This piece is part of an eight-part series on sanctuary cities. Access the full series here.
Sanctuary policies have a long history in the U.S. As laws attacking immigrant communities evolve, so do the efforts to protect vulnerable members of the population from detention and deportation. Many states and cities are now considering becoming permanent sanctuary jurisdictions, in addition to the 300 other jurisdictions across the U.S. with some form of temporary sanctuary policy limiting cooperation. Some examples include California, which officially became a sanctuary state in 2017, and San Francisco, Chicago, and other large cities across the U.S that have enacted similar legislation. As we have stated throughout this series, the term “sanctuary city” is a misnomer for jurisdictions that prioritize enforcing locally salient laws and their communities’ economic interests over enforcement of federal immigration laws.
This is not a partisan issue but a matter of protecting both immigrant communities and law enforcement resources. While 11 states are considered sanctuary states, sanctuary policies are typically decided on a local level and usually depend on the resources available to local law enforcement. While in theory it makes sense to leave it to local jurisdictions to decide what resources are available to put towards immigration enforcement, they are vulnerable to federal pressure via coercive tactics like we saw under the Trump administration. Enacting federal or state laws to limit cooperation between federal immigration agencies and local law enforcement would limit pressure from Washington and allow local jurisdictions to redirect policing resources to protecting their communities.
Even absent the threat of losing future funding from the Trump administration, local leaders have conveyed concerns over the cost of compliance with immigration detainers and the loss of resources that would otherwise be dedicated to reducing crime in their communities. As previously noted throughout this series, the 287(g) agreements that deputize local police as immigration agents do not target serious offenders. These agreements waste valuable public resources on misdemeanors and traffic offenses and place local law enforcement agencies at risk of lawsuits. They have also proven to increase the likelihood of local law enforcement agents racially profiling and discriminating against community members. These agreements have high risks for local communities, both financially and in public trust.
To create laws that effectively protect immigrants and protect communities from being forced into agreements with federal immigration agencies, state and federal governments should:
1. Reform the detainer system
As previously discussed, Immigration and Customs Enforcement (ICE) detainers do not have the legal backing that a warrant signed by a judge does. The detainer process extends significant deference to immigration officials and is often interpreted as violating an individual’s Fourth Amendment protections. The current detainer system places local law enforcement agencies at risk of lawsuits and requires them to pay for the cost of housing individuals as ICE conducts background investigations. While it would be most beneficial to eliminate the detainer system altogether and require warrants to hold an individual, a simple step would be to raise the requirements for authorizing detainers and the standard of review for when they can be issued. This would ensure more human rights protections, fewer lawsuits, and a tailored focus on priority detainees.
2. Create standardized enforcement priorities
Immigration enforcement priorities changed under the Obama and Trump administrations. So-called “voluntary” programs like Secure Communities and the Priority Enforcement Program give the federal government the authority to dictate how many resources a community should put towards immigration enforcement every few years. If the federal government imposes immigration priorities on local law enforcement agencies, it should be through legislation, not executive order.
3. Establish secure locations
Communities have a vested interest in protecting certain locations from enforcement. Private institutions such as religious institutions and college campuses have historically provided sanctuary to immigrants and have justified their role with constitutional protections and the lack of available resources to engage in federal enforcement. To promote public safety, community members should know they are safe accessing certain resources such as schools, religious institutions, and courthouses. These locations should be secure from immigration enforcement in every city and state, without repercussions for the institution.
The term “sanctuary city” demonizes a locality’s decision to prioritize their communities’ economic interests over enforcement of federal immigration laws. In reality, the policies adopted by jurisdictions that are classified as “sanctuary” policies should be standard practice in every city and state. These three policy recommendations would create room for local jurisdictions to make decisions that best protect their communities.