Is Pinal County attorney's 287(g) law enforcement agreement legal? This expert says it's unclear

The Pinal County Board of Supervisors and its County Attorney Brad Miller seem to be at a standstill right now over whether or not his office can enter into an agreement with ICE to enforce immigration law.

Miller signed what’s called a 287(g) agreement with Immigration and Customs Enforcement, but now, the Board of Supervisors says it’s not valid. They conducted an outside legal analysis and determined he didn’t have the power to sign an agreement like that. They say, he’s not a law enforcement agency, which these agreements are designed for. Miller, for his part, has said they can’t stop him.

Historically, 287(g) agreements have been used so that local law enforcement can help funnel people who have been arrested into deportation proceedings. But they became controversial — and less popular — when former Maricopa County Sheriff Joe Arpaio used his as part of his department’s broad efforts to enforce federal immigration law in the era of SB1070 in Arizona.

Well, today, they’re surging in popularity. And, according to Jessica Pishko, it’s for a lot of reasons — including new financial incentives.

Pishko is a lawyer, journalist and author. The Show spoke with her more about the debate over 287(g) in Pinal County — and more local agencies are signing up for them now.

Full conversation

JESSICA PISHKO: The 287(g) agreement program was historically really small, even under Trump I. It's not been a huge program. Actually, the largest the program ever was, under Barack Obama. which is when Joe Arpaio joined, it was fairly large. It was really sold as a force multiplier, right? Part of Barack Obama's quote unquote, you know, "felons not families program."

LAUREN GILGER: Right.

PISHKO: But after Joe Arpaio, to be perfectly honest, people really didn't join the program. They saw what happened to Joe Arpaio and the many lawsuits as potential liability. And I think a bigger issue was that 287(g) as a voluntary program historically did not offer people any financial incentive for joining. This was a big issue for small agencies who just didn't have the manpower to do extra work.

GILGER: Is there a financial incentive now?

PISHKO: Yes. So I want to caveat this by saying, DHS is saying this is the financial incentive, but I have not actually found anyone who has gotten paid. So I just want to be clear that there's a financial incentive, but I'm not totally clear how it's being paid out. So as of just a few months ago, the DHS rolled out what they're calling basically a reimbursement plan. which says that if you're an agency who signs up for 287(g), you will receive a certain amount of money for equipment, a certain amount of money for new vehicles, so $100,000 for vehicles, plus the salary and benefits for every trained officer you have.

So under 287(g) programs, your officers have to undergo a certain amount of, you know, immigration training. And so they have said if you train whatever two officers, we will pay their salary. Now, that is quite a lot of financial incentive, right? This is much different than it used to be. So we do know that the people joining 287(g) under this administration has been exponentially high, right? It's like almost a thousand 287(g) agreements across the country.

GILGER: And you would say probably because of that financial incentive?

PISHKO: It is hard to say. The financial incentive was something that Tom Homan had promised local law enforcement right when Trump became president. He went around the country saying he promised to get resources. So it seems like this is true.

We also have a few states that have required these agreements. So Florida is a good example. Another thing that happened, there was a moment when DHS had made a list of, quote, unquote, "sanctuary jurisdictions." And so before they made that list, they said, if you don't join a 287(g) agreement, we're going to name you as a sanctuary city. So a group of people join then.

GILGER: But we've never seen a county attorney try to do this, except for here in Pinal County. Is this legal? The Pinal County Board of Supervisors had an independent kind of legal assessment done and found it's not, but it sounds like the county attorney in Pinal County is not listening to that.

PISHKO: Yes. I mean, to be perfectly honest, it's just not clear to me whether it's legal or not. I have a feeling that this is kind of a decision of Arizona law. It's really a separation of powers issue. So, you know, the county board is arguing that the county attorney can't enter into this agreement without the approval of the Board of Supervisors. And that makes sense if you're a Board of Supervisors because you don't want your county attorney and other agencies to start entering into agreements because they feel like it, right?

And the county attorney is arguing, yes, I can. I'm a law enforcement agency. I'm an elected office, just like a sheriff. And sheriffs can enter into 287(g) agreements unilaterally. So the county attorney is saying, well, I can too. I'm just like a sheriff. It's honestly not really clear to me whether or not this is legal or illegal. I found two other county attorneys who have joined, one in Florida, one in Pennsylvania, In both places, I haven't seen anyone contest it, so the issue just hasn't come up.

GILGER: OK. So what would it mean? Like, what are the implications of this if Brad Miller is able to, as a county attorney, unilaterally enter a 287(g) agreement? Like, what could that mean for these kinds of agreements and the kind of cooperation between local law enforcement and federal immigration authorities that we might see then across the country?

PISHKO: I think it's a good question because we also aren't quite sure what Brad Miller intends to do. So Brad Miller says that he joined the agreement because he wants access to the information. And it seems like he wants to coordinate information with the Department of Homeland Security.

Now, 287(g) and the particular version he joined, which is the task force agreement, is basically a way for you to train your deputies to be immigration officers. So it seems like Brad Miller intends to train perhaps one or more of his investigators in his office to also be immigration agents.

What that would give them the power to do is that when he sends his investigators out to interview witnesses or people accused of crimes, that they could then ask people about their immigration status, presumably, and if those people give an indication that they might potentially be deportable, that would mean that they could be arrested.

Now, the district attorney in the first instance interviews quite a lot of witnesses and victims as part of their case strategy, so you would not want people interviewing witnesses of victims to start turning names over to ICE or to another law enforcement agency to arrest.

GILGER: I mean, that's my final question is, is what does this say? What does this mean in these kind of charged political times that we're in, especially in this particular moment when we're watching communities really react to federal immigration enforcement coming into their communities, the shooting deaths of two people in Minneapolis by federal officers? Tensions are really high. Like, if we see a significant expansion of a program like this in the country, it sounds like that chilling effect could multiply.

PISHKO: Yes. Right now, what 287(g) agreements signal to people is that an agency will work with ICE. That's basically what it signals. People see that you've entered into the agreement and they say, well, now you're cooperating with ICE, and so I don't want to talk to you. And that just continues to further this, like, chilling effect of talking to law of enforcement, even like going to hospitals or going to school or going to work or driving around.

We know that that's true. We know immigrant communities feel that way. And so, you know, to be perfectly honest, like that's the large point of what 287(g) agreements do, right? They're law enforcement agreements, but they're also really symbolic. And I want to be clear that any agency who is working on a criminal investigation could contact the Department of Homeland Security at any time, right?

So not joining 287(g) does not forbid you from calling ICE or call, right, or calling Border Patrol. Like, this is not a thing. You can always call ICE if there's a concern. And everyone always has. Every law enforcement agency all across the country calls ICE when they have someone in their custody that they think is, one, probably guilty of some sort of serious felony, and two, probably deportable. This is just a regular thing. So there's no practical purpose to Brad Miller joining. For example, he could get all the information he wants just by asking.