Plymouth County Sheriff Joseph McDonald announced last Friday that he was ending his 287(g) agreement with ICE — the U.S. Immigration and Customs Enforcement agency. This marked the second 287(g) to be terminated in Massachusetts this year. In May, the Dept. of Homeland Security, under which ICE operates, severed all ties with Bristol County Sheriff Thomas Hodgson after finding evidence of systemic abuse in his facility, revoking both his 287(g) and detention agreements.
The controversial 287(g) pacts empower local law enforcement officers to act as ICE agents, allowing them to begin prosecuting noncitizens for immigration offenses, with the ability to arrest, interrogate, and transport immigrants and take care of all the paperwork involved.
In an interview on his decision to withdraw, Sheriff McDonald said the program was difficult to manage and had very little effect: of 5,540 people taken into custody in the last 18 months, only five were repatriated. He also clarified an important point, which is that most immigration offenses (such as overstaying a visa) are civil and not criminal matters. It wasn’t worth his while to continue, he concluded.
There might have been more to it than just that, though.
Last December, two nonprofit advocacy groups, Lawyers for Civil Rights and Rights Behind Bars, filed a suit challenging the legality of Massachusetts sheriffs opting into these programs with ICE. According to the brief, nothing in our state constitution, statutes, nor common law grants sheriffs the power to enter such agreements as state actors using taxpayer dollars. In this innovative filing, the plaintiffs were ordinary people — property owners who pay those taxes.
The Plymouth County Sheriff’s Office filed a motion to dismiss the suit. Last month, Superior Court Judge Daniel J. O’Shea ruled against it, finding the case had enough merit to proceed. Sheriffs’ power, the judge wrote, “neither explicitly nor implicitly includes the authority to enter into 287(g) agreements.”
This came on the heels of another blow to the program in July, when Gov. Charlie Baker signed the final state budget. It included the “287(g) transparency amendment,” which requires sheriffs’ departments to make full accounting of expenditures relating to their 287(g) and detention agreements with ICE — quarterly and retroactively. Previously, sheriffs were under no obligation to keep track of the associated costs. Significantly, the amendment passed unanimously in the House, signaling a major change on Beacon Hill regarding immigrants’ rights.
So, staffing and resources may not have been the only things motivating McDonald’s change of heart. Regardless, his withdrawal from the program leaves James Cummings as the last sheriff in Massachusetts with a 287(g). At the beginning of this year, three southeastern Mass. counties had them. But with 14 sheriffs in the state, Hodgson, McDonald, and Cummings were already a small minority — and even smaller considering that Massachusetts was the only state in New England with these ICE agreements.
Our concerns about this program have only increased since Sheriff Cummings originally volunteered to participate in 2017. First, the terms of the current memorandum of agreement with ICE are even worse than in the original, thanks to changes made in 2020 by the outgoing Trump administration — changes that make it even easier to abuse the formidable powers they bestow. Second, as reported in the July 15 Provincetown Independent, here on the Cape the program disproportionately affects black men, especially those from Jamaica. This conclusion was drawn from public information posted by the sheriff’s office on its own website starting in 2018. After the Independent’s article appeared, Cummings’s office discontinued its monthly posting of ICE referrals.
On Monday, Lawyers for Civil Rights sent a letter to Sheriff Cummings demanding that he end his 287(g). More than 1,400 citizens have signed a petition with the same demand. Like the plaintiffs in the Plymouth case, we’re just ordinary folks sick and tired of seeing immigrants being used as scapegoats and whipping posts.
Mark Gabriele is a member of the Cape Cod Coalition for Safe Communities.