In re: Request for Advisory Opinion Pursuant to Minn. Stat. § 8.07
The Office of Minnesota Attorney General Keith Ellison
December 12, 2025
Op. Atty. Gen. 3-a; 390a6
75 Rev Dr Martin Luther King Jr Blvd, 102 State Capitol, St. Paul, MN 55155-1609
SHERIFFS; DUTIES AND AUTHORITY; Minnesota law does not authorize sheriffs to enter agreements under section 287(g) of the federal Immigration and Nationality Act. Instead, a county may execute a 287(g) agreement if the agreement is approved by a resolution of the county board of commissioners; Minnesota law prohibits local law enforcement officers from detaining or holding persons based solely on ICE civil immigration detainers regardless of whether the law enforcement agency is operating under a valid 287(g) agreement.
December 12, 2025
John J. Choi
Ramsey County Attorney
360 Wabasha Street North, Suite 100
St. Paul, MN 55102-1418
Re: Request for Advisory Opinion Pursuant to
Dear County Attorney Choi:
Thank you for your letter of November 25, 2025, which requests an opinion from this Office on whether Minnesota sheriffs may enter 287(g) agreements with U.S. Immigration & Customs Enforcement (ICE) and whether such an agreement permits local law enforcement officers to detain people solely on the basis of civil immigration detainer requests from ICE.
BACKGROUND
Section 287(g) of the Immigration and Nationality Act permits ICE to enter agreements with state and local governments to authorize state or local officers to perform certain immigration duties (“287(g) agreements“). See
ICE sometimes issues civil immigration detainers to state and local law enforcement agencies requesting that they hold an individual who is in their custody beyond the time that they would otherwise be released so that ICE can take the individual into custody for deportation purposes. In response to a question from you, this Office previously opined that, at least in the absence of a 287(g) agreement, Minnesota law prohibits holding a person who would otherwise be released from custody based solely on an immigration detainer. See Op. Atty. Gen. 3a (Feb. 6, 2025). You have now asked whether a 287(g) agreement permits state and local authorities to hold a person solely on an immigration detainer.
QUESTIONS PRESENTED
- May Minnesota sheriffs unilaterally enter 287(g) agreements with ICE?
- Do 287(g) agreements permit local law enforcement officers to detain persons who would otherwise be released from custody pursuant to civil immigration detainers from ICE?
Minnesota law does not authorize sheriffs to enter 287(g) agreements. Instead, a county may execute a 287(g) agreement if the agreement is approved by a resolution of the county board of commissioners.
Minnesota law prohibits local law enforcement officers from detaining or holding persons based solely on ICE civil immigration detainers regardless of whether the law enforcement agency is operating under a valid 287(g) agreement.
ANALYSIS
I. Sheriffs may not unilaterally enter 287(g) agreements.
A. Sheriffs’ powers are defined by state law and do not include the ability to enter cooperative agreements with the federal government.
“The office of County Sheriff is established by state statute” and “[s]pecific powers and duties of county sheriffs are defined[.]” Op. Atty Gen.390a-6 (Oct. 31, 1994) (citing
The fact that the legislature took care to enumerate certain types of contracts that sheriffs are authorized to enter into but did not authorize sheriffs to enter contracts to perform enforcement activities on behalf of the federal government implies this was an intentional omission. See Chrz v. Mower Cnty., 986 N.W.2d 481, 486 (Minn. 2023) (in interpreting statutes, “the expression of one thing is the exclusion of another“). This is particularly so because in Minnesota Statutes section 436.05, the legislature enacted a detailed statute regarding contracts by sheriffs for providing law enforcement services to cities and towns but did not provide for similar contracts with the federal government. See id (presumption that omissions are intentional is “particularly strong when...a statute is uncommonly detailed and specific“).
B. The Minnesota Joint Exercise of Powers Act prohibits 287(g) agreements between sheriffs and ICE.
Further, in Minnesota, agreements among governmental bodies for the joint or cooperative exercise of powers are governed by the Joint Exercise of Powers Act (the “Joint Powers Act“). See
The Joint Powers Act‘s “commonality” requirement provides that, subject to certain exceptions, the contracting parties may only jointly exercise powers “common to the contracting parties or any similar powers.”
C. The Joint Powers Act permits counties to enter 287(g) agreements only if authorized by the county board of commissioners.
Subdivision 8 of the Joint Powers Act creates a limited exception to the commonality requirement for counties. It provides:
[n]otwithstanding the provisions of subdivision 1 requiring commonality of powers between parties to any agreement the board of county commissioners of any county may by resolution enter into agreements with any other governmental unit as defined in subdivision 1 to perform on behalf of that unit any service or function which that unit would be authorized to provide for itself.
Under this exception, counties can enter 287(g) agreements but must do so by resolutions of their county boards of commissioners. But state law does not permit sheriffs unilaterally to enter a 287(g) agreement on behalf of the county.
II. A 287(g) agreement does not authorize Minnesota law enforcement officers to detain individuals on immigration detainers.
ICE may issue immigration detainers to federal, state, or local law enforcement agencies. See
“As a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona v. United States, 567 U.S. 387, 407 (2012). An immigration detainer indicates ICE‘s belief that a person may be removable and does not by itself indicate suspicion of criminal activity. See, e.g., Santos v. Frederick Cnty. Bd. of Comm‘rs, 725 F.3d 451, 465 (4th Cir. 2013) (“[S]uspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity.“); Orellana v. Nobles Cnty., 230 F. Supp. 3d 934, 945 (D. Minn. 2017) (immigration detainer does not establish probable cause for arrest). Further, immigration detainers are issued by ICE officers and are not reviewed by neutral magistrates like judicial warrants.1
This Office has previously opined that “Minnesota law prohibits state and local law enforcement agencies from holding someone based on an immigration detainer if the person would otherwise be released from custody.” Op. Atty. Gen. 3a at 2 (Feb. 6, 2025). As that opinion explains, holding an individual beyond when they would otherwise be released constitutes a new arrest, no Minnesota statute authorizes arrest based solely on immigration status or immigration detainers, and an arrest unauthorized by statute is illegal. Id. at 5.
That opinion left open, however, “whether detainer arrests by Minnesota officials operating under a valid Section 287(g) agreement would comply with Minnesota law,” id. at 7 n.9, which this opinion now answers. For the reasons below, 287(g) agreements do not alter Minnesota law enforcement officers’ obligations to comply with Minnesota law and do not authorize them to hold persons pursuant to immigration detainers who would otherwise be released.
A. Minnesota law does not provide broader arrest authority to law enforcement officers acting pursuant to 287(g) agreements.
The first question is whether a 287(g) agreement relaxes the state law prohibition on complying with immigration detainers discussed in this Office‘s prior opinion. Under certain circumstances, state law gives law enforcement officers acting under intergovernmental agreements additional authority. But for the reasons below, 287(g) agreements do not abrogate the state law prohibition on detaining persons solely due to immigration detainers.
In the event that an agreement authorizes the exercise of peace officer or police powers by an officer appointed by one of the governmental units within the jurisdiction of the other governmental unit, an officer acting pursuant to that agreement has the full and complete authority of a peace officer as though appointed by both governmental units and licensed by the state of Minnesota, provided that:
- the peace officer has successfully completed professionally recognized peace officer preemployment education which the Minnesota Board of Peace Officer Standards and Training has found comparable to Minnesota peace officer preemployment education; and
- the officer is duly licensed or certified by the peace officer licensing or certification authority of the state in which the officer‘s appointing authority is located.
Subdivision 12 does not define “peace officer,” but the term is defined several places in Minnesota law.2 Most of these definitions “limit the meaning of peace officer to peace officers licensed by the [Minnesota] Board of Peace Officer Standards and Training[.]” Minnesota v. Lake Minnetonka Conservation Dist., 605 N.W.2d 405, 408 (Minn. Ct. App. 2000), aff‘d in part & rev‘d in part, 617 N.W.2d 789 (Minn. 2000). Some expand it to include officers from other states. See id;
“Police power” is also not defined in subdivision 12, but that term describes the power of the states, not the federal government.3 ICE, a federal agency whose authority is limited to
Even where subdivision 12 applies, it can only authorize officers to exercise the authority of Minnesota peace officers. The Minnesota legislature clearly lacks authority to authorize persons to exercise powers of law enforcement officers from non-Minnesota jurisdictions. In particular, the Minnesota legislature cannot authorize officers to exercise the powers of ICE officers, which are granted by the federal government.4
Subdivision 12‘s text confirms it does not purport to do so. It provides officers with authority “as though appointed by both governmental units and licensed by the state of Minnesota.”
For these reasons, Minnesota law enforcement officers acting under 287(g) agreements have no greater authority under state law than they otherwise have. In particular, the state law prohibition on holding a person based solely on an immigration detainer applies to officers acting under 287(g) agreements.
The second question is whether federal law authorizes local officers acting under 287(g) agreements to detain persons pursuant to immigration detainers even if doing so is prohibited by state law. For the reasons below, federal law does not displace state law obligations for officers acting under 287(g) agreements.
Under the U.S. Constitution‘s Supremacy Clause, federal law can sometimes preempt state law. See, e.g., Hous. & Redevelopment Auth. of Duluth v. Lee, 852 N.W.2d 683, 687 (Minn. 2014). “Federal law can preempt state law in three ways: through (1) field preemption, (2) express preemption, and (3) conflict preemption[.]” Id.
“Field preemption exists where ‘Congress has forbidden the State to take action in the field that the federal statute pre-empts.” Pharm. Research & Mfrs. of Am. v. McClain, 95 F.4th 1136, 1140 (8th Cir. 2024) (quoting Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377 (2015)) (emphasis in original). There is no field preemption here because Congress did not (and likely could not) prevent states from regulating the conduct of their own officers. In fact, section 287(g) authorizes agreements only “to the extent consistent with State and local law.”
“Express preemption exists where Congress uses ‘explicit pre-emptive language’ to express its purpose.” In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 792 (8th Cir. 2010) (quoting Gade v. Nat‘l Solid Wastes Mgmt. Ass‘n, 505 U.S. 88, 98 (1992)). Nothing in section 287(g) expressly preempts state law. In fact, section 287(g) denies preempting state law by authorizing agreements permitting state and local officials to take actions only “to the extent consistent with State and local law.”
And “conflict pre-emption exists where ‘compliance with both state and federal law is impossible,’ or where ‘the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” Pharm. Research, 95 F.4th at 1140 (quoting Oneok, 575 U.S. at 377). Section 287(g) does not require anything at all because 287(g) agreements are optional. See
CONCLUSION
Minnesota law permits counties to enter 287(g) agreements, but such agreements must comply with the requirements of the Joint Powers Act. That requires, among other things, that the agreement be entered into by a resolution of the county board of commissioners
Even a valid 287(g) agreement does not permit officers to detain persons based solely on ICE immigration detainers or take any other actions violating Minnesota law. Officers or agencies who do so may expose themselves to liability. See Lundeen v. Renteria, 224 N.W.2d 132, 146 (Minn. 1974).
Sincerely,
KEITH ELLISON
Attorney General
State of Minnesota