Sheriffs Fear Broad Limits on Collusion with ICE. Advocates for Immigrants Hope They’re Right.

At first glance, New York’s new law banning formal agreements between US Immigration and Customs Enforcement and local police and sheriffs directly impacts only a small number of the state’s 500-plus law enforcement agencies. Just 12 agencies had what are known as 287(g) agreements, which formalize cooperation, and seven have housed detainees for ICE in recent years. 

But in late August, 15 sheriffs — only a third of whom participated in those programs — sued over the law, arguing that it could have far broader consequences. Their lawsuit claims that the law could upend “routine informal practices, formal written agreements, and federal funding streams that both supported and depended upon local-federal cooperation” on immigration enforcement. 

The sheriffs point to language in the legislation that prohibits certain “formal or informal” agreements between New York police and ICE. While 287(g) and detention agreements are clearly “formal,” the law doesn’t define an “informal agreement.”

The sheriffs’ attorney, Mateo Forero, is the director of investigations at the restrictionist organization Federation for American Immigration Reform. He told New York Focus they  are concerned that the new Office of Immigrant Trust inside the Attorney General’s Office could interpret its mandate expansively to investigate agencies that have never held formal agreements with ICE.

“They’ve basically become the policemen of the sheriffs,” he said of the Office of Immigrant Trust.

Some attorneys who advocate for immigrants’ rights in New York hope he is right. They told New York Focus that the law’s failure to define an informal agreement could be an opportunity. 

“Once we saw this language, we knew immediately that the lack of definition just meant that we had to be extremely proactive and affirmative about articulating all the ways that informal collusion happens,” said Yasmine Farhang, executive director of the Immigrant Defense Project. 

Farhang’s organization has prepared advice for attorneys on what kind of informal agreement could be reported to the attorney general. 

“Anything that feels regularized, in our mind, should be investigated under this law,” Farhang said. 

New York Focus has reported on sheriffs calling Border Patrol for translation services, which then led to arrests, as well as municipalities detaining immigrants after traffic stops and then holding them for ICE. 

During this year’s legislative session, legal aid and advocacy organizations pushed for much more sweeping restrictions on collaboration between ICE and local police through a bill called New York For All. It would have prohibited police from sharing any information with ICE for the purposes of civil immigration enforcement. Though it had broad support in the legislature, Governor Kathy Hochul refused to back it, arguing that it could hamper collaboration on criminal investigations, too. 

It wasn’t until the end of the session that the text of the compromise legislation became public, and the detailed discussion of what it prohibits has emerged only recently as localities implement the law and the Office of Immigrant Trust staffs up. All but one New York county that had a 287(g) agreement with ICE has now ended it and the counties detaining immigrants must stop doing so by late November. 

Legal experts told New York Focus the new law is confusing because it refers specifically to formal or informal agreements that fall under the federal law that governs the 287(g) program. But there’s no mention of “informal agreements” within that federal law.

“There’s either a formal agreement or there’s no agreement,” said Lauren DesRosiers, an assistant professor at Albany Law School and director of the school’s Immigration Law Clinic. “I just don’t know what this really means.”

Ultimately, attorneys on all sides of the issue said, courts will likely define “informal agreement” through litigation, perhaps if the attorney general sues a law enforcement agency over some aspect of their interactions with ICE. 

The sheriffs’ lawsuit and supporting declarations detail the many ways local law enforcement interact with federal agencies on immigration-related matters. 

The sheriffs describe receiving funds from the State Criminal Alien Assistance Program, through which the Department of Justice reimburses local and state governments for incarcerating undocumented immigrants convicted of crimes, and through Operation Stonegarden, which pays local law enforcement to work with Border Patrol. They argue that the federal government could withhold that money if New York law enforcement has to stop cooperating with ICE, leaving a revenue gap local taxpayers would have to fill.  

Sharing information with federal agencies is a key part of their work, the sheriffs explain. Patrick Engle, the sheriff of St. Lawrence County, said that his border county agency regularly deals with trespass complaints and immigrants passing through rural property.

“I do not claim that every person who crosses the river is a violent criminal,” Engle wrote in his declaration. “I do claim that a border county cannot do its job if it is forbidden from using the federal tools that exist for the people who are already in our custody.”

In response to the sheriffs’ lawsuit, the New York attorney general’s office has argued that restricting 287(g) agreements is well within the rights of state policymakers; the federal law establishing the program stipulates that any agreement must be consistent with state law. The office also pointed out that a federal judge already rejected the Trump administration’s challenge to the law on similar grounds. 

That judge, Mae D’Agostino in the Northern District of New York, is also reviewing the sheriffs’ lawsuit. It’s unclear when she might rule on their motion to halt the new law. 

In the meantime, the attorney general’s office has moved assertively to enforce it. The interim leader of the Office of Immigrant Trust, Zoe Levine, previously worked as legal director of the immigration practice at the Bronx Defenders, one of the legal aid organizations that advocated for New York For All. 

In announcing the office, Attorney General Letitia James also called on New York residents to report violations of law. 

The AG’s office already sued the Rensselaer County Sheriff’s Office for refusing  to comply with its order to end 287(g) agreements. Rensselaer Sheriff Kyle Bourgault, who is also a plaintiff in the suit, told New York Focus that the agreement had enabled his county to smoothly transfer people with criminal history to ICE custody, and that he believes New York’s new law is unconstitutional.

“I think it was an intimidation thing, to try to get me to cave,” he said of the AG’s lawsuit, which was filed two days after he and the other sheriffs sued.  

Several of the agencies that had 287(g) agreements or housed detainees for ICE did not join the lawsuit. 

One of those is Montgomery County, where the jail brought in close to $200,000 by detaining people on civil immigration charges for ICE in the last two years, records obtained by New York Focus show. 

Sheriff Jeffery Smith said his decision to stay out of the lawsuit has drawn questions from constituents who “wanted to make sure that we were doing everything we can to make sure they’re not living amongst us,” referring to undocumented immigrants. Smith told New York Focus that he supported his fellow sheriffs who chose to sue, but didn’t think that route was the right choice for his county.

“It’s difficult to pick and choose which laws you’re going to enforce as a sheriff,” he said. “I’m a firm believer that we don’t make the laws, we enforce them. But I also don’t support a lot of the way this has taken place, so I applaud them for having the courage to address that.”