287(g) or Not 287(g), That Is the Question

Article written by Attorney Ronald L. Abramson

As seen in the Fall 2025 Issue of the American Bar Association Criminal Justice Section

To be, or not to be, that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles
And by opposing end them.
–Hamlet, Act 3, Scene 1

This article seeks to establish the meaning of the recently much-talked­about “287(g) Agreements” between U.S. Immigration and Customs Enforcement (ICE) and local, county, and state police. While such agreements technically apply exclusively to immigration policy, expanded immigration enforcement authority is inextricably linked with the erosion of basic constitutional rights, especially in the criminal defense realm. These developments will inevitably impact criminal defense practice in the coming days, months, and years.

What Is in a Section 287(g) … and Why Does It Matter?

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added Section 287(g) to the Immigration and Nationality Act (INA), autho­rizing federal immigration enforcement agencies to enter into cooperation agreements with state, county, and local law enforcement entities. (For clar­ity and fluidity, this article will refer to INA§ 287(g) as simply 287(g).) While 287(g) passed long before the Department of Homeland Security (DHS) super­seded the Immigration and Naturalization Service in 2002—splitting traditional immigration operations among three separate new agencies: U.S. Citizen­ship & Immigration Services (USCIS) handles ben­efit requests; Customs & Border Protection (CBP) monitors all ports of entry (land, sea, and air); and ICE, charged with interior immigration enforcement, oversees and administers all 287(g) agreements. ICE’s Enforcement and Removal Operations (ERO) division now offers three variations of 287(g) cooperation agreement models:

• Jail Enforcement Model (JEM): Designed to identify and process removable/deportable non-United States citizens, including those with criminal convictions or pending criminal charges, when they encounter state or local law enforcement agencies.
• Task Force Model (TFM): An ostensible “force multiplier” allowing state and local law enforcement agencies to enforce immigration law with limited authority during their routine police duties, subject to ICE oversight.
• Warrant Service Officer (WSO): A program that results in ICE training, certifying, and dep­utizing state and local law enforcement officers to serve and execute administrative warrants on non-U.S. citizens in those agencies’ jails and other detention facilities.

A map of agencies currently participating in 287(g) program is available online at www.ice.gov (specifically, https://tinyurl.com/bd2bkbpy).

A decade-and-a-half ago, the U.S. Supreme Court decided in Padilla v. Kentucky, 559 U.S. 356 (2010), that the Sixth Amendment’s guarantee of effective assistance of counsel includes providing accurate legal advice about the likely immigration impact of a crimi­nal conviction, effectively turning criminal defense at­torneys into situational immigration lawyers. Similarly, with 287(g) making immigration enforcement agents out of state and local officers, if we are to continue to be zealous, effective advocates, criminal defense lawyers must understand how 287(g) agreements will impact their non-U.S. citizen clients’ criminal cases and—ultimately—their hope for freedom.

The recent resurgence of 287(g) agreements stems directly from the Day One Executive Order (EO) 14,159, Protecting the American People Against Invasion. 90 Fed. Reg. 8443 (Jan. 29, 2025). If the DHS Secretary determines that an agency is qualified and appropriate, EO 14,159 requires ICE to authorize state and local law enforcement officials under 287(g) to the maximum extent permitted by law. Some states such as Georgia and Florida have passed—or are currently contemplating—state laws mandating that their law enforcement agencies (LEAs) seek out or enter into MOAs to create immigration enforcement partnerships pursuant to 287(g).

Although 287(g) agreements are technically “voluntary”–thus complicating legal challenges to their validity—political and purse-string pressures have begun to reap higher participation rates among state and local LEAs.

287(g)’s Implications on Criminal Defense Practitioners

First and foremost, criminal defense counsel must become familiar with which state and local law enforcement entities within their practice jurisdictions have 287(g) agreements in place. As of September 11, 2025, ICE self-reported having 1,001 287(g) Memorandums of Agreement (MOAs) spanning across 40 U.S. states. These consist of 371 WSO law enforcement agencies in 34 states; 501 TFM agreements with agencies in 33 states; and 129 JEM agreements in 27 states. Another 12 Section 287(g) program applications were pending as of September 11, 2025, including two pending JEM, 8 pending TFM, and two pending WSO agreements.

As noted above, participating state and local law enforcement agencies may be confirmed via ICE’s website, though the information is not always up-to-date, and government websites may be updated inconsistently, with broken links ever more prevalent. In the absence of clear real-time statistics, informa­tion may be obtained via Freedom of Information Act requests and/or state right-to-know laws.

The proliferation of 287(g) agreements has presented an interesting public relations dichotomy. On the one hand, the current presidential administration rarely misses an opportunity to extol its enforcement-first immigration initiatives as its paramount policy priority.

On the other hand, the varying political palatability of 287(g) agreements in any given jurisdiction may call for more measured messaging, especially on the part of the local agency.

Syracuse University professor and immigration scholar Austin Kocher, PhD, noted in mid-April 2025 that “Enrollment in the 287(g) program, which deputizes local police to do federal immigration en­forcement, has exploded in recent weeks-but the ad­ministration has been surprisingly silent about it.” See Austin Kocher, Trump Is Quietly Building a Deporta­tion Army out of State and Local Agencies, Substack (Apr. 14, 2025), https://tinyurl.com/yn4avcvj. In tracing the checkered history of the modern 287(g) program (going back to shortly post-September 11, 2001), Prof. Kocher has observed the north and westward expan­sion of the program from its original southern epicen­ters, the availability of new models (in the form of the JEM, TFM, and WSO options noted above), and the primacy of county sheriffs as leading 287(g) partici­pants (a natural evolution, given the elected nature of their position and their control of county correctional facilities). Id. About 10 years after its initial imple­mentation, the Obama administration vacated all 287(g) agreements in the wake of multiple challenges due to concerns about widespread rights’ violations. From 2017 until 2021, 287(g) resulted in a modest 80 or so jail enforcement contracts. However, per Prof. Kocher, then-acting ICE Director and current “Border Czar” Thomas Homan devised “a new 287(g) agree­ment to get around the legal challenges which had made some sheriffs nervous about actively enforcing federal immigration law. The [WSO] model of 287(g) more narrowly delegated to local law enforcement agencies the power to execute federal civil immigra­tion warrants.” Id. This more finely tuned dynamic appears to have increased the appeal of WSOs, as their numbers have nearly tripled.

Previously “Benign” Encounters with State and Local Law Enforcement

In the United States, the overwhelming majority of police contact occurs with state and local law enforce­ment officials. So, despite studies showing that non­U.S. citizens commit fewer crimes per capita than do American citizens, a noncitizen is much more likely to interact with state and local police than with immigration agents.

Although noncitizens’ rights are diminished in the immigration context (by means of limited due process in the form of the government’s relaxed burden of proof, no right to court-appointed counsel, etc.), in the criminal justice realm, persons present in the United States continue to enjoy the full complement of the same criminal due process rights irrespective of their immigration status.

While criminal defense attorneys often get involved after rights have been “waived” (or, perhaps, violated), it is critical to educate noncitizen clients and potential clients about their most basic constitutional rights, specifically, the right to remain silent and the right to remain free from unreasonable searches and seizures.

Shepherding the Case Through the Court System

With state and local law enforcement donning snappy immigration enforcement chapeaus, immigration con­siderations now transcend the past paradigm of “col­lateral consequences.” In Padilla, the Supreme Court observed that “[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.” 559 U.S. at 366. Moreover, courthouse enforcement is now front-page news, meaning that the defense at­torney’s mission to safeguard clients’ liberty interests includes advising as to what may happen when a client appears for their criminal case. With ICE prowling courthouses at all levels and in all regions, the strategic and ethical employment of written waivers of arraignment, telephonic and video appearances, and stronger advocacy of dismissal of minor offenses may permit justice to be done in the state case, while sparing criminal defendants the myriad perils of scattershot immigration enforcement.

Detention and Detainers

The most impactful direct effect of 287(g) programs on non-U.S. citizen criminal defendants arguably oc­curs when a state or local law enforcement agency puts ICE on notice that an arrestee may lack valid immigration status. 8 C.F.R. § 287.7(a) states,

A detainer serves to advise another law enforcement agency that the Department seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien. The detainer is a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.

8 C.F.R. § 287.7(a). Section 287.7{d) commands cor­rectional authorities to hold noncitizens for 48 hours, a practice that some states prohibit under their own statutory and constitutional jurisprudence. See, e.g., Lunn v. Commonwealth, 477 Mass. 517 (2017).

A Sliver of a Silver Lining?

In a nod to the Law of Unintended Consequences, some state criminal prosecutions will inevitably be thwarted by indiscriminate immigration enforcement and related federal custody issues. State courts may issue writs requesting the defendant’s appearance, which ICE often disregards. In such cases, criminal defense counsel may wish to demand speedy trial and then move to dismiss if the government does not facilitate the client’s appearance. In addition, where alleged victims and key witnesses lack lawful immigra­tion status, state and federal prosecutors may face insurmountable logistical challenges as far as putting on their case.

Conclusion and Takeaways

The day-to-day ramifications of proliferating 287(g) agreements are playing out in four-fifths of the 50  U.S. states. Criminal defense lawyers should take pains to remain informed as to which police departments within their geographic practice areas have signed up to work hand-in-glove with federal immigra­tion agencies. At the same time, those with firsthand knowledge of how quickly such enhanced powers can spiral out of control may also wish to bring political pressure resisting cooperation where they practice.

Additionally, counsel must contemplate how these agreements impact their clients’ rights, be it continuing to drive (in states which allow it), appearing for in­person court hearings, and/or assessing the State’s ability to pursue a case to its conclusion where the accused and/or key witness become unavailable as they become ensnared in the government’s immigration enforcement machine.

Finally, criminal defense attorneys must now factor in how 287(g) arrangements will impact the course of—and legal advice pertaining to—investigations, arrests, bail/ bond decisions, and prosecutions, for better and (mostly) for worse.

Post-Script: Back to Shakespeare’s “Hamlet”

The working title of this article was a tongue-in­cheek word play on one of the most famous soliloquies in the history of the English language. Hamlet is contemplating existential questions of life and death—specifically, suicide—while also meditating on the virtues of vengeance. The soliloquy continues for nigh 30 lines, but in the current social, legal, and political climate, one line stands out: “Thus conscience does make cowards of us all.” Here, Hamlet refers to how his own morality—not to mention biblical and legal rules—stands in the way of his avenging his father’s death by smiting Claudius.

In this moment, when government overreach reigns supreme, where due process is treated as a revocable luxury, where the very Rule of Law is under direct attack, it is critical that front-line lawyers stand up and resist these indefensible excesses. Fellow criminal defense attorneys, may our collective conscience make us even more steadfast warriors in the continuing fight for decency, mercy, and justice.