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ICE

    IMMIGRANTS

    Legislation to Abolish 287(g) Agreements Gains Support

    The Safe Communities Act is a progressive priority, but ‘politics’ gets in the way

    By

    Barnstable County’s detention agreement with the Dept. of Homeland Security’s Immigration and Customs Enforcement (ICE) arm won’t expire. It’s in place permanently until either ICE or Barnstable Sheriff James Cummings takes steps to terminate it.

    That’s true even though during the 2020 presidential campaign, candidate Joe Biden pledged to end all 287(g) agreements. The Biden administration has yet to take action on that pledge.

    But state advocates and legislators are taking the case against 287(g)s into their own hands. Two bills on Beacon Hill this session attempt to address the three 287(g) agreements in the state. Two are with Barnstable and Plymouth counties; one is with the Mass. Dept. of Corrections. There are no other 287(g) agreements in New England.

    A 287(g) contract allows local law enforcement to receive training from ICE and then enforce federal immigration law in their community, in many cases effectively beginning the deportation process for ICE.

    While advocates for the 287(g)s say they reduce the number of criminals at large, those opposed question the reasoning behind the agreements. Between October 2009 and February 2020, more than half of the foreign nationals deported from Massachusetts had no criminal conviction, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University.

    One bill on Beacon Hill, the Safe Communities Act, “would ban those agreements outright,” said Amy Grunder, director of legislative affairs for the Mass. Immigration and Refugee Advocacy (MIRA) Coalition. The bill doesn’t change anything about policing, she said, it just stops “those extra things” local law enforcement does for ICE.

    The second bill would end the use of state and local money for 287(g) agreements, “which means, basically, that they go away,” said Grunder. That’s because the 287(g) statute prohibits the use of federal money. Per the agreement, Barnstable County covers any costs associated with processing or holding inmates, or carrying out any of the other duties folded within the 287(g).

    Although the Safe Communities Act has repeatedly died in the state legislature and been refiled the following year, “every time it fares better,” said Grunder. “Generally, what we’ve been told is that it takes 8 to 10 years for a bill to get passed.”

    Many of the 287(g) contracts have been around for a long time, Grunder said. The focus of the Trump administration on immigration meant that more people paid attention to the work of immigration advocates than had paid attention during Democratic administrations. That meant that, over the last few sessions, the bill got further along each time. It helped when the Mass. Medical Society, along with some other organizations, endorsed the bill.

    The Safe Communities Act gathered extra support when it was identified by the Mass. Progressive Caucus as one of the four pieces of priority legislation for this year.

    The caucus wants Massachusetts to be a “welcoming state” for immigrants, said caucus chair Rep. Tricia Farley-Bouvier. Although the bill was nominated by caucus members as one that’s progressive and has a shot at passing, some members are concerned that it’s politically fraught, said Rep. Farley-Bouvier. “The issue is politics,” she said.

    The next step for the bill is for it to be “referred out,” meaning it goes to the House Ways and Means Committee, said Grunder. From there, it will go to the floor for a vote only if it’s expected to pass. “We’re trying to get our numbers up” to the necessary 107,” said Grunder, and “we’re cautiously optimistic — it does seem that there’s openness to the bill on behalf of the legislature.”

    Rep. Sarah Peake of Provincetown, a member of the House speaker’s leadership team, did not return calls asking whether she will support the bill.

    Tom Ryan is chair of the Migrant and Refugee Committee of the Cape Cod Council of Churches, which brings together three key groups concerned with immigration rights: lawyers, advocates, and leaders of the immigrant communities themselves.

    Ryan said he understands politics can lead to change. But he’s more interested in the way morality works. “The spirit of justice has everything to do with equity and is bound up with morality,” Ryan said. “Justice is that right-ordering of human relations.”

    COLD CASE

    Sheriff Cummings’s Contract With ICE Is Renewed Again

    Data show the program affects Jamaican men disproportionately

    By

    Last summer, at the end of the fiscal year, Barnstable County Sheriff James Cummings’s detention agreement with the Dept. of Homeland Security lapsed. He renewed it.

    But this year, the contract bringing the county into DHS’s 287(g) program — which allows for selected officers to act as ICE agents — carried through June 30 without any effort on the sheriff’s part.

    In fact, that agreement could now continue indefinitely because of changes made by the Trump administration in October 2020. Now, the 287(g) contracts end only if they are terminated by either the county or DHS.

    Barnstable County’s 287(g) dates to 2017, when Cummings became one of just three Mass. sheriffs to enter into this type of agreement with Immigration and Customs Enforcement (ICE), an arm of DHS. (The other counties with ICE agreements at the time were Bristol and Plymouth, though Bristol’s was terminated in May 2021 after allegations of mistreatment of detainees at the jail in Dartmouth.)

    The contract enables local authorities to enforce federal immigration law by interviewing people about their immigration status, checking DHS databases, entering data into ICE’s database, making recommendations for detention, and detaining individuals so as to place them in ICE custody.

    At the sheriff’s jail, the work of those deputized “is mostly key punches,” said Cummings in a phone interview on July 13. Four members of his staff have been trained by ICE, and their work involving the 287(g) “squeezes into their regular tour of duty,” he said.

    The four deputies enter information into ICE’s database during normal workdays, he said — no overtime is required, he added. The county’s 287(g) is the so-called Jail Enforcement version of the program.

    The effect of that deskwork, said Cummings, has to do with public safety. “I don’t want to be the one to release somebody from the correctional facility here,” he said, “and have them go back to Provincetown and kill somebody or commit a serious crime.”

    The real effects of the program are unclear. Some say that 287(g) programs have not resulted in an increase in the number of deportations by ICE. “To my sadness, there were many, many deportations during the time of President Obama,” said Tom Ryan of Eastham, chair of the Migrant and Refugee Committee of the Cape Cod Council of Churches. “And there were many, many deportations during the time of President Trump.”

    Ryan said he hasn’t observed an increase in deportations since the Barnstable County 287(g) was signed.

    Nationwide statistics bear that out. Although 287(g) agreements still exist in 148 jurisdictions, only 6 percent of ICE arrests in fiscal 2018 came from 287(g) jails, according to the TRAC Immigration Report, a research initiative at Syracuse University.

    That low number reflects the fact that a 287(g) doesn’t give ICE access to information it wouldn’t otherwise have, explained Amy Grunder, director of legislative affairs for the Mass. Immigrant and Refugee Advocacy (MIRA) Coalition. When a person is arrested, Grunder said, the suspect’s fingerprints are entered in a database to which ICE and the FBI both have access. The 287(g) is, she said, “duplicating what the federal government already does.”

    Sheriff Cummings reports the demographics of and charges against those his office refers to ICE each month. That information, posted on the sheriff’s website, shows Barnstable County’s 287(g) disproportionately affects Jamaican men, according to a recent analysis by the Cape Cod Coalition for Safe Communities, which advocates for immigrants’ rights.

    The analysis, which was obtained by the Independent, shows that of 262 people the sheriff’s website listed as reported to ICE from January 2018 through May 2021, 117 were from Africa and the Caribbean; 79 from Mexico, Central America, and South America; 46 from Europe; 16 from Asia; and 3 from Canada.

    The largest group of immigrants on Cape Cod is Brazilian — by a large margin, said Ryan, whose estimates of different groups’ populations here are based on his work with local churches. “It’s an open question” why Jamaicans are the most affected, said Ryan.

    Cummings said the information about individuals posted on his site is mislabeled “Barnstable County Inmates Referred to ICE.” Instead, he said, what is posted there is information about any foreign-born person sent to his department by the courts, and it’s made public to demonstrate that the 287(g) creates only minimal work for his department.

    The sheriff’s website states that, under the 287(g), the “following Barnstable County Correctional Facility inmates have been identified as likely residing in the United States without authorization and the BCSO has provided information on these individuals to ICE for further action.”

    That’s not correct, said Cummings. “Just because they’re on that website doesn’t necessarily mean that they’re reported to ICE,” he said. “Some of those folks are actually citizens.”

    With the former administration’s rule change, the future of Barnstable County’s 287(g) is dependent on Sheriff Cummings and ICE continuing to engage with each other — but not entirely so. The Mass. legislature could intervene. One bill on the docket for this session is the Safe Communities Act, which has been filed unsuccessfully in the past. This year, advocates are “cautiously optimistic,” said Grunder of the MIRA Coalition.

    The bill, she said, would not change policing, but it would stop “those extra things” the sheriff’s officers are doing for ICE. This time, Grunder added, “It does seem that there’s openness to the bill on behalf of the legislature.”

    Massachusetts is the only state in New England engaged in 287(g) contracts. One is between ICE and the Mass. Dept. of Corrections. Only four other departments of corrections in the country are engaged in 287(g)s: those in Florida, Georgia, Alaska, and Arizona.

    IMMIGRATION

    Efforts Mount to End Sheriff’s Deal With ICE

    Lawmakers and civil rights lawyers work to scrap 287(g) agreements

    By

    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.”

    Pushback

    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.”

    IMMIGRATION & COVID

    Immigrants at Risk, yet Left Behind

    Undocumented communities find little support in a time of crisis

    By

    The Mass. Dept. of Public Health reports that people of color are disproportionately affected by coronavirus, with Latinos and blacks accounting for 23 and 18 percent of Covid-19 cases despite making up only 12 and 9 percent of the state’s population respectively.

    While detailed statistics for Barnstable County are not yet available, it’s clear that immigrants and undocumented people are especially vulnerable. With less access to safety nets and working essential jobs that are impossible to do remotely, immigrants are generally at higher risk of becoming infected, according to the Washington Post.

    Rallying support for immigrants is proving difficult. Driving Families Forward is a coalition working to pass state legislation to allow anyone, regardless of immigration status, to apply for a driver’s license. The Outer Cape’s Sen. Julian Cyr and Rep. Sarah Peake are both sponsors. But not much is happening now.

    Many immigrants without drivers’ licenses opt to take public transit or carpool, potentially putting themselves at risk. Marginalized communities are receiving too little attention during the pandemic, said Natalicia Tracey, co-chair of the coalition. “We’re concerned that the most vulnerable communities are being made the last priority again.”

    In overcrowded Immigration and Customs Enforcement (ICE) detention centers, maintaining social distancing is impossible. As Vox recently reported, detainees at the Bristol County ICE facility claimed they were put in solitary confinement without medical treatment after exhibiting symptoms and lacked basic essentials like soap and toilet paper.

    Dr. Roger Shapiro, an infectious disease researcher at Harvard Medical School, said that decreasing the number of people in ICE detention centers is critical to limiting the spread of the virus.

    “We need to keep people safe first and foremost,” Shapiro told the Independent. “Detention centers are places where the virus could spread quite easily.” An outbreak in an ICE detention facility would spread through officers, affecting public health beyond the facility.

    Despite these concerns, the Barnstable County Sheriff’s Office is still referring detainees to ICE.

    Special Sheriff Jeff Perry told the Independent that the county’s relationship with ICE has remained unchanged since the pandemic began: officers continue to refer inmates without legal status to ICE.

    The sheriff’s office referred 102 people to ICE in 2019, up from 79 in 2018. A total of just 15 were referred to ICE in all of 2016 and 2017, before Sherriff James Cummings secured one of the few 287(g) ICE collaboration agreements in New England.

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