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Immigration 101: What is 287(g)?

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In the interior of the United States, the federal responsibility of immigration enforcement is carried out by U.S. Immigration and Customs Enforcement (ICE), an agency under the U.S. Department of Homeland Security (DHS). ICE sometimes gets help, however, from local police officers participating in a program known as 287(g).

Through the 287(g) program, ICE deputizes local or state law-enforcement agencies to enforce federal immigration laws and was first implemented as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).

Under 287(g), ICE-trained police officers screen jailed immigrants, determine immigration status, and hold immigrants for ICE agents to pick up for deportation. Currently, ICE has 287(g) agreements with 75 law enforcement agencies in 20 states, the majority in Texas with 24.

Problems with 287(g)

287(g) has drawn sharp criticism for eroding trust between the police and immigrant communities, as well as for wasting taxpayer dollars. The program has proved costly for localities that agree to dedicate resources, training, and manpower to its implementation; ICE only covers partial costs. Ed Gonzalez, the Sheriff of Harris County, Texas in February 2017 terminated its 287(g) agreement for an annual cost-savings of $675,000. Implementing 287(g) in North Carolina cost Mecklenburg County $5.3 million and Alamance County $4.8 million. In Virginia, 287(g) cost $6.4 million in its first year for Prince William County, forcing a property tax hike and dip into “rainy day” funds. Arizona Sheriff Joe Arpaio created a $1.3 million deficit in just three months.

One ICE tactic used to lure local officials into 287(g) participation is through a prison payment incentive ― an intergovernmental service agreement where ICE pays a city or county to hold undocumented immigrants in local jails. This arrangement can be profitable for jails, at the expense of immigrants who have done nothing besides live in the U.S. without papers.

The greatest cost of 287(g) programs, however, may be the destroyed trust between immigrants and local police, which can make police work less effective and harm everyone living in the community. Big city police chiefs and mayors argue that sharing information about the immigration status of people in their custody undermines public safety by driving immigrants deeper into the shadows and making them unwilling to cooperate with investigations.

Fearing deportation, immigrants are already avoiding reporting crimes, declining to serve as courthouse witnesses, and skipping doctors’ appointments. Houston Police Chief Art Acevedo and Los Angeles Police Chief Charlie Beck both announced decreases in sexual assault and domestic violence reports by immigrants. In Florida, an undocumented bicyclist was deported after being hit by a car; police reportedly demanded his immigration status before offering medical aid. In Georgia and Texas, routine traffic stops are leading to deportation.

Advocates also cite civil rights abuses with 287(g), widespread racial profiling, discrimination against Latinos, and targeting of populations with no criminal history or safety threat. The American Immigration Council has pointed out that 287(g) isn’t even particularly effective at identifying those who have committed serious crimes.

287(g) doesn’t protect jurisdictions from liability

Importantly, 287(g) agreements do not protect local jurisdictions from the constitutional problems of holding immigrants just for being undocumented.

Immigration enforcement is a civil law matter, not criminal. Holding people in criminal custody for a civil infraction violates the Fourth Amendment protection against unreasonable seizures. And, when the federal government demands that a local jurisdiction hold immigrants past when they should be released, those demands violate the 10th Amendment by forcing states to do the federal government’s bidding. Federal judges have also found that holding immigrants who don’t face criminal charges for more than 48 hours is also unconstitutional. This is true for local law enforcement officials whether or not they participate in 287(g).

Local law enforcement agencies may face enormous liability risks because of the illegalities inherent in 287(g) actions, stated a March 2018 joint report from the American Immigration Council, American Immigration Lawyers Association, National Immigrant Justice Center, and Southern Poverty Law Center. Regardless of 287(g) agreements, ICE with its detainer program is asking local law enforcement to break the law and risk litigation and costly financial payouts, such as this $145,000 settlement payment.

As an April 2017 ACLU letter to sheriffs stated:

The bottom line is that 287(g) agreements cost counties money while damaging public safety and community trust in law enforcement.