When Immigration and Customs Enforcement announced its new training program for local law enforcement on Monday, the agency billed the program as a way for police in so-called "sanctuary" cities and states to cooperate with ICE.
Does ICE's new program really allow police to skirt around their state and city's sanctuary policies? According to legal experts, probably not.
Though sanctuary policies vary greatly, most people agree that, for such a policy to have teeth, it must limit ICE's ability to issue "detainer requests." An ICE detainer request works like this: When local law enforcement officers arrest somebody, they take that person's fingerprints and send the information to the federal government. If ICE determines that the person is in the country illegally, the agency might issue a detainer request asking local police to keep the person in jail. Even if a judge has ordered someone's release, or if police realize they arrested the wrong person, an ICE detainer request asks the police to hold that person in jail for up to 48 hours longer, in order to give ICE agents time to come re-arrest them.
Multiple courts around the country have ruled that ICE detainers are requests, not orders: That's where sanctuary policies come in. Local jurisdictions have the option to refuse detainer requests, and many cities (and a few states) have passed laws compelling state law enforcement to refuse the requests.
Now, ICE claims it's found a way to get around those sanctuary policies. In a press release on Monday, ICE claimed that its new "Warrant Service Officer" training program is "intended for local law enforcement that wish to honor immigration detainers but are prohibited due to state and local policies that limit cooperation with the agency." By training local law enforcement officers to act as pseudo-immigration officers, the agency claims that those officers will be able to act on detainer requests.
But nothing about the training program would make detainer requests into orders. "They would continue to be optional, and they have to optional under the Tenth Amendment," says Spencer Amdur, a staff attorney with the American Civil Liberties Union. "The federal government can't force anybody to do one of these agreements."
Amdur says federal statute limits the kind of cooperation agreements ICE enters into with local law enforcement. Specifically, the agreements have to be consistent with state and local law—meaning ICE can't empower police in sanctuary jurisdictions to break local laws.
Why, then, is ICE billing the program as a way to cooperate with local police in sanctuary jurisdictions?
According to Amdur, the new training program is likely intended for law enforcement agencies that have already decided to cooperate with detainer requests. In other words, the new policy could give local police a sort of legal cover: If a sheriff is challenged in court for honoring a detainer request, the sheriff could argue: ICE said it was OK.
However, Amdur says that local law enforcement should be cautious: ICE cooperation agreements might not shield sheriffs from lawsuits. ICE has made similar guarantees to sheriffs in the past, and that hasn't stopped those sheriffs from ending up in court.
In January of 2018, a collection of Florida counties entered into what are known as Basic Ordering Agreements with ICE. Under the agreements, ICE would pay sheriffs $50 for every immigrant they held. In a press release, ICE said the Basic Ordering Agreements would mean that local law enforcement would be "afforded liability protection" for lawsuits regarding detainers. But then the agency made a mistake: In a jail in Key West, ICE sent a detainer request for a man named Peter Brown, who turned out to be an American citizen. Brown and the ACLU then sued Monroe Country Sheriff Rick Ramsay for illegal detention in violation of the Fourth Amendment.
Ramsay claims that the detention was out of his hands. "It is important to also note that when an inmate is held under an ICE matter, I, as Sheriff, do not have the legal authority to release that person," he wrote in a statement that Pacific Standard obtained from the police department in December. Ramsay's argument is legally suspect—the detainer document for Brown clearly states that his detention is "requested," not ordered. Ramsay's statements indicated that he believed the Basic Ordering Agreement he signed with ICE put the responsibility for the mistaken detainer request in ICE's hands. But the ACLU lawsuit against Ramsay is moving forward.
Amdur sees the new Warrant Service Officer training programs as similar to the Basic Order Agreement policy: another attempt by ICE to convince local law enforcement to sign on to cooperation agreements and honor detainer agreements.
"ICE [has always] tried to convince localities that detainers are mandatory," Amdur says. "I don't think that they're fooling anybody: Everybody knows at this point that detainers are not mandatory."