This article about the 287(g) program is part of Documented’s Glossary. We want to make it easier for our audience to understand the U.S. immigration system. If you want to know more about different visa types and immigration terms, please check our library here.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was signed into law by former President Bill Clinton in 1996. Its section 287, subsection (g) effectively deputizes local employees, typically law enforcement personnel, to “perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” The 287(g) program allows designated state employees to act as federal authorities for the purposes of determining their liability and immunity from a civil action suit brought under federal or state law.
How does the 287(g) program work?
Section 287(g) allows the Department of Homeland Security (DHS) to enter into formal written agreements (Memoranda of Agreement or MOAs) with state or local police departments and deputize selected state and local law enforcement officers to perform the functions of federal immigration agents.
For participating local law enforcement agencies, the scope and specifics of the program are codified through signing a Memorandum of Agreement (MOA) with Immigration and Customs Enforcement (ICE). As of June 2020, 75 law enforcement agencies in 21 states participate in the 287(g) program with ICE through a “Jail Enforcement Model,” which allows local officials to screen inmates of local jails or prisons for immigration violations, alert ICE and turn inmates over to the federal agency. A report by the Migration Policy Institute found that the 287(g) program is “not targeted primarily at serious offenders, despite statements by administration officials” and that nearly half of the program activity involves noncitizens arrested for misdemeanors and traffic offenses.
What can local officers do under the program?
According to the American Immigration Council, deputized officers are required to abide by federal civil rights laws and regulations. In general, deputized officers are authorized to:
- interview individuals to ascertain their immigration status;
- check DHS databases for information on individuals;
- issue immigration detainers to hold individuals until ICE takes custody;
- enter data into ICE’s database and case management system;
- issue a Notice to Appear (NTA), which is the official charging document that begins the removal process;
- make recommendations for voluntary departure in place of formal removal proceedings;
- make recommendations for detention and immigration bond; and
- transfer noncitizens into ICE custody.
Problems with the 287(g) Program
From American Immigration Council:
- The Migration Policy Institute (MPI) conducted a comprehensive analysis of the 287(g) program and found that it did not target serious criminal offenders. Half of all detainers issued through the program were on people who had committed misdemeanors and traffic offenses.
- MPI found that some jurisdictions “target” their programs to identify serious criminal offenders. Other jurisdictions operate a “universal” model, designed to identify as many unauthorized immigrants as possible, regardless of criminal history. These universal models were concentrated in the Southeast of the United States.
- MPI also found that the 287(g) program can be a tool for localities pursuing anti-immigrant agendas. Sheriffs, who are generally elected officials, can use the program to meet political goals and respond to community pressure to “crack down” on immigration. In southeastern states, where the “universal” model is prevalent, the immigrant population grew rapidly in the 1990s and 2000s, causing backlash and putting pressure on elected officials to reduce unauthorized immigration.
- Studies from the University of North Carolina at Chapel Hill found that 287(g) agreements in the state were primarily used to target offenders who posed no threat to public safety or individuals with no criminal record. In that state, a large share of individuals arrested by 287(g) officers in Gaston, Mecklenburg, and Alamance counties were arrested for traffic violations, such as driving without a license and speeding. Overall, 33 percent of individuals detained through the 287(g) program were charged with traffic violations; in Gaston County the figure rose to 57 percent.
- The availability of resources and detention space also determines how the 287(g) program is utilized. A large detention capacity allows for more resources to be spent on individuals who are not high-priority criminals.
287(g) Agreements Have Resulted in Widespread Racial Profiling
- An investigation by the Department of Justice concluded that the Maricopa County Sheriff’s Office in Arizona engaged in a pattern and practice of constitutional violations, including racial profiling of Latinos, after entering a 287(g) agreement. For example, the investigation found that deputies of Sheriff Joe Arpaio routinely conducted “sweeps” in Latino neighborhoods, and that Latino drivers in certain parts of Maricopa County were up to nine times more likely to be stopped than non-Latino drivers.
- A separate Justice Department investigation concluded that the Alamance County Sheriff’s Office in North Carolina engaged in a pattern and practice of constitutional violations by unlawfully detaining and arresting Latinos. The investigation found that the sheriff’s deputies set up checkpoints at entrances to Latino neighborhoods; that Latino drivers were up to ten times more likely to be stopped than non-Latino drivers; and that Latino drivers were often arrested for traffic violations for which non-Latino drivers received only citations.
287(g) Agreements Can Be Expensive for Localities
- In February 2017, Sheriff Ed Gonzalez announced that Harris County, Texas, would terminate its 287(g) agreement, saying that the decision was a resource allocation issue. The sheriff said he would put the $675,000 the county spent on the program toward improving clearance rates of major crimes and other priorities.
- A report by the University of North Carolina at Chapel Hill found that the first year of operating the 287(g) program in Mecklenburg County, North Carolina, cost a total of $5.3 million. Meanwhile, the first full year of operation in the state’s Alamance County cost $4.8 million.
- A study by the Brookings Institution found that Prince William County, Virginia, had to raise property taxes and take money from its “rainy day” fund to implement its 287(g) program. The report found the program cost $6.4 million in its first year and would cost $26 million over five years.To cut costs, the county slashed $3.1 million from its budget—money that was intended to buy video cameras for police cars to protect against allegations of racial profiling.
- Before DHS revoked its 287(g) agreement with Maricopa County, Arizona, Sheriff Joe Arpaio’s office created a $1.3 million deficit in just three months, much of it due to overtime.
ICE Does Not Provide Sufficient Guidance, Direction, or Supervision
- A March 2010 report by the DHS Office of Inspector General (OIG) found that ICE and its local law enforcement partners had not complied with the terms of their 287(g) agreements; that the standards by which deputized officers were evaluated contradicted the stated objectives of the 287(g) program; that the program was poorly supervised by ICE; and that additional oversight was necessary.
- A January 2009 Government Accountability Office (GAO) report found that ICE had failed to articulate the 287(g) program’s objectives and had not consistently communicated to local partners how to use their 287(g) authority. While ICE officials stated that the purpose of the program is to address serious crime, such as narcotics smuggling, ICE has never documented this objective. As a result, local police have used their 287(g) authority to detain and deport immigrants for traffic violations and other minor crimes.
- According to the DHS OIG, ICE did not plan adequately before approving new 287(g) participants. In September 2018, the OIG reported that law enforcement trainings were inefficient and that ICE was not monitoring officers through the completion of the required training. Although the participating local enforcement agencies were expected to function under ICE supervision, the program managers were stretched thin while assigned to oversee several jurisdictions spread over thousands of miles. This poor planning hindered ICE’s ability to adequately manage, oversee, and educate participating agencies in enforcing immigration laws correctly.
287(g) Agreements Threaten Community Safety and Hinder Community Policing
- The Police Executive Research Forum interviewed Maricopa County law enforcement executives who stated that by enforcing federal immigration law, the sheriff’s office damaged the relationship between law enforcement and the Latino community.
- A study by the University of North Carolina School of Law and the American Civil Liberties Union of North Carolina (ACLU-NC) found that “287(g) encourages, or at the very least tolerates, racial profiling and baseless stereotyping, resulting in the harassment of local residents and the isolation of an increasingly marginalized community.”
- The Major Cities Chiefs Association (MCCA), a group of police chiefs from the 64 largest police departments in the United States and Canada, found that “without assurances that contact with the police would not result in purely civil immigration enforcement action, the hard won trust, communication and cooperation from the immigrant community would disappear.”
What counties have signed an agreement with ICE under this program?
The Immigration Legal Resource Center has a map that as the moment of writing this article, was updated on November 2020.
The tool lets you see in the map the counties that have a current agreement with ICE and also understant when the contract was signed. The map also shows where programs have been terminated.
Other resources about the program
Changes to the 287(g) Program
ICE has changed the standard language for 287(g) agreements. This resource highlights and explains the most significant changes and provides a line by line comparison of old and new contracts.
287(g) FOIA Documents
Collected documents relating to 287(g) from a national FOIA to ICE, including emails about joining the 287(g) program, applications, and interest level of various communities across the country.
