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
- Federal Investigation Opened into Immigration Policies of Local Law Enforcement Agencies
#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.
#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…”
Federal litigation related to 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 pending for a 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. As of the date of this writing, no criminal prosecutions have yet been initiated against local government entities or personnel under the new federal DOJ policies.
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. This lawsuit seeks an injunction to prevent the federal government from prosecuting, suing, or withholding federal funds from so-called “sanctuary jurisdictions” and a judicial declaration that certain provisions in the E.O. and DOJ memos are unconstitutional and therefore unenforceable. A similar lawsuit was filed by two cities in Massachusetts on February 23.
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 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.” Nebraska does not have any state laws similar to those in Illinois and New York that are being challenged by the federal government, nor has Nebraska opted to participate in California and Washington’s suit challenging the President’s E.O.
While these matters make their way through the courts, County Sheriff’s Offices with jails here in Nebraska 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. And, the federal government was unsuccessful in its effort to sue California seeking to invalidate its so-called “sanctuary” laws during President Trump’s first term.[ii] 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 as a condition of 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 E.O.
#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 DHS also 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.”
Finally, the National Sheriff’s Association announced previously during the first Trump Presidential administration that ICE had entered into Basic Ordering Agreements (BOA) with several counties in Florida. The BOA provides 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. While the constitutionality of the BOA has been challenged by an immigration advocacy group in court, that case remains unresolved, and the current federal administration may revive its prior efforts to utilize these agreements with local law enforcement agencies.
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 immigration laws in the absence of a written agreement with federal authorities. These agreements 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.
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.
Additionally, County employers should be extra vigilant in their efforts to ensure I-9 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 it is safe and feasible to do so.
#5. Governor Pillen Issues Executive Order 25-01
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.
What does this mean for Nebraska Counties? This EO 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. 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. 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.
What does it mean for Nebraska Counties? Similar to the interim policy of the U.S. Attorney General’s Office, this announcement alerts counties that they may be contacted by federal authorities to explain their immigration-related policies. But again, the initial focus of this particular investigation will be on jurisdictions outside Nebraska that have state laws or clear policies that the federal administration views as contradicting its interpretation of federal immigration laws. Continued monitoring will better inform Nebraska counties on how they may need to respond. Note that this policy defines “sanctuary jurisdiction” differently than the No Bailout for Sanctuary Cities Act, and differently from the policies of the U.S. Attorney General, both of which are referenced above. This only underscores that there is no legally enacted nor universally accepted definition of this phrase, even among federal lawmakers and executives.
[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.
** Our intention is to update this post at least 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 [email protected] or 402-742-9240 to speak with an attorney about individualized questions.
