Donald Trump’s immigration platform notoriously includes a pledge to “end” so-called “sanctuary” cities— those jurisdictions adopting policies that limit local police from “cooperation with requests from federal authorities to hold immigrants in detention.”
In a speech in Phoenix on August 31, Trump claimed such policies “have resulted in so many needless deaths.” But just last month, a federal court decision vindicated the policies Trump and his supporters revile.
As used by Trump and other immigration restrictionists, the term “sanctuary city” is racially coded and factually inaccurate. Racially coded, because sanctuary cities are portrayed (much as Trump once portrayed New York City) as “ruled by the law of the streets, as roving bands of wild criminals”—read, brown or black—“roam our neighborhoods,” visiting crime on the white citizen population.
Factually inaccurate, because “sanctuary” policies, no matter how robust, can offer no true shelter from a federal immigration enforcement machinery that has posted record deportation numbers during President Barack Obama’s administration.
The September federal court decision addressed the legality of federal requests for detention, known as immigration “detainers,” sent by immigration officials to local law enforcement calling for the prolonged detention of a person who would otherwise be entitled to release, in order to allow immigration officials time to assume custody.
Detainers have been a key tool of interior immigration enforcement for most of the last decade, and their increased use fueled the record deportation numbers. Deportations nearly doubled from about 210,000 in fiscal year 2005 to nearly 410,000 in fiscal year 2012. During that same time frame, the number of detainers issued rose from less than 10,000 to nearly 275,000.
But on September 30, United States District Judge John Z. Lee, an Obama appointee, held in the case of Jimenez Moreno v. Napolitano that “the detainer program, as it currently operates, exceeds the statutory authority Congress has granted” to the Department of Homeland Security (DHS).
Disentangling Local Police and ICE
From 2010 to early 2014, some two dozen jurisdictions enacted detainer-limiting policies (and California and Connecticut enacted statewide “TRUST” legislation), aiming specifically to put distance between local law enforcement and the “Secure Communities” program, launched by DHS in 2008 as the cornerstone of DHS’s interior enforcement plan.
Secure Communities linked federal crime and immigration databases, allowing Immigration Customs and Enforcement (ICE) officials to identify suspected immigration violators soon after their booking into a local jail.
When it launched Secure Communities, DHS claimed the program would focus enforcement resources on so-called “criminal aliens,” particularly on serious criminals. But documents released in 2011 showed 79% of those targeted actually had either no criminal record at all, or had convictions only for traffic or other minor offenses.
Worse, the documents revealed DHS had misled local jurisdictions when it led them to believe they could “opt out” of Secure Communities.
By August 2011, ICE Director John Morton publicly admitted the program was mandatory and cancelled the “memoranda of agreement” that had been entered into by 39 jurisdictions.
Local jurisdictions found, however, that while they could not opt out of Secure Communities, they could nonetheless disentangle their police forces from federal immigration enforcement by taking away the federal government’s key tool for obtaining its targets—detainers.
The detainer form used by DHS from 1997 until 2010 claimed to mandate local compliance, advising local law enforcement that federal regulations “require[d]” prolonged detention. Notwithstanding this apparent federal command, some jurisdictions conducted their own legal analysis and concluded they could not be compelled to hold persons at ICE’s request.
Detainer-limiting policies proliferated among jurisdictions that sought to promote community trust, eliminate racial profiling, and allocate local resources to local priorities.
The End of the “Secure Communities” Program
The pace of local reform increased exponentially in early 2014.
In March 2014, a decision by the Third Circuit Court of Appeals made clear that local law enforcement cannot be compelled to detain prisoners for the federal government; and if they choose to do so, they will be liable for the results. The Third Circuit held that the County of Lehigh, Pennsylvania, could be liable for damages to Ernesto Galarza, a U.S. citizen improperly targeted and held on the basis of a detainer.
The Galarza decision emboldened local authorities to blaze their own path. And after a federal judge in Oregon decided in April 2014 that local law enforcement violated Maria Miranda-Olivares’ constitutional rights by holding her pursuant to a detainer, sanctuary policies proliferated quickly. In November 2014, the Obama Administration attempted to stop the bleeding by declaring an end to the Secure Communities program.
By 2015, some 350 jurisdictions had enacted policies limiting detainer compliance.
Secure Communities was replaced by the Priority Enforcement Program (“PEP”)—effectively, old wine in new bottles. PEP, like its predecessor, claimed to prioritize criminal and national security threats. And while DHS claimed PEP would largely eliminate the use of detainers as requests for prolonged detention, that has not been the reality. DHS’s new immigration detainers still request prolonged detention, and recent data indicates these detainers are regularly used.
Meanwhile, with Donald Trump calling for a “great border wall” and pushing the Republican Party away from the remnants of any immigration policy positions consistent with meaningful reform, detainer-limiting policies have taken center stage as a hot-button issue.
The Republicans’ Anti-Sanctuary Push
Trump regularly capitalizes on crime victims’ pain by blaming the deaths of citizens on these policies—all of course leading to renewed cries to “build the wall.” Republicans in Congress have seized on the issue as well, proposing “anti-sanctuary” legislation and convening oversight hearings.
Most recently, the Judiciary Committee’s Subcommittee on Immigration and Border Security called the city of New Orleans to the carpet. New Orleans had invited DOJ to investigate an alleged pattern of civil rights violations by its police department, and following that investigation had entered into a consent decree which, among other measures to ensure bias-free policing, declared that New Orleans police officers “shall not take law enforcement action on the basis of actual or perceived immigration status, including the initiation of stops or other field contacts.”
This provision of the consent decree is consistent with the President’s Task Force on 21st Century Policing, which found that “whenever possible, state and local law enforcement should not be involved in immigration enforcement.” It was implemented by a New Orleans Police Department (NOPD) policy adopted in February 2016 and revised in September, declaring that NOPD officers generally “shall not engage in, assist, or support immigration enforcement.”
Never mind that New Orleans was motivated by a desire to comply with the demands of the Equal Protection Clause; members of the Subcommittee, fueled by a memorandum from the Department of Justice (DOJ) Office of the Inspector General that sweepingly suggests detainer-limiting policies violate federal law, charged that the NOPD policy violates federal law.
But Vanita Gupta, Principal Deputy Assistant Attorney General and head of the DOJ’s Civil Rights Division, testified in the hearing before the Subcommittee (described by Rep. Luis Gutiérrez (D-Ill.) as “a hearing about a Donald Trump talking point”) that the policy, both as adopted in February 2016 and as revised in September, was lawful.
“Sanctuary” Policies Vindicated
And then on September 30, Judge Zee held that ICE routinely exceeds its statutory authority in issuing detainers. “The bottom line,” he wrote,
“is that, because immigration officers make no determination whatsoever that the subject of a detainer is likely to escape upon release before a warrant can be obtained, ICE’s issuance of detainers that seek to detain individuals without a warrant goes beyond its statutory authority to make warrantless arrests ….”
The decision in Jimenez Moreno v. Napolitano establishes once again that jurisdictions across the country that have adopted detainer-limiting policies are complying with—rather than violating— federal law.
Despite the political attention lavished on detainer-limiting policies, it is the jurisdictions without them that are most exposed to legal liability.
Between the federal courts’ decisions in Galarza and Miranda-Olivares, it is clear that local jurisdictions are liable for the decision to prolong detention pursuant to detainers. And Jimenez Moreno makes clear that such prolonged detention regularly violates state and federal law.
For all the bluster of Trump and the Republicans, detainer-limiting policies are backed by the weight of legal authority. And they’re here to stay.
Christopher Lasch is Associate Professor at the University of Denver Sturm College of Law. Professor Lasch’s scholarship focuses generally on the intersection of immigration and criminal law, and particularly on the legal validity of immigration detainer practices. He welcomes readers’ comments.