The legal move, in which sheriffs would essentially serve as contractors for ICE, is intended to protect sheriffs from court battles, which have sometimes resulted in costly payouts.
President Donald Trump’s administration is working with like-minded sheriffs from around the country on a plan to channel unauthorized immigrants from local jails into federal detention, according to several sheriffs involved in the discussions. If it succeeds, it could vastly expand the dragnet that has already begun to transform U.S. immigration enforcement.
The plan is intended to circumvent court decisions that have thus far limited the role of local law enforcement in immigration. It involves a legal move regarding detainers, which are requests by Immigration and Customs Enforcement (ICE) to local sheriffs or police departments to hold people who are suspected of being in the country illegally, even after they have posted bail, finished their jail sentence or otherwise resolved their criminal cases.
A handful of sanctuary cities refuse to honor detainers on ideological grounds, but a larger number of sheriffs who otherwise support the Trump administration have also turned down detainers because courts have found that they violate the Fourth Amendment.
The legal move, in which sheriffs would essentially serve as contractors for ICE, is intended to protect sheriffs from such court battles, which have sometimes resulted in costly payouts. Some legal advocates for immigrants, though, expressed doubt that courts would view it as being different from current practices.
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An ICE spokeswoman said that the plan was still under review, and that a final decision had not been made.
The tactic would be a major step toward marrying local and federal law enforcement, a centerpiece of Trump’s plan to thwart illegal immigration and one that immigrant advocates have scrambled to block at every opportunity. If enough sheriffs participated, the approach could lead to many more immigration arrests, which have already risen more than 40 percent since last year.
Since Trump was inaugurated, ICE has issued roughly 11,000 detainers a month, a 78 percent increase over the previous year. The agency declined to make data available on the number of detainers that are now declined by sheriffs and other local departments. Even under President Barack Obama, detainers created friction between ICE and sheriff’s departments because hundreds of them have policies against honoring the requests.
But the Trump administration’s promises to deport more unauthorized immigrants, particularly those with criminal records, have resonated with many sheriffs across the country, and the plan may serve to cut through unlikely tension between the two groups. Trump and Attorney General Jeff Sessions have sparred repeatedly with jurisdictions that do not honor detainers, even where local officials support an immigration crackdown.
Sheriff Richard Stanek of Hennepin County, Minnesota, a Republican, found his jurisdiction included in ICE’s periodically distributed list of places that do not honor detainers, alongside well-known sanctuary cities like Los Angeles and Chicago. The administration discontinued publishing the list after he and other sheriffs complained, but the sheriffs say the sting has been lasting.
“We raised holy hell,” Stanek said. “We said: ‘We’re your allies. Why are you shooting at us?’”
ICE issues detainers for roughly 1,000 people in his jail each year, Stanek said, and roughly two-thirds are ultimately freed before ICE agents can arrive to arrest them.
Stanek said he would like to honor the detainers but would do so only if the plan was approved by the courts. “We want to find a way to say yes,” he said.
Sheriffs are seen as particularly important allies in immigration enforcement. They operate 85 percent of the nation’s jails and have ready access to the most desirable candidates for deportation: unauthorized immigrants with criminal records or charges. Immigration arrests that are made in jails are also safer and require fewer resources.
ICE sends detainers to jails when it becomes aware that someone suspected of being an unauthorized immigrant is being held on a criminal charge because the person’s name or fingerprints match those of someone ICE has previously arrested or deported.
But since defendants can post bail or otherwise win their freedom at almost any hour, they are often released before ICE agents can arrive to take them to immigration detention centers. To address that, detainers ask that these people be held for up to an additional 48 hours.
The practice has raised a number of legal issues, many of which hinge on that crucial period. Under federal law, sheriffs cannot make immigration arrests because they are civil in nature, and sheriffs enforce criminal law. As a result, judges have found that jailing people during that gap constitutes an unlawful seizure, in violation of the Fourth Amendment.
Under the proposed legal tactic, ICE and the sheriff would sign a contract that pays the sheriff’s department a daily fee to hold the immigrant until ICE can take the person into custody. The legal argument is that the arrangement effectively makes the immigrant a detainee of ICE, not the sheriff’s department, and allows the sheriff to hold the person on a noncriminal charge.
“It’s a seamless transition,” said Sheriff Bob Gualtieri of Pinellas County, Florida. “They are immediately in ICE custody. And what ICE does with them, that’s up to ICE. That’s not our business.”
It was Gualtieri, who is also a lawyer, who devised the reasoning behind the new tactic and presented it to ICE.
Lawyers who have fought cases involving detainers question whether the courts would approve of the plan.
“It’s a kind of window dressing on the same practice,” said Omar Jadwat, director of the American Civil Liberties Union’s immigrants’ rights project. “It doesn’t really change the legal analysis.”
Jadwat and other advocates raised concerns that the plan would be a return to the days when local law enforcement and immigration authorities worked hand in glove, sometimes leading to overzealous policing and racial profiling.
“I do fear that, particularly in localities that don’t have laws in place limiting this practice, that you’re going to have sheriffs who are going to see the dollar signs and feel that maybe this is lawful to do ICE’s bidding,” said Mark Fleming, a lawyer for the National Immigrant Justice Center in Chicago.