Many “sanctuary cities ” formed in response to the Secure Communities program, a federal immigration policy, first implemented by the George W. Bush administration in 2008. The Secure Communities program allowed Immigration and Customs Enforcement (ICE) to issue detainers for anyone detained by local law enforcement, forcing local law enforcement to hold individuals suspected of an immigration violation for up to 48 hours. In 2014, President Barack Obama ended the Secure Communities program and replaced broad enforcement with prioritized enforcement redefined by the Priority Enforcement Program (PEP). Within the first few days of his presidency, Donald Trump ended PEP, and resumed expansive, untargeted enforcement and removal via a revived Secure Communities program.
For 12 years, local law enforcement agencies struggled to comply with both Secure Communities and PEP. Detainers and deportations increased under both programs, as have the costs of complying with their increasing demands. Local law enforcement officials have overwhelmingly expressed their concerns over both the policy of holding individuals per ICE detainers without additional legal authority, and the cost of doing so. Even absent the threat of losing future funding, leaders from these jurisdictions conveyed concerns over the cost—settlements, personnel, training, etc.—of compliance and the loss of resources that would otherwise go towards reducing crime in their communities.
Secure Communities (2008-2014; 2017-current)
The Secure Communities program is a national program that requires local law enforcement agencies to submit fingerprint records to ICE. ICE can then issue detainers that require local law enforcement to hold individuals suspected of immigration violations until they can be transferred into ICE custody. Most often, this results in individuals held by local police beyond what is allowed by a judicial warrant (48 hours).
Initially, ICE and the Department of Homeland Security (DHS) characterized the program as voluntary, allowing jurisdictions to opt-out of the program at any time. But the conditions for opting-out were arduous.
For a locality to opt-out of the program, it had to formally (in writing) notify its State Identification Bureau and ICE of its request to opt-out. Upon receipt of that request, ICE would call a meeting with federal partners, the jurisdiction, and the state to discuss any issues or concerns with participating and—ideally—come to a resolution that allowed for participation.
In a press conference on October 6, 2010, Homeland Security Secretary Janet Napolitano stated that DHS “did not view this as an opt-in, opt-out program,” putting to rest the notion that jurisdictions had agency in determining whether they would participate in the program or not. When localities in San Francisco and Santa Clara, California, Arlington, Virginia, and Washington D.C. tried to opt-out of the program, ICE entertained their requests for months before revealing that it never intended to give them the option to opt-out.
In response, multiple local jurisdictions, including Cook County, Illinois, and Washington, D.C., passed legislation to limit local compliance with immigration detainers, thus creating sanctuary cities. However, even if a local law enforcement agency had a policy of not cooperating with immigration officials, ICE could still use fingerprint records from Secure Communities. They would then advise agency officials about where they are likely to find and arrest individuals.
In 2013, under the Obama administration, Secure Communities resulted in record-high deportations, primarily because deportations were not targeted, but encompassed anyone encountered by immigration enforcement. After Secure Communities was implemented, more than half of deportations conducted by ICE were of immigrants who had never been convicted of a crime. Many immigrants, like “absconders” with minor convictions and recent border crossers, were counted as “criminal aliens.” In 2015, the Migration Policy Institute estimated that between 2010 and 2011, under Secure Communities, 27 percent of the undocumented population fell under enforcement priorities for deportation. Under PEP, only about 13 percent of the undocumented population had previous criminal convictions that would make them enforcement priorities.
Because Secure Communities implemented a comprehensive enforcement strategy, fewer criminal aliens that posed real threats to public safety were prosecuted. A 2012 Office of the Inspector General (OIG) report concluded that, thanks to a lack of enforcement priorities, the Secure Communities worked well. It enhanced ICE’s ability to enforce U.S. immigration laws by expanding its presence to new jurisdictions, despite evidence that it targeted more criminal actors.
In 2011, a DHS report broke down deportations based on the level of seriousness of a conviction. Only 26 percent of deportations were level 1 convictions (the most serious crimes included terrorism and violent felonies) Nineteen percent of deportees had level 2 convictions, including individuals with multiple misdemeanor convictions resulting in minimal sentences in jail. Finally, 29 percent were level 3 convictions–e.g., minor crimes like criminal traffic violations and absconding.
Similarly, a 2016 report released after the end of Secure Communities provided a similar breakdown of deportations by criminality level under the new enforcement priorities. Overall, 87 percent of deportations fell under level 1 criminal convictions, and only 15.4 percent fell under level 2 or level 1. In contrast to the OIG report, Secure Communities did not prioritize the removal of dangerous criminals, but deported as many individuals with minor convictions as serious ones.
Priority Enforcement Program (2014-2016)
In November 2014, DHS Secretary Jeh Johnson, under the direction of President Obama, sent a memorandum that discontinued Secure Communities and established the Priority Enforcement Program (PEP). The PEP applied guidance that redefined how DHS would address immigration enforcement, detention, and deportations. The policy narrowed enforcement priorities with a focus on targeting convicted criminals and those who threatened public safety, and limited ICE’s ability to put detainer requests on those in custody who weren’t charged with violent crimes.
Under PEP, if an individual did not fit the priority guidelines, ICE would have 48-hours before the individual was released from custody to determine if there is probable cause for removal.
PEP lessened the need for sanctuary policies because it allowed local law enforcement agencies to negotiate their detainer policies and adapt their enforcement policies based on need and resource availability.
According to the Migration Policy Institute:
DHS will work with individual communities to develop protocols that stipulate agreed-upon enforcement practices. For example, a jurisdiction may agree to honor PEP requests only in cases involving convicted felons or may require that ICE establish a community review board as a condition of its cooperation. The precise terms of the agreements are likely to be negotiated on a case-by-case basis, with DHS paying particular attention to jurisdictions such as New York City, Los Angeles, and Cook County, whose cooperation ICE depends on for effective interior immigration enforcement.
After the implementation of PEP, deportations fell by almost half in 2015, with 90 percent of all deportations occurring at the border. Over half of the deportees were immigrants who had been convicted of a crime.
Restoring Secure Communities
Within days of taking office, President Trump overturned PEP and reinstated the Secure Communities program, absent the pretense of voluntary cooperation. Since reinstating the program, the Trump administration has worked to stamp out all sanctuary policies through lawsuits and attempting to withhold funds from cities and states found violating federal enforcement policies, but to little avail. Nonetheless, the reinstated program has raised deportations and severely damaged the relationship between local law enforcement agencies and ICE.
Deportations should prioritize ensuring public safety, then address enforcing the law, while paying mind to the factors that warrant deportation and removal or humanitarian parole. Expelling law-abiding individuals who have been in the United States for decades, puts financial and operational pressure on local law enforcement, and pulls focus from its primary task: tackling threats to public safety and national security.