The 287(g) Program: State and Local Immigration Enforcement

The 287(g) Program: State and Local Immigration Enforcement

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August 12, 2021
The 287(g) Program: State and Local Immigration Enforcement
Section 287(g) of the Immigration and Nationality Act
oversight requirements that help determine which model is
(INA), codified in 8 U.S.C. §1357(g), permits the
the best fit for a specific locality.
delegation of certain immigration enforcement functions to
The JEM, implemented in 2005, allows certain trained and
state and local law enforcement agencies. Agreements
authorized state and local law enforcement officers to
entered pursuant to INA §287(g) (commonly referred to as
perform specific immigration enforcement functions, as
§287(g) agreements) enable specially trained state or local
outlined in their MOA. These LEA-affiliated Designated
officers to perform specific functions relating to the
Immigration Officers (DIOs) must complete a four-week
investigation, apprehension, or detention of noncitizens
training program in Charleston, SC, and a one-week
during a predetermined time frame and under federal
refresher training every two years. After the four-week
oversight by the Department of Homeland Security’s
(DHS’s)
training, they are authorized to identify noncitizens already
Immigration and Customs Enforcement (ICE).
arrested and booked into the LEA facility who have
Although §287(g) agreements were authorized as part of the
criminal convictions or pending criminal charges. They are
1996 Illegal Immigration Reform and Immigrant
to identify these removable noncitizens by interviewing
Responsibility Act (P.L. 104-208, Division C, IIRIRA), the
them and screening their biographic information against
first §287(g) agreement was implemented in 2002 after the
DHS databases. They can then issue detainers, serve
law was given new urgency following the terrorist attacks
warrants, and prepare documents for removal proceedings.
on September 11, 2001. The number of state and local law
The WSO model, first implemented in 2019, is narrower in
enforcement agencies (LEAs) with §287(g) agreements
scope than the JEM. WSOs are limited to executing
increased to 72 in 2011 before declining to 35 by the end of
administrative warrants for civil immigration violations to
the Obama Administration. In 2017, President Trump
designated noncitizens incarcerated in their LEA facility
issued Executive Orders 13767 and 13768 directing
who have already been identified by ICE as being
executive agencies to encourage maximum participation of
potentially removable. They do not interview individuals
LEAs in the 287(g) program. During the Trump
regarding their citizenship and removability. They undergo
Administration, from January 2017 until September 2020,
one day of training, either at a local site or online. The
the number of LEAs with §287(g) agreements increased by
WSO program is suitable for jurisdictions that lack the
more than 300%, from 35 to 150.
budget or personnel needed to participate in the JEM
Memorandum of Agreement
program or whose ability to cooperate with ICE is limited
by state or local policies.
To participate in the program, LEAs must contact their
local ICE Enforcement and Removals Office (ERO) and
Each model provides different benefits to ICE. JEM
apply. They are to be evaluated on their available resources,
participants are seen as a force multiplier that taps into LEA
their record on civil rights and liberties, and their capacity
personnel to increase ICE’s ability to identify and process
to be a force multiplier (e.g., ICE reviews data to see the
removable noncitizens. WSO participants reduce the time
likelihood of the LEA encountering potentially removable
ICE deportation officers spend traveling to serve warrants
individuals). They must sign a Memorandum of Agreement
by giving that authority to local officers.
(MOA) that defines the scope and terms of the partnership,
including training requirements, supervision requirements,
There are two previously used but now discontinued models
delegation of authority, and duration of the agreement. The
for the 287(g) program: the Task Force Model and the
agreement can be terminated by either party at any time.
Hybrid Model. The Task Force Model allowed DIOs who
After it expires, there is no legal obligation to renew it.
encountered suspected noncitizens in the course of their
daily activities to question and arrest individuals they
While each MOA is individually negotiated between ICE
believe violated immigration law. DIOs were able to issue
and the LEA, there has been an effort to standardize and
ICE detainers, arrest warrants, and search warrants, as well
improve these agreements. In 2009, ICE created a new
as inquire into individuals’ immigration status. The Hybrid
MOA template and renegotiated all existing MOAs. In
Model combined the JEM and Task Force Models. The
2013 and 2016, the template was revised to increase
Obama Administration announced that it would discontinue
oversight and better align with current ICE polices .
the Task Force Model and, thus, the Hybrid Model; the last
of these agreements expired on December 31, 2012.
§287(g) Models
Currently there are two types or models of §287(g)
Funding
agreements for which a locality can apply: the Jail
The 287(g) program is jointly funded by the federal
Enforcement Model (JEM) and the Warrant Service Officer
government and participating state and local governments.
(WSO) model. These models have different resource and
Federal funds cover the cost of training LEA officers, IT
infrastructure, program management, and oversight. Figure
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The 287(g) Program: State and Local Immigration Enforcement
1 shows federal funding appropriated for the 287(g)
ICE has no formal oversight mechanism for WSO
program, which decreased in FY2014 after the
participants, including no policies for ICE field officers’
discontinuation of the Task Force and Hybrid Models in
supervision, no inspections, and no procedures to ensure
FY2013.
MOA compliance. ICE field officers’ primary form of
WSO oversight is ensuring that warrants are signed.
State and local governments pay for other expenses, such as
officer salaries and overtime utilized during training and/or
Program Expansion
while performing duties under an MOA. Localities also pay
ICE sets an annual target number of LEAs to join the
for administrative supplies, security equipment, and
287(g) program but does not strategically recruit based on
training-related expenses. Some LEA expenses related to
the location or type of LEA. As the program is voluntary,
detention can possibly be reimbursed by the federal
the LEA decides whether to apply to the JEM or WSO
government through the State Criminal Alien Assistance
model; ICE does not as sess the number and mix of JEM
Program (SCAAP). Some LEAs consider the 287(g)
and WSO participants that would be most helpful to them.
program to be too costly and do not participate, do not
renew their agreements, or have terminated them early.
A 2021 GAO report concluded that ICE should recruit more
strategically to better leverage its limited resources and
Figure 1. Appropriations for the 287(g) Program
maximize the program’s benefits. A 2018 DHS Office of
Inspector General report found that ICE approved new
applicants without preparing for the increased need for
program management staff, IT infrastructure installation,
and monitoring of DIO training completion. This resulted in
an increase in violations of MOAs and ICE policy, as
reported in OPR inspections.
Racial Profiling and Community Policing
Past Department of Justice investigations determined that
certain localities that had §287(g) agreements with ICE
engaged in racial profiling, including conducting “sweeps”
in Latino neighborhoods and unlawfully detaining and
arresting Latinos. Those §287(g) agreements were
subsequently terminated, which is in line with ICE’s policy
that “if any proof of racial profiling is uncovered, that

specific officer or department will have their authority
Source: Department of Homeland Security, 287(g) End-of-Year
and/or agreement rescinded.”
Report, June 24, 2020.
Notes: FY2006 was the first year this program received federal
The Police Executive Research Forum, as well as the North
appropriations.
Carolina School of Law in conjunction with the American
Civil Liberties Union of North Carolina, have also
Agency Oversight
conducted studies of the 287(g) program. They concluded
Oversight varies depending on the program model. The
that the program may threaten state and local law
enforcement’s relationship with immigrant communities
JEM model has three oversight mechanisms administered
.
by ICE: field supervisors, biennial inspections, and
The Major Cities Chiefs Association found that “without
complaint resolution. JEM participants are overseen by an
assurances that contact with the police would not result in
ICE 287(g) program field supervisor that answers DIOs’
purely civil immigration enforcement action, the hard-won
questions and addresses related issues. Field supervisors
trust, communication and cooperation from the immigrant
community would disappear.” T
monitor MOA compliance by conducting site visits,
here may be a connection
between this program and the rise in “sanctuary”
meeting with LEA management to discuss program
operations, and tracking DIOs’ training completion. They
jurisdictions (for more information, see CRS In Focus
also review and sign certain documents, such as detainers,
IF11438, “Sanctuary” Jurisdictions: Policy Overview).
warrants of arrest, and warrants of removal. ICE’s 287(g)
Issues for Congress
Inspections Unit, within the Office of Professional
Responsibility (OPR), is to conduct biennial inspections of
The 287(g) program garners interest from supporters who
JEM agency participants to ensure compliance with MOAs
want to sustain or expand the program and opponents who
and ICE policies, and assess the field office’s oversight and
want to curtail or abolish it. Before the rapid growth of the
support of the LEA. Finally, ICE monitors participating
§287(g) agreements starting in 2017, legislative proposals
LEAs through a complaint reporting and resolution process.
generally sought to bolster the program; however, given its
expansion and the current concerns about law enforcement-
ICE can suspend a §287(g) agreement at any time due to
community relations, some lawmakers have shown interest
the LEA’s noncompliance with the MOA. ICE can also
in bounding or even abolishing the program.
suspend or revoke the 287(g) authorization of an individual
officer due to misconduct (whether or not it occurred during
Abigail F. Kolker, Analyst in Immigration Policy
287(g)-related duties), complaints against them, or not
completing training requirements.
IF11898
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The 287(g) Program: State and Local Immigration Enforcement

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https://crsreports.congress.gov | IF11898 · VERSION 1 · NEW