Update: November 28, 12:00 pm:

If a president of the United States can suddenly pull a statement out of thin air with no facts whatsoever to back it up claiming that 3 million people who voted against him did so illegally (as appears in almost every major media headline as this is written), what kind of confidence can anyone put in his post election statement that he will seek to deport "only" 3 million(!) unauthorized "criminal aliens", instead of all 11 or 12 million immigrants who are in the US without legal status?

Doubts about how much the incoming president can be trusted about any immigration-related statement he has made or may make in the future are not assuaged by the fact that no evidence that there are anywhere near 3 million unauthorized immigrants in the US with criminal records has been produced by him or anyone else.

The prospect of having a president of the United States who may be making immigration policy based on his own fantasies, rather than anything even remotely resembling actual fact, would make it all the more important to rely on Sanctuary Cities as an antidote to this kind of departure from reality.

The following post has been revised as of 9:00 am on November 28.

Many immigrants and immigration advocates are concerned over the possibility that our incoming president, Donald Trump, who was legitimately elected under our Constitution despite having lost the popular vote to his opponent, Hillary Clinton, by more than two million votes, may launch police raids and dragnets throughout the US in order to catch, lock up and deport what he claims are up to "3 million" unauthorized "criminal aliens" in the United States (a claim for which Trump has produced no more evidence than he has for the wild claim which he made on November 27 claiming that he would have "won" the popular vote if 3 million people hadn't allegedly voted "illegally" - something that goes far beyond even the attempts of his advisor and potential pick to head America's immigration system as DHS chief, Kris Kobach, to prevent minority US citizens, including those living in immigrant communities, from being able to vote through the voter ID laws he has drafted in a number of states - laws which, along with many of the state laws he has drafted for the purpose of creating fear and terror in immigrant communities, have largely been struck down by the courts).

This concern is fueled by news reports that the author of the main legal precedent for this reign of terror in immigrant communities, Arizona's notorious S.B. 1070 (much of which was subsequently held unconstitutional by the US Supreme Court in Arizona v. US, 2012), Kansas Secretary of State Kris Kobach, is being considered for the post of Secretary of the Department of Homeland Security.

As everyone concerned about immigration remembers, Kobach was largely responsible for drafting this law, which required local police to stop and check the papers of virtually anyone who looked Hispanic, and led to mass roundups and incarceration of minority immigrants in desert tents where Maricopa County Sheriff Joe Arpaio (who has now been defeated for reelection - could be one day soon be the new head of ICE?) limited his inmates to 2 meals a day.

An even harsher law which Kobach also drafted and was enacted in Alabama was also responsible for creating fear among minority school children and their immigrant parents until it was also struck down by the Supreme Court.

Under the new Trump administration, could America turn into a country where police on every street corner in the entire nation, not just in states such as Arizona or Alabama, can stop anyone who "looks" Latino, Asian, Middle Eastern or African/Caribbean, demand to see proof of legal status and immediately send them to jail if they don't have the right papers?

Could America become a country where millions of immigrants coast to coast are afraid to send their children to school, to seek medical attention, to report domestic abuse and other crimes to the police, to ride in cars or even to remain in their own homes? Could millions of American citizens be sent to jail for "harboring" or "assisting" unauthorized immigrants, including their own husbands, wives or parents, under 8 U.S.C. Section 1324 (INA Section 274 - see below)?

The last bulwark against America's becoming this kind of country may well be the movement toward Sanctuary Cities, whose officials have announced that to varying extents, depending on the jurisdiction in question, they will not cooperate with federal immigration authorities in rounding up and deporting "illegal aliens".

A May 31, 2016 Deportment of Justice Memorandum entitled: Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. Section 1373 by Grant Recipients that

"...there are over 300 'sanctuary' jurisdictions that refuse to comply with US Immigration and Customs Enforcement [ICE] detainers or otherwise impede information sharing with federal immigration officials."

These jurisdictions include America's three largest cities, New York, Los Angeles and Chicago, and many smaller ones throughout the country.

There are three main federal statutes on which the argument that local officials are required to cooperate with federal officials in immigration enforcement are based: 8 U.S.C. Section 1373, 8. U.S.C. 1644 and 8 U.S.C. 1324.

The first two deal with the kinds of immigration information that state and local officials are required to share with federal immigration officials, and they do not carry criminal penalties for violation.

The third, which is a general statute that applies to everyone, not just government officials, makes it a crime to "harbor" or "assist" someone who enters or remains in the United States without legal permission.

Each of these statutes will be examined in detail in forthcoming parts of this series. This detailed discussion will show that an official "don't ask, don't tell" policy toward people who might appear to be foreign citizens for one reason or another (such as, for example, based on a standard that Maricopa County, AZ sheriff Joe Arpaio was widely accused of using - failure to maintain white skin color) concerning whether they have legal status in this country or not, would not be a violation of any of the above statutes.

However, knowingly refusing to maintain or share information with federal immigration officials that a state or local government official already has about the immigration status of any given person might very likely be a violation of one or more of the above provisions, as I will show in Part 2 of this series.

Would the above statutes be a basis for prosecuting and jailing any state or local official who refuses to cooperate with federal immigration authorities with regard to the above information or related matters such as honoring federal detainers on immigrants who are eligible to be released from jail (or not to be jailed at all) under state or local law?

This question takes on added urgency in view of Trump's appointment of US Senator Jeff Sessions, one of America's most vigorous and vocal opponents of all immigration, both legal and illegal, as the next attorney general, with wide powers to prosecute all alleged immigration-related crimes.

One anti-immigrant advocate, Matthew Vadun, relying extensively on arguments provided by the well-known restrictionist group FAIR, suggests that Sessions may have the power to prosecute state or local officials who do not give full cooperation to federal authorities who are seeking to arrest or deport unauthorized immigrants. These arguments will be discussed fully in Part 2 of this series.

However, if Vadum (who is a private commentator, and has no connection with Trump or his administration that I am aware of) is typical of other critics of the Sanctuary Cities movement, the debate over its legality may not necessarily be held on the objective, scholarly level of legal discussion.

This is what Vadum has to say in an article calling for the arrest of Chicago mayor Rahm Emanuel, who has declared his city to be a Sanctuary City.

"Emanuel...is a strident supporter of the sanctuary city movement that gave illegal aliens permission to rob, rape and murder Americans."


This can only remind one of the following statement by Joseph Goebbels in 1941 when he complained that despite the Nazi persecutions during the previous 12 years, Berlin, the capital city, still allegedly had too many Jews, in effect becoming something like a "sanctuary" city (even though he did not use that term):

"...one began to see Jews on the streets of the west side of Berlin in the company of Gentile foreigners. These Jewish lackeys actually should wear the Jewish star themselves. The excuse they give for their provocative conduct is always the same: the Jews are after all human beings too. We never denied that, just we never denied the humanity of murderers, child rapists, thieves and pimps..."

See, Joseph Goebbels: Juden sind Schuld ("Jews are guilty", 1941, English translation.)


In making the above comparison, it is not my intention to attribute any support for anti-semitism or genocide, either to any member of the incoming Trump administration or anyone else who might have authority over US immigration policy. Nothing could be further from the truth.

But in terms of the tone of discourse used toward a particular ethnic/religious group or groups of people whose presence was or is regarded as undesirable by the authorities, whether Jews in Germany 75 years ago or Latino, Muslim and other non-white immigrants in America today, as well as toward those who support them or accept these "undesirable" group members (gens invisum, to quote Virgil) there are some uncomfortable resemblances.

As an historical note, while Nazi Germany, of course, had no such thing as a sanctuary city where Jews were officially protected, there was, within Berlin itself, a "sanctuary" Jewish hospital where at least some Jewish doctors, nurses and patients were protected with the tacit approval of their Nazi persecutors.

Some of the hospital's Jewish staff and patients survived all the way through to the end of the war.

See, Washington Times: A Jewish haven in Nazi Berlin


To be continued in Part 2.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards. Roger's email address is algaselex@gmail.com