Cape May County’s Foreign-born Population’s 5.4%

CREST HAVEN – In February 2019, Sheriff Robert Nolan renewed a 2017 agreement with federal Immigration and Customs Enforcement (ICE) for an additional 10-year term, defying the spirit of a directive from the state attorney general requiring state approval of any such action.
The directive was issued in November 2018 and was to take effect in March. According to a July 6 letter to Nolan from the Attorney General’s Office, Nolan acted with full knowledge of the directive and just weeks before it would have been effective.
In that July 6 letter, the Attorney General’s Office demanded specific information on the agreement and the county’s reasons for renewing it.  The letter states the attorney general may decide to issue yet another directive Aug. 6, which would prohibit officers in Cape May County from exercising their enforcement authority concerning the agreement.
The letter states Nolan’s failure to notify the state of the renewal when it was done “suggests you deliberately declined to disclose the information.”
The immigration enforcement agreement, known as a 287(g) program agreement, takes its name from the specific section of the Immigration and Nationality Act, which permits ICE to form partnerships with local and state law enforcement agencies. It allows ICE to deputize local and state officers to perform ICE functions. 
Freeholders Support Nolan’s Decision
On July 23, freeholders unanimously approved a resolution supporting Nolan’s renewal of the agreement, citing public safety concerns. In an earlier release, Nolan said the 287(g) program agreement with ICE “helps keep criminals from returning to our streets, which keeps Cape May County safer.”
The resolution passed by freeholders makes no mention of the attorney general’s directive.
The resolution indicates the county’s support for Nolan’s decision. It does not formally approve the contract he entered into in February, indicating that the county believes the sheriff has independent authority to approve and sign such a contract without formal freeholder action. 
The original 2017 agreement with ICE was entered into by Nolan’s predecessor, Sheriff Gary Schaffer. It was set to expire June 30, 2019, prompting the February renewal. 
The 287(g) Program
The ICE website states that as of July 2019, 89 local law enforcement agencies in 21 states have signed 287(g) agreements. More than half of those agreements are in three states: Texas, Florida, and Georgia. 
The website lists two agreements in New Jersey: Cape May County and Monmouth County. It fails to note some of ICE’s largest contracts for immigrant detention.
In Essex County, the 2018 county budget lists a revenue line for $35 million for “federal inmate housing.” Essex runs the largest immigrant detention facility in the state under ICE contract. The cooperation agreement dates back to 2011.
Hudson County Jail was under contract with ICE as well, and in 2018 held 800 detainees, more than double the number of inmates incarcerated on criminal charges at the facility.
In October 2018, Hudson County freeholders voted to end the ICE contract by December 2020. The county found itself under pressure from activist groups, facing a lawsuit from a group of religious leaders and dealing with a Homeland Security report which cited concerns about the conditions detainees faced at the facility. Advocates fear the detainees will be moved to other ICE contract facilities in the state.
The ICE website listing of 89 agreements appears to be a list of those agreements entered into after President Donald Trump issued an executive order ordering the expansion of the 287(g) program in 2017.
A key to understanding the 287(g) program is to note under this program, unlike most federal law enforcement cooperative efforts, state and local law enforcement personnel are not exercising their existing law enforcement authority in cooperation with a federal agency.
Under the 287(g) program, officers are receiving federal immigration powers to use under federal supervision. This distinction may very well pose a problem for the attorney general’s threatened Aug. 6 action. Can the state constrain deputized federal officers from exercising federal powers? 
State vs. County
In the July 6 letter to Nolan, the Attorney General’s Office stated an overriding concern should be the strengthening “of trust between New Jersey’s law enforcement officers and the state’s diverse immigrant communities.” The letter argues that 287(g) agreements blur a distinction that should be maintained between local law enforcement and those charged with enforcing federal civil immigration law.
A July 10 county release in which freeholders’ support for the sheriff was expressed stated, “There is one individual in the county correctional facility currently on a detainer who was charged with aggravated sexual assault on a minor and endangering the welfare of a child. If the county were to sever its ties with the 287(G) program, an individual such as this could end up back on the streets of Cape May County following his or her prison term.”
New Jersey is third among states in the nation in terms of its foreign-born population as a percentage of the total. Census estimates are that New Jersey has 21% of its population foreign-born. By county, the estimates vary from 41% in Hudson County to 4.5% in Salem County. The estimate for Cape May County is 5.4%.
Most of the foreign-born populations are not unauthorized immigrants. The Pew Foundation estimates the unauthorized immigrant population in New Jersey at 475,000 out of a total population of around 9 million people, roughly 5.3%.
Pew data also states the population of unauthorized immigrants in the state has been declining since 2007.
With New Jersey home to a large, diverse, foreign-born population and with one in five of total immigrants in the state unauthorized, both the state and county’s positions can focus on the numbers.  
A county press release stated the numbers involved in the 287(g) agreements with ICE have been small. It states that, “Only four individuals have been deported since the agreement with ICE took effect in October 2017.” The release offers no information on how many detainees have been held at the Cape May County Correctional Facility. 
The county points to the small numbers to show the relationship with ICE has not been abused. The argument is that the arrangement has worked to take a limited number of unauthorized immigrants off the streets of Cape May County, all of whom had been charged, not necessarily convicted, of crimes.
The county resolution takes no position on the attorney general’s argument that the 287(g) agreements cast a dangerous chill on the relationship between the immigrant community and local law enforcement. The argument maintains that a growing distrust or fear of local law enforcement poses a threat to public safety.
Cape May County’s July 23 action supporting the sheriff’s renewal of the agreement sets up an impending confrontation with the attorney general in early August. If the attorney general issues another directive prohibiting the cooperation which is at the heart of the 287(g) agreement, the county may be left with the option of backing away from the agreement or challenging the attorney general in court. 
To contact Vince Conti, email vconti@cmcherald.com.