Assumption of Risk: Legal Liabilities for Local Governments That Choose to Enforce Federal Immigration Laws

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Basic Ordering Agreements are only the latest in a long history of efforts by the federal government, particularly Immigration and Customs Enforcement (ICE), to enlist local law enforcement to serve as force multipliers in the detention and deportation of immigrants.

Much attention has been paid of late to ā€œdetainersā€ā€”a piece of administrative paperwork used by U.S. Immigration and Customs Enforcement (ICE). The document has become highly politicized and the subject of numerous policy pronouncements under the Trump administration. A detainer is a document ICE provides to a local law enforcement agency requesting that agency to notify ICE when a particular person in criminal custody is set to be released. This administration and others before it transformed detainers, without congressional authority, into an unprecedented tool to co-opt local law enforcement into making new civil arrests of persons in custody and keeping them in jail for up to 48 hours after state authority expired and they would otherwise have been released.

Local law enforcement agencies willing to undertake a new arrest on the basis of an ICE detainer face enormous liability risks because of the illegalities inherent in these actions. Quite simply, ICE is asking local law enforcement to break the law.

This report: 1) outlines the constitutional and legal framework governing ICEā€™s detainer requests to law enforcement agencies to engage in arrests and detention for civil immigration purposes; 2) places ICEā€™s recent and current detainer practices in historical context; 3) outlines the legally defective ways this and previous administrations have attempted to package these practices, including: the Secure Communities Program, the Priority Enforcement Program, the March 2017 detainer policy, the ā€œGualtieri memoā€ proposing the 287(g) program and detention contracts as work-arounds, and the use of ā€œBasic Ordering Agreementsā€; and 4) discusses the non-legal consequences of local law enforcement officers acting as immigration agents.

Read the full report.