Peter Sean Brown was terrified as he sat in a bus outside an ICE detention center in Miami one afternoon last April. Brown, a cook from Key West, Florida, was born in Philadelphia and raised in New Jersey, but ICE insisted that he was a Jamaican in the U.S. illegally. Brown believed he was about to be deported to a country he had visited just once, on a cruise.
Brown was held in ICE custody on the bus with actual immigrants for two hours. One detainee felt ill and asked to use the toilet, but ICE officers refused the request and he defecated in his clothes. The smell became so overpowering that ICE officers fled the bus, leaving Brown and the other detainees in the stench.
Within hours ICE realized it had made a mistake, and Brown was freed. In December, Brown’s false arrest made national news when the American Civil Liberties Union and the Southern Poverty Law Center sued Monroe County Sheriff Richard Ramsay in federal court in southern Florida. Ramsay is accused of unconstitutionally detaining Brown in his jail so that ICE could pick up and deport him. “Despite his repeated protests to multiple jail officers, his offer to produce proof, and the jail’s own records, the Sheriff’s Office held Mr. Brown so that ICE could deport him to Jamaica,” according to the lawsuit, “a country where he has never lived and knows no one.”
Brown’s saga began at the Monroe County Detention Center, in the Florida Keys, when he was locked up on on allegations that he had violated probation for an earlier offense. He was held in the jail pending a judge’s ruling in the probation case. As Brown waited for the resolution in his case, immigration officials asked the jail to turn him over to them. For three weeks, Brown insisted that he was American, but even after the judge reinstated his probation, the jail held him for several hours; ICE then picked him up and held him in the fetid bus outside the agency’s detention center.
With ICE detainers challenged, sheriffs turn to Basic Ordering Agreements
Brown’s detention was enabled by a new, collaborative program called basic ordering agreements—BOAs—that encourage jails to hold immigrants for ICE.
Under BOAs, mistakes like misidentifying Americans as immigrants can be made. But much more commonly, BOAs place noncitizens into a pipeline of deportation. Civil rights groups are challenging the constitutionality of sheriffs using BOAs to hold immigrants for ICE. Brown’s lawsuit against Sheriff Ramsay is part of that effort.
BOAs are a noncontroversial, boringly bureaucratic federal government practice that merely establishes “a set of terms negotiated between an agency and a service provider.” Many federal agencies besides ICE use BOAs to buy items and services from vendors, like rolls of paper towels and work performed by outside consultants. But ICE has determined that under BOAs, local jails qualify as vendors: For $50 per detainee, a jail can sell ICE 48 hours worth of space, and an individual from another country can be held in a cell while awaiting transfer to federal ICE detention. “Just as it orders supplies,” according to the Southern Poverty Law Center (SPLC), “under BOAs ICE now orders immigrants.”
ICE began using BOAs because civil rights attorneys have long sued sheriffs who jailed immigrants on ICE detainers. Sheriffs across the country have paid more than $1.3 million related to claims that they had unlawfully detained people on behalf of ICE. Sheriffs are concerned that honoring the detainers can result in lawsuits, and many now refuse to do so.
In 2017, Sheriff Bob Gualtieri of Pinellas County, Florida, characterized those refusals as a “a standoff” with ICE. Gualtieri used to practice law, but now, as sheriff of the county that includes St. Petersburg, he is treasurer of the Major County Sheriffs of America, vice president of the Florida Sheriffs Association (FSA), and chairperson of FSA’s legislative committee. State sheriffs groups like the FSA wield enormous political power; President Trump has feted the National Sheriffs’ Association at the White House.
Vowing to resolve the “standoff,” Gualtieri began working with ICE to devise a plan that would hold immigrants for the agency while insulating sheriffs from lawsuits. Gualtieri said that he and ICE settled on BOAs as the solution; in early 2018, the FSA, the National Sheriffs’ Association, and the Major County Sheriffs of America endorsed the plan. Since then, about half of Florida’s 67 counties have joined the BOA program. St. Charles Parish, Louisiana, near New Orleans, has also signed on. ICE has said it anticipates that the program will expand nationally.
Gualtieri said BOAs don’t have the legal risks associated with ICE detainers because they are simply “housing agreements” made at the behest of a federal agency. “It’s ICE, not the sheriffs, who makes the decision to detain someone in that housing,” he said. Holding Peter Sean Brown in the Monroe County jail was a mistake, Gualtieri said, but it was ICE’s mistake. “Nobody in the Monroe County sheriff’s office made any decisions,” he said.
Advocates blast BOA plan as unconstitutional
The ACLU and the SPLC disagree. The SPLC’s Viviana Bonilla López told The Appeal that sheriffs like Gualtieri incorrectly believe that “because they’ve signed this basic ordering agreement, the person that they’re holding for ICE is no longer in their local custody [but] in federal custody.” She said the BOA plan “doesn’t change the fact that someone is being held unconstitutionally.” The ACLU concurs. In a fact sheet about BOAs, the organization writes that the sheriff of a local jail who uses a BOA to hold someone for ICE “remains liable for honoring detainers that lack probable cause.”
By taking Monroe County Sheriff Ramsay to court, Bonilla López said, the SPLC and the ACLU have already demonstrated that “it’s not true that basic ordering agreements will protect you from a lawsuit.”
Sheriff Gualtieri is skeptical that the Brown lawsuit will succeed in court. He said the ACLU and SPLC are “spinning” Brown’s story and although Brown endured a Kafkaesque ordeal, that has “has nothing to do with the BOA.” And Gualtieri insists that among his fellow sheriffs “no one’s worried” about the lawsuit. Indeed, Matt Dunagan, the Florida Sheriffs Association’s deputy executive director of operations, told The Appeal that no sheriffs have canceled their BOAs since the suit was filed. Through his office, Sheriff Ramsay declined to speak with The Appeal because of the ongoing litigation.
Statistics from some Florida counties suggest that BOAs are producing results for ICE—including in Monroe County, where Brown was detained. From February to April 2017, before its BOA went into effect, Monroe’s jail system received 15 ICE detainer requests. During same period in 2018, just after the BOA took effect, Monroe received 22 such requests, a 47 percent increase. Likewise, in Sheriff Gualtieri’s Pinellas County, detainer requests during the same comparative periods went up almost a third.
Peter Sean Brown, whose lawsuit against Sheriff Ramsay is set to go to trial in about one year, wants to put an end to the BOAs. “I was fortunate,” Brown wrote in an email. “I am a U.S. citizen. But as well as feeling powerless and bad about my situation, I felt bad for anybody going through the immigration system. It was a frustrating and humiliating experience. No one should have to go through that.”