Biden's DHS Violates a Legal Agreement on 287(g) while Trying to Release Criminal Aliens

An arbitrary decision made in an unlawful manner

By Jon Feere on May 25, 2021

The Biden administration has announced that it is ending a cooperative agreement between U.S. Immigration and Custom Enforcement (ICE) and the Bristol County Sheriff’s Office in Massachusetts. This partnership was formed under the crime-reducing 287(g) program, created by Congress, which allows ICE to train state and local law enforcement to help identify criminal illegal aliens that are in their jails. Through this program, local law enforcement has transferred countless criminal aliens into federal custody for a quarter of a century, improving the safety of our communities. As of May 2021, ICE has 287(g) agreements with 147 law enforcement agencies across 26 states.

U.S. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas offered no analysis as to why he has ordered ICE to end the 287(g) agreement with Bristol County. It appears that the political appointees at DHS targeted this 287(g) agreement without any discussion with subject-matter experts or officers in ICE’s 287(g) Unit. Had they done so, Biden’s staff would have learned that they were about to make an apparently arbitrary and capricious decision that is in violation of a memorandum of agreement (MOA) and a reckless threat to public safety.

Sen. Elizabeth Warren (D-Mass.) and nearly all of her colleagues in the Massachusetts delegation appear to be responsible for pressuring the Biden administration and DHS to end the Bristol County 287(g) agreement. A letter they sent to Secretary Mayorkas contains no evidence that the county is operating its 287(g) agreement improperly, and no real justification for ending the partnership. According to government reports published by ICE, the Bristol County 287(g) partnership has been successful and has recently led to the identification of individuals arrested for sex assaults on children, strangulation, arson, attempted murder, armed carjacking, and breaking and entering, to name a few crimes.

The relevant portion of Warren’s letter reads as follows:

We also understand that the Trump Administration might have taken steps to make it more difficult to terminate 287(g) Memoranda of Agreement, and that this is the case for the 287(g) Memorandum of Agreement with the Bristol County Sheriff’s Office. We urge you to investigate the legality of the Trump Administration’s efforts (as is consistent with President Biden’s executive order of “a full review of the previous administration’s harmful and counterproductive immigration policies, basically across the board”), to seek to terminate the 287(g) Memorandum of Agreement with the Bristol County Sheriff’s Office as quickly as possible, and to prohibit the transfer of any other detainees into the facility while the 287(g) Memorandum of Agreement remains in force.

It’s fair to say that ICE made it more difficult to arbitrarily end a 287(g) agreement, and that’s an important standard for any government action. If an administration acts in an arbitrary and capricious manner, it opens itself to litigation. The MOAs that Warren and her colleagues are referencing are jointly signed by ICE and the state/local law enforcement agency, and the terms of the MOA provide a rationale and process should the federal government choose to end a partnership. The Biden administration’s decision to cancel the Bristol County agreement appears to be not only arbitrary, but also in violation of the terms of the MOA itself.

DHS Has Acted Arbitrarily. There was an important rationale behind laying out the processes for a temporary suspension of a MOA and the processes for a termination of a MOA. The rationale was to provide law enforcement agencies that partner with ICE complete transparency and expectations on how and why a MOA might be ended by the federal government. Entering into a 287(g) partnership is not something that law enforcement agencies take lightly and a lot of work goes into it. For example, ICE requires all 287(g) partners to meet certain standards and make any necessary adjustments to their own policies and practices as a prerequisite; local and state partners are required to send their staff to the Federal Law Enforcement Training Center (FLETC) in Charleston, S.C., where they undergo weeks of training; often, the local or state partners have to make technological upgrades and install new hardware; the partners subject themselves to increased scrutiny and oversight; the partners' lawyers work with ICE lawyers to develop the MOA to ensure that it meets all of ICE’s legal requirements and those in the partner jurisdiction.

After the MOA is operational, the partner is expected to conduct itself according to the terms of the MOA and consistent with practices learned during the many weeks of training. The partner is required to fill out forms, properly maintain and update databases, and work closely with its federal partners on a daily basis on cases that can oftentimes be very complicated.

In developing these MOAs, it was concluded by ICE leadership that any law enforcement agency that partners with ICE, and is willing to invest time and money do to so, must be given some certainty that the government will not arbitrarily pull out of a MOA on a whim. This is important to ensure that a partner’s investment of time, money, and resources is not wasted, and also to create some certainty and stability so that other law enforcement agencies that have not yet become 287(g) partners might conclude that entering into their own MOA with the federal government is a worthwhile endeavor.

In the past, under the Obama administration, the government pulled out of dozens of 287(g) agreements with no articulable rationale and no serious process. While at ICE, I reviewed minutes from past meetings on 287(g) to see how the agency and DHS evaluated agreements with existing partners; what I found raised serious enough questions about how decisions were sometimes made that ICE leadership felt compelled to ensure some standards were worked into the MOAs. For example, in 2015 when evaluating an existing 287(g) agreement with Jackson County (Texas) Sheriff A.J. Louderback, an official from DHS’s Civil Rights and Civil Liberties (CRCL) office voted against maintaining the agreement because the sheriff noted during a radio interview with National Public Radio that he felt the Obama administration’s immigration enforcement policies were harmful to public safety. The four-minute radio interview is available here and it’s just as calm a conversation as you would expect from NPR. But CRCL’s position was that a sheriff should not be allowed to continue with a 287(g) partnership if that sheriff isn’t sufficiently promoting the White House’s political agenda.

That type of decision-making, which is clearly not based on any law enforcement or public safety rationale, appears to have come back into fashion. The Bristol County Sheriff’s Office has been a 287(g) partner for many years and has assisted with the identification of countless criminal aliens. DHS has not indicated that there are any problems with the 287(g) in Bristol County, but even if there were, the MOA directs ICE and the sheriff to correct them.

DHS Has Violated the MOA. The terms of the MOA between ICE and the Bristol County Sheriff’s Office spell out the steps the federal government must take if an agreement is to be suspended and also the process for fully terminating the agreement. The MOA is clear that the government can suspend the agreement only where there is “serious misconduct or violations of the terms of the MOA”.

The 287(g) program was created by Congress a quarter of a century ago and has become a fixture of immigration enforcement. ICE naturally anticipates maintaining these cooperative partnerships and the MOAs are written to reflect that reality. Because these partnerships have helped remove large numbers of dangerous individuals from our communities and are valued by ICE enforcement officials, the terms of the MOA are aimed at protecting the program as a whole by allowing ICE to temporarily suspend an agreement if the head of ICE’s Enforcement and Removal Operations (ERO) becomes aware of serious misconduct or violations, recommends a temporary suspension to the ICE director, and the director agrees. The goal is to ensure that one rotten apple doesn’t spoil the entire program.

If the director elects to suspend an agreement, ICE must provide a notice to the law enforcement agency explaining the reason for the suspension, the length of the suspension, and an explanation of how the agency can provide ICE with information regarding the alleged misconduct or violations and evidence of any corrective measures the agency has taken. The law enforcement agency is to be provided a reasonable opportunity to respond and take corrective measures, which might be as simple as taking certain officers off of 287(g) duties. Here’s how it’s explained in the MOA:

In instances where serious misconduct or violations of the terms of the MOA come to the attention of ICE, the ICE Director may, upon recommendation of the Executive Associate Director for Enforcement and Removal Operations, elect to immediately suspend the MOA pending investigation of the misconduct and/or violations.

Notice of the suspension will be provided to the LEA, and the notice will include, at a minimum, (1) an overview of the reason(s) that ICE is suspending the 287(g) agreement, (2) the length of the temporary suspension, and (3) how the LEA can provide ICE with information regarding the alleged misconduct and/or violations, as well as any corrective measures it has undertaken.

ICE shall provide the LEA with a reasonable opportunity to respond to the alleged misconduct and/or violations and to take actions to implement corrective measures (e.g., replace the officer(s) who are the focus of the allegations). ICE will provide the LEA timely notice of a suspension being extended or vacated.

As per the terms of the MOA, the federal government “will generally not terminate an agreement” unless there are “problems that are unresolvable and detrimental” to the program. If the federal government reaches that threshold, it can move from suspension to termination. This two-step process was proposed by the ICE director as a means to provide partners a process that is reasoned, based on specific facts, and protected from arbitrary decision-making.

If a partnership is to be terminated, ICE must provide the law enforcement agency a 90-day notice and also post that notice on ICE’s website 90 days in advance of the MOA’s termination. The notice must contain an overview of the reasons for the termination, all available data on the total number of aliens identified under the 287(g) agreement, and examples of egregious criminal aliens identified through the partnership. Here’s how it’s explained in the MOA:

If the LEA is working to take corrective measures, ICE will generally not terminate an agreement. The termination of an agreement is generally reserved in instances involving problems that are unresolvable and detrimental to the 287(g) Program.

If ICE decides to move from suspension to termination, ICE will provide the LEA a 90-day notice in advance of the partnership being terminated. The notice will include, at a minimum: (1) An overview of the reason(s) that ICE seeks to terminate the 287(g) agreement; (2) All available data on the total number of aliens identified under the 287(g) agreement; and (3) Examples of egregious criminal aliens identified under the 287(g) agreement. ICE's decision to terminate a MOA will be published on ICE's website 90 days in advance of the MOA's termination.

The Biden administration has not met any of these requirements, violating the terms of the MOA, and harming transparency in the process. The public-facing list of MOAs with all 287(g) partners was quietly edited on May 20, 2021, and the Bristol County agreement was scrubbed. The agreement now appears on an archive page maintained by ICE.

ICE has a responsibility to its law enforcement partners and must treat them with respect and professionalism. The Biden administration has terminated the Bristol County 287(g) agreement without any apparent rationale and has made this arbitrary decision while acting in an unlawful manner.