President Trump's plan for mass deportations depends on the cooperation of local police and jails. A few states, including California and Washington, limit local cooperation with Immigration and Customs Enforcement, or ICE. Other states, like Florida, Georgia, and North Carolina, require it. But in most of the country, it's a local decision, and it's not an easy one.
Republicans say local jurisdictions are obliged to help ICE.
"You'll be held accountable," Rep. Clay Higgins of Louisiana warned the mayors of four cities with "sanctuary" laws, during a House Oversight Committee hearing two weeks ago.
"One of you said you'd be willing to go to jail," Higgins said. "We might give you that opportunity."
Another Republican, Rep. Anna Paulina Luna of Florida, said she would refer the mayors to the Justice Department for harboring illegal immigrants.
But Democrats on the same committee warned the mayors not to help ICE in the wrong way. Pennsylvania Rep. Summer Lee focused on ICE requests to local jails to hold certain inmates for an extra two days so federal agents can come pick them up.
"That's 48 hours beyond the lawful detention. To be clear, that is illegal," Lee said.
Two counties, two approaches on New York's Long Island
Some localities have been sued for honoring ICE "detainers" – administrative warrants asking a jail to hold criminal defendants beyond their normal release date, to give federal agents time to pick them up on immigration charges.
"It was a little surprising, because all we were doing is honoring a warrant, like we would do for any other jurisdiction," says Suffolk County, NY Sheriff Errol Toulon Jr. about the class action lawsuit against his department. It was brought by approximately 650 people who'd been held on ICE detainers between 2014 and 2018. In January, a federal judge handed down a $60 million judgment against the county.
Toulon says the county will appeal, but will no longer honor non-judicial warrants from ICE.
"I do think that we need to tread lightly because the taxpayers can't afford more litigation and more judgements," Toulon says.
While the question hasn't been litigated all the way to the U.S. Supreme Court, several lower courts have found that local authorities don't have the authority to hold someone based on an administrative warrant signed only by an ICE employee.
"There is a review that is required under the Fifth Amendment of that custody," says Kate Evans, director of Duke Law School's Immigration Rights Clinic. "And that's not present in the context of ICE detainers. There is no judicial official that is reviewing whether or not there's probable cause for the immigration violation."
ICE itself still has authority to arrest people on immigration charges, and that opens the door to a different approach to getting help from local police.
"We are going to cross-designate and embed Nassau County police detectives with ICE," Nassau County Executive Bruce Blakeman announced in a press conference in February. His was the first large jurisdiction to embrace a revival of the "task force" model of cooperation with ICE, something that had been abandoned during the Obama administration.
Nassau County Police Commissioner Patrick Ryder said he was signing up 10 of his detectives.
"Those 10 detectives have the same power as ICE, working with ICE, sworn in as ICE agents," he said. Those police detectives would focus only on suspected criminals, he said, but they could still arrest people solely on immigration charges.
"If there are people in those target enforcements that are illegally in that house with that MS-13 gang banger and their name is checked, yes, we will be detaining them along with ICE," he said.
New York isn't a sanctuary state, but former Gov. Andrew Cuomo in 2017 signed an executive order prohibiting state employees and state law enforcement from providing information to federal officials for immigration enforcement unless required by law. Those limits don't affect local law enforcement, though.
An upside for local law enforcement
There's an additional perk for local authorities who act as ICE agents: expanded powers of detention.
In New York state, police and prosecutors have complained about courts being too quick to release charged criminals pre-trial because of a 2019 reform law that limits cash bail. Blakeman gave the example of a gang of alleged burglars from South America, who were released without bail last fall and then disappeared. Police Commissioner Ryder said once Nassau County detectives are deputized as ICE agents, they will be able to hold criminal suspects on immigration charges.
"If we make an arrest and I'm going to let somebody out on an appearance ticket because of no-bail at my station house, we will use the 10 cross-designated detectives who are task force members to go and then bring those people to the jail," he said.
Rafael Mangual is a Manhattan Institute fellow who focuses on policing and public safety. He also lives on Long Island, and says local prosecutors often look for what he calls a "federal hook" to keep criminal defendants from being released before trial under state law. He says the ICE-designated detectives will provide another version of that.
"You're basically guaranteeing detention of someone that you know has committed a crime," Mangual says. "Whereas if you process those individuals through the state criminal justice system, they would almost certainly be back out on the street within hours of their arrest."
"We don't know what to trust right now"
Since the Nassau County executive's announcement, local immigrant rights groups have been on edge. Javier Guzman, with the organization Make The Road, says it has undermined confidence in local police.
"I'm an immigration organizer. Do you think I can tell people, 'Yeah, if you have some trouble, you can call the police,'? I can't do that," he says. "Because you don't know who's going to show up."
Guzman says since the announcement, he's seen an increase in attendance at the legal rights workshops he offers.
Melanie Creps, executive director of the immigrant support nonprofit CARECEN, says county officials have been uncommunicative about the status and the details of the plan to cross-designate detectives as ICE, including the specifics of the county's agreement with ICE, known as a 287(g), after the federal law that authorizes it.
"We don't know what to trust right now. Everything is so chaotic that, you know, nothing's super clear," she says.
"We don't know even what's in the agreement, which makes us more nervous because we don't know what this collaboration is going to look like," she says. "We've had some promises that they would only pick up targeted criminals, violent criminals. And we've already seen that's not true," she says, referring to unconfirmed reports that Nassau police have been spotted working with ICE.
But for people outside the Ideal Food Basket of Westbury, a grocery popular with migrants in Nassau, there's not quite so much foreboding. Yvette – she doesn't want NPR to use her last name to avoid being identified by ICE – says she's heard about the deputized Nassau detectives on the news.
"It's a little frightening, but what else can you do but trust them a little, that they do their job and don't harm people, especially working people," she says in Spanish. And she adds that she'd still be willing to call the police if she had a serious problem.
The Trump administration is calling for a rapid expansion of cross-designation of local police – also known as the "task force model" – around the country. Some Republican-led states are signing up.
Given the relatively small number of ICE agents, compared to millions of people living in the country illegally, immigration experts say the administration has no choice but to try to use local police as force-multipliers.
"In order to hit the numbers that the Trump administration is seeking, there simply is not a mechanism to do that outside of the participation and cooperation of local law enforcement," Duke Law's Kate Evans says.
But it's an approach that also takes time to set up, because ICE is required to train local police before they're cross-designated as federal agents. Several jurisdictions are still waiting for that training; Nassau County announced its plan six weeks ago, and says it still doesn't know when its detectives will be sworn in.
NPR reached out to ICE for details about the cross-deputization program, but received no response.
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