The Invisible Border

For the last thirteen years, immigrants booked in Prince William County, Virginia, have had to worry about more than posting bail. There was always the possibility that even after coming up with enough money to secure their release, they’d remain locked up so that the sheriff’s office could hand them over to Immigration and Customs Enforcement. The jail board’s collaboration with federal immigration authorities has long been a point of contention for Prince William County’s rapidly growing immigrant community—and just last month, after a decade of public outcry, officials finally decided to end the county’s contract with ICE.

One day before that decision and one thousand three hundred miles away, commissioners in Tarrant County, Texas, voted to renew the county’s contract with ICE, despite opposition from dozens of residents who testified—in person, in the middle of a pandemic—against the extension. “My students should not have to live in fear that families will be ripped apart and they will be left to fend for themselves because their parent or guardian was pulled over for a minor traffic violation that then result[ed] in their arrest,” Felicia Hernandez, a teacher, told the five commissioners. Not enough of them were swayed. In a 3–2 vote, the panel decided to extend Tarrant County’s three-year-old agreement with ICE. Public pressure may have weakened the agency’s reach in suburban Virginia, but it wasn’t enough to change things in Fort Worth.

Similar debates over cops’ collaboration with ICE have played out across the country over the last four years. Activists say these cooperation contracts, known as 287(g) agreements, separate families via deportations and erode immigrant communities’ trust in law enforcement. Meanwhile, local officials eager to cast all unauthorized immigrants as hardened criminals claim the program keeps their communities safe. Sometimes the decision of whether to collaborate with ICE comes down to a single person: the county sheriff. In 2018, voters in North Carolina elected a spate of insurgent Black sheriffs who campaigned on reducing cooperation with ICE. Some North Carolina counties ended their 287(g) agreements, but this isn’t necessarily characteristic. Rockwall County, Texas, entered into a new 287(g) agreement that same year. “The 287(g) program is a critical partnership,” an ICE official said at the time. “This helps us identify aliens in county jails who we wouldn’t have been able to identify before.”

Immigration law is federal. There’s a single set of legal provisions—sprawling and opaque—that regulate immigration. Immigration law is also civil. Migrants can face criminal charges for entering the country without authorization or using a fake Social Security number to work, but deportation cases don’t come down to a question of innocence versus guilt: an immigrant can be found guilty of a crime and spared from deportation by an immigration judge, or they can be cleared of all charges and deported anyway. Practically speaking, though, where and whether an immigrant comes into contact with the criminal punishment system can affect whether they’ll be able to stay in the United States or be deported. And although immigration judges ultimately decide the fate of immigrants in removal proceedings, local law enforcement departments like the Rockwall County Sheriff’s Office often put immigrants in those proceedings in the first place.

Under 287(g), specially trained sheriff’s deputies can ask anyone booked into the Rockwall County Jail whether they’re U.S. citizens or have permission to be in the United States; the deputies can flag potential non-citizens for ICE, which can in turn request that the jail hold them even after they’ve posted bond. (These requests are known as “ICE detainers.”) ICE also issues detainer requests to local sheriff’s offices and police departments that don’t participate in 287(g), many of which comply anyway, and the agency has taken to publicly shaming jurisdictions that don’t honor the detainer requests. In the view of ICE and its allies, counties that refuse to hold people so ICE can pick them up—a practice that, according to some federal judges, violates the Fourth Amendment—are enabling crimes like rape and murder.

Ultimately, 287(g) gives every county sheriff the power to turn his deputies into more boots on the ground for ICE.

But in reality, most of the people ICE tries to arrest via detainers are in jail because of minor offenses. In Georgia and Maryland, for example, local police and sheriff’s deputies often pulled over suspected immigrants for traffic violations and arrested them for driving without a license, a 2011 report by the Migration Policy Institute found. According to federal data analyzed by researchers at Syracuse University, the most common conviction found on detainers issued between October 2011 and January 2013 was driving under the influence. Almost half of all detainers were issued for people who had no recorded conviction at all. Once immigrants are taken into criminal custody for any reason, they can end up on ICE’s radar.

Nearly one hundred jurisdictions participated in 287(g) as of June 2020, according to the American Immigration Council. Sixty-five of them cooperate with ICE through its Warrant Service Officer program, which launched in 2019 and gives local law enforcement offices the “flexibility to make immigration arrests.” A previous 287(g) program known as the “task force” model let local cops make immigration arrests in the field; it was phased out in 2012 due to concerns over racial profiling.

Ultimately, 287(g) gives every county sheriff the power to turn his deputies into more boots on the ground for ICE. But that doesn’t mean immigrants in jurisdictions that have opted out of the program are shielded from deportation. In his first week in office, Trump revived the Bush-era Secure Communities program, which automatically sends data on every single arrest made in the country to federal immigration authorities. (The Obama administration both expanded and ultimately ended this program.) Like 287(g), Secure Communities has put immigrants arrested for minor offenses on ICE’s radar. Every time a non-citizen is arrested for any reason, be it hopping a subway turnstile or smoking a joint in public, ICE can find them—even if they live in a sanctuary city, even if they’ve never been arrested before, and even if they’re ultimately cleared of all charges. For undocumented immigrants in particular, any criminal charge, no matter how mundane, can trigger a deportation case. If local officers refuse to detain immigrants for ICE, the agency will put considerable resources into tracking them down, using a combination of surveillance technology and social media spying to find its targets. It may take more work on ICE’s part, but once the agency has someone’s name, fingerprints, and address, arresting an undocumented immigrant is a matter of catching them in the right place at the right time.

ICE may no longer be able to rely on roving bands of sheriff’s deputies to arrest people for merely looking like immigrants—whatever that means—but it doesn’t really need to either. The jail model is just as effective as the since-abandoned task force model. It mostly functions out of sight and ensnares a group of people already cordoned off as inferior: those with criminal charges. The stakes are particularly high for Black immigrants, for whom racist policing practices mean that even the most banal interaction with a cop can lead not only to deportation, but death. According to a 2016 report by the Black Alliance for Just Immigration and the NYU Law School Immigrants Rights Clinic, Black immigrants make up about 5.4 percent of the total non-citizen population, but more than one-fifth of immigrants facing deportation on criminal grounds are Black.

Once an immigrant is charged with a crime—regardless of the circumstances, and regardless of whether they’re eventually convicted—ICE and its allies can claim their presence in the United States is a threat to public safety. In the administration’s eyes, every immigrant is already a criminal alien, or at the very least, a regular alien waiting to commit a criminal act. Even Obama, who deported more immigrants than any of his predecessors, wasn’t above implying that while there are some good immigrants, there are plenty of bad ones who need to be rooted out. “Felons, not families,” he said in a 2014 speech, announcing ICE’s new enforcement priorities. “Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day.”

Those distinctions meant little to the sheriff’s deputies in Georgia who pulled immigrants over for traffic infractions only to arrest them for driving without a license. They mean even less now that every immigrant has a target on their back.

Immigration enforcement, especially under the Trump administration, thrives on spectacle: the chaos at airports after the Muslim ban came down, the family separation crisis at the border, the ICE raids in Mississippi chicken plants that left dozens of kids alone at the beginning of the school year. But 287(g)’s success lies in its ability to operate out of sight. It’s not a raid; it’s just paperwork.