Several aspects of the Biden administration’s immigration policy are currently being heard in the courts. In more than one case, state governments, due to xenophobia, for inter-party reasons, are demanding or appealing the federal government’s ability to administer the country’s immigration policy.
The 287(g) Program
One of the main aspects of this offensive, but also a demonstration of the difficulty of the current government to make everyone happy, is the validity of the ICE 287(g) program.
The name refers to the section with that number in the Immigration and Nationality Act part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
This program enables the Department of Homeland Security and law enforcement agencies to allow, under agreement, agents to identify, process, and detain suspected immigration offenders they find in their path.
Chief among these agencies are the Sheriff departments, that is, the county police, with broad authority and headed by a uniformed officer who is also a voter-elected politician.
ICE, Immigration and Customs Enforcement, calls 287(g) its “force multiplier.”
287(g) had its spring under the Trump administration. When he assumed the presidency, there were 34 agreements established by the Obama administration. By the time it was over, the number had increased fivefold to 152.
Biden changed little
Contrary to what he expressed during his election campaign, Biden has not voided federal contracts with Sheriff’s departments per ICE 287(g). In his first year in office, their number dropped by just 10, to 142.
To a large extent, the agreement serves the purposes of Immigration, as they are considered independently of national policy and given the right to establishi a regime of terror among the undocumented if the only criteria for apprehension and deportation is that the person is undocumented.
To stretch its tentacles and deport more people than it could by itself, ICE established a powerful network of alliances with Sheriff departments (also police departments) in counties across the country.
Participation in the program is voluntary. The Sheriffs decide if they want to take part in the program or not, depending on their political ideology.
During the four years of expansion of 287(g) in associassion with numerous Sheriff’s departments, they practiced a xenophobic and racist policy, particularly in the south.
Politicians in uniform, sheriffs have election campaigns, campaign equipment, fundraising, and while they may not run under a partisan banner, they run on behalf of or under the preference of one of the major political parties.
Among the Sheriff’s departments that signed a contract for the 287(g) program with the government, 92% are Republican Sheriffs: 122, against 8 Democrats.
License to commit abuse
A few months ago, the ACLU – the American Civil Liberties Union – published an investigation into the political space occupied by Sheriffs. Nearly six in 10 Sheriffs out of the 3,081 in the country have anti-immigrant rhetoric. More than half supported enduring inhumane federal policies towards immigrants such as those exercised during the presidency of Donald Trump (2017-2021). More than three quarters of them operate detention centers for undocumented immigrants, under subhuman conditions.
And nearly two-thirds have a record of racial profiling and other civil rights abuses.
“Xenophobia,” the authors write, “is at the very heart of the program” 287(g).
This translates into the fact that most of the Sheriff’s agents of the jurisdictions affiliated with the ICE program look for any excuse to detain who they suspect to be undocumented in order to get deportation.
They invent a crisis narrative
According to the ACLU report, Sheriff’s departments’ participation in the 287(g) program gives them a “license to commit abuse.”
After the advent of the Biden administration in January 2021, most Sheriffs participating in the 287(g) program worked in concert with other state and local officials to foster a crisis narrative on the southern border and demonize immigrants.
This activity is not limited to cooperation with the government, but includes independent political action that associates these sheriffs with the American extreme right.
Political Associates identified at least 17 sheriffs affiliated with FAIR, the American Federation for Immigration Reform, an anti-immigrant organization whose leaders according to the Southern Poverty Law Center “have ties to white supremacists and eugenicist groups.”
Regarding the individual actions of these Sheriffs, the typical example of an enemy of the immigrant community has been Joe Arpaio, who for 24 years reigned in Maricopa County, Arizona, until he lost his reelection in 2016. Arpaio dedicated resources and personnel to the persecution of immigrants, their accommodation in humiliating conditions and the dissemination of the treatment that he provided for those who committed the administrative violation -it is not a crime- of illegally crossing the border.
Some Examples of the Sheriffs’ Actions
According to the American Immigration Council:
Physical presence in the United States without proper authorization is a civil violation, rather than a criminal offense. This means that the Department of Homeland Security (DHS) can place a person in removal (deportation) proceedings and can require payment of a fine, but the federal government cannot charge the person with a criminal offense unless previously ordered deported and re-entered in violation of that deportation order.
The sheriff of Alamance County, North Carolina, demanded that his deputies “bring me some Mexicans.”
“This led to incidents like a Latinx man who was arrested and later deported for “providing the wrong crime scene address” after suffering a gunshot wound, or a Latinx woman whose three young children were left alone for eight hours on the side of the road at night after she was arrested and later deported for driving without a license,” explains the Latino Migration Project in a report.
Despite this, six years later the Trump administration renewed the contract with this Sheriff.
A Frederick, Maryland sheriff’s deputy pulled over Sara Medrano, according to him because she had a burnt out taillight on her vehicle. When she asked to speak in Spanish, he inquired about her immigration status and announced that he would call Immigration. After an hour when he couldn’t get the ICE agents to come, he let her go.
Sheriff Jim Pendergraph of Mecklenburg County, North Carolina, told Congress that ICE was “overwhelmed by the large numbers of undocumented immigrants he was sending to them.”
Johnston County Sheriff Steve Bizzell acknowledged that his goal in signing up for the 287(g) program was to reduce, if not eliminate, the immigrant population in his county, because “Mexicans” were “breeding like rabbits.”
In 2020, when the Biden administration tried to water down the program, Jackson County, Texas Sheriff A.J. Louderback tweeted: “Biden has more empathy for criminal aliens who have entered our country illegally than he does for the nation’s citizens and law enforcement officers!”
Sheriff Al Nienhuis of Hernando County, Florida, said on Facebook that:
“Today, EVERY town is a border town. The border is not only open to people who want a better life, it is open to ANYONE who wants to cross (Illegals from over 170 countries are frequently caught, NOT just from Central America)… If you are a violent criminal, member from a gang or terrorist, (crossing) is an EASY way into the United States…. But open borders are not acceptable…”
The most extreme
In Massachusetts’ Barnstable County, Sheriff James Cummings told a local news outlet that judges were too lenient in setting bond for immigrants and that he believed 287(g) gave him that authority over judges.
Thus, some Sheriffs, emboldened by the confrontational tone cultivated by Donald Trump, declared their absolute sovereignty and refused to obey federal orders with which they do not agree.
They make up 17% of the participating sheriffs in 287(g). They are those aligned with the so-called “patriot movement”, in particular, the Constitutional Sheriffs and Peace Officers Association (CSPOA).
The most vocal of these is the Milwaukee, Wisconsin, County Sheriff, David Clarke, an ally of Donald Trump and who fights for the Sheriff’s agencies to have immigration powers and be allowed to make deportation decisions.
CSPOA, created in 2011, promotes the flimsy and fringe legal theory that they and they alone have ultimate authority, independent of the state and federal governments, as the supreme arbiters of the law. Since 2020, 404 Sheriffs have declared themselves “constitutionalists.” Of these, 136 are still holding to their positions.
Along with FAIR, they incite Sheriffs to become right-wing activists, including against the most modest attempts at gun control, for which dozens of counties declared themselves “Second Amendment sanctuaries”.
Their participation may be marginal, but it is overtly political. In April 2021, dozens of Sheriffs sent a letter to President Biden urging him to “protect the border” from the “invasion of illegals.”
We see then that a fraction of the country’s police agencies – encapsulated in the county Sheriff’s agencies – aligns with the policies of the extreme right, finding the most direct way to exercise their positions in the indiscriminate apprehension of immigrants, through the participation in the 287(g) program.
At a time when our attention is focused on irregular and armed gangs like the Proud Boys, it is important to remember that the Sheriffs command many thousands of heavily armed troops and their operational capacity is vastly greater.
This article was supported in whole or in part by funds provided by the State of California, administered by the California State Library and the Latino Media Collaborative.
Founder and co-editor of Latino Los Angeles. Editor Emeritus of La Opinion, former Editor-in-Chief. Born in Buenos Aires, Argentina, is a journalist, columnist, blogger, poet, novelist, and short story writer. Was the editorial director of Huffington Post Voces. Editor-in-chief of the weekly Tiempo in Israel. Is the father of three grown children and lives with Celia and with Rosie, Almendra and Yinyit in Los Angeles.