This post is intended for NIRMA member counties, and in particular county boards, sheriffs, and jail directors, to keep track of the rapid immigration-related developments occurring under the current Federal Administration, and at the Nebraska state level.
It is a list of key developments, links to source materials to explore them in greater depth, along with a short explanation from NIRMA’s attorney partners about the potential impact of each development at the local/county level.
Scroll down to learn more about the following topics:
- Congress passes the Laken Riley Act
- Proposed new federal law “No Bailout for Sanctuary Cities Act”
- New Policies of the U.S. Attorney General (DOJ) to Enforce the President’s E.O. & Related Litigation
- New Federal Initiatives to Seek County Assistance with Immigration Enforcement
- Governor Pillen Issues E.O. 25-01 & Related Public Records Requests
- Publication of a “Sanctuary Jurisdictions List” by DHS & Federal Investigation into Immigration Policies of Local Law Enforcement Agencies
- Reports of Many More Immigration Administrative Warrants Added to NCIC Database
#1. Congress passes the Laken Riley Act
This new federal law mandates the federal detention of illegal immigrants who are accused of theft, burglary, assaulting a law enforcement officer, and any crime that causes death or serious bodily injury.
What does this mean for Nebraska Counties? This law is directed at the actions of ICE at the federal level. At the local level, it will likely mean that county jails will receive a greater number of ICE detainer requests. It may also mean that the federal government will ask counties to enter into agreements to house federal prisoners in local jails, as space may become limited in federal facilities. Under the consensus of current case law, counties are not legally obligated to continue to hold an arrestee under an ICE detainer request, and detainer requests must be handled carefully to avoid Fourth Amendment liability risks. See the Law Enforcement Notebook article in the January/February 2025 Interchange for best practice tips in this regard. And, it is best to involve your county attorney and contact NIRMA’s Legal Link service for individualized legal assistance if your county sheriff’s office is considering a written agreement to house prisoners for the federal government at your jail, whether that is proposed as an extension of an existing contract with the U.S. Marshal’s Office, or as a standalone contract.
#2. Proposed new federal law “No Bailout for Sanctuary Cities Act”
On January 9, this federal bill was re-introduced as H.R. 32 after stalling under the previous federal administration. If passed by Congress, it would withhold federal funding from “sanctuary jurisdictions.” The term “sanctuary jurisdiction” is defined by this particular bill to include counties that have in effect a “policy” or “practice” that “prohibits or restricts any government entity or officials from complying with a request lawfully made … to comply with a detainer,” unless the subject of the detainer request is a crime victim. On February 24, a bipartisan group of more than 75 city mayors sent a letter to the U.S. House and Senate in opposition to the bill, concluding in part that it puts “our police departments in an untenable position.”
What does this mean for Nebraska Counties? It is prudent to monitor this bill. If it passes into law, counties would need to examine their practices related to ICE detainers, and what federal funds they receive that could be affected. Judicial interpretation of the new law would be necessary. For example, it is unclear what a county might need to do to determine whether an ICE agent’s detainer request was “lawfully made,” i.e. whether it is supported by adequate probable cause. In the past, county jail authorities have been sued for continuing to hold an arrestee on a federal detainer when it turns out that the federal ICE agent was mistaken about an arrestee’s identity or did not have probable cause to issue a detainer.
#3. New DOJ Policies to Enforce the President’s E.O. & Related Litigation
Following President Trump’s Executive Order 14,159 (E.O.) called “Protecting the American People Against Invasion,” the U.S. Department of Justice has issued written guidance (DOJ memos) to direct the federal employees of that office about what will be expected of them in enforcement of the E.O.
On February 5, the newly appointed U.S. Attorney General Pam Bondi issued two separate memos to U.S. AG’s Office employees, one on the subject of General Policy and one on Sanctuary Jurisdiction Directives. These emphasize an intent to withhold federal grant funds from “so-called sanctuary jurisdictions” and to prioritize potential criminal prosecutions of state and local actors under federal laws for “resisting, obstructing, and otherwise failing to comply with lawful immigration related commands and requests.” One of the memos expresses the Attorney General’s view that “sanctuary jurisdictions” are those that “refuse to comply with 8 U.S.C. 1373, refuse to certify compliance with 1373, or willfully fail to comply with other applicable immigration laws.”[i] These memos also refer to the U.S. AG’s opinion that authority for potential criminal prosecutions could be found in 18 U.S.C. 922(g)(5) or 371 and/or 8 U.S.C. 1324-1328, or 1373. Of note, sections 371 and 1324 focus, respectively, on the crimes of “conspiracy to commit a crime or defraud the United States” and “harboring, concealing, and shielding” persons who are in the country illegally. The AG also reiterates: “All declination decisions with respect to any effort to obstruct or fail to comply with a lawful immigration-related directive from the Executive Branch shall be promptly reported…”
Additionally, an Executive Order issued by the President on April 28 states that the AG will “prioritize prosecution of any applicable violations of Federal criminal law with respect to state and local jurisdictions whose officials: (a) willfully and unlawfully direct the obstruction of criminal law, including by directly and unlawfully prohibiting law enforcement officers from carrying out duties necessary for public safety and law enforcement.”
Federal litigation related to some of these new policies has commenced in jurisdictions outside Nebraska, both initiated by the DOJ to start its enforcement efforts, and initiated by some local governmental entities seeking to stop federal enforcement efforts. For example:
On February 6, the U.S. Attorney General filed a lawsuit against the State of Illinois, Cook County, and the City of Chicago, asking a federal judge to strike down that locality’s so-called local “sanctuary” laws. The local government entities filed motions to dismiss in March, which are opposed by the DOJ and and in April the federal government asked the court to enter a summary judgment in its favor. These motions are awaiting judicial decision. On February 12, the U.S. Attorney General filed a lawsuit against New York challenging its “green light” law which limits sharing state driver’s license records with federal immigration officials. And on May 2, the federal government sued the State of Colorado and the City of Denver. This lawsuit seeks a declaration judgment that Colorado and Denver’s “sanctuary” laws violate the Supremacy Clause. Also in May, civil lawsuits were filed by the federal government against the City of Rochester, New York, and the City of Newark, New Jersey over forms of alleged lack of cooperation with ICE efforts. And June brought a similar suit against the City of Los Angeles and its leadership officials.
On February 7, a group of cities and counties in California and Washington filed a federal lawsuit challenging the constitutionality of parts of the President’s E.O. 14,159 and certain aspects of the enforcement policies expressed in the DOJ memos. On April 24, the federal judge in that case entered a preliminary injunction (applicable only to the named plaintiffs) to prevent the federal government from prosecuting, suing, or withholding federal funds from these so-called “sanctuary jurisdictions,” while they litigate their claims, which include seeking a judicial declaration that certain provisions in the E.O. and DOJ memos are unconstitutional and therefore unenforceable. This tracks with the similar outcome of a case involving the same parties in 2019 during President Trump’s first administration.[ii] These jurisdictions are also asking for enforcement of their preliminary injunction as pertains to the more recent Executive Order that might impact their federal funds, too. A similar lawsuit by two cities in Massachusetts was brought in February and is also working its way through the court system. And on May 13, a coalition of several states (not including Nebraska) sued the federal government regarding its conditioning of FEMA funding on changing those state’s immigration policies. This lawsuit challenges the federal government’s new “terms and conditions” related to immigration that are being required for federal funding contracts, and alleges these are unlawful under the Tenth Amendment, Spending Clause, separation of powers, and as ultra vires actions.
In April, two judges, one in New Mexico and another in Wisconsin, were criminally charged after alleged actions to assist illegal aliens in evading capture by ICE. These cases are among the first examples of the DOJ charging local government officials with criminal offenses as part of the federal administration’s crackdown on immigration.
What does this mean for Nebraska Counties? It’s unclear at this early stage how the new federal policies will play out, or what the outcome of the various pending court cases will be. The litigation filed so far indicates that the initial focus will be on large cities and states outside of Nebraska, and it will take time for these matters to make their way through the courts. Of note, Nebraska has no so-called “sanctuary laws” like those in Colorado, Illinois, and New York that are being challenged by the federal government. Nor has Nebraska opted to participate in any lawsuit challenging the President’s Executive Orders or current DOJ policies on immigration.
Nebraska County Sheriff’s Offices with jails should continue to communicate with ICE and be especially cautious in examining federal ICE detainer requests, with the help of their county attorney. Any future prosecutions and the civil suits brought by the federal government against state or local government agencies are likely to be highly litigated, due to the tension between the U.S. Attorney Office’s interpretation of the Supremacy Clause, and the Tenth Amendment’s provisions that prohibit the federal government from commandeering the States. Additionally, because Sections 371 and 1324 are limited to criminal prosecutions against a “person,” it is uncertain whether a court would allow a county entity or a county official acting in their official capacity (performing their job functions) to be charged or criminally prosecuted under these sections.
County Sheriff’s Offices may receive inquiries about their immigration policies from the newly formed federal Working Group or other federal officials, so they should be prepared to explain how they are communicating with ICE about arrestees in local custody and when they are expected to be released, to demonstrate compliance with section 1373. County jails should keep documentation of the reasons their for their decisions regarding ICE detainers, to explain why they were justified. And counties should expect to be asked to “certify” compliance with section 1373 in writing and to be confronted with other new immigration-related terms and conditions when initiating or renewing any agreements involving federal funding. Counties may also be contacted by the federal government asking them to review their current policies for compliance with the President’s Executive Orders.
#4. New Federal Initiatives to Seek County Assistance with Immigration Enforcement
On January 23, the acting Director of the Department of Homeland Security declared a “mass influx” of illegal aliens to the U.S. and requested the assistance of state and local law enforcement to address it. This triggers a federal regulation that allows the federal government to enter into agreements with local law enforcement agencies for such assistance. In general, these agreements must be in writing.
The most common type of agreement between a local law enforcement agency and DHS related to enforcement of immigration laws is commonly known as a 287(g) agreement. There are three types of 287(g) agreements, summarized as follows:
- Jail Enforcement Model is designed to identify and process removable aliens — with criminal or pending criminal charges — who are arrested by state or local law enforcement agencies.
- Task Force Model – law enforcement agencies to enforce limited immigration authority with ICE oversight during their routine police duties.
- Warrant Service Officer program allows ICE to train, certify and authorize state and local law enforcement officers to serve and execute administrative warrants on aliens in their agency’s jail.
Another type of written agreement utilized during the first Trump Presidential Administration was Basic Ordering Agreements (BOA). In 2017, the National Sheriff’s Association announced several Basic Ordering Agreements (BOA) with counties in Florida. The BOA states that these counties are paid $50 each time they accept an ICE detainer request to hold a suspected alien for up to 48 hours after they would otherwise be released from the local criminal charges that initially landed that person in the county jail. The intended purpose of the BOA is to render the actions of the local agency “under the color of federal authority” rather than “under color of state law,” so that the local agency may have an additional defense to potential civil liability in the event of a civil lawsuit by an arrestee claiming to have been improperly held on an ICE detainer. The constitutionality of the BOA was challenged by an immigration advocacy group in court, and while the Florida District Court did not rule on that question, it did conclude in an order issued May 30 that the local law enforcement agency violated the Fourth Amendment rights of the mistakenly detained plaintiff, finding that the local agency could not “blindly obey” the federal detainer packet and should have independently investigated several indicators that the ICE detainer was incorrect and the plaintiff was actually a U.S. citizen.
DHS has rescinded internal Guidance documents dating back to 2011 that instructed its ICE agents not to carry out immigration enforcement in certain “sensitive” or “protected” places like schools and churches, and has indicated that it will “not be issuing bright line rules regarding where immigration laws are permitted to be exercised,” and instead expects federal law enforcement personnel to exercise “appropriate enforcement discretion.”
On April 28, President Trump issued another Executive Order called, Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens, and an accompanying fact sheet. This order contains some provisions that are broader that enforcement of immigration law but which might have implications for local law enforcement officers who are involved in enforcement of federal immigration laws. For instance, it provides that the AG and Secretary of Defense will determine how military and national security assets will be provided to local jurisdictions to assist in state and local law enforcement, and provides for the creation of a legal resources and indemnification for law enforcement officers including use of private pro bono legal assistance for law enforcement officers.
What does this mean for Nebraska Counties? It is important to remember that local law enforcement generally does not have legal authority to enforce federal civil or criminal immigration laws in the absence of a written agreement with federal authorities, though some are now arguing there are exceptions. Agreements between the federal government and a local law enforcement agency related to enforcement of federal immigration laws are typically specific in terms of the powers being delegated, the training to be provided by the federal government to the local personnel, and the funding to be provided to the local agency. Counties might be approached about entering into agreements that would impact their patrol operations, their jail operations, or both.
The current federal initiatives likely mean a bigger push for county sheriff’s offices to enter into 287(g) agreements or other forms of written agreements to assist in federal immigration enforcement efforts. If a county sheriff’s office is approached by federal authorities to enter into a written agreement, the liability risks posed should be considered and the county should enlist legal assistance to help negotiate terms that minimize risks of participation. Court cases involving these kinds of agreements should also be monitored.
It is unclear at this early stage whether the April 28 Executive Order will result in any legal resources or indemnification being provided to local law enforcement officers by the federal government in the event of an immigration-related civil lawsuit against them.
Additionally, County employers need to consider how the federal government’s immigration agenda may affect their HR practices. Specifically, counties should be extra vigilant about I-9 form and E-verify compliance. Ideally, I-9 Forms for all employees should be maintained in one file to be prepared for the event of a worksite enforcement audit by ICE or USCIS. If federal agents present a warrant or subpoena document to county officials or employees, they should consult with their county attorneys to navigate compliance, to the extent feasible.
#5. Governor Pillen Issues Executive Order 25-01 and Related Public Records Requests
On January 24, Nebraska Governor Jim Pillen issued Executive Order 25-01, which directed state agencies to undertake certain tasks “to the fullest extent of the law” by May 31, 2025, including examination of policies for compliance with federal Executive Orders related to immigration, and to “consider” 287(g) agreements with the federal government to assist with federal immigration enforcement.
At least one county jail has since received a public records request from a nonprofit advocacy group seeking to find out if the jail has entered into any federal immigration enforcement agreements following this E.O.
What does this mean for Nebraska Counties? This E.O. applies to the Nebraska State Patrol and the Nebraska Department of Corrections, not to County Sheriff’s Offices. The Nebraska Legislature has not taken any action in the current 2025 session to change counties’ role in enforcement of federal immigration laws. If your agency receives a public records request related to the E.O., it is very important to consult with your county’s legal counsel and to timely respond. NIRMA’s Legal Link Service can assist with these, if requested. Remember, Nebraska law only affords 4 business days to reply to a public records request, and your reply must be one that is within the parameters of the applicable state statute. And again, county agencies considering agreements related to federal immigration enforcement should consult with legal counsel and ensure they are managing risks and complying with applicable state laws in effect at that time.
#6. DHS “Sanctuary Jurisdiction” List & Federal Investigation Opened into the Immigration Policies of Local Law Enforcement Agencies
On January 27, the House Oversight Committee announced an investigation into the policies of so-called “sanctuary jurisdictions,” focusing on the cities of Boston, New York, Chicago, and Denver. The announcement characterized “sanctuary jurisdiction” as: “states, counties or cities that put some limits on how much they are willing to cooperate with federal agencies’ efforts to deport illegal aliens.” On March 5, following a Congressional hearing with the Mayors of the aforementioned cities, one U.S. Senator publicly stated that she would be referring the cities to the DOJ for consideration of criminal prosecution.
On April 28, President Trump issued an Executive Order called Protecting American Communities from Criminal Aliens, and an accompanying fact sheet. This order directed the AG and Secretary of Homeland Security (DHS) to publish a list of state and local jurisdictions that “obstruct the enforcement of Federal immigration law (sanctuary jurisdictions).”
DHS published the “sanctuary jurisdiction” list on May 28. At that time, it contained 10 rural counties in Nebraska. However, none of the listed Nebraska counties have jail facilities, and none of them maintain policies like those commonly identified elsewhere as “sanctuary” policies. As a result, local media reported that their inclusion on the list was erroneous. The President’s Executive Order requires the U.S. AG and Secretary of DHS to notify each jurisdiction on the list of alleged violations of law, and indicates these jurisdictions will be subject to suspension or termination of federal funding, including from grants or contracts. Subsequently on June 1, the link to the list was taken offline, without explanation from DHS.
On June 25, several associations sent a letter to DHS Secretary Noem on behalf of their member local governments asking for published standards on how the list was formulated, the establishment of an appeal/review process for listed jurisdictions, and guidance on how DHS intends to treat listed jurisdictions that have obtained a judicial preliminary injunction against the enforcement of the President’s Executive Order 14159.
What does this mean for Nebraska Counties? Continued monitoring and analysis of the DHS “sanctuary jurisdiction” list and any resulting notifications arising from the Executive Order will better inform Nebraska counties on how they may need to respond, but it strongly appears that the only listed Nebraska jurisdictions were erroneously included. An email address exists for jurisdictions to contact DHS to explain if they believe they were erroneously included on the list, as follows: sanctuaryjurisdictions@hq.dhs.gov.
It is possible that the list was taken offline for corrections to be made, which could result in the Nebraska counties being removed. With that said, these developments alert these counties that they may be contacted by federal authorities to explain their immigration-related policies, and that they may need to be ready to respond to negative/inaccurate news coverage on this issue. Counties that appeared on the original list should consider and potentially prepare for any subsequent steps the federal government may take against those jurisdictions as outlined in the Executive Order referenced above.
Note that the President’s Executive Order and DHS announcements in connection with the federal government’s publication of a “sanctuary jurisdiction” list each define the term “sanctuary jurisdiction” differently than the policies of the U.S. Attorney General referenced above. The federal government did not explain why the Nebraska Counties were included on its initially published “sanctuary jurisdictions” list. This only underscores that there is no legally enacted nor universally accepted definition of the “sanctuary jurisdiction” phrase, even among federal lawmakers and executives.
#7. Reports of Many More Immigration Administrative Warrants Added to NCIC Database
In April, news reports surfaced that the federal government has added thousands more immigration-related arrest warrants to the NCIC database, though this has not been confirmed by ICE. These immigration-related warrants appearing in the NCIC database may be administrative warrants, while others could be judicial warrants. Administrative warrants, such as the I-200 and I-205 documents issued by ICE, generally do not authorize an arrest by a local law enforcement officer (absent a local agency’s express written agreement with the federal government, such as a certain type of 287(g) agreement), and an arrest relying on this type of warrant could be accused of violating the Fourth Amendment. A judicial warrant, in contrast, is signed by a judge (not an ICE officer), and indicates that the judge has determined there is probable cause for an arrest of the named individual for a criminal offense.
This highlights another complexity in immigration law violations—some offenses are only civil in nature while others are criminal in nature. For example, a non-U.S. citizen’s undocumented presence in our country (such as overstaying a visa) is a civil offense, whereas re-entering our country after being deported is a criminal offense.
Local law enforcement officers may not have or be restricted in their legal authority to prolong an otherwise lawful detention under state laws for a federal civil immigration-related offense (again, absent certain exceptions that could include honoring a valid DHS I-247A Form, preexisting written agreement with the federal government, such as a certain type of 287(g) agreement).
What Does this Mean for Nebraska Counties?
Nebraska county law enforcement agencies need to work to fully understand the distinctions noted above so that they can train their officers on how to handle scenarios they might encounter in the field when performing checks in NCIC.
The IACP has published a Guidance document that may assist county law enforcement officers in evaluating these topics. Some of the key ways to avoid potential liability risks include carefully examining immigration warrants, promptly communicating and coordinating with ICE in the event of an immigration warrant “hit” in NCIC, refraining from prolonging a detention or arresting an individual based solely on an ICE administrative warrant absent a written agreement with the federal government, and maintaining detailed documentation of the details of every such interaction.
** Our intention is to update this post approximately weekly and as we become aware of the need for any updates or to add new information. Unfortunately, due to the complexity of the current immigration landscape and the fast pace of changes, we are unable to make any guarantee that the information posted here will at all times be entirely up-to-date or accurate. This is simply an effort to help NIRMA member law enforcement personnel stay informed and consider ways to mitigate potential liability risks. Member County Board members, Sheriffs, and Jail Directors should feel free to contact NIRMA’s free Legal Link Service at legallink@nirma.info or 402-742-9240 to speak with an attorney about individualized questions.
[i] Section 1373 prohibits counties from enacting laws or policies that limit communication with ICE about the immigration or citizen status of individuals, but does not require compliance with ICE detainer requests. A related provision, 8 USC 1644, states: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”
[ii] In United States v. California, 921 F.3d 865 (9th Cir. 2019), the federal government sued California alleging that its so-called “sanctuary” law violated the Supremacy Clause. The Ninth Circuit Court of Appeals dismissed the case on Tenth Amendment grounds, finding that “refusing to help [at the local law enforcement level] is not impeding” nor did California’s state law requiring local jails to decline ICE detainers pose any “obstacle” to federal immigration enforcement efforts.
