Sanctuary Cities in the United States: Fact vs. Fiction

So-called “sanctuary cities” have been all over the American news since Trump signed an Executive Order (EO) entitled “Enhancing Public Safety in the Interior of the United States” on January 25.  Cities like San Francisco and Seattle are suing the federal government over the EO, while some Republican lawmakers are supporting it.  Trump himself has criticized sanctuary cities for “caus[ing] so many needless deaths.”  But many pundits and politicians alike seem to be confused by the numerous misconceptions surrounding this ubiquitous topic.

While there is no universal definition for a “sanctuary city,” the term generally refers to cities or other jurisdictions that limit the extent to which local law enforcement authorities will assist in federal immigration enforcement operations.  Some common sanctuary policies include prohibiting local law enforcement officers from arresting people for immigration violations, restricting local responses to immigration detainers (explained more fully below), barring local police from inquiring about someone’s immigration status, and limiting federal immigration agents’ entry into sensitive locations like schools, hospitals, and courts.  Sanctuary jurisdictions often engage in community policing initiatives that aim to enhance trust and relationships between law enforcement and all members of the general public, regardless of their immigration status.

But contrary to what Trump and countless others seem to believe, and perhaps what the name “sanctuary cities” implies, these jurisdictions are not some sort of safe haven where non-citizens are free to commit crimes and wreak havoc with zero consequences.  Individuals who commit crimes in these jurisdictions, regardless of their immigration status, are still subject to criminal penalties and can still be detained or deported by federal immigration authorities if found to be inadmissible or deportable under the Immigration and Nationality Act.  People living in “sanctuary” jurisdictions can still be deported for having entered the U.S. unlawfully or overstayed their visas, regardless of whether they’ve committed any crimes or not.  So-called “sanctuary” policies merely restrict whether, how, and when state or local law enforcement officials will actively participate in immigration enforcement – a responsibility that is reserved under the exclusive jurisdiction of the federal government in the first place.

Sanctuary City by Scott Richard. Photo by torbakhopper under CC license.

And being a sanctuary jurisdiction does not automatically mean that state or local officials do not have any contact with federal immigration enforcement.  For example, even most sanctuary cities send fingerprints of individuals charged with crimes to be checked against federal immigration databases.  From 2008 to 2011, this was done under the Department of Homeland Security’s (DHS) Secure Communities program.  In November 2014, after many lawsuits and much criticism, “S-Comm” was replaced with the Priority Enforcement Program (PEP), under which arrested individuals’ fingerprints were still shared with DHS, but DHS would only seek further enforcement action if the person fell into one of its newly defined enforcement priorities.  In his memo replacing S-Comm with PEP, then-DHS Secretary Jeh Johnson included a footnote listing eight separate lawsuits over the program and recognized that “the reality is [Secure Communities] has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws.”  Despite this controversial history, Trump mandated in his EO that PEP be discontinued and Secure Communities be reinstated once again (and simultaneously eviscerated DHS’s enforcement priorities).

Some of the most controversial and misunderstood policies commonly practiced within sanctuary jurisdictions relate to immigration detainers.  When DHS’s Immigration and Customs Enforcement (ICE) is made aware (whether through S-Comm, PEP, or some other mechanism) that a person suspected of an immigration violation is incarcerated in a state or local jail or prison, ICE can issue a detainer to the local/state facility.  A detainer authorizes that facility to hold an individual up to 48 extra hours (excluding weekends and holidays) beyond when s/he would normally have been released, to allow ICE an opportunity to come pick the person up and transfer him/her to federal immigration detention.

Importantly, and contrary to common belief, a detainer is not a mandatory order that the person continue to be held or be transferred to ICE custody.  Compliance with detainers is completely voluntary.  Forcing or compelling state and local governments to comply with detainer requests would violate the 10^th Amendment’s anti-commandeering principle.  So, after a number of lawsuits, many jurisdictions have decided to place limits on when or whether they will honor such detainers.  For example, some cities will only comply when someone has actually been convicted of a crime (rather than just charged or arrested), or when the person has been convicted of certain types of violent or serious crimes (rather than minor traffic violations).  Therefore, when sanctuary jurisdictions decide to limit when and whether they will honor detainers, they are not acting illegally and are merely exercising discretion.

After all, despite what Trump and many Republican members of Congress claim, states and counties have many reasons for declining to honor detainer requests.  Local jurisdictions have to bear the additional costs associated with holding individuals for extra time pursuant to detainers.  There are also concerns that detainers may be issued without probable cause – and as a result, many local jurisdictions are understandably reluctant to hold someone without having probable cause to do so, in violation of the 4^th Amendment’s prohibition on unreasonable searches and seizures.

Nevertheless, Trump’s EO directs DHS to publish a weekly Declined Detainer Outcome Report (DDOR), including “a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”  This is a blatant attempt to shame sanctuary cities for exercising their constitutional rights, and for choosing not to spend their limited resources on immigration enforcement activities that are supposed to be handled by the federal government.

The EO also seeks to expand another controversial program known as 287(g).  Under this program, DHS deputizes state and local police officers to actually act as immigration enforcement agents – asking individuals about their immigration status, issuing detainers themselves, or issuing Notices to Appear (NTAs) that formally begin the removal (deportation) process.  But government studies have shown that ICE has not provided sufficient guidance or oversight to its newly deputized proxies, resulting in many localities sweeping up people who had committed misdemeanors or minor traffic infractions instead of the more serious criminal offenders who ICE claimed were targeted under the program.  287(g) has also been criticized for allowing or even encouraging racial profiling and for creating yet more significant expenses for localities.

Many state and local police departments dislike programs like Secure Communities, detainers, and 287(g) not only because they are so expensive but because they make law enforcement agencies’ jobs considerably harder.  Victims are more afraid to report crimes and witnesses are less willing to testify against offenders when they associate criminal law enforcement with immigration enforcement.  Law enforcement officials from all over the country oppose such measures because they diminish the trust that their community policing initiatives have worked so hard to build up over time.  And of course, police are responsible for protecting the safety and security of everyone in their communities – not just the U.S. citizens.

Recent immigration raids at courthouses and other sensitive locations have led to increased fear among immigrants (particularly survivors of domestic violence) and outcry from their advocates.  But none of this has stopped Trump’s efforts to crack down on sanctuary cities.  In addition to the “name and shame” tactics of the Declined Detainer Outcome Reports, the EO makes such jurisdictions ineligible for federal grants (though many mayors have spoken out in solidarity with immigrants and have vowed to fight the order – hence the lawsuits mentioned above).

This is all part of a broader attempt to stigmatize immigrants and demonize both non-citizens and anyone appearing to help them, beginning at least as far back as Trump’s declaration that Mexicans are “bringing drugs, they’re bringing crime, they’re rapists” when announcing his presidential candidacy in 2015.  Not only does the EO mandate the weekly report on “criminal actions committed by aliens” (regardless of whether those charges eventually lead to convictions), but it also mandates the creation of a federal Office of Victims of Immigration Crime Engagement (VOICE) to “provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.”  There already exists an Office of Victims of Crime within the federal Department of Justice, so the creation of this new, unnecessary duplicate office is just another way of suggesting that non-citizens commit crimes more often than others, and/or that such crimes should be taken more seriously than those committed by U.S. citizens.  Yet studies have shown that non-citizens do not commit more or more violent crimes than U.S. citizens.  And sanctuary jurisdictions report “significantly lower” overall crime rates than other areas.

Following the overall pattern of these early months of the Trump presidency, this EO has generated much criticism and cries of unconstitutionality.  (In fact, ICE has already “temporarily suspended” the weekly DDOR only three weeks after publishing the first reports because of multiple inaccuracies.)  The administration should prepare for yet more legal battles in the coming months.

Tags: ICE, immigration detainers, immigration enforcement, sanctuary cities, Trump, United States