The following appendix to the map of State Laws on Immigration Enforcement provides further details on the 20 individual policy choices we analyzed in comparing the various state laws. These are listed and explained below, grouped into five generalized categories:
I. Information and Resource Sharing with DHS
II. Jail to ICE Transfers
III. Patrol Officer Collusion with ICE/CBP
IV. Contracts with ICE or CBP
V. State Criminalization Laws
This appendix reflects the comparisons and analyses we were able to draw across states, but does not capture all of the measures that states have enacted with regard to immigration enforcement. We focused on the most common factors and policy choices and those we thought carry significant impact in the lives of residents of those states.
I. Information and Resource Sharing with DHS
A. Immigration status checks
Immigration status is not a criminal matter and is generally beyond the purview of local law enforcement. Nevertheless, police and sheriffs often ask people, particularly non-white people, about their immigration status or place of birth. Some state laws (and many local policies) prohibit these inquiries, often as a baseline protection against racial profiling and discrimination. A few states specifically include restrictions on inquiring about place of birth, because this information is often used against immigrants. Other state laws have sought to require immigration status checks by local law enforcement, although the courts have imposed some limits to this under the Fourth Amendment.
Checking immigration status by local or state agents is deeply problematic for a number of reasons. To start, immigration status is extremely complex and only a legal expert should attempt to make such a determination. Further, such information is often thereafter shared with ICE, who may use it to try to deport that individual. Finally, such practices are frequently a result of illegal racial and ethnic profiling, and are the first step for local agents with animosity against immigrants to abuse their authority and detain the person for ICE.
B. Resources for immigration enforcement
Some states enact general policies to prohibit the use of state and local resources in assisting with immigration enforcement. These prohibitions often focus on preserving state and local resources for their own priorities and drawing a clear line between their agencies and federal immigration authorities. A broad prohibition on the use of resources can cover multiple agencies and issues without foreseeing every possible future action and specifically addressing them all. Anti-sanctuary policies often restrict localities’ ability to prohibit the use of local resources for immigration enforcement and/or try to essentially force localities to use their resources to carry out such enforcement.
C. Transparency
State statutes sometimes require transparency in how and why local and state agencies may be interacting with federal immigration authorities or using resources to facilitate immigration enforcement. Transparency laws allow the public to understand the scope of state and local involvement in the detention and deportation machine. This data may include details on law enforcement encounters where someone’s immigration status is asked; numbers of people transferred to federal immigration agents; race and other traits of people stopped, arrested, or added to gang databases; as well as documentation regarding requests and/or assistance provided to federal immigration agents. Data collection provides aggregate information for the public on the actual practices of law enforcement and may reveal many forms of discrimination. Simultaneously, documentation requirements can discourage negative behavior.
D. Infosharing
ICE regularly requests that local jails provide all kinds of information on the people in their custody, such as their place of birth, work or home address information, and when they will be released. Beyond the criminal legal system, ICE seeks access to other state and local databases and records, such as DMV records. Some states provide for confidentiality and protection of records or information collected by state and local government involving any personal or sensitive information, including information related to immigration status or criminal case status. Broad confidentiality policies can protect immigration information from being shared with ICE and used to find or deport residents. Sanctuary policies may also terminate ICE’s access to state and local databases that may have information that could be used to target and deport immigrants. This includes state databases like motor vehicle records, local criminal legal case management data systems, or systems of records collected by various local agencies. Protecting local information enables immigrants to feel safer sharing their information with local government. Furthermore, as databases and information sharing have become widespread, allowing ICE access to this information may undermine many of the other policy efforts discussed in this resource. Anti-sanctuary policies tend to do the opposite: requiring state and local databases to be open to ICE and/or limiting restrictions that locality can put in place on such information sharing. In particular, many state statutes replicate 8 U.S.C. § 1373, declaring that localities may not limit communicating with federal agencies about citizenship or immigration status.
E. Broad restrictions on sanctuary policies
Some states have more general policies prohibiting any of their localities from enacting or enforcing any sanctuary policies. These prohibitions undermine determinations made by local jurisdictions about how best to keep their communities safe and best use their resources. While several states proscribe specific types of sanctuary policies, some have sweeping bans that prohibit any kind of limitation on immigration enforcement.
II. Jail-to-ICE Transfers
A. ICE detainers
Over the last decade, ICE detainers (aka ICE holds) have fueled the highest numbers of deportations in American history. ICE uses detainers to ask local jails to hold immigrants even after they are supposed to be released under state law, so that ICE can take them into custody. ICE does not reimburse jails for the cost of this detention. Federal courts and even ICE have acknowledged that compliance with ICE holds is voluntary. Moreover, courts have ruled that detention on an ICE detainer is unconstitutional, that ICE holds are not enforceable warrants, and that they exceed ICE’s own legal authority as well as the authority of local agencies to detain someone.
Some sanctuary laws make clear that local law enforcement should not detain immigrants beyond when they should otherwise be released based on a detainer. Anti-sanctuary policies mandate compliance with detainers, or prevent localities from establishing any policy limiting responses to ICE detainers.. These laws require localities to accept ICE detainers and provide free holding cells for ICE, risking liability for unlawful detention, simply on the basis of a detainer request.
B. Notice of Release
An ICE detainer not only requests prolonged detention of a person, but advance notice to ICE of when that person will be released, so that ICE can be there to take custody. Especially where a county will not prolong detention based on ICE detainers, ICE wants local officials to provide ICE with advance notice when immigrants will be released from custody, so that ICE agents can be present and complete the transfer right at that time. The result is virtually the same as the ICE hold: a person is transferred directly from local custody to ICE, making the local jurisdiction an active accomplice to deportations. Like most other ways that county jails facilitate deportations, sharing residents’ information with ICE and notifying them of individuals’ cases contributes to the perception that any encounter with local law enforcement is a direct threat. Sanctuary policies limit whether jails can respond to detainers with information about release dates, while anti-sanctuary policies require that this information be shared.
C. ICE in jails
ICE agents physically work in many local jails. Jails may voluntarily provide them free office space or a dedicated workstation, access to the local jail databases, booking lists of all the individuals in custody, access to inmates for interrogations about their immigration status, and more. Some sanctuary policies prevent ICE access to jail databases or maintaining desks or offices of their own within the local jail.
D. Restriction of ICE interviews
ICE uses access to local jails to interrogate individuals about their immigration history, get admissions of lack of status, or coerce them into giving up their case. This is among the more harmful forms of assistance that jails offer, as immigrants and their information are exposed to ICE without any of the protections in the criminal legal system (i.e. no Miranda rights, no public defender, etc.) This kind of operational intertwinement further blurs the lines between local law enforcement and ICE and undermines immigrants’ access to equal treatment in the criminal legal system. Sanctuary policies either prohibit these interactions or limit them to situations where individuals have been given notice of their rights and consent to be interviewed by ICE. Anti-sanctuary policies often allow full access, with ICE officials sometimes not even announcing who they are or why they are there before interrogating someone.
III. Patrol Officer Collusion w/ ICE
A. Joint operations with ICE
Different law enforcement agencies frequently join together for specific projects or joint task forces, including DHD agents. Some sanctuary policies specifically prohibit local officers from participating in joint task forces with ICE. These provisions are important guidance to local officers that they should not be collaborating on immigration enforcement. Like directives not to inquire into immigration status, prohibitions on joint task forces can help to limit and discourage discrimination and profiling against immigrant communities. Anti-sanctuary policies sometimes require full cooperation with ICE task forces, and run the risk of conflating local law enforcement operations with deportation operations.
B. Probation/courts working with ICE
Probation and court officers sometimes report people to ICE or work with ICE to arrest people at their probation appointments or at court. Probation and parole departments supervise many people who have been released from criminal custody, often for years after the case was brought in court. When these agencies allow ICE to arrest people at their court or probation appointments, they are forcing immigrants to risk deportation in order to comply with the law. Some states have passed protections preventing probation departments from sharing appointment and other information with ICE. Some policies have also protected individuals attending court from a civil arrest at or on their way to a courthouse without a judicial warrant.
C. ID restrictions
Individuals must often present identification in interactions with local law enforcement, as well as to access services, etc. Some localities have created forms of identification that are more accessible to individuals who may have difficulty getting identification, including undocumented individuals. Consular identification is another form of identification that may be used in these situations. Anti-sanctuary policies often restrict the use of identification that is not “state-approved,” sometimes specifically naming consular identification or municipal IDs.
D. 287(g)
Under a 287(g) agreement, a local jurisdiction enters into an agreement with ICE to have some officers deputized with authority to enforce immigration laws. In practice, this means that local deputies will be responsible for interrogating people about their immigration history, investigating them in federal databases, issuing detainers, and referring people to ICE for removal proceedings. Predictably, the 287(g) program has been rife with issues of racial profiling and abuse of authority. 287(g) contracts are entirely voluntary and do not come with any reimbursement for the staff, time, or other resources the city and county spends doing ICE’s work. Various states have prohibited local agencies from joining 287(g) agreements. In contrast, some anti-sanctuary policies have banned localities passing these limits on 287(g) agreements, and a few have even tried to require localities to enter into 287(g) agreements.
IV. Contracts with ICE or CBP
A. Private prison contracts for ICE
ICE may enter into contracts with private prison corporations to jail immigrants who are facing deportation. Sometimes this is a three-way contract with a county/city and private facility, where the county or city will then subcontract with the private corporation. In other instances, ICE may enter into the contract directly with the private corporation. When private prison corporations are involved in the jailing of people, they prioritize profits over human lives. Some legislatures have explicitly ended or significantly restricted these contracts from operating in the state.
B. Public jail contracts for ICE
A public ICE detention contract, also called IGSA (Intergovernmental Service Agreement), is a contract between a local government and the federal government that allows ICE to rent bed space from local jails to detain immigrants in deportation proceedings. These contracts mean that local jails are literally profiting from the business of deportation, because ICE pays the jail money to keep an immigrant detained there. This can also create an incentive for the sheriff’s department to encourage arrests of immigrants who will then be turned over to ICE and held in that rented jail bed. Further, when a jail has contracted to enter into this type of business with ICE, ICE agents regularly enter the jail and there may be increased information-sharing with ICE regarding inmates not in ICE custody. These issues are not lost on the immigrant community, who see that their local officers work closely with ICE and that immigrants who come into contact with local police may be at risk. As a result, some state laws have explicitly ended or significantly restricted their jails from entering or expanding these contracts.
V. State Criminalization Laws
A. Crime of Illegal Entry or Reentry
Some states that have created new crimes of illegal entry into the state or illegal reentry into the state. These offenses, by definition, only apply to the behavior of immigrants and can only be committed by immigrants. An immigrant who enters, attempts to enter, or is found within the state after being denied admission to, or after being removed or deported from, the United States can thus be prosecuted in state courts. These crimes have been classified as misdemeanors, aggravated misdemeanors, or felonies with aggravating circumstances present (such as the new crime being committed after removal caused by certain types of felony convictions). This means that local police can arrest, prosecute, and imprison an undocumented immigrant simply for being present in the state, before or in addition to any enforcement of immigration laws by federal authorities. Currently these laws are enjoined in the courts, but the cases remain pending.
B. Crime of Unlawful Presence
Similar to unlawful entry or reentry, some states created new crimes of unlawful presence or impermissible occupation, which makes entering and remaining within a state without having legal authorization to enter the United States a misdemeanor or a felony. This means that local police can arrest and prosecute an undocumented immigrant simply for being present in the state, before or in addition to any enforcement of immigration laws by federal authorities. These laws are currently enjoined in the courts, but the cases remain pending.
C. State Deportation Order
Although immigration proceedings are federal, some states have created new procedures for state ordered deportations. In these regimes, a state judge (not an immigration judge) may offer an immigrant a form of voluntary deportation at an early stage in the criminal case, or may enter a mandatory state deportation order. These laws are currently enjoined in the courts, but the cases remain pending.
D. Crime of Refusal to Leave
States have made refusal to comply with a state deportation order a separate crime, to complement the creation of state deportation mechanisms. These laws are currently enjoined in the courts, but the cases remain pending.
E. Criminal Law Enhancements Against Immigrants
Some states have enacted enhancements to existing criminal statutes that specifically increase penalties on crimes related to immigration, and on offenses that are largely only enforced against immigrants. These laws reclassify existing misdemeanors or felonies to garner harsher penalties for conduct such as “smuggling persons” even though these charges are applied to people who are simply driving undocumented passengers. Other laws have added new definitions to the text, such as a new definition for “transnational crime organization” in the larger context of the commission of a crime in furtherance of such an organization. In extreme cases like Texas, enhancements of criminal law include lengthy mandatory minimum prison sentences.