Barnstable County Sheriff James Cummings continues to defend his partnership with U.S. Immigration and Customs Enforcement (ICE) as political and legal moves to overturn the controversial agreements, which deputize local officers as federal agents, gather momentum at the state and national levels.
Within days of taking office in 2017, former President Donald Trump issued an executive order to build up the partnerships, known as 287(g) agreements, as part of his high-profile crackdown on undocumented immigrants. As a result, the number of participating sheriffs more than doubled. Cummings, one of only three sheriffs in New England to sign on, joined in late 2017.
The decision was Cummings’s alone to make. County sheriffs are elected to six-year terms, and they have the power to make unilateral decisions. They answer only to the public at the ballot box. Cummings is currently serving his fourth six-year term, which goes through 2022.
In December, the Lawyers for Civil Rights-Boston filed suit in the Mass. Supreme Judicial Court against the Plymouth County Sheriff Joseph MacDonald, who also signed a 287(g). It asks the court to nullify the agreements that allow the sheriff’s office to arrest, interrogate, and transport undocumented immigrants, arguing sheriffs don’t have the authority under state law to enforce federal immigration law.
Sheriffs and their staff are state employees, the lawyers argue, and should not be spending money enforcing federal law.
The suit was filed on behalf of 28 taxpayers including Juan Cofield, president of the New England chapter of the NAACP. In a statement, Cofield said, “It’s time we stand together as a Commonwealth to protect our communities and to stop illegal expenditures grounded in racism, bigotry, and xenophobia.”
“If we win in court, the ruling would apply to all the sheriffs in the state,” said Oren Nimni, a staff attorney for Lawyers for Civil Rights.
Legislation Awaits Action
The state legislature could eliminate the 287(g) agreements under the proposed Safe Communities Act, which it failed to act on by the January close of the last legislative session. It was recently refiled for the current session, with state Rep. Sarah Peake of Provincetown as one of its co-sponsors.
“I strongly believed state resources should not be used to subsidize federal programs,” Peake said in an email. “More importantly, everyone in this nation is entitled to all of the rights and protections of the U.S. Constitution. This includes due process and the presumption of innocence. ICE detainees are afforded neither.”
While President Joe Biden has expressed interest in improving conditions for immigrants, Laura Rotolo, staff counsel for immigrant rights for the American Civil Liberties Union of Mass., said the state doesn’t have to wait for federal action.
The Safe Communities Act would end the agreements,” Rotolo said. “Last session it was delayed due to Covid. This is the year to pass it.”
Concern about the 287(g) program is nationwide. Mass. Democrats Ayanna Pressley, James P. McGovern, and Seth Moulton were among 60 U.S. House members who sent a letter to the newly appointed secretary of the Dept. of Homeland Security in February calling for the termination of the program and the use of ICE detainers.
“Law enforcement leaders across the country have urged that immigration enforcement should be solely a federal responsibility, particularly in light of strained local budgets and resources,” the House members said. “It is time to discard these broken programs of yesteryear.”
What Is a 287(g)?
The 287(g) program became law as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It authorizes the director of ICE to enter agreements with state and local law enforcement agencies that permit designated officers to perform limited immigration law enforcement functions.
Four such officers are deputized in the Barnstable County Sheriff’s Dept. Under the program, officers undergo four weeks of training at the ICE academy in Charleston, S.C. As deputies, they can interrogate prisoners in their jails about their immigration status, scour Dept. of Homeland Security databases for information on those inmates, hold a suspected person for 48 hours after the scheduled time of release from jail so that ICE can assume custody, enter data on an individual into the DHS database, and issue a document called a Notice to Appear that starts the deportation process.
Even those who have been found not guilty, or who have served their sentences and are eligible for release, can be turned over to federal authorities under the program.
County budgets pick up personnel expenses, including salaries and benefits, and overtime.
Proponents like Cummings argue that the program enhances public safety. Over the last three years, Cummings’s mantra has been that the program is important because it can help prevent the release of a dangerous criminal back into the community.
But at a public meeting on the 287(g) program in Bourne in February 2019, Acting ICE Field Office Director Todd Lyons contradicted many of Cummings’s assertions about the program, and told a reporter who asked how the enforcement of federal immigration laws in Barnstable County was different after the signing of the 287(g) agreement, “It’s the same.”
“We have been advocating for elimination of these contracts for a very long time,” said ACLU attorney Rotolo. “It’s time for us to join other states in New England and stop these agreements.”
When Sheriff Cummings applied for the ICE partnership, he was supported by the Barnstable County commissioners. But Brian O’Malley, Provincetown’s member of the county Assembly of Delegates, proposed a resolution opposing the sheriff’s application. It failed.
“Clearly, this was a federal incursion that was not invited,” O’Malley said this week. “My perspective was there had been no public input whatsoever. We knew we couldn’t stop it. My point in the resolution was to allow for a discussion.”
O’Malley said most of the people who attended hearings on the subject were opposed to the sheriff’s application.
The sheriff’s agreement makes a difference on the Cape, which relies heavily on foreign workers during the tourist season, O’Malley said. “This is the kind of thing that will cause people to keep clear.”
Being undocumented is not a criminal offense. It’s a civil infraction. Under the 287(g) agreement, “the sheriff is allowed to hang onto somebody after their legal troubles are resolved,” O’Malley said. “What happens is they are handed over to a process that is administrative, not judicial.”
In an email, Cummings said the pushback against his participation in the 287(g) program “is from a small group…. I have received strong support for the 287(g) program even from people who would not say anything publicly who have whispered to me ‘You’re doing the right thing.’ Unfortunately what should be a public safety issue has become a political issue.”
Mark Gabriele, former chair of the Cape Cod Coalition for Safe Communities, said the fact that only three of the state’s 14 sheriffs signed on with ICE “illustrates it’s not necessary.”
A Supreme Judicial Court judge ruled in 2017 that it was illegal for state and local authorities to hold someone beyond the time they would have been entitled to be released solely on the basis of a federal civil immigration detainer. But recent changes to 287(g) agreements offer a work-around.
The ability to hold an individual is achieved through a federal immigration warrant and arrest, which can be done by the ICE-trained deputies in local law enforcement agencies.
“The agreement with the new language is what our sheriff signed in March 2020,” Gabriele said. “In the contract is the definition of what federal custody is. The contract stipulates that if an inmate is in custody of a 287(g) officer, that’s federal custody.”
Opponents say the program serves only to divide communities and generate fear among immigrant populations.
State Sen. Julian Cyr of Truro pointed out that most of the towns in his district have designated themselves as sanctuaries, resolving not to use local law enforcement resources to check or report immigration status of those they encounter during a routine interaction.
“Local law enforcement, including the sheriff, should be in the business of building trust in the communities they serve and protect,” said Cyr, “not deputizing for enforcement of failed immigration policy.”