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An Introduction to Sanctuary Jurisdictions

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An Introduction to Sanctuary Jurisdictions

“Sanctuary jurisdictions” are cities, counties, or states that use a variety of measures to limit law enforcement participation in federal immigration enforcement efforts. In this introduction to sanctuary jurisdictions, we will explore the constitutional tension underlying these measures, and trace the history of federal reliance on state law enforcement to carry out immigration enforcement. Additionally, we will review the various federal immigration programs that solicit law enforcement participation, as well as explore the measures some jurisdictions have implemented to prevent such participation.

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Jason Potter: Welcome to An Introduction to Sanctuary Jurisdictions by Quimbee. My name is Jason Potter and I'm a staff presenter at Quimbee. In a campaign speech in August of 2016, Donald Trump announced before a crowd in Phoenix, Arizona, quote, "Two million people. Criminal aliens. We will begin moving them out day one, as soon as I take office. Day one. In joint operations with local, state, and federal law enforcement. We will end the sanctuary cities that have resulted in so many needless deaths." Unquote.

  Sanctuary jurisdictions, be they cities, counties, or states use a number of approaches to disentangle local criminal law enforcement from federal civil immigration enforcement. These jurisdictions have a variety of reasons for opting out of cooperative immigration enforcement efforts, not just disagreement with federal immigration policies. Jurisdictions may seek to disentangle local criminal law enforcement from civil immigration enforcement for civil liability reasons, as well as the burden of the costs associated with entanglement.

  Political tensions surround sanctuary jurisdictions, and they're substantial. Supporters argue that sanctuary jurisdictions foster goodwill between immigrant communities and law enforcement, while opponents argue that they harbor criminals. Supporters argue that sanctuary jurisdictions operate pursuant to the Tenth Amendment, while opponents argue that these jurisdictions flagrantly violate federal statutes and grant eligibility rules. Finally, supporters argue that sanctuary jurisdictions are akin to conscientious objectors in their refusal to apply their resources to a cause they consider unjust, while opponents argue that sanctuary policies tie the hands of local law enforcement and make the jurisdiction more dangerous for citizens.

  Regardless of what side of the political border you are on, everyone can agree that sanctuary jurisdictions haven't gone anywhere. In this presentation, we'll explore sanctuary jurisdictions and policies that seek to disentangle state and local law enforcement from federal immigration enforcement.

  It's difficult to get a measure of how many sanctuary jurisdictions actually exist. According to the Center for Immigration Studies, a prominent anti-immigration organization, their review of 2020 immigration and customs enforcement data suggested that there are 171 sanctuary cities and counties, as well as 11 sanctuary states. Others disagree with this number. In this presentation, we introduce the laws and policies underlying sanctuary jurisdictions.

  There's a lot of disagreement about what qualifies as a sanctuary policy. The term, sanctuary, the dictionary definition, is a noun. It means protection or a safe place, especially for someone or something being chased or hunted. In the immigration context, the term, sanctuary, is misleading. Sanctuary jurisdictions are not refuges for immigration enforcement. Immigration officials can still enforce immigration laws there.

  The term, sanctuary jurisdictions, has no uniform, legal definition. But it has come to mean jurisdictions, be they cities, states, or counties that have adopted measures to effectively deny federal requests for state and local law enforcement to assist in immigration enforcement. These policies can differ from jurisdiction to jurisdiction.

  What's in a label? Well, some jurisdiction adopt the label, sanctuary city or sanctuary state. California passed SB 54, the sanctuary state law. Others opt to drop the term sanctuary altogether. They might call it an inclusive city or a human rights or a welcoming city. For example, the city of Chicago has a welcoming city ordinance, and still others assume no label at all. For example, Franklin County, Ohio, which includes Columbus, doesn't take the label, sanctuary county, but its policies are in line jurisdictions that do.

  Sanctuary policies are policies that seek to separate local criminal law enforcement and federal civil immigration enforcement. They've been adopted in all kinds of jurisdictions. They're not a protective blanket that prevents immigration officers from working. Again, these policies deal with the issue of how much assistance the federal government will receive from these jurisdictions, in the area of immigration enforcement. This is an issue that every jurisdiction faces.

  The term, ICE, stands for U.S. Immigration and Customs Enforcement, a federal law enforcement agency under the U.S. Department of Homeland Security, or DHS, that's involved in immigration and customs enforcement.

  The term, undocumented immigrant, is an individual living in the United States without legal authorization to do so. There are opinions all across the board about the usage of the term, undocumented immigrant, versus the term, illegal alien. Illegal alien is a technical term of art in use today. It has minor uses in federal laws, but greater uses in federal policies. It appears once in the Immigration and Nationality Act, which is the main immigration law, in a section that narrow defines the term for the purpose of that section only. And it only appears in two U.S. Supreme Court cases.

  The term, alien, is far more commonly used in us law than illegal alien. It appears numerous times among the laws. Illegal alien and illegal immigrant have common pejorative uses. We use the term, undocumented immigrant, here. This is consistent with guidance from the AP Stylebook. The AP rules indicate that the best way to refer to someone in this country without permission is, undocumented immigrant.

  Now, there's an underlying constitutional tension. When it comes to sanctuary jurisdictions and sanctuary policies, two constitutional principles operate in opposition to each other. The first principle is that, federal laws are Supreme as to state law. The federal government's power to regulate immigration is exclusive. And state policies regulating immigration are preempted.

  The first source of this principle is Congress' Article 1 powers. The U.S. Constitution, article one, section eight, clause four is Congress' Article One power to establish a uniform rule of naturalization. And the U.S. Constitution, article one, section eight, clause three is Congress's authority to regulate commerce with foreign nations and among the several states. A power traditionally reserved for the states, is police power to promote public health and safety, the general welfare, and economic activity.

  This second source for the principle that federal laws are supreme as to state law, is the Supremacy Clause. The Constitution and the laws of the United States shall be the Supreme law of the land. This gives rise to the preemption doctrine. Congress can pass laws, preempting state laws, and this is useful in assessing state policies with some crossover into immigration.

  Preemption can be express or implied. Express preemption occurs when Congress explicitly states that it is preempting. Implied preemption occurs when Congress intended to preempt, but did not explicitly state that. This includes field preemption and conflict preemption, but this is beyond the scope of this presentation.

  One of the important cases for interpreting the supremacy clause is Arizona versus the United States, 2012, U.S. Supreme Court case, holding that the federal government has, quote, "Inherent power as sovereign to conduct relations with foreign nations." Unquote. In this case, the court struck down several Arizona statutes argued at, quote, "Discouraging and deterring the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." Unquote.

  The court reasoned that the statutes were preempted by federal law. The court stated that the, quote, "Federal government has broad, undoubted power over the subject of immigration and the status of aliens." Unquote. However, the court placed limits on this.

  For preemption analysis, courts should assume that the historic police powers of the states are not superseded, unless there was a clear manifest purpose of Congress. The court cautioned that not, quote, "Every state enactment in which any way deals with aliens is a regulation of immigration and thus per se, preempted." Unquote. Per the federal power over immigration.

  Now, the second principle, is that the federal government can't compel the states or their employees to enforce federal law. The first source of this principle is the Tenth Amendment's anti-commandeering doctrine. The text of the Tenth Amendment states, quote, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Unquote. The U.S. Constitution establishes dual sovereignty, and most legislative powers are reserved to the states through the Tenth Amendment.

  The second source of the principle that the federal government can't compel the states or their employees to enforce federal law, are case law interpretations. For example, New York versus United States, a 1992 Supreme Court case. In this case, federal law created incentives for states to dispose of radioactive waste, and gave states the option to either regulate according to congressional direction. Or take title two and possession of the low grade radioactive waste generated within their borders and subject themselves to liability for all damages suffered by waste generators, resulting from the state's failure to timely do so.

  The court found that this law laid out a choice of two options, neither of which Congress could impose on the states on its own. The court found that Congress had, quote, "Crossed the line distinguishing encouragement from coercion." Unquote. In a manner inconsistent with the federal structure of our government established by the constitution. According to the court, the, quote, "Federal government may not compel the states to enact or administer a federal regulatory program." Unquote.

  A second case is Printz versus United States, a 1997 U.S. Supreme court case. In that case, Justice Scalia wrote that under the Tenth Amendment, the federal government cannot, quote, "Issue directives requiring the states to address particular problems, nor command the state's officers or those of their political subdivisions, to administer or enforce a federal regulatory program." Unquote. He gave a test here. It is. Quote, "If legislation forces participation of the states in this actual administration of a federal program...", unquote, That runs afoul of the Tenth Amendment.

  But he placed a limitation. The court distinguished reporting requirements in federal statutes that require states to share information they collect with federal agencies. These do not run afoul of the Tenth Amendment, and this becomes important later. So not all federal laws requiring states to do something, are invalid under the Tenth Amendment.

  And a third case is South Dakota versus Dole, a 1987 U.S. Supreme court case. In the area of funding, the court found that Congress can condition funding by requiring those accepting the funds to take certain actions that they otherwise couldn't compel the states to perform. But it can't be so coercive as to pass the point at which pressure turns into compulsion. Again, this case also becomes important later.

  These principles are touchstones in debates about entanglement or disentanglement of state criminal law enforcement and federal civil immigration enforcement. They're necessary context for understanding state policies that seek to disentangle state and local law enforcement from federal immigration enforcement.

  In this presentation, we will first, explore the history of the entanglement of local criminal law enforcement and federal civil immigration enforcement. And second, we'll pinpoint the federal tools employed to bring local law enforcement on board. And third, we'll tease out the various policy choices jurisdictions can make regarding state and local cooperation with federal immigrant enforcement.

  As a preliminary matter, we'll discuss the historical usage of the term, sanctuary city. In ancient Greece, individuals receive the right of asylum for those likely to suffer from summary vengeance. Sanctuary cities existed to save the lives of those defeated in war. In the Christian period, sanctuary for a murderer helped keep order in the kingdom and prevented blood feuds among families.

  Fast forward to the 1980s, a sanctuary movement occurred in the United States. Religious organizations declared their congregations sanctuaries for refugees escaping war and persecution in Central America. Some states and municipalities issued declarations supporting these actions. Some jurisdictions went further and placed limits on law enforcement involvement with immigration efforts.

  The history of the federal-local cooperation in immigration enforcement is important to cover. Federal immigration authorities depend on local police and prosecutor's willingness to arrest and detain non-citizens. Understanding sanctuary cities requires understanding how this entanglement came to be.

  Late in the 19th century, federal immigration efforts occurred mainly at the border. And state and local engagement in immigration efforts was very limited at that a time. During this time, the U.S. Supreme Court drew a distinction between criminal punishment and immigration enforcement, which was civil. In the case of Fong Yue Ting versus United States, an 1893 U.S. Supreme Court case, the U.S. Supreme court held that immigration proceedings are civil in nature, and that deportation is not a punishment for a crime.

  Now, this concept still exists today. Other cases limited the ability of states to treat citizens and non-citizens differently. So, states only had a minimal role in regulating the presence of non-citizens.

  In the 1971 case of Graham versus Richardson, the U.S. Supreme Court held that state laws conditioning welfare on U.S. citizenship and residency were unconstitutional. Also in the 1886 case of Yick Wo versus Hopkins, the U.S. Supreme Court held that San Francisco's application for a misdemeanor ordinance to Chinese residents was a violation of equal protection. Also, it was established in the late 19th century, that states could not divest non-citizens residency using immigration laws.

  In the 1980s, there was a shift under the Reagan administration. State and local law enforcement became more involved. The war on drugs became an opportunity to promote the idea of immigrant criminality. This eventually led to the entanglement of immigration enforcement and criminal justice. In the words of one scholar, quote, "The concerns that led Congress to prosecute the [nationt 00:19:44] war on drugs were intertwined with concerns that immigrants were bringing the scourge of drug use and drug trafficking into cities across the country." Unquote.

  The conflation of immigration status and crime led to local law enforcement participation in immigration enforcement. This was also helped along by laws that attached deportation to low level drug offenses. The Anti-Drug Abuse Act of 1986, mandated the exclusion or deportation of almost all immigrants who are convicted of offenses involving controlled substances.

  In 1996, formal agreements were established between immigration enforcement and state and local law enforcement, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This established the 287(g) program, which deputies law enforcement as immigration officials.

  Post September 11th, 2001, there was an even greater push to involve localities in enforcing immigration laws. In 2005, the Department of Justice Office of Legal Counsel through U.S. attorney, David N. Kelley, issued an opinion declaring that states and localities have, quote, "inherent authority", unquote, to enforce immigration laws.

  During this time, state and local reaction and was mixed. Some states enthusiastically joined the 287(g) program, others passed restrictive immigration measures themselves. And some jurisdictions rejected entanglement and declared that it wasn't their job to enforce federal immigration laws. These policies rejecting the entanglement of state law enforcement and federal immigration enforcement are now called, sanctuary policies.

  In 2017, the Trump administration mounted the most aggressive effort to involve local law enforcement. On January 25th, 2017, President Donald Trump signed Executive Order Number 13768. This executive order expanded priorities for enforcement and directly addressed and denounced sanctuary jurisdictions.

  Section 9(a) of the executive order is a key provision. The stated purposes are to ensure that jurisdictions that don't comply with federal law don't receive federal funds, except when required. And second, to set a procedure that makes jurisdictions ineligible to receive federal grants, except when deemed necessary for law enforcement purposes by the attorney general or the secretary.

  This gave a definition to sanctuary jurisdiction. It was one that has policies that don't comply with title eight of the United States Code, section 1373. Section 1373 is part of a 1996 statute called, the Illegal Immigration Reform and Immigrant Responsibility Act. That act states, "A federal government, state or local government entity, or official may not prohibit or in any way restrict any government entity or official from sending to or receiving from the immigration and naturalization service, information regarding the citizenship or immigration status, lawful or unlawful, of any individual." The purpose of this was to leverage information available to state and local authorities to further the goal of increasing apprehension and deportation of undocumented immigrants. We'll cover this more in a few minutes.

  In February and March of 2017, the Trump administration enforcement efforts were announced. Immigration criminality messaging got further amplified, at that time. On February 20th, 2017, DHS Secretary, John F. Kelly, issued a memo stating that, "Criminal aliens routinely victimize Americans and other legal residents." On March 27th, 2017, in remarks on sanctuary jurisdictions, Attorney General Sessions stated, quote, "Countless Americans would be alive today and countless loved ones would not be grieving today, if the policies of these sanctuary jurisdictions were ended." Unquote.

  In January and February of 2017, several jurisdictions filed suit against the Trump administration, regarding paragraph 9(a) of that executive order. On April 25th, 2017, a federal judge issued a temporary nationwide injunction stopping enforcement of the executive order, then a permanent one in November of 2017. The Ninth Circuit affirmed the ruling on January 4th, 2018.

  The courts found there was a likelihood that Section 9(a) violates the separation of powers doctrine, because it usurps come congressional spending powers. Second, the section 9(a) was overbroad and too coercive, and violates the Tenth Amendment's anti-commandeering provision. Third, that section 9(a) is so vague that it violates the Due Process Clause of the 5th Amendment and is void for vagueness. And fourth, Section 9(a) violates procedural due process requirements of the 5th Amendment because it deprives jurisdictions of funding without notice or opportunity to be heard,

  In July of 2017, the Trump administration announced the withholding of grants, per the executive order. Jurisdictions that didn't cooperate with federal immigration efforts, wouldn't be eligible for Byrne justice assistance grants, or the JAG program, one of the biggest sources of funding for state and local criminal justice systems and initiatives. A number of jurisdictions filed suit, challenging this action. The Seventh Circuit Court of Appeals upheld a nationwide preliminary injunction, barring the Department of Justice from withholding JAG grants based on two of three immigration enforcement conditions.

  So over the years, state law enforcement has become entangled in federal immigration enforcement. Though more aggressive actions by the Trump administration, since 2017 have been met with some resistance in courts. Against this backdrop, we're going to parse out the various federal programs that can merge state and local enforcement and immigration enforcement. Then we'll look at the various policies jurisdictions have implemented to disentangle local law enforcement from federal immigration enforcement.

  So, what are the federal mechanisms that can make state and local law enforcement arms of the federal immigration apparatus?

  There are six programs of note. The first, is the Criminal Alien Program. The second, is the 287(g) program. The third are, ICE administrative warrants. The fourth is, the Secure Communities Program and ICE detainers. And the fifth are, other joint operations.

  So, we'll talk about the Criminal Alien Program first, or CAP. This Criminal Alien Program was passed by Congress in the 1980s. The purpose was to identify, arrest, and deport priority non-citizens located in federal state and local jails and prisons. The means of this was to place ICE agents in jails and prisons to identify individuals for potential deportation. ICE agents would have access to biometric and biographical data, and can conduct interviews of prisoners. The effect of this is that, from 2004 to 2015, CAP was involved in 1,435,000 deportations. The Trump administration relies heavily on this program.

  A second mechanism are the 287(g) agreements. Under 287(g), DHS can enter into agreements with local law enforcement, and often with local independently, elected sheriffs. Local law enforcement are then deputized as immigration officers and overseen by federal immigration officers. DHS must supervise the deputized officers, per the statute, and requires that the deputized officers know and adhere to federal law, regarding the federal function they are fulfilling.

  The agreement only covers cost of training, not cost of the assistance activities themselves. So jurisdictions must foot the day-to-day costs, except the cost of training. There's been a lot of criticism of 287(g). One criticism is that these agreements lead to racial profiling, civil rights violations, and family separations. High level 2010 and 2011 investigations by the federal government found the programs provided insufficient supervision and a, quote, "wall of distrust", unquote, to is trust between officers and Maricopa County, Latinx citizens.

  The Obama administration committed to curtailing these programs, and the Trump administration promised to revive them. And they are in full force today. One in three county in Texas have 287(g) agreements. That's 25 counties.

  The next mechanism are ICE Administrative Warrants. After September 11th, 2001, the federal government declared that state and local enforcement had inherent authority to force immigration law. This opened the possibility of local law enforcement making immigration related arrests outside the 287(g) context.

  The federal government started entering thousands of new records involving people who were ignoring removal efforts and others into the FBI database. They appeared as ICE Administrative Arrest Warrants. These warrants are only administrative in nature. They're not ordered by judges. They are only issued on probable cause of removability, not cause of a crime.

  In Arizona versus the United States, the Supreme Court stopped inherent authority justifications for local enforcement of immigration law. Law enforcement can't arrest non-citizens based on probable cause of removability, except in some limited situations.

  Today, local law enforcement now can't hold non-citizens based on ICE Administrative Warrants, but they still exist. Administrative warrants still exist in the federal database.

  Another mechanism is, the Secure Communities Program, or SCP, and ICE detainers. The Secure Communities Program gives ICE access to jails, but they still have to take the person into custody. This program basically places local criminal law enforcement on the front line of federal civil immigration enforcement. And the mechanism for doing all this, are ICE detainers.

  ICE detainers are issued by ICE officials when they learn that at an undocumented individual is in custody. The detainer requests that the jurisdiction, quote, "maintain custody of the alien for a period, not to exceed 48 hours beyond the time when he or she would otherwise have been released from state or local custody to allow DHS to assume custody.: Unquote. It requests that the jurisdiction give DHS notice, prior to release, called, a notification of release. ICE detainers are not mandatory, they are requests.

  A major legal issue is whether jurisdiction are detaining a non-citizen beyond the time that it's reasonable to hold them. It's a 4th Amendment violation to hold someone without probable cause that they've committed a crime. But civil immigration detainers involve a civil offense. Some courts find it awful to comply with these detainers.

  In Galarza versus Szalcyk, a 2014 Third Circuit case, the Third Circuit found that the county of Lehigh, Pennsylvania violated the Fourth Amendment rights of Ernesto Galarza, a U.S. citizen who was targeted by immigration agents and held by county law enforcement under an immigration detainer.

  The takeaway, is that local law enforcement cannot be obligated to hold non-citizens on detainers. This program was suspended in 2014 and then revived under the Trump administration, upon Trump's declaration that, quote, "We will restore the highly successful secure communities program. Good program." Unquote.

  Another mechanism are, joint operations with local law enforcement, or non-287(g) programs. Some other programs on joint efforts between local law enforcement and ICE. These include but aren't limited to, Operation Community Shield, which is now called the, National Gang Unit. This focuses on street gangs for criminal arrest and deportation. And the National Fugitive Operations Team, a collaboration between federal state and local law enforcement to find non-citizens subject to final orders of deportation.

  Okay, so these are the major tools mechanisms used by federal immigration enforcement to enlist local law enforcement to help with immigration efforts. But how do these affect local policy making? What policy choices do state and local governments typically have, regarding immigration enforce?

  State and local jurisdictions have a range of policy decisions to make, regarding law enforcement cooperation with federal immigration efforts. Here they are in a nutshell. Whether to use resources to participate in joint operations. Whether to share information about non-citizens with immigration authorities. Whether to detain non-citizens at the request of the federal government. Whether to grant immigration agents access to certain jurisdiction owned sites. And whether to become a sanctuary jurisdiction.

  All jurisdictions have to share certain information with federal authority, sanctuary or not. So, sanctuary jurisdictions don't really answer, "No.", to all of these questions. So it's important to explore the choices a jurisdiction has about immigration involvement. To explore these, we're going to do it in the context of a hypothetical.

  This is the city of Tangleville, located in the fictional U.S. state of Libertona. Neither the city nor the state has any laws or policies regarding state or local participation or nonparticipation in immigration enforcement city. Lawmakers are looking to study the range of policy choices they have for limiting the entanglement of the Tangleville Police Department and federal immigration enforcement.

  City lawmakers are considering whether to become a sanctuary jurisdiction. So here's the first issue they face, whether to use their resources to participate in joint operations. Jurisdictional power to enforce immigration laws is limited, as federal authorities have exclusive jurisdiction over the area. As we know, states and localities don't make their own immigration law.

  Jurisdictions can participate voluntarily. For example, police can ask people about their immigration status. So, jurisdictions have the choice of how directly to participate and how much resources to devote to federal immigration enforcement. The federal government can't require assistance with investigations, so jurisdictions have to decide whether, and to what extent, it would like to be involved. Some options for involvement are the 287(g) agreements and those non-287(g) programs.

  If Tangleville is seeking to disentangle local law enforcement and immigration enforcement, it could decline to participate in joint operations like 287(g) and other joint operations. This is what the state of New Jersey did on September 20th, 2019. The New Jersey governor's order declared, quote, "No state, county, or local law enforcement authority shall enter into modify, renew, or extend any agreement to exercise federal immigration authority pursuant to 287(g) of the Immigration and Nationality Act. And they shall not exercise any law enforcement authority pursuant to a preexisting section 287(g) agreement." Unquote.

  There is some precedent for taking more aggressive action, but taking any action that antagonizes immigration efforts rarely occurs. It did occur in Oakland, California. In Oakland, the mayor made an announcement warning immigrants of a planned ICE sweep, and this drew national attention. Attorney General Sessions declared the mayor was for 800 wanted criminals that are now at large in the community.

  The second choice that jurisdictions face, is whether to share information about non-citizens with immigration authorities. There are many ways jurisdictions can share info, either directly or indirectly, with federal immigration authorities. And some of these are required and can't be avoided. Notification of releases in detainers are one way that jurisdictions can share information. These are the clauses and detainers that ask for 48 hours notice, when someone in state or local custody is released, and also subject to a detainer. No uniform approach among jurisdictions about compliance with detainers exists. Some don't comply, but have exceptions for certain crimes. The federal government may soon begin requiring that jurisdictions certify that they will comply with these orders to receive their normal federal grants.

  Another avenue of information sharing, is fingerprinting. A jurisdiction's fingerprinting is automatically run through the FBI and shared with Department of Homeland Security. And there's no way to prevent this. Every jurisdiction's act of fingerprinting involves identity sharing the DHS.

  Another avenue of information sharing are, records reviews. ICE can ask to review detention records, and some jurisdictions mandate the approval of sheriffs first.

  Another is database access. Certain state and local criminal databases contain information about immigration status that can be shared with DHS and ICE. Certain license plate tracking software share their data with DHS and ICE.

  And another avenue are, benefits access. The U.S. Government Accountability Office indicated that DHS and ICE uses a number of databases to locate addresses of undocumented immigrants, like DMV records.

  Now those are the avenues, some of the avenues, for sharing information. Does limiting access to this information run afoul of Title Eight of the United States Code Section 1373? To review, this section declares that jurisdictions can't prohibit or restrict in any way, any government entity or official from sending information to ICE. Unless these policies limit communication with DHS about an individual citizenship or immigration status, they don't violate Title Eight of the United States Code Section 1373.

  Cities and counties have policies against local officials questioning individuals about their immigration status. This doesn't conflict with this section, unless the policies limit communication with DHS about immigration status. So if Tangleville is seeking to disentangle local law enforcement and immigration enforcement, it could limit disclosure of sensitive information, to the extent that it doesn't limit communication with DHS about individual citizenship status or immigration status.

  One approach Tangleville could take is, placing a limitation on information gathering by employees. Some sanctuary jurisdictions prohibit information gathering on immigration status by employees. One example of this, is the state of New York. New York declares, quote, "No law enforcement officers shall inquire about an individual's immigration status, unless investigating such individual's illegal activity, provided however, that such inquiry is relevant to the illegal activity under an investigation." Unquote. Advocates argue that while 1373 prohibits policies banning information sharing, it's silent about jurisdictions prohibiting employees from inquiring about immigration status in the first place.

  Now choice three is, whether to detain non-citizens at the request of the federal government. Some jurisdictions have adopted policies limiting ICE detainers and administrative warrants. If Tangleville is seeking to disentangle local law enforcement and immigration enforcement, it could limit compliance with ICE detainers and administrative warrants. For example, San Francisco declares, quote, "A law enforcement official shall not detain an individual on the basis of a civil immigration detainer after that individual becomes eligible for release from custody. Law enforcement officials may continue to detain an individual in response to a civil immigration detainer, for up to 48 hours after the individual becomes eligible for release, if the continued detention is consistent with state and federal law. Unquote. And certain criteria involving federal felonies.

  Further jurisdiction of San Francisco's ordinance states, quote, "Law enforcement officials shall not arrest or detain an individual or provide any individual's personal to a federal immigration officer on the basis of an administrative warrant, prior deportation order or other civil immigration document, based solely on alleged violations of the civil provisions of immigration laws." Unquote.

  Remember, immigration detainers are requests and not mandatory. So whether or not to respond to them, is within the discretion of local law enforcement. This was confirmed by the Galarza case. Also, certifications required for grants can be met without any compliance with immigration detainer requests or no notification requests. Policies that limit or ban compliance with detainers, requests for notice of release, and administrative warrants don't violate Section 1373.

  And choice four, whether to grant immigration agents access to certain jurisdiction owned sites. ICE can always access state and local facilities, if they have a criminal warrant. Now, ICE access to courthouses has been in issue. Historically, ICE has made arrests in or around courthouses. And jurisdictions have been unsuccessful in getting ICE to stop. Some jurisdictions, like Colorado, have prohibited arrests while a person is in a courthouse or on its property, or the person is going to or from a court proceeding.

  New York states, quote, "Civil arrests by federal immigration authorities may only be executed within state facilities, when accompanied by a judicial warrant or judicial order, authorizing them to take into custody the person who is the subject of such warrant, unless the civil arrest is related to a proceeding within such facility." But ICE has recently begun ignoring these orders and making administrative arrests at courthouses in counties that have passed these laws. This occurred in 2220 at a Sonoma County courthouse.

  In terms of jail and prison access, ICE can enter jails and prisons freely in some jurisdictions. Some jurisdictions require prior authorization from a sheriff. Still, other jurisdictions bar entry, absent criminal warrant, which ICE often can't produce because unlawful presence is not a crime.

  If Tangleville is seeking to disentangle local law enforcement and immigration enforcement, it could limit ICE's access to local jails. It appears that no jurisdiction places an outright ban on ICE from government owned sites. But limitations on access to jails without a criminal warrant have been implemented. At least one county, Montgomery County, Pennsylvania, has repealed their ordinance prohibiting ICE access to local jails on detainer, after facing pressure when the public learned it had released multiple undocumented immigrants charged with violent crimes.

  And the final choice, whether to use the term, sanctuary. For the city of Tangleville, a decision to label themselves as a sanctuary, is a political decision, not a legal decision. It's a decision really without substance, if it has implemented any of the policies discussed here.

  All of these potential policies are meant to detangle state law enforcement and immigration enforcement. They may all be considered sanctuary policies. If residents of Tangleville believed that the label, sanctuary city, would make the city more welcoming to visitors say, this has been one justification. Short of deeming itself, a sanctuary city, if Tangleville residents want to take a stand, regarding state and local resources being used for federal purposes, the city could adopt some of the same policies as sanctuary jurisdictions. They could also adopt a term other than, sanctuary. San Francisco declared itself a city and county of refuge and has since 1989.

  But Tangleville's residents should also be informed that even sanctuary jurisdictions share certain information with federal authorities. There's no such thing as sanctuary from immigration enforcement.

  Now, let's suppose that Tangleville has gone forward with passing a welcoming city ordinance. Let's take a look at it. Here it is. Here's subjection (a), "Except is provided herein, no agency or shall arrest, detain, or continue to detain a person solely on the belief that that person is not present legally in the United States, or that the person has solely committed a civil immigration violation. Also, no agency or agent shall arrest, detain, or continue to detain a person based on an administrative warrant when it is based solely on a violation of a civil immigration law. Or no agency or agent shall detain or continue to detain a person based upon an immigration detainer, when the detainer is based solely on a violation of civil immigration law."

  And subsection (b)(1), "Unless acting pursuant to a legitimate law enforcement purpose unrelated to civil immigration enforcement, no agency or agent shall, permit ICE agents access to a person being detained by, or in the custody of the agency or agent. Or permit ICE agents use of agency facilities for investigative interviews or other invest purpose. Or while on duty, expend their time responding to ICE inquiries or communicating with ICE regarding a person's custody status or release date."

  And subsection (b)(2), "An agency or agent may communicate with ICE to determine whether any matter involves enforcement based solely on a violation of a civil immigration law."

  Finally, subsection (c), "This section shall not apply when an conducted by the agency or agent indicates that the subject of the investigation has an outstanding criminal warrant, has been convicted of a felony in any court in the jurisdiction, is a defendant in a criminal case in a court within the jurisdiction where a felony charge is still pending, or has been identified as a known gang member, either in a law enforcement agency's database or by his own admission." This law is based on Chicago's municipal code Section 2-173-42.

  Now, here are some recent developments. ICE enforcement is increasing in sanctuary jurisdictions now. Operation Palladium is an ICE enhanced arrest campaign in sanctuary jurisdictions. On March 5th, 2020, the New York Times reported that across the country, ICE has started 24 hour surveillance operations around the homes and workplaces of [perpeted 00:54:55], undocumented immigrants. ICE is seeking to add at least 500 new agents for this enhanced enforcement.

  According to one participant, the goal as relayed from his bosses, is to, quote, "arrest as many undocumented immigrants as possible and flood the streets." Unquote. This comes in addition to ICE's recent deployment of elite tactical BORTAC agents, normally assigned to border smuggling, a rescue and intelligence operations. Currently, this is set to continue through December 31st, 2020, but it may be extended.

  So, ICE officers can't really get criminal warrants to enter any suspected hiding areas because immigration violations are general civil. So their approach is to mount aggressive surveillance campaigns like this one. Advocates for undocumented immigrants are encouraging undocumented immigrants to keep their door closed, unless there's a warrant.

  ICE is also incorporating new tactic like administrative subpoenas in sanctuary jurisdictions. In February of 2014, ICE officials used the tool of administrative subpoenas to get the San Diego Sheriff's Department to give over the information on four Mexican citizens wanted for deportation. This was a new tactic in California. ICE has used this tactic recently in Denver, on January 15th, 2020. It's since, used it in New York and Connecticut.

  Administrative subpoenas are not court ordered and they require compliance within two weeks. ICE has indicated that it can seek an order from a federal judge that would compel cooperation. Now whether this tactic will become a regular tool for ICE to involve state law enforcement in immigration efforts, remains to be seen.

  Courts are now split on adding immigration assistance as conditions in federal grants. On February 26th, 2020, the Second Circuit decided New York versus the Department of Justice. The court held that Section 1373, as applied to the federal funding requirements, doesn't violate the Tenth Amendment, reasoning that the amount of funding loss compared to state's overall budgets, was not substantial enough to amount to coercion. The court disagreed with the state's arguments, that the federal government was forcing to certify their compliance with Section 1373, by threatening to withhold Byrne funds. This ruling means that Connecticut, New York, and Vermont must currently certify their compliance with Section 1373 in order to receive their regular Byrne grants.

  And the First Circuit sided with the Seventh Circuit in March of 2020, in Providence versus Barr. This leaves the First Circuit, the Seventh Circuit, and the Ninth Circuit that have cited with states, and the Second Circuit that has side with the federal government. This circuit split elicited the Supreme Court's attention.

  On Monday, June 15th, 2020, the Supreme Court denied the Trump administration's writ of certiorari in United States versus California. In this, a California district court rejected the federal government's challenge to California's sanctuary laws. And the Ninth Circuit largely agreed. The issue was, whether parts of a California law that ban state law enforcement officers from providing federal immigration officials with release date and other information about detainees, and restrict the transfer of non-citizen state detainees to federal custody, are preempted by federal law.

  Since late 2015, President Trump has tweeted or retweeted about sanctuary policies or jurisdictions at least 57 times. And sanctuary cities have been a trending topic on Twitter. Sanctuary jurisdictions remain a hot topic, one that's subject to a fiery debate.

  The future of sanctuary policies remains to be seen. And the viability of some approaches may be contingent on the U.S. Supreme Court's continued treatment of the Trump administration's efforts to assure state and local participation in its immigration agenda.

  Thanks for joining us for this presentation on sanctuary jurisdictions by Quimbee. To learn more about the content of today's presentation, you can check out the course materials which include today's slides and presenter notes. We thank you for joining us for your CLE needs. And we hope you'll join us again soon.


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