Migrant influx sparks questions about Rensselaer County, ICE program

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TROY — This summer, the Rensselaer County Sheriff’s Office marked an anniversary: five years since the start of a controversial collaboration between the department and the federal agency in charge of apprehending and detaining undocumented individuals accused of criminal activity. 

Since signing an agreement in 2018, Rensselaer County has been the only county in New York to participate in the “287(g)” program — which refers to the section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that authorizes U.S. Immigration and Customs Enforcement (ICE) to delegate the authority for immigration officer functions to state and local law enforcement officers.

The authorization has long been vilified by immigration advocates, but staunchly defended by county Sheriff Pat Russo and other local GOP officials. Russo, in pushing back against public outcry in the first few years of the partnership, has repeatedly invoked public safety concerns and said that the program only delivers noncitizens into ICE custody after they have been detained by local law enforcement on other criminal charges. 

At one point the center of a political maelstrom during the administration of former President Donald J. Trump, who had campaigned on stricter immigration and border policies, vocal opposition to the program appears to have dropped off in recent years. 

But since last spring, waves of migrants crossing the southern border, including tens of thousands seeking asylum and employment in New York, have made their way into upstate communities, including the Capital Region.

Their presence in hotels serving as temporary shelters in local counties have sparked tensions between public officials in New York City, state government officials and local communities and led to renewed questions about whether the surge of migrants will result in an increase of run-ins with local law enforcement through policies like the immigration officer program. Immigration advocates say the apprehension could lead to adverse consequences like possible deportation, as well as intensify divisive rhetoric on the flashpoint issue.

The program also appears to be a talking point in the local sheriff’s race underway in Rensselaer County, with top GOP candidates seeking to fill the job Russo is vacating and doubling down on their support of the federal program.

The program allows the federal agency to “delegate to state and local law enforcement officers the authority to perform specified immigration officer functions under the agency’s direction and oversight,” though interpretations of what those functions are appear different across state lines.  The program focuses on identifying and removing “incarcerated criminal noncitizens” who “undermine the safety of our nation’s communities and the integrity of U.S. immigration laws,” according to the agency.

In New York, Russo has downplayed the scope of his office’s participation in the program. Two correction officers at the Rensselaer County Jail have been trained in 287(g) procedures, meaning they are authorized to check federal databases to see if ICE has a hold on any inmates housed at the jail. The jail can then notify federal immigration officials about an inmate’s release date and deliver them into federal immigration custody. 

Through the Rensselaer County Sheriff’s Office, there have been 313 encounters with “unlawfully present noncitizens” in New York through the  federal program, according to Ross Tweten, a spokesman with Immigration and Customs Enforcement.

And the program has continued to ramp up, according to available data: this year, ICE reported 37 encounters in this region with unlawfully present noncitizens, more than in 2022 and 2021. Officials said all of those cases would have been with Rensselaer County, the only county in New York participating in the program.

Additionally, there were 17 encounters with “egregious unlawfully present noncitizens,” with one occurring this year. ICE did not immediately clarify what is the difference between a person being “unlawfully present” and “egregious unlawfully present.” 

Rensselaer County does not get paid for its participation.

Advocates have attacked the program as divisive and undermining migrants’ trust in law enforcement. 

“It’s particularly dangerous to have a 287(g) in place right now with people who are in a pretty vulnerable position with respect to their immigration cases,” said Amy Belsher, the director of immigrants’ rights litigation at the New York Civil Liberties Union. The NYCLU has long been critical of Rensselaer County’s enrollment in the program. “Being new to this country and being particularly vulnerable, they need to be able to trust in our local law enforcement … and this just makes it really risky for them to do that.”

Belsher also questioned the legality of the agreement, adding that it could open the county to possible litigation.

The influx of migrants is poised to become a defining factor in upcoming state and national elections. The scale of the situation is massive: nearly 100,000 migrants have arrived in New York City since spring 2022, leading city officials to declare the situation a humanitarian crisis and attempting to divert some of the pressure on city services by busing hundreds of people upstate into communities like the Capital Region. 

County leaders in the area have responded alternately with messages of welcome as well as alarm and frustration. Some have dissuaded new arrivals; Rensselaer County Executive Steve McLaughlin, also a Republican, issued a state of emergency earlier this summer attempting to block any individuals from being housed at temporary shelters in the area (McLaughlin has also defended the program and questioned why more counties do not have a 287(g) agreement in place).

But Gov. Kathy Hochul, a Democrat, has joined some of those local county officials in their criticism of New York City’s migrant relocation program, echoing their concerns about what they view as a lack of coordination. Some counties have enacted states of emergency or filed lawsuits seeking to bar further relocations unless they are done in coordination with local officials and after determining there are adequate resources to care for them.

Earlier this month, an attorney for Hochul’s office sent a searing letter to New York City Mayor Eric Adams administration, saying: “A lack of coordination from the city to date has impeded the state’s ability to foster productive relationships and discussions, including with the counties and localities that have offered to help. The city chose to send migrants to counties and localities outside of the city with little-or-no notice to or coordination with the state or those counties and localities.”

Muzaffar Chishti, director of the Migration Policy Institute at the New York University School of Law, said that while immigration law and procedures had for decades been largely under the jurisdiction of the federal government, fears over terrorism allowed U.S. agencies to deputize local and state governments beginning in the 1990s — when the 287(g) program took shape. 

The program has since been used “as an important sort of a flag to show which side of an issue you are on,” Chishti said, adding, “I can see if the sort of the concern is that a lot of people in New York City are coming to the Capital Region and becoming unwelcome. You can see these sheriffs, you know, using these programs as a mechanism to get people out.”

While state government does not necessarily have much of a say in similar programs, Chisthi said the Legislature could pass legislation to impose guardrails on how local law enforcement agencies collaborate with ICE. State lawmakers previously attempted to pass a spate of bills intended to limit police from asking about immigration status as well as banning the 287(g) program in 2019, though most of those bills went nowhere.

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