There have been many news reports and stories lately about the need for and need to ban so-called “sanctuary cities.” Supporters of sanctuary city policies say they help to fight crime by making undocumented immigrants more likely to report crime and cooperate with law enforcement without fear of being detained and deported.
Opponents say that sanctuary city policies that refuse to turnover to federal immigration officials, multi-time convicted felons who are in our local jails lead to senseless murders like that of Kathryn Steinle in San Francisco.
As with most controversies where both sides are convinced of their absolute correctness, the answer lies in the middle and both sides are correct on some issues and some are mistaken.
For this discussion, we will define the term “sanctuary city” as a state or local government that has policies that in one way or another refuse to fully cooperate with the efforts and requests of federal immigration officials. A “sanctuary city” can be on the very moderate side, that is a local jail that will not actively contact federal immigration officers (U.S. Immigration and Customs Enforcement-ICE) to let them know that a non-citizen was arrested. The term can also range all the way to a very extreme sanctuary city that will refuse to hold or even notify ICE when requested, that a multi-time convicted felon who has been deported five times is about to be released.
Critics are correct that immigration is a federal law enforcement issue, it is not meant for the state or local authorities to deal with as their priorities. The U.S. Supreme Court made that quite clear in Arizona v. United States, 132 S. Ct. 2492 (2012). So asking our dedicated and hard working local and state law enforcement officers to add an additional task to their long list of duties, only serves to overburden them. Besides, ICE policy does not require or even ask local law enforcement to do their immigration work for them (287(g) programs are the exception).
It is true that if undocumented immigrants fear being detained and deported during every interaction with local law enforcement, they are less likely to call the police when the witness a crime, are the victims of crime or to help law enforcement in any way. I have seen in my experience as an ICE attorney witnesses to crimes who are simply trying to help end up getting arrested by local law enforcement on immigration charges. This result does not help anyone.
On the other side, it does not help anyone when a local jail refuses to honor an ICE detainer or a request for notification of release when they are about to release a dangerous felon with an outstanding deportation order to the street rather then letting ICE do its lawfully-mandated job of detaining and seeking the removal of dangerous non-citizens.
The compromise lies in between the two extremes. Local jails should be able to choose if they want to foot the bill at tax payer expense to hold non-citizens for 48+ hours for ICE to come and get them. Because the federal officials will not reimburse the local jails for the cost of keeping those detainees during that time and if ICE or the locals make a mistake and the person should not be detained, the feds will not pay the legal bill for the lawsuit brought by the detainee.
Local jails and cities should also not be in the business of questioning residents about their immigration status unless it is somehow relevant to their jobs. Let the feds do their jobs and local officials should do theirs, enforce local and state laws, not federal immigration laws.
John Gihon is Board Certified in Immigration and Nationality Law by the Florida Bar. John is a partner with the law offices of Shorstein, Lasnetski & Gihon and passionate about crimmigration law.