Sanctuary Cities in the Era of S-Comm: update from the United States

As 2014 rolls along, the political and media attention on immigration reform in the United States has waned.  With midterm elections in November, it seems increasingly unlikely that Congress will be in the mood for tackling a divisive and emotionally charged policy topic.  In the meantime, the hodgepodge of often conflicting immigration laws and policies continue to govern.  In the United States, immigration law has long been declared the sole province of the federal government.  That is, government bodies further down in the federal hierarchy, such as states, counties and cities, have no authority to legislate with regard to immigration.  This “bright line” rule is actually much less monolithic that it initially appears.  Immigration and immigration policy have proven to be much more than mere visas, border fences and foreign relations.  A large part of immigration is inexorably connected with the local lives of immigrants and their interactions with their communities and the cities and counties and states where they live.  Because of this reality, state, county and city governments are often explicitly involved in legislation that impacts the lives of immigrants and ultimately shapes immigration policy in the United States.

                So-called “sanctuary cities” are prime examples of this reality.  Sanctuary cities are localities that have chosen not to participate in federal programs aimed at removing immigrants who lack proper paperwork.  These policies are diverse and can range from official, written ordinances to unwritten policies communicated to law enforcement or other local officials.  There are well over a hundred cities with formal sanctuary policies, including: Washington DC, Salt Lake City, Dallas, Houston, New York City, Chicago, Phoenix, Los Angeles and New Orleans among many others.  For a complete list, this restrictionist website continues to be updated.  Here is an example of a San Francisco’s sanctuary law.  One of the main points of contention is policies regarding what to do with detained immigrants who lack documentation.

                Secure Communities (S-Comm) is a policy, launched by President George W. Bush and ramped up by President Obama, aimed at increasing removals of undocumented immigrants with criminal records.  The political discourse promotes S-Comm as a security policy that fosters coordination between local police and federal immigration officers in order to remove dangerous criminals (who happen to be immigrants) from the United States.  However, a recent report from TRAC at Syracuse University found that only 12% of removals in FY2013 associated with S-Comm were of individuals with serious “level 1” criminal convictions, such as homicide or robbery.  In 2013, for example, there were a total of 368,664 removals according to the report.  Homicide (1,172) and robbery (3,341) convictions together accounted for 1.2% of the total.  Traffic offenses, on the other hand, resulted in the removal of 47,249 individuals, or nearly 13% of total removals in 2013.  The statistical data belie the political discourse and reveal S-Comm as a much broader dragnet aimed at meeting removal and detention goals. 

                The typical procedure begins with an undocumented individual being detained by local police for some reason.  S-Comm then commands that police check the individual against immigration databases to determine the legal status of the person.  Should the search return a positive hit (ie. the detained person does not have legal status or is otherwise sought by federal immigration authorities), then local police are obligated to further detain the individual until federal immigration authorities can take custody.  Perhaps a hypothetical can flesh out the process more clearly.  

            Police are called to Kate’s house responding to a call from neighbors worried about domestic violence.  When police arrive, Kate, who does not speak English and cannot communicate with officers, is at home with her husband.  Her husband tells police that she attacked him.  Police take Kate back to the police station to defuse the situation and get her side of the story from other officers who speak her language.  According to S-Comm procedures, officers run Kate through the federal immigration database and it is revealed that Kate does not have immigration status in the United States.  Now instead of releasing Kate on her own recognizance, S-Comm dictates that she be held at the police station until federal immigration agents can take her into custody and begin removal proceedings.  Given many mandatory detention requirements (another article entirely) it is possible that Kate will remain in detention until her removal, often several months later.  What was likely a minor criminal offense or perhaps only a misunderstanding has now spiraled into a life-altering removal process against a woman with no criminal background.

                Sanctuary cities and S-Comm conflict head on in situations like the hypothetical above.  Often sanctuary city laws will refuse city funds or openly direct employees (including police) not to cooperate with federal immigration officials.  Thus, instead of checking Kate in the database, police would conduct their investigation and release Kate like any other suspect in a similar case.  Alternatively, the city may refuse to hold Kate beyond the time needed for police to resolve their investigation or as otherwise called for by law.

 

In 2013, S-Comm became nationwide and mandatory.  Previously, local governments could opt-in to the program or refuse to cooperate.  Making the policy mandatory raises serious questions as to the constitutionality of the program.  A recent law review note outlines how S-Comm violates the principles of federalism and anti-commandeering set down by the Constitution and case law.  Without delving into the legalese, it is enough to understand that the Supreme  Court of the United States has forbidden the federal government from forcing state governments (and their employees) to carry out federal mandates.  According to the court, federalism and the 10^th Amendment proscribe federal commandeering of local authorities.  As currently structured, S-Comm does just that when it makes participation mandatory.  The SAFE Act currently before Congress (though highly unlikely to pass), would remedy this federalism problem, by conditioning federal anti-terrorism money destined to non-complying localities on participation in S-Comm.  This type of federal funding manipulation is expressly permitted by Supreme Court precedent.

In the meantime the flood of S-Comm removal continues, driving sanctuary cities to retrench.  Lawyers and law students may worry about the constitutional implications of S-Comm, but police and local law enforcement are concerned with public safety.  Some policy makers and police chiefs worry that S-Comm is having a “chilling effect” on relations between police and the communities where they work.  If residents fear that they or their family members may meet a fate like our hypothetical Kate above, the argument goes that they will be less likely to call police in the first place.  Where communities do not trust police, it becomes difficult for police to secure public safety effectively.  Some states have taken action.  In October 2013, California passed the Trust Act which directs local authorities not to cooperate with S-Comm.  Other states and localities, such as Massachusetts, Illinois, new York and Washington DC have enacted similar laws.  The conflict between S-Comm and sanctuary cities is far from over and is likely to continue until there is a concerted effort at comprehensive immigration reform.