

• Task force model – deputized officers enforce immigration laws “in the field”

• Jail enforcement model – deputized officers enforce immigration laws in jail

setting after individuals have been detained on state or local charges

• Hybrid model – both of the above

• Task force model discontinued in 2012 – all existing 287(g) agreements are jail

enforcement



287(g) agreements – potential issues

• Expensive! ICE only covers cost of training for deputized local officials – even the

cost of travel, housing and meals during month-long mandatory training must be

covered by local law enforcement agency – can cost counties millions per year

• Bad for public safety? Some localities find that immigrant populations are less

likely to report crime or serve as witnesses to crime if local law enforcement is

involved in immigration enforcement – this likely applies more to “task force” model



287(g) agreements – misconceptions?

• The existence of a 287(g) agreement does not immunize local law enforcement

agencies against lawsuits related to warrantless immigration detainers – 287(g)

counties can still get sued for honoring warrantless detainers

• Signing a 287(g) agreement will almost certainly lead to unreimbursed local

expenditures related to immigration enforcement – “doing ICE’s job” at county’s

expense with little reimbursement



Primer on Immigration Detainers



Secure Communities / Priority Enforcement Program

FBI

DHSLocal Jail

1

2

3



History of Secure Communities/PEP

• Launched under George W. Bush Administration in 2008

• Obama Administration continued and expanded Secure Communities

• Hundreds of counties limited or ended participation

• Secure Communities was rolled back, Priority Enforcement Program introduced

• Instead of request to detain, request to notify

• Targeted individuals who had committed serious crimes

• Trump Administration resurrected Secure Communities in January, ended PEP



Why did some counties limit detainer cooperation?

Three commonly stated reasons:

• Costly lawsuits: federal courts ruled that counties who honor immigration detainers

without probable cause violate Fourth Amendment’s protections against warrantless

arrests. ICE will not indemnify counties.

• Bad for local law enforcement: “if the foreign born come to associate local officers

with immigration enforcement, they will hesitate to report crimes or to cooperate in

policing activates.”

• Detainer cooperation costs add up: counties received little reimbursement from

the federal government for the cost of incarcerating individuals they would have

otherwise released. CSAC found 7% rate.



Overview of Executive Order on “Sanctuary Jurisdictions”



• Sanctuary jurisdictions (SJs) must comply with 8 U.S.C. 1373

• SJs that willfully refuse to comply with 8 U.S.C. 1373 are not eligible to receive Federal

grants, except as deemed necessary for law enforcement purposes by the Attorney

General or the Secretary of Homeland Security

• The Secretary has the authority to designate which jurisdictions are SJs

• “The Attorney General shall take appropriate enforcement action against any entity

that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that

prevents or hinders the enforcement of Federal law”

What does the executive order say?



• What is a sanctuary jurisdiction?

• What is the scope of 8 U.S.C. 1373?

• Are cities and counties that don’t comply with warrantless ICE

detainers sanctuary jurisdictions?

• What federal funds does the Administration intend to take away?

What is uncertain from the Executive Order?



• This term is not defined in the executive order

• Some possibilities:

• Jurisdictions that don’t comply with 8 U.S.C. 1373

• Jurisdictions that don’t ask for immigration status

• Jurisdictions that limit cooperation with ICE detainers

• Recently, focus has shifted to 8 U.S.C. 1373

What is a sanctuary jurisdiction?



8 U.S.C. 1373



• “A prohibition against prohibitions”

What is the scope of 8 U.S.C. 1373?

• 8 U.S.C. 1373 prohibits state and local government entities from

preventing the maintaining or sharing of citizenship or immigration

status information with the federal government

• Does not require states and local governments to collect information

about immigration status – arguably does not require anything

• Second circuit case and an California Court of Appeals decision affirm this

interpretation



• So-called sanctuary jurisdictions claim that they comply with 8 U.S.C. 1373 because

they collect no information about immigration status – Santa Clara said this

• If they don’t collect the information – they cannot maintain or share it

• Some have argued that local policies that explicitly limit cooperation with ICE

violate 1373, even if they don’t relate specifically to immigration information

What is the scope of 8 U.S.C. 1373?



• As it stands, 1373 is a narrow statute, but Congress can change that

• In the President’s Budget request, released in May, there is language that would

expand the definition of 1373 and apply it not just to sharing immigration

information, but also to collecting information and honoring ICE detainers

• Will Republicans in Congress take up the President’s suggestion? Will any

Democratic Senators lend their votes?

• Congressional expansion of 1373 could run into Constitutional problems

Will Congress redefine 1373?



How Much Funding is Really at Stake?



Federal Funds on the Table

• Language from the executive order: sanctuary jurisdictions “are not

eligible to receive Federal grants, except as deemed necessary for law

enforcement purposes by the Attorney General or the Secretary”

• This is very broad language that invites the most worrisome

interpretation for counties

• DOJ has essentially refuted this plain interpretation



Grants Conditioned on Compliance with 8 U.S.C. 1373

• DOJ says these grants are conditioned on compliance with 8 U.S.C. 1373

• State Criminal Alien Assistance Program (SCAAP) (reimbursement

for incarcerating undocumented immigrants ) ($210 million FY16)

• Byrne JAG Grants (funds a range of law enforcement programs) ($84

million FY16)

• COPS Hiring Program (pays for officers to work on community

policing/crime prevention) ($187 million in FY16)

• Congress can expand this – Administration cannot



Legal Issues Raised by Executive Order



What are the Legal Issues with Requiring Compliance with ICE Detainers?

• Tenth Amendment – commandeering local officials

• Cannot use spending power to achieve the same means

• Fourth Amendment – warrantless detainer requests



Tenth Amendment Issues with ICE Detainers

• Courts have concluded that ICE Detainer requests are voluntary or else they

would violate the Tenth Amendment:

• “Under the Tenth Amendment, immigration officials may not order state

and local officials to imprison suspected aliens subject to removal at

the request of the federal government. Essentially, the federal

government cannot command the government agencies of the states to

imprison persons of interest to federal officials.” Galarza v. Szalczyk, 745

F.3d 634, 640-43 (3d Cir. 2014).



Limited Constitutionality of Withholding Funding

• Just as the federal government cannot require counties to execute federal policies

without violating the Tenth Amendment, withholding of funds to achieve the

same goal is also problematic, as held in two landmark SCOTUS cases

• South Dakota v. Dole: famous driving-age case; court held that funding can be

withheld only when it relates to the policy goal in question, and not to an extent

at which “pressure turns into compulsion”.

• NFIB v. Sebelius: recent ACA case; court held that withholding of funds to achieve

federal objectives cannot rise to the point where it becomes a “gun to the

head.” Justice Roberts opinion!



Fourth Amendment Issues with ICE Detainers

• ICE detainer requests generally do not come with a warrant, at least not one

signed by a judge – “administrative warrants” don’t county

• Therefore, counties may violate Fourth Amendment protections against

warrantless arrest by detaining individuals based only on an ICE detainer

• See Galazar v. Szalczyk, 745 F.3d 634 (3d Cir. 2014); Arizona v. United States, 132

S.Ct. 2492 (2012) (unauthorized presence in the United States is merely a civil

infraction; “it is not a crime.”)



Fourth Amendment Issues: Liability under Section 1983

• Municipalities can face civil liability for “blindly complying” with ICE

detainer requests without independent probable cause assessment.

• See Miranda-Olivares v. Clackamas Cnty., (D. Or. 2014); Morales v. Chadbourne (D.R.I.

Jan. 24, 2017); Galazar v. Szalczyk, 745 F.3d 634 (3d Cir. 2014).

• Damages are real. In one case for example, person was awarded $30,000

in damages plus $100,000 in attorneys fees/ costs for such a violation.

• ICE will not reimburse counties for these costs or indemnify against

damages, although some states are trying to set up a structure



Overview of Litigation Challenging the Executive Order



City/County Litigation – Who is Suing?

• San Francisco (Complaint/Preliminary Injunction)

• Santa Clara County (Complaint / PI)

• Massachusetts (Chelsea & Lawrence – Complaint only)

• City of Richmond, California (Complaint/PI)

• Seattle / Portland, Oregon (Complaint only)



What do the Lawsuits say on the Merits?

• We comply with 1373 / 1373 is unconstitutional

• Tenth Amendment / anti-commandeering

• Spending Clause Violation

• Fourth Amendment violation (ICE Detainers)

• Fifth Amendment / Due Process – notice and opportunity to be heard

• Unconstitutionally Vague



DOJ position re: California complaints

• DOJ lawyer argued EO doesn’t change the law, just seeking to enforce existing law.

Judge asked what was the point of the EO then? DOJ lawyer said bully pulpit

• SF argued that EO changed existing law by requiring ICE Detainer

compliance. DOJ lawyer said the EO doesn’t require ICE Detainer compliance.

DOJ still sees this as voluntary (statements made in open court seem to contradict

Sessions’ public remarks)



Court rules in favor of localities

• To the extent that the executive order attempts to expand the federal

government’s ability to withhold funding from “sanctuary jurisdictions,” it is

void pending litigation on merits

• But federal government retains existing ability to withhold funding –

applicable to, at most, Byrne JAG, COPS and SCAAP

• Leaving the executive order in place would create budgeting uncertainty for

local governments



Appeals to come…

• Legal battle is far from over – California case will be appealed, likely to

Supreme Court, and other courts across the country will weigh in

• Expect a lengthy timeline – could be years before case is resolved

• But the funding at issue is now a relatively small pot – the stakes are not

as high as was expected at outset of litigation



Questions??

• Contact – [email protected]

mailto:[email protected]

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