Immigration 101: Sanctuary Cities

Immigration is the single hottest political issue of the 2018 mid-term elections and the 2020 presidential elections. To tackle Immigration as a whole can be a daunting task, media outlets treat immigration news as if their viewers fully understand the issues. It also does not help that these same news outlets today provide so much commentary that it is often hard to distinguish between facts and opinions. So if you are having a hard time wrapping your mind around the different immigration issues and separating facts from opinions, know that you are not alone. This series of blog posts will try and explain immigration issues such as DACA, Sanctuary cities, the Border Wall, chain-migration, et…without bias or slants in the most objective light that I can muster. Making the news in July 2017 was the topic of Sanctuary Cities, and it continues to be a hot-topic issue.

Every sanctuary city is different, each with their own set of sanctuary policies and laws, but at the heart of it,  “they all seek to shelter migrants from immigration law enforcement. Most commonly, sanctuary policies prohibit discrimination by citizenship status, enforcement of immigration law generally, enforcement of civil immigration laws only, governmental inquiries about citizenship status, notification of federal immigration officials, or a combination of these”[1]

The Facts:

To understand what sanctuary cities are and it is a hot topic, we should start with a few facts:

  • Undocumented immigrants staying in the United States are breaking the law. However, this alone does not make them criminals.
  • Being an undocumented immigrant is not a crime, it is a civil offense akin to that of breaching a contract or injunctive relief for offensive conducts. Merely being present in the United States in violation of the immigration laws is not itself a crime.[2] Mere undocumented presence by an immigrant is only criminally punishable is if it occurs after the individual was previously removed from the United States by a formal order of removal.[3] “Not being criminally punishable” does not mean that undocumented immigrants have not broken the law, only that their presence here without proper documentation does not make them criminals, just as breaching a contract does not make a person a criminal.
  • The President only has authority to direct Federal law enforcement agencies (like Immigration and Customs Enforcement ‘ICE’); states are free to direct state-controlled law enforcement agencies free from Federal intervention unless Federal legislation has pre-empted state law.
  • ICE detainers are not mandatory.[4][5]

The Protocol:

When an undocumented immigrant is taken into custody by local law enforcement, it is customary but not mandatory for local law enforcement to inform ICE that they have an undocumented immigrant in custody, at which time ICE can place what is called an ICE detainer on the immigrant. The ICE detainer is a request, not an order, by the Federal agency for the local law enforcement to keep the immigrant detained on site until ICE can pick them up. A sanctuary city is a city which is unwilling to follow through on the ICE requests. Typically a sanctuary city will only notify and acquiesce ICE detainers if the undocumented immigrant was found guilty of some criminal act. What the Trump Administration and Federal government are trying to do is withhold federal grants from cities who refuse to cooperate with immigration detainers, sanctuary cities.

The Fight:

The Trump administration and the States have been trading blows on Sanctuary cities front. On March 6, 2108, a federal judge in Northern California declined a request from California AG Xavier Becerra to block the Trump administration’s decision to withhold a law enforcement grants to the state. However, on April 19, 2018, a three-judge panel from the 7th US Circuit Court of Appeals upheld a lower court’s decision blocking the Justice Department from adding new conditions on policing grants that require cooperation with federal immigration enforcement.[6] The issue is whether or not the Federal government has a right to withhold federal funding from local law enforcement not willing to comply with Federal Immigration agencies.

The Issues:

The argument against sanctuary cities is that the sanctuary policies are endangering American lives by letting criminals back out onto the streets. That every undocumented immigrant released is another potential crime waiting to happen. The civil rights groups and immigration advocates argument is that these undocumented immigrants are no more likely to commit a crime than your average American. To detain undocumented immigrants without representation is to deny them of their civil rights were violated just because they are undocumented is unconstitutional and un-American.

What does it mean to you?

So, how does all of this affect you? Well if you are a United States Citizen or Legal Permanent Resident living in a sanctuary city, then the withholding of grants means that your local law enforcement will receive less funding, leading to even more under-funded local law enforcement. It means that undocumented immigrants are less likely to report or be witness to crimes if they do not feel safe around law enforcement.

If you are an undocumented immigrant, being stopped for a traffic violation may be the last time you see the outside of a jail cell in the United States.

Unfortunately, if you are an undocumented immigrant living in Texas, there are no more sanctuary cities thanks to Senate Bill 4, which requires local law enforcement to cooperate with federal immigration officials and allows for the local police and sheriff’s department to question the immigration status of anyone they arrest. If you are an undocumented immigrant, know that you are afforded the same rights as anyone else. If you have been arrested or detained for whatever reason; know that every second count. Contact an attorney to make sure your rights are protected.

[1] Hernández, César Cuauhtémoc García, Crimmigration law, ABA Publishing, 2015, (p. 270-271)

[2] https://www.supremecourt.gov/opinions/11pdf/11-182.pdf

[3] 8 U.S.C. § 1326

[4] http://www2.ca3.uscourts.gov/opinarch/123991p.pdf

[5] Lopez v. Napolitano, Case 1:11-cv-05452, 2014

[6] Chicago v. Sessions, IM-IL-0020. Docket / Court, 1:17-cv-05720 ( N.D. Ill. )