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Immigration enforcement is typically characterized as a federal matter. But U.S. Immigration and Customs Enforcement’s work is intertwined with state law in many ways, giving rise to new state lawsuits that shape the relationship between ICE and the states and local governments in which it operates.
One area where state law plays a large role is the use of immigration detainers. This is a voluntary request that ICE makes to another law enforcement agency without a warrant. These detainees are asking law enforcement to notify ICE before the individuals in their custody are released, even if the charges are dropped or they are acquitted, and to keep them in jail for an additional period of time for ICE to hold them in immigration custody.
During the first Trump administration, the state supreme courts in Massachusetts and Montana and the New York appellate court ruled that state laws prohibited law enforcement officers from following immigration detainees. (Minnesota’s appellate court has ruled that a similar legal challenge is likely to succeed.) Both courts concluded that submitting to a detainee constitutes a new arrest under state law. And none of the laws in those states authorize law enforcement to arrest immigrants, and these courts emphasized that the arrests were civil in nature, not criminal.
A similar incident occurred in September. Voice of the Border v. Gerberfiled in the Wisconsin Supreme Court. The petition argues that the state Legislature “has clearly defined in detail the full scope of the arrest powers of state and local law enforcement officers,” and that this power does not include the arrest of civilian immigrants. The lawsuit asks the state’s high court to hear the case as an original lawsuit, bypassing lower courts and allowing for faster resolution throughout the state. The court has not yet decided whether to accept the case.
Another source of conflict arises from state or local governments entering into so-called 287(g) agreements with ICE. These agreements reference Section 287(g) of the Immigration and Nationality Act of 1996, which allows ICE to delegate immigration investigations, arrests, and detentions to state and local law enforcement agencies, greatly increasing its enforcement capabilities. ICE currently has more than 1,000 of these agreements, the highest number in history.
Under federal law, the U.S. attorney general can enter into such agreements, but only “to the extent consistent with state and local law.” Last year, the Colorado Court of Appeals ruled that a 2019 state law that prohibits law enforcement officers from arresting or detaining individuals based on immigration detainers means counties cannot enter into 287(g) agreements to execute such detainers.
In June, a lawsuit was filed in New York challenging the Nassau County Police Department’s 287(g) agreement, which gives police broad powers when it comes to arresting and detaining immigrants. The case, which is still pending and is the first legal challenge to these agreements in New York, points to previous immigration detainer cases and argues that New York state law prevents police from arresting and detaining people for civil violations of federal immigration law. The lawsuit further alleges that the 287(g) agreement results in unlawful racial profiling. For all of these reasons, the plaintiffs argue, New York local governments cannot enter into 287(g) agreements.
In addition to law enforcement activities, state laws may also impose restrictions on ICE contractors. In California, a group of community-based organizations and activists sued Clearview AI, a company that provides a facial recognition database containing billions of images collected from websites such as Facebook and Venmo.
The plaintiffs allege that Clearview provides services to ICE and local police departments, allowing them to “conduct arbitrary digital searches” without any privacy safeguards. The complaint seeks both damages and an order requiring Clearview to comply with state law, citing state constitutional privacy rights and state common law protections against “appropriation of likeness.” in state court report In an article this summer, Nicole Ozer argued that “Clearview’s surveillance practices are at the heart of what California’s constitutional privacy rights are designed to protect.”
Finally, as these cases progress, new laws will assert even more significant state powers. California recently passed a series of laws that limit arrests of immigrants at schools, universities and hospitals, ban law enforcement from wearing face coverings and require police officers to provide identification. In Illinois, the Legislature recently passed a bill that would ban ICE arrests in and around state courthouses and strengthen protections in hospitals, day care centers, and public hospitals, and is awaiting the governor’s signature. (Just this week, a New York federal court rejected a legal challenge by the Trump administration to New York’s Court Protection Act, which provides similar court protections. Disclosure: The Brennan Center filed amicus briefs in this case.)
The Illinois bill would also create a state law cause of action against anyone who knowingly violates the Illinois Constitution or the U.S. Constitution during the enforcement of private immigration. Harrison Stark of the State Democracy Research Initiative recently argued that the “Reverse 1983”, which creates state remedies when federal officials violate U.S. constitutional rights, is permissible under federal law.
Stay tuned for more state lawsuits as the contours of state power regarding immigration enforcement continue to be tested.
Alicia Bannon is the editor-in-chief state court report. She is also the director of justice programs at the Brennan Center for Justice.
Recommended quote: Alicia Bannon State challenges to immigration enforcement practicesSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (November 20, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-challenges-immigration-enforcement-practices
