Although the President’s 2020 “Budget for a Better America” is unlikely to become law without a plethora of warranted changes, it is clear from the budget what policies the White House disfavors. On the chopping block—again—is law enforcement funding for so-called “sanctuary cities,” which is a label widely used to describe any state or local jurisdiction that does not fully cooperate with federal immigration enforcement officials.
Within the budget’s statutory proposals for DHS and DOJ are twin provisions to amend 8 U.S.C. §1373, which mandates that no government entity can restrict information from federal immigration enforcement officials about the immigration status of any person. It also permits the Attorney General to cut off certain federal grants as punishment for noncompliance.
In practice, these mandates have not survived legal challenge. In February, a three-judge panel in the Court of Appeals for the Third Circuit unanimously struck down a DOJ policy that imposed restrictions on states and localities receiving Edward Byrne Memorial Justice federal grants for law enforcement agencies. This cutoff was intended to force the city of Philadelphia to more thoroughly assist the federal government in its efforts to remove undocumented immigrants. Citing analysis from previous similar rulings, the panel concluded that Congress did not grant the Attorney General—an arm of the executive—authority to condition the grants in this way.
Undeterred, the DHS and DOJ statutory provisions in the WH’s 2020 budget suggest amending §1373 to do exactly what the Third Circuit panel proscribed, plus more:
- Clarify that Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from honoring or complying with a civil immigration detainers; and
- Explicitly authorize DHS and DOJ to condition certain grants and cooperative agreements on requirements cooperation with specific Federal immigration enforcement activities and requests.
Based on this language alone, it is difficult to see how this would withstand legal challenge. Additionally, it opens the door to new litigation challenging the specifics: where does the executive get the authority to do this? What qualifies as a restriction? Which grants? What immigration enforcement activities? What kinds of immigration enforcement requests? Is the government doing anything to resolve mistakes? What happens when local jurisdictions are sued?
On the surface, the changes may not seem egregious, but in practice, they can have devastating consequences for local law enforcement and their communities. Nearly two years ago, I wrote about the difference between “detainers” and “warrants.” Today, that distinction is increasingly important.
Detainers are not friendly “requests” from immigration officers to hold individuals until ICE can collect the individual and place them in proper immigration proceedings. Detainers often require local law enforcement to hold individuals beyond what is allowable by the Fourth Amendment arrest warrant. Whereas a warrant requires review by a judge and confers constitutionally protected safeguards, an ICE detainer only requires an ICE officer to think there is a reason to believe the individual is subject to removal from the U.S.
This discrepancy has had mixed results in court. Most recently, the Fifth Circuit upheld Senate Bill 4 (SB4), a Texas law that forbids “sanctuary city” policies throughout the state, and held that SB4’s provisions, with one exception, did not violate the Constitution. The Fifth Circuit rejected the District Court’s ruling that officers may only arrest individuals if there is probable cause of criminality. To prevail on the Fourth Amendment claim, the Fifth Circuit concluded that every ICE detainer seizure must violate the Fourth Amendment, which was not satisfied in this case. This ruling seems to leave open the door for more narrow claims about violations of the Fourth Amendment, but certainly does uphold the validity of ICE detainers in the short term.
Not only is the detainer mandate itself an issue under the Fourth Amendment, the threshold for the detainer is questionable, given that it often results in misidentifications. Since 2012, the “reason to believe a person is subject to removal” standard has led to the improper detainment of nearly 1,500 American citizens, some of whom were detained for years before the mistake was realized. Improper detention has also forced local jurisdictions to pay up. Late last year, a 60-year-old plaintiff—and naturalized U.S. citizen—was awarded $55,000 by San Bernardino County after she was improperly detained by ICE and threatened with deportation.
Outside the legal context, complying with detainers requests requires significant resource investment by local law enforcement. In Miami-Dade County, taxpayers spent nearly $13 million on “anti-sanctuary policies.” According to a report issued by the Community Justice Project Florida Immigrant Coalition, in the first 11 months of 2017, 966 immigration detainer requests were issued to Miami-Dade law enforcement officials. Of those requests:
98% of individuals with detainers released to ICE by Miami-Dade had never had a previous offense. Sixteen individuals with resolved detainers had no criminal charges listed in Miami-Dade records, and were simply designated as “Hold for Agency.” Three from that group were turned over to ICE. Overall, ICE officials have only picked up approximately 56% of the 765 individuals with a resolved immigration detainer. [emphasis added]
This study exemplifies the wasted resources and lack of focus necessary to craft a thoughtful cooperative relationship between local law enforcement and federal law enforcement. Certainly, our society needs to detain violent criminals who do not have legal status in the country–but we also must prioritize those individuals, not hope that they are caught in the net of overly-broad, costly programs. Furthermore, the federal government must contend with the liability that local jurisdictions face when their cooperation is misguided, unwarranted, and illegal.
The solution here isn’t to try to force local jurisdictions to cooperate with federal immigration enforcement through §1373—which appears only to result in costly litigation and civil rights infringements. Rather, we must acknowledge the issues associated with blanket detainer enforcement, and work with local enforcement to find a solution that is amenable to the vast majority of jurisdictions that want to enforce the law, and protect their communities from potential abuses.