Immigration into the United States is a current social and political issue. More than two million noncitizens legally immigrated to the United States in 2022 alone, using different legal pathways with different types of legal documentation. Also, tens of millions of noncitizens visit the United States every year for a wide variety of reasons, carrying various identification and legal entry documents.
The United States Constitution, Article I, section 8, gives Congress power to establish a uniform rule of naturalization and to make all laws that are “necessary and proper” for executing that power. Also, the United States has inherent powers as a sovereign nation to regulate immigration. Additionally, because immigration policy has wide-ranging effects in areas such as trade, tourism, and diplomatic relations, the United States needs to be able to act as one country in these matters, not as 50 individual state sovereigns. For these reasons, the United States Supreme Court has ruled that the federal government has broad, almost exclusive control over immigration and the status of noncitizens.
However, there are many ways that state and local law enforcement agencies may become involved in enforcing federal immigration laws.
One of these ways is through “Section 287(g)” programs. These programs are operated by Immigrations Customs and Enforcement (ICE) at the request of state and local law enforcement agencies.
There are three distinct models:
- Jail Enforcement Model. ICE partners with state and local law enforcement agencies to provide training to officers at those agencies. ICE also provides special equipment at those agencies’ jail facilities. When a state or local law enforcement officer arrests an individual, trained officers help identify whether the suspect may have violated immigration laws so the suspect can be placed into immigration proceedings at the time of release from state or local custody.
- Task Force Model. State and local law enforcement personnel are trained, certified, and empowered by ICE to perform specific immigration functions, under ICE oversight. These functions can include making arrests, serving warrants, conducting interrogations, taking custody of arrested aliens, and completing processing of aliens. This model acts as a “force multiplier,” where these officers help ICE while executing their daily law enforcement duties.
- Warrant Service Officer. ICE’s Enforcement and Removal Operations partners with state and local law enforcement agencies. After providing training to the state and local law enforcement officers, ICE gives these officers legal authority to serve and execute administrative warrants on aliens these agencies have in their jails.
Another way that state and local law enforcement may become involved with immigration is when these agencies take a suspect into custody, and the suspect is a noncitizen who may be subject to removal from the United States. In those circumstances, authorities within the Department of Homeland Security (for example, border patrol agents, special agents, deportation officers, immigration inspectors, adjudications officers, and immigration enforcement agents) can ask the law enforcement agency to notify the Department before releasing the suspect. This way, the Department can arrange to take custody of the suspect at the time of release. If the state or local law enforcement agency was not otherwise planning to hold the suspect in its custody, the Department can issue a Temporary Detention detainer, which orders the state or local law enforcement agency to hold the suspect for a maximum of forty-eight hours to give the Department an opportunity to take custody of the suspect.
The Department issues detainers after it has developed probable cause to believe a noncitizen is removable—typically, due to being convicted of one or more crimes and posing a public safety or national security threat. Issuing a detainer prevents the release of a possibly dangerous individual into the community and avoids the danger to the community inherent in re-arresting a suspect who is at large.
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