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  • Article: To Be Or Not To Be A Sanctuary City—That Is The Question For Some But Not For All By Terrence L. Olsen, Amos Bailey, and Caleb Elwell

    To Be Or Not To Be A Sanctuary City—That Is The Question For Some But Not For All

    by


    Introduction

    Sanctuary Cities are currently discussed every day either on TV, on the radio, at work, at home, and to the extent that the topic & issue will not be resolved anytime soon. Therefore, this article attempts to discuss where Sanctuary Cities started from, and where Sanctuary Cities are leading to.

    The discussion created by the article attempts to bring together both the details and the essence of Sanctuary Cities together—and then briefly highlight the positive initiatives that Sanctuary Cities have created. Overall, Sanctuary Cities demonstrate the current immigration law policy divide in the United States, and yet also demonstrate the possible solutions to make immigration law policy whole & complete again.

    Section II: The Formation and Evolution of Sanctuary Cities

    The term Sanctuary City is from the Sanctuary Movement of the 1980s. It can also be found in the Fugitive Slave Act of 1793. The first “Sanctuary Cities” were Northern cities which sheltered runaway slaves from federal agents seeking to enforce the property rights of slaveholders.

    Overall, during the 1980s of the Reagan Administration, citizens of El Salvador and Guatemala fled their countries, and were treated as “economic migrants” rather than political refugees by the United States, and thereby the Sanctuary Movement was led largely by churches and synagogues mobilized in response. Refugees fleeing these countries were smuggled across the border, and sheltered by the Sanctuary Movement. Overall, approximately 2,000 refugees or more were sheltered by members of the Sanctuary Movement. [1]

    President Bush’s Administration focused its efforts on stopping the employment of illegal immigrants. This resulted in hundreds of coordinated federal sweeps targeting illegal immigrant workers, such as a 2006 operation raiding six Swift & Company meatpacking plants across several states which led to the arrest of 1,300 workers. In this era, Sanctuary Cities with explicit and systematic policies did not exist, and the refusal to cooperate was realized through individual organizations.

    Early in President Barack Obama’s Presidency, deportations reached a record high of approximately 400,000 a year [2] , and in 2014 the Obama Administration narrowed its standards for deportation and focused primarily on people who were deemed threats to national security, were convicted of serious crimes, or were recent border crossers. Under the new policy, deportations dropped slightly, while still remaining at historically high levels, reaching 333,341 in 2015 [3] .

    In response, cities began to adopt policies intended to limit cooperation with President Obama’s implementation of the Secure Communities policy. President Obama’s administration threatened Sanctuary Cities with the loss of funding for noncompliance with federal law. [4] By the end of President Obama’s second term, however, more than 200 jurisdictions refused to cooperate with the program following a 2014 federal ruling that ICE waivers are voluntary. [5] Under President Obama, the Sanctuary City as it is understood today was created, and cities began implementing specific and systematic policies that restricted cooperation with federal immigration officials.

    Early in his term, President Donald Trump signed an Executive Order which threatened Sanctuary Cities with extensive loss of federal funding [6] . In May 2017, the Department of Justice backed away from its more aggressive implementation of President Trump’s January Executive Order, and defined a “Sanctuary City” as only those jurisdictions which “willfully refuse to comply with 8 U.S.C. 1373 href="http://discuss.ilw.com/content.php?8364-Article-To-Be-Or-Not-To-Be-A-Sanctuary-City%97That-Is-The-Question-For-Some-But-Not-For-All-By-Terrence-L-Olsen-Amos-Bailey-and-Caleb-Elwell#7" name="" title="[7]" > [7] .” This is a much narrower interpretation than the commonly understood meaning of the term, and, in fact, of the earlier expressed views of the Attorney General who had stated that jurisdictions declining to hold individuals in custody pursuant to an ICE detainer request were “willfully violat[ing] federal law” and “threaten[ing] public safety [8] .”

    By contrast, Section 8 U.S.C. 1373 only makes it illegal for a municipality to prohibit its law enforcement personal from sharing information with federal immigration officials. It says nothing about policies which forbid inquiring into immigration status in the first place [9] . Additionally, it imposes no requirement to comply with detainer requests. Thus, under the Justice Department’s definition, only those municipalities which enacted policies that expressly forbade information sharing would be considered a Sanctuary City. The DOJ has currently only identified eight such jurisdictions. [10]

    While the legal definition of a Sanctuary City does not currently include those jurisdictionw which have policies limiting compliance with ICE detainer and information requests, this may be subject to change. [11] Currently, the term Sanctuary City is most commonly used to describe municipalities which restrict their cooperation with federal immigration agencies to some degree. The two policies most often used to restrict cooperation are: 1) Limiting the immigration status information shared with federal agencies—either by declining to gather it in the first place, or, limiting how it is shared; and 2) Refusing to comply with detainer requests made by ICE. The degree to which jurisdictions refuse to cooperate with ICE, and the policies employed to that effect vary across municipalities.

    ICE has released a list of of 118 jurisdictions that it indentified as enacting policies intended to limit cooperation with federal immigration agencies [12] . This list reveals the variety of policies which jurisdictions use to frustrate the enforcement of federal immigration law.

    Of the 118 jurisdictions, the most common restriction on cooperation with ICE is refusing to honor detainer requests without a criminal warrant, or judicial order. Currently, 65 jurisdictions employ this approach [13] . An additional 19 jurisdictions will only honor a detainer request if specified criteria are met [14] . This most often takes the form of requiring the detainee to be accused or previously convicted of a specified serious crime, a specific showing of “probable cause” by ICE agents, or a showing that the hold involves a legitimate law enforcement purpose unrelated to immigration law.

    For example, the Travis County Sherriff’s Office of San Antonio Texas has a policy of only honoring detainer requests that are accompanied by a court order, or when the subject of the detainer request is charged with, or has been convicted of: Capital Murder, First Degree Murder, Aggravated Sexual Assault, or Continuous Smuggling of Persons [15] . Three jurisdictions require not only a warrant or court order, but in addition some specified criteria such as an accusation of a serious crime [16] . The ICE report also identifies 26 jurisdictions as refusing to honor detainer requests altogether, while 2 jurisdictions will only honor detainer requests if ICE promises to reimburse the jurisdiction for the cost [17] .

    The 118 Jurisdictions also employ a patchwork of notification polices. Several will only notify ICE of the release of an inmate of interest if specified criteria, such as a history of violent felonies, are met. Several, while not honoring detainers, will notify ICE of the release of a requested detainee. Some jurisdictions will send information only on request, and some do not send information, but allow ICE agents free access to files [18] .

    Section III: Current Trend of Creating a Sanctuary City Structure—Nashville, Tennessee

    The City of Nashville recently introduced a proposed measure which would formally limit its cooperation with immigration agencies. The sponsor of the bill stated that it would not make Nashville a “Sanctuary City,” citing the DOJ’s recent memo clarifying the legal definition. [19] The legislation, however, closely mirrors policies adopted by jurisdictions commonly understood as Sanctuary Cities.

    Currently, the Davidson County Sheriff's Office honors ICE detainer requests as well as notifying ICE when inmates they are interested in are being released so that federal immigration agents can pick them up. Mayor Barry has noted, however, that Nashville Police "are not immigration police, they do not ask about immigration status during stops, nor do they intend to start now.” [20]

    The proposed legislation would forbid the Metro Government from using funding, resources, or facilities to assist in immigration enforcement as well as forbidding Metro police from requesting information about citizenship status. Additionally, the legislation would prevent the Davidson County Sherriff’s Office from complying with detainer requests from ICE unless they are accompanied by an arrest warrant issued by a federal judge. A related ordinance would end an agreement between the city government and ICE, reserving a certain number of beds for ICE to use in the local Nashville jail.

    The proposed legislation has since been doomed, following Mayor Megan Barry’s urging that the city council reconsider. Though the legislation had a great deal of popular support in Davidson County, where Nashville is located, it was strongly opposed by many residents of the surrounding counties, and by a number of potential Republican candidates for the upcoming 2018 election for Governor. Currently, the bill has been withdrawn from consideration.

    Section IV: Legal Arguments for the Creation of Sanctuary Cities

    Despite slight differences in definition and application from state to state and city to city, Sanctuary Cities are essentially the same everywhere. A Sanctuary City is simply an area where local law enforcement does not request information regarding a person’s immigration status, and does not cooperate with federal immigration officers automatically. Therefore, the question becomes: can a city be a Sanctuary City without violating any laws?

    There are a number of arguments supporting the legality of Sanctuary Cities. First, the federal government cannot force the states’ local law enforcement to cooperate in the area of federal immigration law because that would violate the 10th Amendment of the United States Constitution. The 10th Amendment reserves certain powers for the states including the police power, at issue here. In addition, the Supreme Court held in New York v. United States that the federal government may not compel a state to enact or enforce a particular law. Then, in Printz v. United States, the Court held that the federal government cannot compel state or local officials to perform federally specified administrative tasks, for instance following a detainer request.

    Second, the federal government cannot refuse to provide federal funding on the basis that an area is acting as a Sanctuary City because doing so would violate the Spending Clause. There is no nexus between the federal funding the government has threatened to take away and civil immigration enforcement. Furthermore, the Supreme Court held in National Federation of Independent Business v. Sibelius that the federal government cannot coerce states into implementing federal regulations by threatening to take away federal funding.

    Finally, the policies implemented by Sanctuary Cities are not preempted by federal law. Unless a city implements a policy preventing its law enforcement agents from cooperating with the federal government outright, meaning not even on a voluntary basis, then the federal government has no foot to stand on.

    However, this does not necessarily mean that Sanctuary Cities will be the continuing legal trend for cities. For all intents and purposes, Sanctuary Cities may be a reaction, but not the ultimate answer. Over the past decade, Sanctuary Cities have been created, lobbied for, and funded largely through non-profit organizations, and political actions/movements. As the new Administration’s budget takes effect and most of the money left over from past grants begins to lessen, we may see the push or effort for the creation of Sanctuary Cities lessen also.

    Section V: Possible Sanctuary City-Like Alternative Programs Or Initiatives

    Even as movement, and/or funds for Sanctuary Cities may begin to lessen, we are still left with viable options for welcoming intending immigrants into our cities. First, non-profit organizations such as “Coming to America: The Story of Us”—a Chattanooga, Tennessee based non-profit organization that helps immigrants become acclimated to their new communities—can step in to assist immigrants better understand their new communities, and how to grow and prosper there. Other groups such as Welcoming America—based out of Atlanta, Georgia—perform similar services, and can be truly instrumental in making immigrants feel welcome.

    Non-profit organizations such as these play an important role in assisting people who are in the United States without documentation find residence(s)/places to live in the community, learn English, and even prepare for tests involved in the immigration process. However, such organizations are often incapable of assisting intending immigrants complete the necessary legal processes to be present in the United States legally, and as such problems with law enforcement are bound to arise.

    In the end, an immediate option available to intending immigrants is to have the assistance of an immigration lawyer, and thereby to find a pathway whereby they may immigrate legally. It may appear to be a more difficult pathway, and it might even cost more, but it allows the immigrant to remain in the United States legally, and have the opportunity to feel secure, and safe in the United States. It also allays any fears that the immigrant might be arrested, and removed by local law enforcement.

    Conclusion

    Sanctuary Cities are here to stay, and are not going anywhere anytime soon. However, this does not mean that Sanctuary Cities will remain the current trend for immigration law policy debate.

    Most likely, during the next several months or so, different or new initiatives & actions will be taken in order to address the new Administration’s immigration law policy changes & programs once the new fiscal year of the U.S. federal government begins this October 1 st & funds are used differently & perhaps more aggressively.



    [1] Peter Applebome, Sanctuary Movement: New Hopes After Trial, New York Times, May 6, 1986.

    [2] U.S. Department of Homeland Security, Yearbook of Immigration Statistics:2013 (https://www.dhs.gov/immigration-stat.../yearbook/2013).

    [3] U.S. Department of Homeland Security, Yearbook of Immigration Statistics:2015 (https://www.dhs.gov/immigration-stat.../yearbook/2015).

    [4] L. Att'y Gen, “Letter to Chairman Culberson” (July 7, 2016) (https://culberson.house.gov/uploaded..._culberson.pdf.).

    [5] Galarza v. Szalczyk , 745 F.3d 634 (3d Cir. 2014)

    [6] Enhancing Public Safety in the Interior of the United States, 82 FR 8799.

    [7] O. Att'y Gen, "Enhancing Public Safety in the Interior of the United States" (May 22, 2017).

    [8] Statement by Att’y Gen. Jeff Sessions on the U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (Mar. 20, 2017), https://www.justice.gov/opa/pr/state...ement-declined (“Sessions Declined Detainer Statement”).

    [9] 8 U.S.C.A. § 1373(a).

    [10] United States. Dept. of Justice. Office of Justice Programs, Proof of Compliance with 8 U.S.C. § 1373 Letters, Press Release Number: 17-436 (April 21, 2017), https://www.justice.gov/opa/pr/depar...nce-8-usc-1373.

    [11] See e.g. Securing the Border and Protecting Our Communities Act S.1126 115th Congress (2017-2018) (Introduced by Senator Luther Strange).

    [12] U.S. Immigrations and Customs Enforcement, “Weekly Declined Detainer Outcome Report For Recorded Declined Detainers Jan. 28-Feb. 3, 2017” https://www.ice.gov/doclib/ddor/ddor...-28to02-03.pdf (March 20, 2017).

    [13] Id . at 23-33.

    [14] Id .

    [15] Id . at 23.

    [16] Id . at 23-33.

    [17] Id .

    [18] Id .

    [19] Steven Hale, Mendes: Don't Call It a Sanctuary City, Nashville Scene, June 01, 2017 (http://www.nashvillescene.com/news/p...sanctuary-city).

    [20] Id.


    About The Author

    Terrence L. Olsen is the partner of Olsen Law Firm. He founded Olsen Law Firm in September 2003, and practices Immigration & Nationality Law exclusively. Terry has served, and continues to serve, the international community and his clients’ interests in the United States and internationally. By actively participating in government discussions of immigration law and policy, Terry is an active participant with the agencies governing immigration law, rather than being an observer on the sidelines. Amos Bailey is a Summer Associate of the Olsen Law Firm, and is a native of Chattanooga, Tennessee. Currently he attends Belmont University College of Law in Nashville, Tennessee, where he will graduate with his Juris Doctor in May 2018. Caleb Edward is a Summer Associate of the Olsen Law Firm, and is a current third year law student at Vanderbilt Law School. He is originally from Hartland, Maine.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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