Just days after President Trump took office, he issued an executive order that sought to withhold funds from so called ‘sanctuary cities’. The constitutionality of this order has successfully been disputed but we continue to see laws introduced that try to enact this at a state level (see SB64). So, what is sanctuary and why is MIRA strongly opposed to anti-sanctuary legislation?
What is ‘sanctuary’?
The term ‘sanctuary’ is not a legal term and does not exist in federal law. It generally refers to when a state, county or city (or ‘sanctuary cities’) limits its cooperation with federal immigration enforcement agents in order to protect low-priority from deportation.
Sanctuary cities only decline to cooperate with Immigration and Customs Enforcement (ICE) in low-priority cases. They DO cooperate with ICE when it comes to immigrants who have committed serious crimes – hence the preferred team ‘safe-cities’.
Sanctuary cities are not breaking federal law. The only federal law on this issue is 8 U.S.C. § 1373, and all it says is that cities and counties cannot prohibit communication with the federal government regarding a person’s citizenship or immigration status.
Sanctuary come into play when an undocumented immigrant comes into contact with the police — for maybe a car accident, vehicle offense, checkpoint, etc. These incidents can result in an arrest, for example in Missouri, U.S. born undocumented immigrants are not allowed to obtain a driver’s license (12 states do allow this) so they can be arrested for this.
Once an immigrant is arrested, their information gets put into a federal database and is shared with ICE. If ICE believes that person is deportable, they often issue a hold, also called a detainer, asking the police to hold that person in custody until ICE can come pick that person up for immigration detention and eventual deportation.
If ICE obtains a federal arrest warrant for an individual, then local law enforcement has no choice but to comply with that warrant.
What is an ICE detainer?
An ICE detainer requests that local law enforcement hold an individual they arrested for up to 48 hours beyond the time they would normally be released, so that ICE may assume physical custody of the individual. Detainers are not arrest warrants — they are only requests — and do not provide probable cause for arrest. If a person is arrested but charges were dropped, or bail has been secured, an ICE detainer can result in that person to continue being held — entirely based on the suspicion that they are undocumented.
In order to issue a detainer, ICE is supposed to have probable cause that the individual is deportable. For example, a detainer could be issued if the person has a final order of deportation or is in removal proceedings, or if ICE has other evidence or confirmation that the person is deportable. The presence of a detainer is not indicative of an individual’s immigration status. Further, detainers do not initiate deportation proceedings and do not signify whether or not a person will be deported.
Whether detainers are requests or requirements of local law enforcement, is being debated in several court proceedings. Bottomline, a detainer is meant to be part of an informal method of communication between local law enforcement and federal immigration officials. It has unfortunately been misused to target low-priority undocumented immigrants who are paying taxes and helping the U.S. economy. Ironically, this shift of abusing detainers started during the Obama administration because of the emphasis the Dept. of Homeland Security (DHS) started putting on deportation.
Why anti-sanctuary policies hurt everyone?
Sanctuary policies make communities safer — local law enforcement across the country agrees that sanctuary policies encourage communication between immigrant residents and law enforcement, making everyone safer. If some people in the community are afraid to call the police when they’re in danger, or to serve as a witness in a criminal case, it makes it harder for the police to solve crimes and harder for D.A.s to prosecute criminals. Statistics (link to fact sheet) show that cities with sanctuary policies actually have lower crime rates than those without. In addition, some local law enforcement depts. Have stated that criminal elements have targeted neighborhoods that aren’t protected by pro-sanctuary policies.
It Facilitates Racial Profiling — the use of detainers increases the likelihood of racial profiling, as officers may use “foreign-sounding” last names, place of birth, or racial appearance as reasons to report an individual for investigation.
It Costs Local Authorities — although the Department of Justice’s State Criminal Alien Assistance Program (SCAAP) reimburses a small fraction of the cost to local jails for holding some individuals, the funds are insufficient, so local municipalities are required to cover those costs.
It’s unconstitutional — holding an immigrant past the point when they should be released, just so that ICE can pick them up, is unconstitutional. Detainers violate the Fourth and Fifth Amendments because DHS (1) does not have the required procedures in place to make probable cause determinations before issuing detainers; (2) does not notify individuals that detainers have been issued against them; and (3) provides no means by which individuals can challenge their extended detention.
Being undocumented is not a crime — it’s a civil violation. Undocumented immigrants have rights under the U.S. Constitution. And according to due process, the police cannot detain anyone who hasn’t at least been suspected of a crime. If a police officer encounters someone walking down the street who turns out to be undocumented, they cannot arrest that person because that person has not committed a crime (ICE, however, can). Similarly, if the police arrest someone undocumented – for example, someone suspected of committing a crime, who is then cleared, they must let that person go.
Forces higher bond amounts on immigrants — Individuals with detainers are more likely to receive higher criminal bonds, no bonds, or choose not to pay a criminal bond for fear of forfeiting the bond money, all of which lead to longer detention at local expense. Judges may feel that the detainer provides a disincentive to attend criminal court if released from custody, thereby prompting a judge to revoke bail or set higher bail.
NOTE: all of the above only applies if the undocumented person has not committed any serious crimes. If they have, the police can keep them in jail by filing charges. Or ICE can present the police with a warrant or other order from a judge, which will result in a hold until ICE can come by.