Untitled

The Jail-to-Deportation Pipeline in Wisconsin

Introduction

There are roughly 159,000 immigrants living in Wisconsin who are not yet U.S.

citizens — many have been living here for years or even decades.

Their immigration

status runs from permanent resident, DREAMER, refugee, to holders of work and

student visas, as well as those who are undocumented. They work in a wide variety

of jobs, including being the backbone of the state’s dairy industry. They live in

communities throughout Wisconsin and are our neighbors, friends and family

members. And all of them run the risk of being deported through some contact with

the criminal justice system.

Being booked into a county jail in Wisconsin very often starts a process which can

end in deportation, even for minor violations, and even before conviction of a crime.

In the period 2006-2020, U.S. Immigration and Customs Enforcement (ICE) sought

to deport more than 12,000 immigrants living in Wisconsin after picking them up

from jails and prisons across the state.

For this reason, the ACLU of Wisconsin has

paid close attention to cooperation between local law enforcement and ICE.

The current report is an update to our 2018 report , Fixing Wisconsin Sheriff Policies

on Immigration Enforcement .

That report described a system in which many

sheriffs had no real policies in place regarding immigration enforcement. The years

following that survey, during the Trump administration, saw a significant federal

emphasis on immigration enforcement and removal operations without regard to

the reasons persons had come to the attention of ICE. Although enforcement

priorities have shifted under the Biden administration,

this larger pipeline to

deportations remains intact in Wisconsin for ICE to utilize local law enforcement as

a partner for removing immigrants from local communities.

Despite SCOTUS Ruling, the Biden Administration Can Prevent a Reversion to Trump's

Deportation Machine, ACLU , Aug. 4, 2022

Fixing Wisconsin Sheriff Policies on Immigration Enforcement , ACLU of Wisconsin, July 2018,

https://www.aclu-wi.org/sites/default/files/field_documents/aclu_sheriff_policies_immigration_july201

8.pdf

Syracuse Univ. TRAC Immigration Database, Detainers Issued dataset,

https://trac.syr.edu/phptools/immigration/detain/

Migration Policy Institute, Immigration Data Profile for State of Wisconsin,

https://www.migrationpolicy.org/data/state-profiles/state/demographics/WI

In April 2022, the ACLU of Wisconsin sent open records requests to sheriffs in each

county of the state. The requests sought a variety of information related to

immigration enforcement policies and the sheriff’s interactions with ICE. 65 of the

72 county sheriffs responded in time for this report. We also drew on our other work

in the past five years researching individual sheriff’s policies, especially with regard

to the 287(g) program, which creates partnerships between sheriffs and ICE.

Executive Summary

Our research shows how over more than a decade the federal government, in

cooperation with many local sheriffs in Wisconsin, has built a deportation pipeline

for immigrants who come into contact with the criminal justice system. The pipeline

includes formal elements like the 287(g) cooperation agreements signed by eight

Wisconsin sheriffs and the millions of dollars in funding provided to law

enforcement agencies under the State Criminal Alien Assistance Program

(SCAAP) — as well as informal elements such as phone calls and emails from local

jails to let ICE know of “foreign born” individuals in custody.

Under the Biden administration, enforcement priorities have changed, with a

reduced emphasis on removal activity away from the border. So the

jail-to-deportation pipeline is less active today, but it remains ready to be

reactivated with a change in the political winds.

We call on sheriffs across the state of Wisconsin to take steps to dismantle the

pipeline, by terminating agreements to collaborate with ICE and by ceasing to share

with ICE information about the immigrant members of Wisconsin communities

except where it is legally required. Only in this way will we build communities

across the state which are welcoming and respectful of all people, regardless of

where they were born.

The Growth of 287(g) Programs in Wisconsin

Since our report in 2018, there has been dramatic growth in the number of sheriffs

in Wisconsin who have signed formal agreements with ICE to collaborate in

immigration enforcement. These agreements — known as 287(g) agreements due to

their creation by section 287(g) of the federal Immigration and Naturalization

Act — delegate certain immigration enforcement responsibilities to state and local

law enforcement.

Although no neighboring states have any of these arrangements,

in Wisconsin, eight local sheriffs have signed 287(g) agreements.

Their use was

dramatically expanded during the Trump administration, with seven Wisconsin

sheriffs signing them for the first time in 2020.

ICE currently utilizes two forms of these agreements — jail model agreements and

warrant service officer (WSO) agreements. The jail model of 287(g) agreements

delegates certain immigration law enforcement responsibilities to local sheriff

personnel within jails, such as interrogating people about their immigration status

following their arrest on state or local charges, checking their information in the

Department of Homeland Security (DHS) databases, issuing detainers to hold

people on civil immigration charges, and issuing the charging document called a

Notice to Appear that initiates a deportation.

The Waukesha County Sheriff’s Department was the first department in Wisconsin

to enter a 287(g) agreement with ICE and is the only one to sign a jail model

agreement. Particularly troubling was this statement by the sheriff in the cover

letter to his 2017 application:

The Waukesha County Sheriff’s Office is willing, prepared and

committed to assist in [ICE’s] effort to investigate, apprehend and

detain aliens pursuant to the statutes…My office and staff will make

this program a priority in our jail and welcome additional ICE

partnerships.

Although large swaths of the local community objected, Waukesha Sheriff Eric

Severson signed a 287(g) agreement with ICE on February 16, 2018, and renewed it

on July 1, 2020.

According to ICE, there were 93 detainers issued to the Waukesha

https://www.ice.gov/doclib/287gMOA/287gJEM_WaukeshaCoWI_06-10-2020.pdf

Letter from Waukesha Sheriff to ICE, May 15, 2017.

The federal government does not compensate local authorities for participating in these agreements

other than travel expenses for training, and instead precious local resources are used for what is a

federal enforcement task.

A 2021 report from the U.S. Government Accountability Office reviews arrangements that ICE has

made with local law enforcement agencies.

https://www.ice.gov/identify-and-arrest/287g

License To Abuse: How ICE’s 287(G) Program Empowers Racist Sheriffs , ACLU, April 2022

County Jail to take persons into immigration custody during a two-year period

between 2019 and 2021 “attributed to our partnership with the Waukesha County

Sheriff’s office.”

With a detainer, ICE asks local law enforcement to keep custody

of a person for up to 48 hours after any state law basis to detain them ends.

During the Trump administration, ICE devised the warrant service officer (WSO)

program, a new form of 287(g) agreement, to authorize local law enforcement agents

to serve immigration detainers and retain custody of immigrants under those

detainers. DHS described the WSO program as an attempt to shield local officers

from liability when they violate people’s rights, and as a way to subvert state and

local decisions not to participate in immigration enforcement.

It requires only a

single day of training for law enforcement partners.

WSO agreements have proved popular among Wisconsin sheriffs. The first sheriff in

Wisconsin to sign a WSO agreement was in Sheboygan County, where the sheriff

signed a new WSO agreement referring to it as a “partnership” with ICE.

Documents disclosed to the ACLU of Wisconsin in response to open records requests

showed that the Sheboygan sheriff then encouraged other sheriffs to sign such

agreements.

Other WSO contracts have come out of ICE participation in statewide conferences of

Wisconsin sheriffs. During the course of 2020, sheriffs in Brown, Fond du Lac,

Lafayette, Manitowoc, Marquette, and Waushara counties also signed WSO

agreements.

In many counties, the agreements were entered into without any

input from the local community. In fact, none of these agreements were approved by

county boards or publicly acknowledged by these sheriff’s departments until the

ACLU of Wisconsin disclosed their existence.

All active 287(g) agreements listed here: https://www.ice.gov/identify-and-arrest/287g .

Nov. 25, 2019 email from Cory Roessler, Sheboygan County Sheriff, to sheriffs of Manitowoc and

Fond du Lac counties.

Oct. 14, 2019 letter from Cory Roessler, Sheboygan County Sheriff, to ICE Field Officer.

Immigration and Customs Enforcement, 287(g) Warrant Service Officer Model (November 1, 2020),

https://www.ice.gov/doclib/about/offices/ero/pdf/WSOPromo.pdf .

Debra Cassens Weiss, “ICE Offers Workaround to Allow Police in Sanctuary Cities to Temporarily

Detain Immigrants,” American Bar Association Journal, May 10, 2019,

https://www.abajournal.com/news/article/ice-offers-workaround-to-allow-police-in-sanctuary-cities-to-

temporarily-detain-immigrants .

Nov. 29, 2021 email from ICE to Waukesha Jail Administrator, produced in response to open

records requests.

The 287(g) agreements and other ICE collaboration programs can embolden police

to engage in racial profiling. Local police in 287(g) jurisdictions may make stops and

arrests as a pretext for engaging in immigration enforcement. For example, they

might arrest a driver and take the driver to jail instead of simply issuing a ticket,

based on the driver’s perceived race or immigration status. The cooperation

agreements with ICE embolden racist and xenophobic law enforcement officers

across the country to use immigration enforcement as a means of threatening and

harassing people in immigrant communities.

In none of Wisconsin’s neighboring states have sheriffs found 287(g) agreements

with ICE to be justified. The ACLU of Wisconsin has urged local sheriffs not to

enter into more 287(g) agreements and to pull out of existing agreements, which

allow termination at any time.

In January 2021, a coalition of 25 organizations in

Wisconsin wrote to Secretary of DHS Alejandro Mayorkas, urging that he terminate

287(g) and WSO agreements in the state and nationwide.

In February 2021, 60

members of Congress sent a letter to the Biden administration urging it to end the

use of 287(g) agreements and immigration detainers.

Sheriffs Statewide Receive Money to Share Information

With ICE:SCAAP

The State Criminal Alien Assistance Program (SCAAP) is a federal grant program

that partially reimburses state and local governments for the costs of incarcerating

certain non-citizens who have committed crimes.

In FY 2020, the last year for

https://bja.ojp.gov/program/state-criminal-alien-assistance-program-scaap/overview

Over 60 Members Of Congress Push President Biden And DHS To End Programs That Conscript

Local Police To Work As Federal Immigration Enforcement, Natl. Immig. Justice Ctr., Feb. 11, 2021,

https://immigrantjustice.org/press-releases/over-60-members-congress-push-president-biden-and-dhs

-end-programs-conscript-local

Wisconsin Civil Rights And Immigrant And Social Justice Groups Urge Mayorkas To End ICE

Collaboration Programs, ACLU of Wisconsin, Jan. 22, 2021,

https://www.aclu-wi.org/en/press-releases/wisconsin-civil-rights-and-immigrant-and-social-justice-gro

ups-urge-mayorkas-end-ice

ACLU of Wisconsin Denounces Sheboygan Sheriff's Department Decision To Focus On

Immigration Enforcement During Pandemic, ACLU of Wisconsin, April 1, 2020,

https://www.aclu-wi.org/en/press-releases/aclu-wisconsin-denounces-sheboygan-sheriffs-department-

decision-focus-immigration

For more, see License To Abuse: How Ice’s 287(G) Program Empowers Racist Sheriffs , ACLU, April

2022

which data is available, county sheriffs across

Wisconsin and the Wisconsin Department of

Corrections received over $2 million through this

program.

SCAAP funding works retroactively: states and local

governments apply annually to be reimbursed for a

portion of certain incarceration costs they incurred

during a particular 12-month window. As part of this

application process, states and localities submit

information regarding people they have incarcerated for

at least four consecutive days who are, or are believed

to be, undocumented and who have been convicted of at

least one felony or two misdemeanors. States and local governments also submit

information regarding their incarceration-related expenditures. The Office of

Justice Programs (OJP), the U.S. Department of Justice agency that administers

SCAAP, then shares the records of each person incarcerated with ICE. After ICE

reviews these records and assesses the immigration status of each “criminal alien,”

OJP reimburses each state or locality for a portion of the costs of incarcerating

those people.

By providing local governments with a financial incentive to record and investigate

immigration status and share that information with ICE, SCAAP contributes to the

entanglement of local law enforcement with federal immigration and feeds the

deportation machine. SCAAP also plays a key part in promoting collaboration

between county governments and ICE.

In FY 2020, the most recent year for which data is available, 30 counties statewide

received SCAAP funds, along with the State of Wisconsin, which recovered funds for

persons housed in the state prison system. Dane County received the most SCAAP

money of any Wisconsin county — more than $150,000. Milwaukee County, in

contrast, has opted out of the program since FY 2017.

The table below shows the 10 Wisconsin counties that have received the most

SCAAP funding in the past five grant periods.

Top 10 Wisconsin Recipients of SCAAP Funding

FY 2016

FY 2017

FY 2018

FY 2019

FY 2020

SUM:

FY16-20

WI Dept of

Corrections

$1,055,031

$1,291,070

$1,259,845

$1,349,021

$1,452,207

$6,407,174

Dane

$69,760

$116,797

$139,430

$155,160

$153,703

$634,850

Walworth

$49,455

$32,624

$70,273

$48,311

$53,282

$253,945

Brown

$50,179

$38,812

$44,251

$54,423

$50,235

$237,900

Rock

$33,818

$34,319

$25,046

$27,852

$29,595

$150,630

Kenosha

$37,099

$34,284

$29,237

$26,483

$20,298

$147,401

Racine

$19,551

$20,788

$23,810

$21,146

$44,311

$129,606

Outagamie

$22,019

$13,161

$23,347

$33,778

$35,133

$127,438

Waukesha

$26,147

$21,373

$23,026

$21,723

$26,422

$118,691

Sheboygan

$15,705

$26,760

$20,890

$21,442

$26,874

$111,671

Most recent data available. Covers requests for undocumented persons held in jail through Sept. 2020.

Source: USDOJ Bureau of Justice Assistance, Funding & Awards database:

https://bja.ojp.gov/funding/awards/list

The total sum awarded statewide through SCAAP increased each year between FY

2016 to FY 2020. It grew by more than a third, from approximately $1.59 million to

approximately $2.13 million. This growth rate outpaces the national growth rate in

the size of SCAAP, which only grew from about $189M to about $210M (11%)

during this interval.

Most Sheriffs Are Still Holding Immigrants on ICE

Detainers

An immigration detainer is a request by ICE that a local jail hold an immigrant

suspected of being in the country without authorization for up to 48 hours after that

immigrant would otherwise be entitled to be released, so that ICE can take custody

of the immigrant. Our survey of Wisconsin sheriffs revealed that the majority of law

enforcement agencies across the state of Wisconsin continue to hold immigrants on

ICE detainers, although several do not. In the period from October 1, 2016, through

June 30, 2020, ICE sent more than 3,600 detainers to Wisconsin jails and prisons

asking to take custody of persons detained in Wisconsin.

Federal deportation proceedings are civil — not criminal — matters. Rarely, if ever,

are ICE detainers accompanied by a warrant signed by a neutral judicial official.

Most often, detainers are simply signed by an ICE officer and thus lack the

approval of a judicial authority reviewing the basis for a detention. ICE also admits

that its detainers are only “requests” to local law

enforcement, not mandatory.

We believe that county jails which hold persons for

48 hours after they should have been released

pursuant to immigration detainers are in violation

of Wisconsin law because Wisconsin statutes do not

provide legal authority for law enforcement to act

on civil immigration detainers. A detainer becomes

a new “arrest” when a person is not released after

the state law basis for detention no longer exists, and in Wisconsin, “the power to

arrest must be authorized by statute.” City of Madison v. Two Crow , 88 Wis. 2d 156,

159, 276 N.W.2d 359, 361 (Ct. App. 1979) ( quoting Wagner v. Lathers , 26 Wis. 436

(1870)). In other words, if the authority for a law enforcement agency to hold

someone under an immigration detainer is not found in Wisconsin statutes, then it

does not exist. The general arrest authority for Wisconsin law enforcement, set out

Syracuse Univ. TRAC Immigration Database, Detainers Issued dataset,

https://trac.syr.edu/phptools/immigration/detain/

in Wisconsin Statutes section 968.07(1)(a)-(d), contains no authorization to make

arrests for civil immigration detainers.

Despite these provisions of Wisconsin law, only five local sheriffs in Wisconsin—in

Milwaukee, Dane, Door, Oconto and Shawano counties—have express policies

prohibiting holding a person on the basis of an immigration detainer.

Almost half of the departments in the state use problematic boilerplate policies

acquired from the private company Lexipol.

The Lexipol policy on encounters with

immigrants has the following language:

IMMIGRATION DETAINERS

No individual should be held based solely on a federal immigration detainer

under 8 CFR 287.7 unless the person has been charged with a federal crime or

the detainer is accompanied by a warrant, affidavit of probable cause, or

removal order. Notification to the federal authority issuing the detainer

should be made prior to the release.

The language in this section is deceptive. While the first sentence states that

persons should not be held based on detainers, it goes on to indicate that holding is

permissible when the detainer is accompanied by a “warrant, affidavit of probable

cause, or removal order.” The problem with this language is that ICE always

accompanies its detainers with forms labeled “warrant” or “affidavit of probable

cause,” but those boilerplate form documents are normally only signed by

immigration officers and rarely, if ever, signed by a judicial officer. The title of the

form does not turn it into a “warrant”—the signature of a judicial officer does.

Lexipol LLC is a private company which develops and markets policy manuals to law enforcement

agencies across the country. See I. Eagly and J. Schwartz, Lexipol: The Privatization of Police

Policymaking , Texas L. Rev., Vol 96:891 (2018). More Wisconsin sheriffs have adopted written

policies related to immigration enforcement than in our prior report, but the policies they have

adopted in general are not appropriate to Wisconsin. Since our 2018 report, there has been a marked

increase in the number of sheriffs’ departments which have adopted the immigration policy written

by Lexipol. We discussed our concerns with the Lexipol immigration policy in our 2018 report at

pages 6-9 and all of those concerns remain in place. In addition to the problematic language in that

policy concerning detainers, the Lexipol policy gives wide latitude to law enforcement officers who

want to involve themselves in immigration enforcement.

Lexipol drafted these policies for its national customer base of law enforcement

agencies, allowing them to detain people using unauthorized ICE detainers. The

policy fails to take into account the absence of authority to hold someone on this

basis under state law, as in Wisconsin.

Other than the five counties with express prohibitions on honoring detainers, our

investigation revealed that the remaining sheriffs who have not adopted the LexiPol

policy are simply honoring detainers when they arrive at the jail without having a

formal policy in place.

With half of Wisconsin’s sheriff’s departments using this policy and the majority

detaining immigrants based on bogus “warrants” provided by ICE, Wisconsin law

enforcement is aiding and abetting the jail-to-deportation pipeline.

A Tale of Three Sheriff’s Departments

The policies and practices adopted by local county sheriffs have demonstrable

impacts on immigrant communities around the state of Wisconsin. A look at three

county sheriff departments, in Milwaukee, Dane and Walworth counties, illustrates

the wide disparity of practices currently being followed. The Walworth Sheriff, in

particular, appears to contact federal immigration authorities regarding every

foreign-born person who is detained, regardless of whether they are now U.S.

citizens or have legal permanent residence in the country.

Milwaukee County

Because it is the most populous county in the state with the highest immigrant

population, the policies of the Milwaukee County Sheriff’s Office are particularly

important. In connection with the advocacy of the ACLU of Wisconsin and others

opposing detainers in 2017 and 2018, the Milwaukee Sheriff announced that the

county jail would no longer hold persons on ICE detainers:

Effective immediately, the Milwaukee County Jail shall not hold any inmate

in custody solely based upon an ICE detainer .

Milw. Cty Sher. Off., Directive J2018-2, August 21, 2018

Although this policy stopped the practice of acting on detainers, it originally

required that the jail notify ICE that someone was being freed, in case ICE chose to

arrange a pickup prior to the actual moment of release. That important caveat led

immigrant justice advocates to push to remove that provision. The effort, led by

Voces de la Frontera, produced a change in policy. A February 26, 2019, press

release from the MCSO stated:

Sheriff Lucas has established a policy ensuring that, absent a valid judicial

warrant, the Milwaukee County Sheriff’s Office is not sharing information

with ICE regarding persons detained in the Milwaukee County Jail.

However, a few months later, that statement was softened to eliminate the

prohibition. This third version of the directive, issued in April 2019, neither

requires nor prohibits notification to ICE and reserves the right to contact other

“law enforcement agencies”:

The Milwaukee County Jail shall not hold any inmate in custody based upon

an ICE detainer request, absent a valid judicial warrant. Once an inmate is

scheduled for release, if there is no legally valid basis under state law to hold

the inmate in custody, the inmate will be released from our facility in the

usual course of business. The Milwaukee County Sheriff's Ofce may

communicate with law enforcement agencies in response to requests for

information regarding inmates. Nothing in this directive restricts the

Milwaukee County Sheriff’s Office from complying with the requirements of

federal law or valid court orders. This directive supersedes and overrides any

previously issued written or oral policies, practices or statements to the

contrary.

In keeping with its policy of reducing information sharing with ICE, the Milwaukee

County Sheriff’s Office has not received SCAAP funding since 2017.

Milw. Cty Sher. Off., Directive J2019-03, April 8, 2019

https://county.milwaukee.gov/files/county/sherriffs-department/News/

2019/Honoring_Our_Pledge.pdf

Dane County

Like Milwaukee County, the Dane County Sheriff’s Office does not hold persons on

immigration detainers. This policy led to criticism of the Dane County Sheriff from

ICE officials and former President Donald Trump.

But unlike Milwaukee County,

the Dane County Sheriff actively shares information with ICE about the

foreign-born persons within the jail:

If, during the process described above, the Booking Deputy determines that a

potential violation of federal law exists regarding the legality of the arrestee’s

residency status within the USA, the Booking Deputy should contact the

Immigration and Naturalization Service (INS). The INS will then be

responsible for determining whether a suspected violation of Federal law has

occurred, and will then place an INS detainer on the arrestee.

The consequence of this policy is that ICE sent Dane County 451 detainers between

October 2015 and June 2020 for persons housed in its jail, only two fewer detainers

than Milwaukee despite a much smaller foreign-born population. While Dane

County does not extend to ICE the extra 48 hours it requests to pick people up from

the jail on detainers, the jail has been affirmatively sharing with ICE the identities

of hundreds of immigrants being booked into the jail.

The Dane County Jail’s information-sharing approach is reflected in its receipt of

SCAAP funds from the federal government. In recent periods Dane County received

more money than any other county in Wisconsin for reporting its incarceration of

undocumented persons.

Walworth County

Though Walworth County is not one of the ten most populous counties in the state,

the Walworth County Sheriff’s Department receives more SCAAP funding than any

other county in Wisconsin except Dane County. The Walworth County Sheriff’s

treatment of immigrants who come into contact with the criminal justice system

Dane County Sheriff’s Office, Security Services Manual, section 601.01 (emphasis supplied—INS

was a predecessor agency to ICE)

Trump claim that Madison, Milwaukee are sanctuary cities has some merit but goes too far ,

PolitiFact, April 16, 2020.

demonstrates the perils of close relationships between local law enforcement and

ICE.

In hundreds of pages of records obtained by the ACLU of Wisconsin, Walworth

County Jail employees frequently and proactively reached out to ICE. In dozens of

emails, most with the subject line “foreign born,” these employees notified a

deportation officer working within ICE’s Criminal Alien Program that an

immigrant had come into contact with the criminal justice system. The Walworth

jail staff contacted ICE regarding people with a range of immigration statuses,

including naturalized U.S. citizens , persons protected under the Deferred Action for

Childhood Arrivals or “DACA” program, Lawful Permanent Residents, and

individuals who were undocumented. The county employees proactively supplied

ICE information regarding these individuals, facilitated the issuance of detainers

for immigrants incarcerated in other counties, coordinated the pick-up of

immigrants by ICE at jails and prisons, and helped ICE fill out its databases with

people who legally could not be deported, including citizens.

Emails received by the ACLU reflect a casual familiarity between Walworth’s local

jail employees and this ICE officer. In one email, the ICE officer wrote

“Hey…thought I’d beat you on this guy lol” before requesting information about

someone—whom ICE thought was probably a U.S. citizen—who had committed a

second OWI offense. In other emails, a local employee arranged multiple pickups of

immigrants by ICE from jail at “the usual time.”

Money Speaks

Our investigation of local sheriff records and SCAAP funding shows that federal

money has a demonstrable impact. In general, counties which seek and receive

greater levels of SCAAP funding are those counties which have deportation

proceedings commenced at a higher rate against members of the local immigrant

community, than those counties which do not. Thus Dane County has a higher rate

than Milwaukee County, and Walworth County has the highest rate of all.

Similarly, counties which have 287(g) agreements (with the exception of Waukesha

County) tend to have higher rates than those which do not.

The number of detainers sent by ICE to Wisconsin

county jails is a useful proxy for the amount of

information sharing between a given jail and ICE.

ICE needs to know that an immigrant is housed

within a jail before it can have a detainer served at

the jail. That knowledge can come from electronic

databases shared by local, state and federal law

enforcement agencies,

but it also can come from

direct telephone and email contact by persons

working in the jails. The chart below illustrates

how Walworth County, the second highest

recipient of SCAAP funding, receives detainers at

the highest rate per capita of county immigrant

population. And Milwaukee County, which

currently receives no SCAAP funding and limits

contacts with ICE, has the lowest per capita rate of detainers among large counties.

The chart on the next page includes data on nine selected Wisconsin sheriff’s

departments looking at the level of SCAAP funding and the level of detainers

received, normalized on a per capita basis.

See From Data Criminalization to Prison Abolition , Community Justice Exchange, 2022 (detailing

the gathering and use of data to surveil immigrant communities).

Rate of Receipt of Immigration Detainers

for Selected Wisconsin Sheriffs

County

Est.

Foreign-

Born

Pop.

SCAAP

Funding

FY 2016-20

Explicit

Policy to

Inform

ICE?

Detainers

Received

10/2015-

6/2020

Detainers

per 1,000

Foreign-

Born

Pop.

Milwaukee

86,000

$51,093

453

5.2

Dane

48,000

$634,850

Yes

451

9.4

Waukesha*

21,700

$118,691

Yes

122

5.6

Brown*

15,600

$237,900

Yes

242

15.5

Kenosha

12,300

$147,401

144

11.7

Racine

9,600

$129,606

144

14.9

Rock

7,400

$150,630

12.6

Sheboygan*

6,900

$111,671

109

15.6

Walworth

6,100

$253,945

Yes

144

23.6

*Has 287(g) agreement with ICE

** Unable to determine from open records responses

Detainer Data (most recent available): Syracuse University TRAC Immigration database:

https://trac.syr.edu/phptools/immigration/detain/

Population estimates: U.S. Census Bureau:

https://www.census.gov/quickfacts/fact/table/US/PST045221

Informal Cooperation Between County Sheriffs and ICE

Also Results in Removals and Tracking of Immigrants

Whether a local sheriff’s department honors detainers or not determines whether

ICE has an additional 48-hour window in which to arrange to pick up an immigrant

who would otherwise be free to leave the jail. But ICE still manages to pick up

immigrants at the time of release if there is sufficient communication between local

ICE enforcement and removal officers and the jail. ICE also uses information from

local law enforcement to build its databases on foreign-born individuals.

Our open records requests revealed many instances of informal cooperation between

ICE and local sheriffs outside of the structures of detainers and 287(g) agreements.

For example, we received copies of emails from an ICE enforcement officer based in

Milwaukee contacting jails around the state and asking if they would send him

daily rosters of the persons currently held in the jail. For example, in the following

email to Clark County, the officer said this would help ICE “identify foreign born

individuals (removable or not).”

The Clark County Jail agreed to send the jail population report daily. Then the ICE

Deportation Officer began to ask to be sent information on immigrants in the jail,

even ones he stated were not priorities for removal from the country.

The same deportation officer told his friendly contact in Walworth County that he

will monitor “every foreign born case” coming into Walworth County and “write up

reports identifying them as criminal aliens.”

Comments and Conclusions

The business of immigration enforcement is a federal, not a local law enforcement,

priority. Local sheriffs who prioritize collaborating with ICE place a wedge between

themselves and the immigrant members of their community. Victims and witnesses

become fearful to report crimes or talk to law enforcement agents who view

themselves as partners to immigration authorities.

Every decision to reach out to ICE about immigrants who interact with the criminal

justice system, to honor a detainer, or to continue with the 287(g) program increases

the number of families which are broken up and separated through the deportation

and removal process.

As such, the ACLU of Wisconsin calls on all county sheriffs in the state to work to

dismantle the jail-to-deportation pipeline by doing the following:

1. End the illegal honoring of 48-hour holds of immigrants under ICE

detainers.

2. Terminate all existing 287(g) agreements.

3. Enact policies which prohibit the automatic reporting of all foreign-born

individuals to ICE.

4. End participation in SCAAP.

5. End informal programs of information sharing with ICE.

6. Enact immigrant-friendly policies like the model policy developed by the

ACLU of Wisconsin in the Appendix to this report.

APPENDIX

1. Model Policy for Law Enforcement Agencies

2. Questions you can ask your local sheriff regarding their policies

affecting foreign-born persons.

APPENDIX 1

MODEL Guidance Regarding Due Process and Immigration Enforcement

I. DUE PROCESS AND IMMIGRATION ENFORCEMENT

A. Building trust between police and all residents is vital to the public safety

mission of [Agency]. Policing in a fair and impartial manner is essential to

building such trust. Therefore, [Agency members] shall not use an

individual’s personal characteristics as a reason to ask about, or investigate,

a person’s immigration status. [Agency members] may inquire about

immigration status only when it is necessary to the ongoing investigation of a

criminal offense.

B. Immigration is a federal policy issue between the United States

government and other countries, not local or state entities and other

countries. Federal law does not grant local and state agencies authority to

enforce civil immigration law. Similarly, state law does not grant local and

state agencies authority to enforce civil immigration laws. [Agency members]

shall not dedicate [agency] time or resources to the enforcement of federal

immigration law where the only violation of law is presence in the United

States without authorization or documentation.

C. The Constitution’s Fourth Amendment protection against unreasonable

search and seizure applies equally to all individuals residing in the United

States. Therefore, [agency members] shall not initiate or prolong stops based

on civil immigration matters, such as suspicion of undocumented status.

Similarly, [agency members] shall not facilitate the detention of

undocumented individuals or individuals suspected of being undocumented

by federal immigration authorities for suspected civil immigration violations.

D. “Administrative warrants” and “immigration detainers” issued by

Immigration and Customs Enforcement (ICE) have not been reviewed by a

neutral magistrate and do not have the authority of a judicial warrant.

Therefore, [agency members] shall not comply with such requests.

II. VICTIM AND WITNESS INTERACTION

The following guidelines are based on best practices and offer guidance on how

to best support crime victims/witnesses and to ensure procedural justice and

enhance trust between the police and community.

a. Federal law does not require law enforcement agencies to ask about

the immigration status of crime victims/witnesses. It is essential to the

mission of the [agency] that victims report crimes and fully cooperate

in investigations; that witnesses come forward and provide testimonial

evidence; that persons report suspicious activity and other information

to reduce crime and disorder; and that help is summoned when needed.

These activities must be undertaken without hesitation and without

fear that the victim, witness, or reporting person will be subject to

prosecution or deportation for no reason other than immigration

status.

b. To effectively serve immigrant communities and to ensure trust and

cooperation of all victims/witnesses, [agency members] will not ask

about, or investigate, immigration status of crime victims/witnesses

unless the victim/witness is also a crime suspect and immigration

status is necessary to the criminal investigation. [Agency members]

will ensure that individual immigrants and immigrant communities

understand that full victim services are available to documented and

undocumented victims/witnesses. [Agency members] should

communicate that they are there to provide assistance and to ensure

safety, and not to deport victims/witnesses and that [agency members]

do not ask victims/witnesses about their immigration status.

c. Therefore, [Agency members] will act first and foremost in the best

interests of our community and our mission when dealing with

undocumented foreign nationals who come to the agency/department

for help or to make reports, giving full priority to public safety and

justice concerns.

d. This policy is to be interpreted to comply with 8 U.S.C. § 1373 which

provides:

Notwithstanding any other provision of Federal, State, or local law,

a Federal, State, or local government entity or official may not

prohibit, or in any way restrict, any government entity or official

from sending to, or receiving from, the Immigration and

Naturalization Service information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.

III. IMMIGRATION STATUS:

a. [Agency member’s] suspicion about any person’s civil immigration

status shall not be used as a basis to initiate contact, detain, or arrest

that person.

b. [Agency members] may not inquire about a person’s civil

immigration status unless civil immigration status is necessary to the

ongoing investigation of a criminal offense. It is important to

emphasize that [Agency] should not use a person’s characteristics as a

reason to ask about civil immigration status.

c. [Agency members] shall not make warrantless arrests or detain

individuals on suspicion of “unlawful entry,” unless the suspect is

apprehended in the process of entering the United States without

inspection. Arrest for “unlawful entry” after a person is already within

the United States is outside the arrest authority of Wisconsin officers.

IV. ESTABLISHING IDENTITY:

a. [Agency members] may make attempts to identify any person they

detain, arrest, or who come into the custody of the [Agency].

b. [Agency members] shall not request passports, visas, "green cards,"

or other documents relating to one’s immigration status in lieu of, or in

addition to, standard forms of identification such as a driver’s license,

state identification card, etc. Immigration related documents shall only

be requested when standard forms of identification are unavailable.

V. CIVIL IMMIGRATION WARRANTS AND DETAINERS:

a. [Agency members] shall not arrest or detain any individual based on a

civil immigration warrant, including DHS Forms I-200, I-203, I-205, and

any administrative warrants listed in the National Crime Information

Center Database (NCIC). These federal administrative warrants are not

valid warrants for Fourth Amendment purposes because they are not

reviewed by a judge or any neutral magistrate. Moreover, federal

regulations direct that only federal immigration officers can execute said

warrants. Finally, Wisconsin law enforcement agencies do not have any

authority to enforce civil immigration law.

VI. INTERACTIONS WITH FEDERAL IMMIGRATION OFFICERS:

a. [Agency members] shall not contact Customs and Border Patrol

(CBP) or ICE for assistance on the basis of a suspect’s or arrestee’s

race, ethnicity, national origin, or actual or suspected immigration

status.

b. [Agency members] shall not prolong any stop in order to investigate

immigration status or to allow CBP or ICE to investigate immigration

status.

c. Sweeps intended solely to locate and detain undocumented

immigrants shall not be conducted unless acting in partnership with a

Federal agency as part of a formal partnership. [Agency members] are

not permitted to accept requests by ICE or other agencies to support or

assist in operations that are primarily for immigration enforcement.

VII. USE OF RESOURCES:

a. [Agency members] shall not hold for or transfer people to federal

immigration agents unless the federal agents provide a judicial

warrant for arrest. An immigration detainer (Form I-247, I-247D,

I-247N, or I-247X) is not a warrant and is not reviewed by a judge, and

therefore not a lawful basis to arrest or detain anyone. Valid criminal

warrants of arrest, regardless of crime, shall not be confused with

immigration detainers. This does not affect the proper handling of

arrests and detentions associated with criminal arrest warrants.

b. Unless ICE or CBP agents have a criminal warrant, or [Agency

members] have a legitimate law enforcement purpose exclusive to the

enforcement of immigration laws, ICE or CBP agents shall not be

given access to individuals in [Agency’s] custody.

c. Citizenship, immigration status, national origin, race, and ethnicity

should have no bearing on an individual’s treatment in [Agency’s]

custody. Immigration status or perceived immigration status,

including the existence of an immigration detainer, shall not affect the

detainee’s ability to participate in pre-charge or police-initiated

pre-court processes. Furthermore, immigration status or perceived

immigration status shall not be used as a criteria for citation, arrest,

or continued custody.

APPENDIX 2

Questions to Ask Your Local Sheriff or Police Chief

We have a real opportunity to demand change from local sheriffs and police

departments.

When meeting with a sheriff or police chief, it is important to know how each directs

their departments to interact with immigrants in our community. Ask of them:

1) When questioned, stopped, pulled over, or arrested, are people questioned about

their immigration status? They should not be unless directly relevant to an

investigation of a state or local charge.

2) Are stops conducted or prolonged for purposes of contacting federal immigration

authorities?

3) Does the Sheriff's Department honor detainer requests issued by ICE? They

should not unless the detainer is accompanied by a warrant signed by a judge or

magistrate - not just signed by an ICE officer.

4) Do you agree that every person, regardless of country of origin, is entitled to

equal respect by personnel of the Department?

5) Does the Sheriff’s Department have a written policy with regard to its

interactions with immigrant members of the community?

6) Does the Sheriff’s Department contact ICE when it books foreign born persons

into the jail?

7) Has the Sheriff’s Department had a chance to review the ACLU of Wisconsin’s

2018 and 2022 reports surveying the policies of sheriffs across the state for

interacting with the immigrant community?

8) Does the Sheriff’s Department have any current agreements to collaborate with

ICE?