IRLI Sues ICE for Emails on 287(g) Program Expansion Freeze

January 12, 2024

Biden Administration opposes program that keeps violent aliens off America’s streets

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a lawsuit in federal district court against Immigration and Customs Enforcement (ICE), seeking to compel the agency to produce any internal emails on why it chose to freeze, rather than expand, a highly successful program that allows for enhanced cooperation between state and local law enforcement and federal immigration agencies. 

By ICE’s own description, “[t]he 287(g) Program enhances the safety and security of our nation’s communities by allowing ICE Enforcement and Removal Operations (ERO) to partner with state and local law enforcement agencies to identify and remove incarcerated criminal noncitizens who are amenable to removal from the U.S. before they are released into the community.” Between two different program models, ICE currently has operational 287(g) agreements with 137 state and local law enforcement agencies.

In August of 2023, ICE briefly admitted on their web site that a so-called “program hold” had been put on the 287(g) program in January 2021, under which no additional agreements would become operational. Under this hold, 23 new agreements had been signed but not allowed to go into effect. The admission disappeared soon after, but no new agreements have become operational since, so the hold appears to still be in place. 

Such a hold does not appear to have been authorized by a law enacted by Congress, nor has ICE ever taken any official action under the Administrative Procedure Act (APA) in order to create or impose the hold. Furthermore, the agency never even publicly acknowledged the hold’s existence prior to August 2023, more than two and a half years after its apparent inception. 

Seeking the origins of this “hold,” IRLI in September 2023 submitted a Freedom of Information Act (FOIA) request to ICE, requesting all of the agency’s 2021 internal emails discussing any proposed attempts to amend, suspend or abandon any aspects of 287(g). Under FOIA, federal government agencies are obligated to provide public records within twenty business days. However, four months later ICE had still provided nothing in response to IRLI’s request, leaving it no option but to seek a court order compelling the production of the requested information. 

Congress created the 287(g) program, named after the section of the Immigration and Nationality Act that authorizes it, in recognition of the fact that state and local policing agencies are often the first government entities to encounter illegal aliens. Moreover, they are typically the first governmental authority to take an alien criminal into custody. Cooperation between federal immigration authorities and state/local law enforcement promotes efficiency while protecting our national security and public safety. Rather than attempting to undermine Congress’s 287(g) mandate, the Biden Administration should be expanding the program.

“Increased cooperation between ICE and local law enforcement is critical and makes our communities safer, so of course this administration wants to limit that effort,” said Dale L. Wilcox, executive director and general counsel of IRLI. “There is no benefit to this country or its legal residents by keeping criminal aliens in the country, yet it appears to be a priority of this White House. The American people own those emails, yet we are not allowed to see them because it might embarrass this administration and expose their extremist agenda.”

“It is ironic that the Biden Administration insists it is ‘the most transparent in history’ when, in reality, it has repeatedly attempted to change immigration laws without Congressional authorization and then tried to hide the evidence of its misdeeds from the American public,” said Matt O’Brien, IRLI’s director of investigations. “IRLI hopes to bring the details of the ‘287(g) hold’ into the sunshine, even if it must fight to do so.” 

The case is IRLI v. ICE, No. 1:24-cv-106 (D.D.C.).