Sanctuary Jurisdictions Aren’t All They’re Cracked Up To Be

Calling your city a sanctuary might not mean what you think it means, and it probably won’t help

(KMGH)

Progressive activists across the country are calling on local governments to declare their jurisdictions “sanctuaries” as an expression of support for and, evidently, a way to protect immigrants. But the intensity of the calls far outpace the value of the declaration. For several reasons the designation is not any sort of easy fix to the problems faced by people at risk of detention and deportation.

What’s a Sanctuary?

First off, what does being a sanctuary jurisdiction mean? Given how many times the word has been thrown around in the last several years, there’s surprisingly little agreement on or understanding of that. And not just by the public. This week in San Diego, when asked by the local police chief to define a sanctuary jurisdiction, DHS Secretary John Kelly replied, “I don’t have a clue.” There’s not a reason he should, as it has no legal or formal definition.

Originally, rather than being used by immigration proponents, the term sanctuary city started out as something hurled by Republicans and nativist hate groups at any city that wasn’t being specifically anti-immigrant. One of the nativist organizations, Center for Immigration Studies (CIS), offers a catch-all definition: “a sanctuary is a jurisdiction that has a law, ordinance, policy, practice, or rule that deliberately obstructs immigration enforcement, restricts interaction with federal immigration agencies, or shields illegal aliens from detection.” By this measure, any city, town, school, etc. that does not affirmatively seek out immigration status and transmit that information to federal authorities is a sanctuary. At the least, you could take the term to mean a jurisdiction does not cooperate with federal immigration law enforcement in some manner. This could mean different things.

What exactly is cooperating with immigration enforcement?

Let’s look at what it can mean to cooperate with immigration enforcement entities. At the far end of the spectrum, you have law enforcement agencies that participate in what’s commonly known as the 287(g) program. This program allows state and local law enforcement agencies to sign agreements that their officers can independently carry out immigration enforcement activities. The program requires that specific officers be trained (and periodically retrained) at a federal facility, who then act under a measure of supervision from Immigration and Customs Enforcement (ICE), the entity in DHS that enforces immigration law in the interior of the U.S. and the one charged with carrying out deportations (“removals”).

The agreements proceed with local officers either identifying and processing inmates in state or local jails and prisons, so they can be quickly deported following their incarceration, or working with federal law enforcement in immigration and customs related task forces, or both, depending on the agreement. Thirty eight jurisdictions participate in the jail enforcement program now, and another 25 had a task force agreement when it was phased out. That’s not a terribly high number of agencies out of the thousands of local jurisdictions across the country, probably because the costs involved are borne entirely by the local agency as well as public antipathy in some places.

Another action of cooperation involves ICE detainers — holds placed on an undocumented person in jail or prison so that they are kept in jail for an additional 48 hours past their scheduled release — which gives ICE time to take custody of the person for deportation. The detainers are effectively warrantless arrest requests, and local jurisdictions may choose to cooperate with them or not. Jurisdictions in 567 counties in 48 states have declined to honor detainers around 7,500 times per year on average in recent years.

Apart from these formal cooperative actions, some local police forces as well as other local government offices actively seek out information on immigration status from residents during otherwise routine interactions. These are actions that are not conducted through one of the 287(g) agreements mentioned above.

It is not clear if checking people’s immigrant status and forwarding it on to ICE in some way either represents “cooperating” from the federal government’s standpoint or measurably furthers the goals of the the anti-immigrant forces. It is possible that it is as effective as the DHS/ICE tip line, which presumably is not used to set enforcement policy at any of the ICE field offices. Rather, it is usually just a way to harass and intimidate residents. It is clear, however, that creating a policy against this is considered uncooperative by the nativist groups, which publish lists of jurisdictions that take pro-immigrant stances like this for political purposes.

What might be the most pervasive form of state and local intersection with federal immigration authorities involves no cooperation at all. This is the procedure through which fingerprints taken by local agencies are run through the FBI’s fingerprint files, through which they are automatically checked against DHS immigration databases. Originally debuted as Secure Communities in 2008, it was rolled into the Obama administration’s Priority Enforcement Program (PEP) in 2014 and now, since the start of the Trump administration, no longer has a particular name. This program is not one that local agencies opt into, nor can they decide to opt out of it.

So what’s wrong with a jurisdiction declaring itself a sanctuary?

It’s not definitely a bad thing for a city or county to declare itself a “sanctuary.” But there’s no reason to push a jurisdiction to call itself that just for the use of that word. And it’s important to clarify exactly what policies, if any, are being instituted in conjunction with the declaration.

The main issue is that there’s nothing that cities, counties, or states can do to categorically protect anyone from immigration enforcement. These jurisdictions cannot stop the federal government from conducting raids or other enforcement measures anywhere within their boundaries. This includes jurisdictions that have bans against asking residents their status, those that have introduced city ID cards for undocumented residents, and those that provide some benefits regardless of immigration status.

Confusion on this matter could be disastrous for someone who relied on an incorrect understanding.

Federal law wins out against state law or municipal ordinances, so no jurisdiction can craft any sort of policy to negate or limit federal immigration law, or to restrict ICE or CBP from operating. In California and other places, schools jurisdictions have crafted policies prohibiting ICE on campus, but these measures wouldn’t actually be a limitation. The only thing that precludes raids on campuses, and churches, is a policy from ICE itself, which is subject to change by the new administration. Further, even laws or policies restricting something like sharing information with the federal government would likely be illegal and unenforceable, should the federal government choose to press the case. This defeats the idea of the word sanctuary as “a place of refuge or safety,” making the designation relatively meaningless. Confusion on this matter could be disastrous for someone who relied on an incorrect understanding.

Another issue is that America is a patchwork of overlapping political jurisdictions. Cities are located in counties, highways passing through cities might have state police, and still other jurisdictions have their own organization and law enforcement. Even commuter rail or bus systems can have their own police force and policies. As an extreme example, someone living in the Los Angeles area commuting to work in downtown LA might pass through multiple county jurisdictions, state police jurisdiction in the form of California Highway Patrol on a freeway, and/or a dozen other city jurisdictions on surface streets. So one could be potentially exposed to radically differing policies over the course of a day. While, for instance, the Los Angeles Sheriff’s Department was forced by the county supervisors in 2015 to end its participation in the 287(g) program outlined above, the Orange County Sheriff’s Office just to the south is currently engaged in a jail enforcement program, meaning that if someone were to end up in an Orange County custody because of something that happened on their commute, they could be exposed to immigration enforcement just stepping foot there.

Complicating this further is that cities often contract with counties to house jail inmates, so that getting stopped for a violation even in a city that tries to shield its residents could expose people to immigration enforcement because the county does not. One might think, “None of this talk about jails or incarceration applies to me, though.” But all of this should be seen in the light of the new Trump immigration enforcement policy that prioritizes “any criminal offense,” even charged rather than convicted. This means that, depending on the state, something as small as driving 10 or more miles over the speed limit, or underage drinking or public intoxication, could expose people to arrest and thus immigration enforcement.

There’s a chance that using the word “sanctuary” could cause problems in itself. Trump can’t dramatically slash funding to places calling themselves sanctuaries, but he could target them for raids. Conservatives and anti-immigrant orgs have called for this step. Without gaining access to internal documents or a DHS telling us, we can’t know if this is happening. Probably most places already using that term are in one of the metro areas containing the bulk of the U.S. undocumented population anyway, so they are natural targets whether or not they’re being targeted for their terminology. Where it could matter more is in jurisdictions where voters aren’t overwhelmingly Democratic and liberal. In these places, pressuring officials to use that language could simply trigger a Republican backlash, changing control of the jurisdiction, replacing officials sympathetic and supportive in some way with ones overtly not. This would be an ironic but very possible outcome in the name of organizing against the Trump administration.

Even if the designation is not an intrinsic problem, it still doesn’t protect anyone. Calling something a sanctuary won’t stop federal officials from detaining and deporting residents. So it doesn’t make sense to spend a lot of time and energy fighting for the designation where it doesn’t exist. And except as simply an expression of support for immigrant residents, it probably isn’t critical for officials to create policies that could offer false hope and a misplaced sense of security. It especially doesn’t make sense to be angry and vindictive towards jurisdictions that don’t adopt the language. Even the various acts of cooperation pale in comparison to numbers of people ICE (and CBP) are able to round up themselves, though on this point it is worth pushing for specific policies that could protect some people at least on the margins.

Update: I wrote a follow up post to this about what are some things that could have an impact. You can find that here: “If Not ‘Sanctuaries,’ Then What?”

Carlos M. Vizcarra has worked with presidential, federal and gubernatorial campaigns in dozens of states across the country as well as at the DNC, DCCC, and other orgs. He holds a JD and an LLM in National Security Law from Georgetown University. Twitter: @CarlosMVizcarra