Voluntary police program at heart of Trump immigration policy
In one executive order from January and in separate DHS guidelines published last week, the Trump administration is counting on local police officers to act as immigration agents. But will these efforts gain traction in a contentious environment?
The immigration enforcement guidelines issued by DHS Secretary John Kelly greatly expand efforts to find, detain and deport people known to be or suspected to be illegal immigrants to the United States.
To help achieve this, the federal government is promoting an existing program that lost favor during the Obama administration. Known as the 287(g) program, U.S. Immigration and Customs Enforcement (or ICE), the largest agency in the Department of Homeland Security, allows local police officers “to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of ICE officers.”
So far, 38 counties and cities have signed agreements with ICE to take part in the program, according to ICE’s website. After four weeks of training, local officers conduct immigration enforcement operations under the direct supervision of ICE, while they perform all other duties under local supervision.
Under an optional agreement, a local partner government can be reimbursed for costs of detaining an illegal immigration suspect for a 48-hour period (not including weekends) if requested to do so by ICE and after ICE issues a detainer order. The local government also bears any liability responsibility related to officers’ actions and officers can ask for a Justice Department attorney for representation if needed, subject to DOJ approval.
In President Donald Trump’s executive order on border control, the DHS is urged “to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.”
Kelly’s memos state that the DHS wants to expand the program to all “willing and qualified law enforcement jurisdictions.”
The program is not without controversy for several reasons. For example, on the same day Kelly announced his plea for more 287(g) partners, the sheriff of Harris County, Texas, dropped out of the program, citing $675,000 in costs the county incurred to keep 10 deputies on ICE duty.
Colorado Governor John Hickenlooper also has said spending money on state law enforcement agencies is more pressing. “They have their own priorities and the federal government is not offering any funding on this,” he told a Colorado news website. “So this would be taking people away from state priorities to do what’s essentially a federal mandate.”
The use of local police officers to enforce federal immigration laws is also a central issue in the sanctuary cities or sanctuary jurisdictions controversy. Another Trump executive order empowers Homeland Security to identify what makes up a sanctuary jurisdiction. These cities and counties may get that designation because they won’t share information about illegal immigrants with DHS or have policies in place that don’t allow local government employees to voluntarily share information.
That Trump executive order allows the Attorney General to block “federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary” to sanctuary jurisdictions.
The financial penalty for sanctuary jurisdictions is the subject of several current lawsuits. In San Francisco, for example, the city’s lawsuit against the Trump administration claims the executive order violates the 10th Amendment to the Constitution because of its financial penalties. “The executive order is a severe invasion of San Francisco’s sovereignty. … The Executive Branch may not commandeer state and local officials to enforce federal law.”
Another issue is the potential liability to local governments that honor an ICE detainer order that could result in a wrongful arrest lawsuit, or a lawsuit related to ICE’s decision to ask for an immigration suspect to be held by local officers after a bail hearing.
Earlier this month, Maricopa County, Arizona sheriff Paul Penzone said his department would stop honoring ICE detainers because of legal concerns. Penzone’s office cited a legal decision for the move.
Scott Bomboy is the editor in chief of the National Constitution Center.
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