Most deportations of noncitizens living in Wisconsin involve violations of state law. In Wisconsin—and across the country—the majority of noncitizens who face deportation proceedings do so after coming into contact with the criminal legal system. When Immigration and Customs Enforcement (ICE) learns that a potentially removable noncitizen is in criminal custody, it issues a request, known as an ICE detainer, to law enforcement personnel to hold that person until ICE agents can detain them. Most Wisconsin law enforcement agencies comply with these requests, and several Wisconsin sheriffs have entered into agreements with ICE, known as Section 287(g) agreements, to take on additional immigration enforcement duties.
This Comment argues that such cooperation is unlawful. Holding someone on an ICE detainer constitutes an arrest. Under Wisconsin law, the power to arrest must come from a state statute, and no state statute authorizes arrests for civil immigration violations. Therefore, Wisconsin law enforcement agencies may not comply with ICE detainers because there is no state law authority to do so. The aforementioned Section 287(g) agreements are likewise unlawful. Per the Immigration and Nationality Act, Section 287(g) agreements must be consistent with state law. Wisconsin law does not authorize detainer compliance, an integral component of the state’s Section 287(g) agreements. The agreements currently operational in Wisconsin are therefore inconsistent with state law and thus invalid. Moreover, these agreements were entered improperly.
This Comment builds on the existing literature regarding ICE detainers and Section 287(g) agreements by offering a novel, Wisconsin-specific set of arguments against such agreements. It also synthesizes several recent cases related to ICE detainers and Section 287(g) agreements. The Comment concludes by sketching litigation strategies to implement its arguments. Given the state’s gerrymandered legislature, litigation likely offers the sole means of ending Wisconsin law enforcement agencies’ unlawful compliance with ICE detainers, eliminating the state’s problematic, ineffective Section 287(g) agreements, and keeping Wisconsin immigrant families intact.
