Barnstable County Sheriff James Cummings presides over the only 287(g) agreement with U.S. Immigration and Customs Enforcement (ICE) left in New England. That could change after this fall’s election.
Cummings is retiring after 24 years in office. The two candidates seeking to replace him — Republican Tim Whelan and Democrat Donna Buckley — have opposite views on the ICE contract.
Whelan, an incumbent state representative from Brewster, says he would keep the agreement in place. “This is a tool by which we can keep Cape Codders safe,” he said.
Buckley, a former general counsel in the sheriff’s office who lives in Falmouth, is strongly opposed.
“The first thing I will do when I get elected,” Buckley said, “is cancel the agreement.”
ICE has 287(g) agreements with state and local law enforcement agencies in 135 counties across 24 states. These contracts began in 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act added Section 287(g) to the Immigration and Nationality Act. The agreements allow state and local agencies to act as outposts of ICE and enforce immigration law.
The agreement allows the sheriff to deputize department officers as ICE agents.
There are two kinds of 287(g) contracts, the warrant service officer (WSO) model and the jail enforcement model (JEM). Sheriff Cummings adopted the JEM, enabling local officers to report noncitizens with criminal convictions or pending criminal charges to ICE.
Even if Buckley is not elected in November, the county’s ICE agreement may not survive a pending lawsuit filed by Lawyers for Civil Rights in February. The suit comes on the heels of a previous action filed in December 2020 against the Plymouth County sheriff’s office, calling for an end to Plymouth’s 287(g) agreement.
The Plymouth County suit was filed by a coalition of 28 Mass. residents led by Juan Cofield, president of the New England conference of the National Association for the Advancement of Colored People (NAACP), who argued that the county was illegally spending state taxpayer money to carry out federal immigration law enforcement.
That suit was dropped when Plymouth County Sheriff Joseph McDonald Jr. ended the ICE contract in September 2021, citing management issues. In an interview with WATD Radio, McDonald said that the termination was not related to civil rights efforts to end detention of undocumented persons but rather to a lack of staffing, which he said hindered his officers in carrying out the agreement.
Cummings Is Sued
Lawyers for Civil Rights also filed suit against the Barnstable County sheriff’s dept. in February 2022 on the same premise: that there is nothing in the state constitution that permits such an agreement to spend tax dollars on immigration enforcement.
“The duties, powers, and authority of the sheriff are actually very tightly circumscribed,” said Oren Sellstrom, litigation director for Lawyers for Civil Rights. “So, it is clear that this power to enter into a federal immigration enforcement agreement is not one of those powers that sheriffs have in Massachusetts.”
The case, initially filed as a taxpayer action in Supreme Judicial Court, is currently pending in Barnstable Superior Court. While the litigants wait for a court date, there is a status conference scheduled for Aug. 12, during which both parties will discuss how the litigation will proceed.
The legal argument against 287(g) agreements includes complications that arise when local and federal law enforcement responsibilities overlap.
“The federal government has complete authority to decipher and enforce federal laws, and delegating that authority to a state entity is impermissible, based on the structure of the constitution,” said Phil Torrey, director of the Harvard Law School Crimmigration Clinic.
According to Torrey, many attorneys agree that federal agencies such as ICE contracting with local law enforcement to implement immigration law violates the constitutional principle that “requires state authorities to enforce state laws and federal authorities to enforce federal law.”
Sellstrom, of Lawyers for Civil Rights, agreed. “In addition to the waste of taxpayer dollars, 287(g) agreements entangle local law enforcement with federal immigration,” he said. “And that is both divisive and sows distrust within the community, all to the detriment of residents of the county.”
Rep. Whelan sees the collaboration between the two law enforcement authorities as beneficial. “It improves communication between federal and local law enforcement,” he said. “What kept coming out over and over again in the 9/11 Commission reports was that there were gaps in communication between different levels of law enforcement.”
Public Safety
Torrey attributed the rarity of 287(g) agreements across the country — only 4.5 percent of the nation’s 3,006 counties have them — to the disadvantages they entail for local law enforcement. The agreements cost money, and they can create distrust of local authorities, which undermines officers’ ability to do their jobs. Police depend on community trust for the reporting of crimes and testifying as witnesses at trial, Torrey said.
Whelan sees the agreement as a public safety measure. In an interview with the Independent, he listed some of the charges brought against immigrants who had been targeted as a result of the agreement. They included indecent assault and battery on a child under age 14, possession of a large capacity firearm, and domestic assault with intimidation of a witness.
“I don’t know that we are doing everything possible to keep Cape Codders safe if these people are being returned to the community,” he said.
Buckley disagrees. “The 287(g) agreements have nothing to do with public safety,” she said. “You can’t say Barnstable County is safer than anyplace else in the entire Commonwealth.”
To improve public safety, Buckley advocates spending taxpayer dollars on inmate programs designed to reduce recidivism. “Making sure that each inmate is provided while they are incarcerated with the tools and resources they need, whether that’s addiction treatment, mental health treatment, job training, housing assistance,” she said. “Those are the kinds of things that will make us safe because they will reduce recidivism.
“Objectively, 287(g) agreements detract from the sheriff’s core mission,” Buckley added. “It is inconsistent with everyplace else in the Commonwealth. It has nothing to do with public safety, and it’s a distraction and a waste of taxpayer dollars.”
Community support
The American Civil Liberties Union wasn’t directly involved in the lawsuits in Plymouth and Barnstable counties but it agrees that 287(g) agreements are unconstitutional.
“We don’t think our sheriff departments and their staff should be acting as federal immigration enforcement,” Olivia Santoro, community outreach strategist for the ACLU, told the Independent.
The ACLU of Massachusetts supports House and Senate bills H.2418 and S.1579, known as the Safe Communities Act. A version of each bill was first introduced in 2017.
“The spirit of that bill is to not use our local resources and tax dollars to do the job of federal immigration enforcement,” Santoro said. “And that applies to the 287(g) agreements.”
The Safe Communities Act would prevent law enforcement from “perform[ing] the functions of an immigration officer” and would require law enforcement officials to receive informed consent before conducting an interview or informal questioning of a person in custody. The bill states that “any agreements in existence at the time of the passage of the law that are inconsistent with this section are null and void.”
Sellstrom does not expect the Barnstable County lawsuit to be resolved before the sheriff’s election in November unless Sheriff Cummings’s office cancels the agreement on his own. “It really depends on if anything happens from the sheriff’s side between now and then,” Sellstrom said. “We are unlikely to get a final ruling from the court by November.”
Given that the results of the election will likely determine whether or not the county’s 287(g) agreement is terminated, Sellstrom emphasized the importance of understanding both candidates’ positions on the agreement.
“It is certainly an issue that is uniquely in the hands of the sheriff, so it is an issue that voters should be aware of,” Sellstrom said.
