This post is intended for NIRMA member counties, and in particular county boards, sheriffs, and jail directors, to track 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 immigration-related Congressional actions such as the “No Bailout for Sanctuary Cities Act”
- New Policies of the U.S. Attorney General (DOJ) to Enforce the President’s E.O.s & 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 updated “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. The 5/25 version of the I-247A detainer form contains a new checkbox for the ICE agent to indicate if the subject of the detainer request falls within the scope of the Act. 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. It is important to note that Eighth Circuit case law governing Nebraska prohibits jail facilities from having a policy to contact ICE about a person in their custody on the basis of the individual’s foreign birth standing alone, as a violation of the Equal Protection Clause.
The increase in number of arrests by ICE agents may in turn increase demand for agreements to house these federal arrestees in county jails. We recommend involving your county attorney and contacting 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 to house other federal prisoners, or as a standalone contract such as an IGA. As with any contract, negotiation of terms is important to managing risk.
#2. Proposed immigration-related Congressional actions, such as the “No Bailout for Sanctuary Cities Act”
There are a variety of proposed measures pending in Congress seeking to influence the approach of local governments to immigration enforcement, but none have yet been passed into law. These include the No Bailout for Sanctuary Cities Act, the HELD Act, the Stop Dangerous Sanctuary Cities Act, the No DOT funds for Sanctuary Cities Act, and several others (see the explanation under the Considerations for Congress heading in this Legal Sidebar from the Congressional Research Service).
In particular, the No Bailout for Sanctuary Cities Act, 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 in this proposal 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 for counties to monitor the immigration-related bills pending in Congress, as passage may mean that counties would need to examine their practices related to ICE detainers, and analyze the impact on any federal grant funds they receive. Any law that is passed may also be subject to judicial challenge and interpretation.
For example, as relates to the No Bailout for Sanctuary Cities Act, 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. County jail authorities have been sued in the past and could face civil liability 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 – Conditioning Federal Funds under Immigration-related Contract Terms; Litigation
Following President Trump’s Executive Order 14,159 (E.O.) called “Protecting the American People Against Invasion,” and subsequent immigration-related Executive Orders, 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.
The U.S. Attorney General Pam Bondi issued two separate memos in February 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 memo 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.”
Litigation related to the new federal immigration policies is pending in numerous jurisdictions. None of this litigation directly involves the state of Nebraska or any of its political subdivisions, they are primarily disputes between the federal government and self-professed sanctuary jurisdictions, though some suits more broadly involved other state or local governments whose federal funding has been adversely impacted by federal actions. Some of these lawsuits were initiated by the DOJ as part of federal enforcement efforts, while other lawsuits were initiated by state or municipal governmental entities to challenge federal enforcement efforts.
Added to the 5/25 version of the I-247A detainer form is a Notice that it is a crime to “harbor or conceal” a person after notice or knowledge that the person is wanted by a warrant, though we are not aware of any instance where a local government official has been charged under this criminal provision in connection with their handling of an ICE detainer at a county or local jail.
In late September, the DOJ announced the creation of a new office within its Civil Division – the Enforcement & Affirmative Litigation Branch – for purposing including to file lawsuits “against states, municipalities, and private entities that interfere with or obstruct federal policies…” and … “advance the Department’s enforcement priorities, including … ending sanctuary jurisdiction laws, policies, and practices that impede federal immigration enforcement…”
What does this mean for Nebraska Counties? It’s unclear at this early stage how the DOJ policies will play out, or what the outcome of the various pending court cases will be. The ongoing litigation thus 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 court system. Of note, Nebraska has no so-called “sanctuary laws” like those in, for example, California, 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 the U.S. DOJ policies on immigration.
Nebraska County Sheriff’s Offices that operate jails should continue to communicate with ICE and be especially cautious in examining federal ICE detainer requests, with the help of their county attorney and NIRMA Legal Link. The civil lawsuits 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. The pending criminal cases may produce further insights on how the courts will interpret the “harboring” and “concealing” provisions in federal law that the DOJ has cited as the basis for criminal charges against local officials related to their role in immigration enforcement.
County Sheriff’s Offices may receive inquiries about their immigration policies from federal officials or private immigration advocacy groups, 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. 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. Federal Initiatives to Seek County Assistance with Immigration Enforcement – 287(g) Agreements, I-9 audits
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.
In two states, legal disputes have arisen over the question of whether a county Sheriff’s Office is legally authorized to enter into a 287(g) agreement without the consent of its county board. This is a question that would be decided under each state’s law, and no similar legal challenge has been raised in Nebraska. Previous legislative sessions have seen bills proposed to require county board approval of such agreements, but those measures have not passed.
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 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, 2025, 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, the President issued an 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 than 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 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, with some potential exceptions, depending on how laws are interpreted. 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. Counties can consider undertaking an internal I-9 audit. 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 did not take any action during its 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. 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/DOJ Updated “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).”
The DHS published an initial list on May 29, but that original list was taken offline within days. On August 5, the DOJ published an updated “sanctuary jurisdiction” list. The updated list no longer includes the 10 rural Nebraska counties that were erroneously included on the original list. There are no Nebraska jurisdictions on this updated list. The updates came after a June 25 letter by several associations to DHS Secretary Noem on behalf of their member local governments asking for published standards on how the list was formulated and the establishment of an appeal/review process for listed jurisdictions. In connection with the updated list, DOJ published the following criteria used when formulating the list:
- Public Declarations: Cities, states, or counties that publicly declare themselves a sanctuary jurisdiction or equivalent, with the intent to undermine federal immigration enforcement.
- Laws, Ordinances, Executive Directives: Cities, states, or counties that have laws, ordinances, regulations, resolutions, policies, or other formalized practices that obstruct or limit local law enforcement cooperation with U.S. Immigration and Customs Enforcement (ICE).
- Restrictions on Information Sharing: Cities, states, or counties that limit whether and how local agencies share information about immigration status of detainees with federal authorities.
- Funding Restrictions: Cities, states, or counties that prohibit local funds or resources from being used to support federal immigration enforcement efforts.
- Non-cooperation with Federal Immigration Enforcement: Cities, states, or counties that provide training to city employees and police on enforcing sanctuary policies and declining to respond to ICE requests for information.
- Limits on ICE Detainers: Cities, states, or counties that refuse to honor ICE detainer requests unless there is a warrant signed by a judge.
- Jail Access Restrictions: Cities, states, or counties that restrict ICE agents’ ability to interview detainees absent detainee consent.
- Immigrant Community Affairs Offices: Cities, states, or counties that create dedicated offices to engage and advise illegal alien communities on evading federal law enforcement officers.
- Federal Benefit Programs: Cities, states, or counties that circumvent federal laws prohibiting the provision of federal benefits to illegal aliens and provide them with access to benefits, including health care assistance, legal aid, food and housing assistance, and other subsidies. This includes cities, states, or counties that establish stand-alone benefit programs or equivalents.
What does this mean for Nebraska Counties? Continued monitoring and analysis of the DHS “sanctuary jurisdiction” list and related pending litigation matters in other jurisdictions will better inform Nebraska counties about these issues. Although no Nebraska jurisdictions are on the updated list, DHS has indicated the list will be continually updated, and the email address for jurisdictions to contact DHS if they believe they have been erroneously included on any updated list is: sanctuaryjurisdictions@hq.dhs.gov. While there is no appeal process listed in the announcements, the DOJ website indicates that jurisdictions “will have an opportunity to respond” if placed on the list.
Counties need to be alert 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 public records requests and media inquiries on this issue, such as occurred when the originally published DHS list erroneously included several Nebraska jurisdictions.
Note that the President’s Executive Order and DHS/DOJ announcements/criteria in connection with the federal government’s publication of a “sanctuary jurisdiction” list each define the term “sanctuary jurisdiction” differently than the written policies of the U.S. Attorney General expressed in memos linked 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, and the meaning of the phrase is continually in flux, even among federal lawmakers and executives. The latest criteria listed above as published by the DOJ should be examined by Nebraska county law enforcement agencies in light of their own policies and practices, and any questions should be directed to their county attorney or NIRMA Legal Link.
#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 a field 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). It indicates that the judge has determined there is probable cause for an arrest of the named individual for a criminal offense, and requires action by local law enforcement.
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.
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 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.
