287(g) Agreements: What You Should Know


You may have heard of the term “sanctuary cities.” It may conjure up notions of undocumented persons avoiding penalties under the law for their unlawful presence because the city utterly disagrees with U.S. immigration law completely and has thus decided not to cooperate with its enforcement on any level.

What the term “sanctuary city” falsely symbolizes is that person’s who are unlawfully present in the United States will never be subject to criminal or civil penalties for their unlawful presence. That is a far cry from reality even in the most “immigrant friendly” states in the country, such as California.

In most jurisdictions, local law enforcement will automatically notify ICE when a person will be released or will hold the person for violent or other serious crimes to be released to ICE. Computer systems have streamlined these actions.

Immigrant’s and nonimmigrants alike should familiarize themselves with the implications of 287(g) agreements between local law enforcement agencies and the Department of Homeland Security.

Typically, when a person is arrested, their information, such as their fingerprints, are scanned and checked against FBI and ICE records, sending a notification to ICE. An ICE agent can then ask the police to detain the person until ICE can pick that person up.

At this point, Police departments usually have a choice as to whether they will detain the person for ICE. This option exists constitutionally and rightly so because it costs the city funding to detain individuals for ICE.  Under the 10th amendment, and known as the “anti-commandeering doctrine,” the Federal government cannot command the States to enforce a Federal law because it is the Federal government’s responsibility to enforce their own laws.

But, once a local law enforcement agency chooses to submit to a 287(g) agreement with the Department of Homeland Security, the law enforcement agency will have an affirmative requirement to hold a person until ICE picks them up. It also allows police officers within that agency to be able to enforce immigration law violations standing alone, even if there is no criminal provision for the person’s actions. Training costs are also covered at the city’s expense.

Basic concerns arising from 287(g) agreements include the immediate financial costs, the time taken away from police to investigate more serious and immediate crimes, and litigation and liability costs for unlawful enforcement. Another serious effect is the loss of communication between immigrant populations and the police as immigrants may be less likely to report a crime, even a serious crime, in order to avoid police interaction.

Also, there is a risk of increased bias in policing against immigrants, including lawful immigrants, or persons who “look illegal” that will be stopped more frequently and prejudiced more pervasively in the criminal justice system.

Weighing these concerns, only 37 law enforcement agencies in 16 states have chosen to enter into a 287(g) agreement.

An undocumented person is someone who is in the United States unlawfully. This can be due to a number of factors including persons who overstay a previous visa or enter the United States without an inspection. Under the Executive Order: Enhancing Public Safety in the Interior of the United States, any criminal conviction can make a person deportable and therefore an increased number of ICE hold requests are expected.

Follow the link below for “Know Your Rights” information to answer questions such as: What should you do if you are stopped by the police or being questioned by ICE?

The site also provides wallet cards to keep on hand for interactions with law enforcement in order to exercise your 5th amendment right.


Know Your Rights by iAmerica.org



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