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.

The Australia Asylum Debacle

Though it has recently fallen from international headlines, Australian refugee policy continues to stand as an icon of the broken and unworkable international asylum regime.  Recently, the Australian government resurrected its policy under the moniker, the “Pacific Solution,” in which people seeking asylum who arrive by boat to Australian waters are detained in third party countries.  The program was closed down in 2008 after 1,637 asylum seekers were diverted by Australian authorities to Nauru, or Manus Island in Papua New Guinea, to have their refugee claims processed.  According to the UNHCR “[t]he policy was introduced in 2001 to deny asylum seekers access to Australian territory to lodge their claims. The then government led by Prime Minister John Howard adopted the Pacific Solution after Australia refused to allow a Norwegian freighter, the MV Tampa, to enter Australian waters to disembark 433 mainly Afghan boat people rescued at sea.”  Policy makers hoped that this policy would deter future “unauthorized” asylum seekers from attempting to reach Australia by boat without a visa.  Australian migration policy allows individuals whom the UNHCR has determined are refugees to apply for a visa abroad and then come to Australia.

The policy was harshly criticized for wrongly lumping individuals with legitimate asylum claims in with economic migrants that the Australian government sought to exclude. However, between 2001 and 2008, 1,153 of the 1,637 individuals diverted into asylum camps were ultimately granted refugee status or humanitarian protection.  The UNHCR confirmed that “[o]f those, 705 (approximately 61 percent) were resettled to Australia; 401 went to New Zealand; 21 to Sweden; 16 to Canada, six to Denmark and four to Norway.”  The UNHCR criticized the policy stating that “[m]any bona fide refugees caught by the policy spent long periods of isolation, mental hardship and uncertainty – and prolonged separation from their families.” With the termination of the “Pacific Solution” the Australian government began processing asylum seekers on Christmas Island where authorities promised to adhere to the letter and spirit of the 1951 Refugee Convention.  However, the core of the policy, mandatory detention of asylum seekers, remained and remains in place.  Given that asylum claims take an average of 2 years to process, mandatory detention, whether on or off Australian territory, approaches the penal.  The 1951 Refugee Convention holds that refugees should be granted government protection while their status is being determined.

In September 2012, the labor government, which was responsible for closing the “Pacific Solution,” reopened off-shore processing in Nauru.  From September to April, 2013 the Australian government spent approximately US $104 million on the program.  It appears that the Australian government has learned few lessons from the first round of the “Pacific Solution.”  A three-day inspection by Amnesty International concluded in a scathing report.  “The situation on Nauru is unacceptable. The unlawful and arbitrary detention of these men in such destitute conditions is cruel, inhuman and degrading,” said Amnesty’s Dr. Graham Thom.  Dr. Thom continued, “[t]he news that five years could be the wait time for these men under the government’s ‘no advantage’ policy added insult to injury, with one man attempting to take his life on Wednesday night.” When the Australian government voted to reinstate the program “the House rejected an amendment that would have set a one-year limit on the time asylum seekers could be held at the offshore sites.”

Even more damning is the fact that this hardline policy appears to be failing at its principal goal: deterrence. According to the BBC, “[s]ince the government announced its return to the Pacific Solution, 21,730 passengers have arrived in Australian waters in 340 boats.”  The government is responding to conservative concerns with stemming the tide of non-white, low-skilled immigrants that would disturb the traditional ethnic makeup of migration to the country.  There is a political sense that the country is being overrun by the so-called “boat people” and the newly elected government has vowed to stop the boats.  However, the Migration Policy Institute points out that overall asylum numbers in Australia are relatively small:

“While the Australian Bureau of Statistics reports that the population of resident refugees and asylees has grown for several decades, the numbers are relatively small. According to the United Nations High Commissioner for Refugees (UNHCR), Australia had 23,434 designated refugees living in the country in 2011. (By comparison, Canada had 164,883 refugees and Germany, which hosted the fourth-largest number of refugees worldwide, had 571,685. Pakistan hosts the greatest number of refugees, 1,702,700.)”

In addition, Australia’s foreign born population reflects a heavier presence of Europeans than either Canada or the US (47.1% compared with 36.8% and 12.1% respectively).

Ultimately, Australian asylum policy hinges on the legal fiction of an “authorized” asylee or refugee.  By requiring that refugees be pre-approved by the UNHCR before seeking asylum in Australia foists the cost and responsibility of adjudicating asylum claims on an underfunded and overstretched international organization.  While the UNHCR struggles to provide basic needs in humanitarian crisis areas such as the countries neighboring Syria, it is unconscionable for Australian migration officials to ask so much.  More likely is that the UNHCR stamp of approval is a politically convenient mechanism for restricting the flow of migrants and refugees into the country. 

However, blame does not fall on Australia alone.  Most developing countries have taken similar measures to restrict access by people seeking refuge.  In Europe, the policy of “push-back” is being widely applied as Frontex diverts boats with migrants and potential asylum seekers back to third party countries.  Recently, Switzerland amended its immigration policy and closed down the ability of potential refugees to file for asylum at Swiss embassies, effectively making arriving on European soil the only means for application.  Switzerland was the only European country to offer extraterritorial asylum application.  In the United States, tightening of immigration and border enforcement has made it more difficult for potential refugees to reach US soil and make their claim.   What is occurring in Australia is only one particularly glaring example of how the international refugee system is broken. 

Race to the Top – Education and Immigration Policy

As 2,000 anti-immigrant protesters marched in Washington DC to oppose the Senate-proposed immigration reform bill, they wore red T-shirts proclaiming “Protect American Jobs, No Amnesty!”  Former Congressman Allan West spoke at the event saying, “Take care of Americans first.  Get Americans back to work. Get our children back in colleges and universities.”  Modern anti-immigrant activists commonly paint immigrants as a threat to the local working population.  Republican Congressman Mo Brooks recently repeated the mantra, asserting “These are American jobs for American citizens.”  This type of jobs-based xenophobia is not unique to the United States.

Recently, the conservative candidate contesting the presidential election in November in Chile, Pablo Longuiera, went on national television asserting that illegal immigrants in Chile take jobs away from Chileans.  More extreme groups such as the Northern League in Italy and UKIP in the United Kingdom have also made similar assertions when attacking immigration.  The fact that empirical research ^{(1, 2, 3, 4, 5)} overwhelmingly contravenes this assertion has had little impact on the public debate.  In fact, research now indicates that job displacement resulting from immigration actually increases the upward mobility of native workers.  By filling jobs at the “low” end of the occupational structure, immigrants create opportunities and incentives for native workers in higher occupational tiers.  In a perceptive analysis, Hiroshi Motomura, notes that any job displacement caused by immigration among native workers is a reflection more on the failure of educational policy than a failure of immigration policy.  This insight bears repeating.

What Professor Motomura points out is that potential labor displacement of native workers is the result of a lack of upward mobility opportunities.  In the United States, the effect of fully grasping this reality would be drastic.  Instead of clamoring to shut the borders and expel immigrants, threatened communities would be demanding the opportunity to advance in their own society.  When speaking at the anti-immigrant rally former Congressman Allen West inadvertently hit the nail on the head; “Get our children back in colleges and universities.”  If immigrants are displacing US workers, the fault lies in our own failure to educate and prepare our children and workforce in general to compete.  For example, if a laborer from El Salvador is really taking a job from a person born in Arizona; that implies the educational system in Arizona is no better than that in El Salvador. 

The global mobility of capital, off-shoring and outsourcing, all show no signs of abating.  This means that US workers will have to compete globally regardless of the government’s ability to drive out internal competition from immigrants.  Due to high costs of living and expected living standards in developed countries, competitive advantage in countries like the US lies in having a highly skilled workforce.  This is achieved through education. 

Therefore, instead of spending an additional $6.5 billion on border enforcement, as the Senate reform bill proposes, that money should be funneled into education.  Some organizations assert that the failure of the US educational system has reached crisis levels.  US students are less prepared for higher education.  US employers are finding it more difficult to find US employees with the skills needed.  School drop outs are a tax burden and at higher risk of being involved in crime.  Even the Armed Services are suffering, as one-third of high school graduates who are eligible to apply score too low on Armed Services Vocational Aptitude Battery to apply.  The result is a stark irony.  While politicians rail against immigrants as a burden on public finance, a source of crime and a general detriment to US society, the reality is just the opposite.    

Reforming the US educational system could spark a race to the top in US society.  By better educating the young people born in the US, they would not be forced to compete with immigrants from less fortunate countries where the educational system is weak.  A strong educational system would not only allow the native workforce to be more dynamic and upwardly mobile, but could serve to integrate future generations of immigrant children.  Instead of racing to the bottom by cutting costs and squeezing budgets or building bureaucratic barriers and physical fences to ward off global competition, the United States should do everything is its power to prepare its society by providing the best education available.