When President Trump took office he not only vowed to immediately deport 2 to 3 million undocumented immigrants, but he also signed an executive order on January 25, 2017 to withhold federal funds to “sanctuary jurisdictions across the United States that willfully violate Federal law in an attempt to shield aliens from removal from the United States.”
Like so many actions by the Trump White House, the president’s executive order has had widespread consequences, many of them apparently unintended. While some states and cities have said they will comply with the Trump directive, there has also been broad resistance. Numerous communities have rushed to defend their undocumented residents. Some have strengthened their sanctuary laws and policies, while others have declared themselves sanctuary communities for the first time.
It’s not clear how effective these new protections will be, or the degree to which the federal government will be able to punish sanctuary cities. With so much still unsettled we thought it would be a good idea to answer some basic questions about sanctuary cities.
1.What is a Sanctuary City?
The sanctuary movement has a long history of protecting undocumented immigrants in the United States, especially since the 1980s with the wave of refugees fleeing Central America. But this year the term sanctuary has taken on a new meaning and urgency.
Although “sanctuary city” is not a legal term, it generally refers to a local or state government that has a policy of not providing assistance to federal immigration enforcement authorities. It also limits communication between local authorities and Immigration and Customs Enforcement (ICE).
This usually means that local law enforcement will not inquire about or record the immigration status of those they stop or detain for low level offenses. Sanctuary cities also generally say they will not honor ‘detainer’ requests from ICE to hold undocumented immigrants in jail beyond their sentence so that ICE has time to take them into custody and begin deportation proceedings.
Legal advocacy groups say that these ‘detainers’ violate the Constitution’s Fourth Amendment. According to the ACLU, “courts have long recognized that when a person is kept in custody for a new purpose after he or she should otherwise be released, that is a new seizure that requires its own Fourth Amendment justification, separate from the original reason for custody.”
Beyond law enforcement regulations, some cities including, New York, consider other services that support immigrants to be part of their sanctuary policies. This includes initiatives such as free legal support for immigrants, increased translation services and municipal ID programs such as New York’s IDNYC.
2. What is a Sanctuary State?
According to the Immigrant and Legal Resource Center (ILRC) there are five states – California, Vermont, Connecticut, Rhode Island and Oregon – that have laws limiting how much local police may cooperate with federal immigration agents.
A ruling by the Massachusetts Supreme Judicial Court (SJC) on July 24th found that local and state police are not legally permitted under Massachusetts law to comply with ICE detainers — effectively adding Massachusetts to the roster of sanctuary states.
The National Conference of State Legislatures reports that this year at least 36 states and the District of Columbia are considering sanctuary legislation or noncompliance with immigration detainers. Of these states, 33 would prohibit sanctuary policies and 15 states and the District of Columbia would support them. Twelve states have legislation on both sides of the issue.
With its sanctuary state bill, California has taken a leadership role in the movement. The law, Senate Bill 54, the California Values Act, would expand California’s sanctuary policies to include a number of provisions including the creation of “safe zones” for immigrants in public schools, public libraries, courthouses and health facilities run by state or local government.
Perhaps the most sweeping anti-sanctuary legislation passed this year is Senate Bill 4 (SB4), a Texas state law which takes effect in September. According to the ACLU SB4 requires local law enforcement agencies that have custody of individuals to comply with all federal immigration detainer requests. Additionally it bars local entities from prohibiting cooperation with federal immigration authorities in jails, campus police and local police departments. A number of Texas cities have launched legal challenges to SB4.
3. How Many Sanctuary Cities Are There?
Because the term sanctuary city has no official legal definition, estimates vary from source to source. According to the ILRC there are 633 counties that limit how much the local police may cooperate with ICE detainer requests. The number of religious institutions across the country offering sanctuary has increased significantly this year and sits at around 800.
The Center for Immigration Studies (CIS), whose tagline is Low-immigration, Pro-immigrant used data from Immigration and Customs Enforcement (ICE) to create this map of sanctuary jurisdictions. The CIS puts the number of sanctuary cities at around 200. The CIS has been criticized as being anti-immigrant and was listed by the Southern Poverty Law Center as a hate group in its 2016 report.
4. Do Sanctuary Cities Violate Federal Law?
In late June the U.S. House passed H.R. 3003, the No Sanctuary for Criminals Act, a bill strongly supported by the Trump administration. The bill withholds federal law enforcement funds from sanctuary cities that don’t comply with federal government requests for information-sharing and cooperation between local law enforcement and U.S. immigration authorities. The bill faces an uncertain future in the Senate where Democratic opposition is expected.
H.R. 3003 seeks to restrict certain Department of Justice or Department or Homeland Security grants “for states or localities determined to be in violation of Federal law”. However, the Immigrant Legal Resource Center (ILRC) and the Washington Defender Association maintain that “sanctuary policies are entirely consistent with federal law.”
In addition, an open letter to the U.S. House in late June, signed by more than 400 organizations, asserts that the new legislation is in violation of the Constitution’s Fourth and Tenth Amendments.
H.R. 3003 would require that state and local law enforcement agencies honor federal immigration detainers. Currently it is voluntary for local and state law enforcement to do so. For example, New York City only honors requests for ICE detainers in certain cases, which are seen as exceptions to the city’s policy of non-compliance with ICE detainer requests.
According to the ILRC federal court decisions have found key parts of ICE’s detainer system unconstitutional and in violation of federal statutes.
An open letter sent to President Trump in March and signed by almost three hundred law professors argues that using the threat of withholding federal funds to coerce state and local jurisdictions to implement federal immigration policies likely violates the spending clause of the Constitution’s Tenth Amendment and the separation of powers.
5. How are cities challenging Trump’s threats to their sanctuary policies?
Six local jurisdictions have sued President Trump over his sanctuary cities executive order. These include San Francisco, Santa Clara and Richmond, California, Seattle, Washington, as well as Chelsea and Lawrence, Massachusetts.
The first suit was filed by San Francisco City Attorney Dennis Herrera on January 31st, just days after the president’s executive order was signed. Santa Clara then joined that suit. These local jurisdictions argue that the new defunding provisions violate the Constitution’s Fifth Amendment’s due-process protections and the Tenth Amendment.
In April, Federal Judge William Orrick III, issued an injunction blocking the federal government from enforcing Section 9(a) of the sanctuary cities executive order. Orrick concluded that, “the order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation-of-powers principles.” In July Judge Orrick reaffirmed the order in response to Justice Department efforts to have it overturned.
6. Which Cities are Complying with the Trump Policy?
Some city governments are yielding to anti-sanctuary city pressure. Miami-Dade County withdrew its sanctuary status earlier this year with Mayor Carlos Giménez, stating that he intends “to fully cooperate with the federal government.” More recently council members who called for Nashville to be a sanctuary city withdrew their support for the bill amid opposition from the city attorney. The sponsor of the bill, Councilman Bob Mendes, also pointed to opposition from outside the county, from people running for governor in the Republican primary. Lansing, Michigan briefly passed a sanctuary city ordinance in April, only to revoke it the following week.
7. Are Sanctuary Cities Safe?
Recent research by the Center for American Progress shows that sanctuary cities have lower crime rates and stronger economies. Politifact has debunked Attorney General Jeff Sessions’ most recent claims that sanctuary cities increase crime.
Immigration think tanks, immigrant legal resource centers, and police officials have all raised concerns around the new bills H.R. 3003– No Sanctuary for Criminals Act and H.R. 3004- ‘Kate’s Law’. They assert that these bills, and any policies which break down the trust established through community policing practices, pose a greater threat to public safety than crimes committed by immigrants. For example, a study by The University of Illinois found that 70 percent of undocumented immigrants were less likely to report a crime for fear of referral to immigration authorities. An open letter to the U.S House, signed in late June by the National Fraternal Order of Police raises another objection to the legislation. The letter argues, “It is unjust to penalize law enforcement and the citizens they serve because Congress disagrees with their enforcement priorities with respect to our nation’s immigration laws.”
Research from the American Immigration Council shows that crime rates in the U.S have trended downward for many years at the same time that the number of immigrants has grown. The research also shows that immigrants are less likely than those born in the U.S. to engage in criminal behavior that would result in prison time.
H.R. 3004 – known as Kate’s Law – significantly increases the penalties for immigrants convicted of unlawful reentry to the United States. It was named after 32-year-old Kathryn Steinle, who was fatally shot on the San Francisco waterfront in 2015 by a man with a criminal record who had been deported to Mexico several times. He lived in the U.S. without legal documentation.
President Trump has frequently used the tragedy of Kate Steinle’s death to condemn sanctuary cities, even though Kate’s father has said he would prefer his daughter’s name not to be used in the law or as part of discussions around immigration.
8. Sanctuary City vs. Welcoming Community- Do terms matter?
This is a tricky question best illustrated by the experience of Santa Fe, New Mexico.
In February, Santa Fe passed a Council resolution reaffirming the city’s status as a “welcoming community for immigrants and refugees.” Santa Fe had first adopted this language in 1999 with a provision that local police officers do not inquire about the immigration status of those they encounter or arrest.
The new provisions in Santa Fe’s welcoming community resolution directs that, “city elected and appointed officials and employees shall refuse access to all non-pubIic areas of City property by federal immigration agents for the purposes of enforcing federal immigration laws who do not present a warrant issued by a Federal court specifically requiring such access.” Santa Fe will also not honor ‘detainer’ requests from ICE unless the individual is accused of a serious crime
An initial version of the resolution used the word sanctuary, but the word was dropped. City officials said the revision was made to assure that the city’s policies are “legally defensible.”
Even though Santa Fe doesn’t call itself a sanctuary city, it was still included on ICE’s list of places that have not honored ICE detainers this year. Publication of the list is an unprecedented practice adopted by the Trump administration as part of its crackdown on sanctuary cities.
According to immigration attorney and Assistant Professor at the University of Denver, César Cuauhtémoc García Hernández, this situation arises because there is no legal definition of sanctuary, and, he says, even the Trump administration seems unable to agree on what the phrase means.
Initially the administration defined sanctuary jurisdictions as those that did not comply with ICE detainer requests. More recently, however, as demonstrated by the San Francisco lawsuit, the administration has used a narrower definition to include jurisdictions that violate Federal Statute 8 U.S.C. § 1373, which prohibits limitations on sharing information with ICE about citizenship or immigration status. Legal academics and legal resource centers maintain that Federal Statute 8 U.S.C. § 1373 not only contravenes the Constitution’s Tenth amendment, but also doesn’t require state and local authorities to collect any information regarding immigration status. It only prohibits restrictions on the sharing of information that is collected.
Hernández says that the decision of a local jurisdiction to declare itself a sanctuary is as much symbolic as legal. “Like with all messages, there is certainly more than one way of conveying to migrants that their elected officials are willing to stand by them even when the going gets tough. If elected officials want to send that message to their immigrant neighbors without using “sanctuary” there is no inherent reason why they can’t,” he said.
9. Limitations of Sanctuary Cities
The sharp increase in the number of people arrested by ICE in President Trump’s first 100 days in office, as compared to the same period in 2016, has brought into question the ability of sanctuary cities to protect immigrants from arrest, immigration detention and deportation.
Lenni Benson, Professor of Law at New York Law School, said that the term sanctuary city is a little misleading because it implies full protection. In practice, she said that being a sanctuary city does not mean “we protect you”, but rather that local law enforcement, courts, and other government agencies will not forward information to ICE unless the case fits an exception. Some general exceptions include issues of national security or violent crimes.
Professor Benson also points out that local authorities don’t have the power to stop federal agents from enforcing federal law. “In a federal government system, federal agents have their own authority to operate on enforcement of the civil law that they’re enforcing, and immigration is largely civil law,” she said. “So they don’t’ need the cooperation of the local police… but they do need a warrant to enter your home, or workplace, etc.”
Although the federal government may have primacy when it comes to immigration law, there are a number of steps cities can take to push back against ICE.
Professor Hernández argues, for example, that, “lawyers can push back against ICE courthouse arrests by pointing to the First Amendment’s guarantee of access to the courts. They can tap the Supreme Court’s 1982 decision in Plyler v. Doe upholding equal access to public schools to challenge ICE enforcement actions uncannily close to schools. They can craft a path to end all cooperation — except the bare minimum required by other federal laws.”
Cities can also create a number of reforms in terms of policing and criminal justice to reduce instances of racial profiling and convictions for petty crimes, so that immigrants are less likely to be arrested and caught in the dragnet of ICE.
Immigrants, schools and workplaces can also equip themselves with Know Your Rights materials to prevent possible arrest and detention.
Fi2W is supported by the David and Katherine Moore Family Foundation, the Ralph E. Odgen Foundation, The J.M. Kaplan Fund, an anonymous donor and readers like you.