AILA Backgrounder on Possible Executive Actions Including Sanctuary Cities and Detainers
AILA provides legal and policy backgrounder on sanctuary cities and detainers and possible executive actions that President Trump might take on sanctuary cities and detainers.
Legal and Policy Background: In recent years, several jurisdictions have expressly limited their roles and activities with respect to immigration enforcement, including limiting police investigations into the immigration status of persons with whom they come in contact; and declining to hold an individual after a scheduled release date solely at the request of a federal immigration detainer. Some people refer to these as "sanctuary" policies or "sanctuary cities" and argue that they should be penalized. There is no clear and widely-accepted definition of "sanctuary city."
A 2016 Department of Justice (DOJ) Office of Inspector General (OIG) investigation suggested that 10 different city policies and ordinances may run afoul of 8 USC §1373. Nothing in federal law requires localities to enforce immigration laws. Section 1373 merely addresses the exchange of information regarding citizenship and immigration status among federal, state, and local government entities and officials. Specifically the statute prohibits local and state governments from enacting laws or policies that limit communication with the Department of Homeland Security (DHS) about information regarding the "immigration or citizenship status" of individuals and prohibits restrictions on "[m]aintaining" such information. Section 1373 does not impose on states and localities any affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information.
In recent years, detainers issued by U.S. Immigration and Customs Enforcement (ICE) have peppered the courts:
- Galarza v. Szalczyk: The Third Circuit found that the county did not have to enforce the detainer because it was voluntary. The court found that the county could be found responsible for unlawfully holding the plaintiff for ICE because it was not required to comply with the detainer but chose to do so.
- Morales v. Chadbourne: The First Circuit held that detaining someone beyond their release date is an arrest under the Fourth Amendment. The court found that the Fourth Amendment requires ICE to have probable cause to issue a detainer.
- Miranda-Olivares v. Clackamas County: The Federal District Court in Oregon held that it does not matter what immigration status the plaintiff had, being held on a detainer violated her Fourth Amendment right against unlawful arrest and detention, and the detainer does not provide sufficient probable cause to allow the local jail to hold the plaintiff for ICE.
- Jimenez-Moreno v. Napolitano: In October 2016, the Northern District of Illinois held that nearly all ICE detainers issued by the Chicago Field Office were invalid because ICE has limited authority to arrest without a warrant, and that detainers on individuals in local custody generally exceed this authority. ICE needs to get a warrant to seek the arrest of an individual in local custody, or make an individualized finding of risk of escape prior to issuing the detainer.
Possible Actions: Detainers. President Trump might attempt to make compliance with detainers mandatory, possibly under the threat of a loss of federal funding. If the President takes this route, he will likely stir a fury of litigation and community outcry.
Possible Actions: Sanctuary Cities: President Trump might announce that federal funding for sanctuary cities will be limited. He could provide guidance to DOJ that §1373 should have a stricter interpretation, which could result in several local policies not being able to receive funding. Federal administered grants, including State Criminal Alien Assistance Program (SCAAP), Justice Assistance Grant (JAG), Community Oriented Policing Services (COPS), community development block grants, or other DHS and DOJ funding could be denied to jurisdictions found to be out of compliance with federal statutes, regulations, policies, guidelines, or requirements.
DOJ has already added language to various federal criminal justice grants regarding the requirement that grant recipients must certify compliance with all applicable federal laws, including 8 USC §1373If the DOJ Office of Justice Programs receives information that a grantee is in violation of federal laws, the grantee may be referred to the OIG and may be subject to penalties.
Litigation would likely be brought on new interpretations of §1373. Administrative policy seeking to direct local or state governments to take part in immigration enforcement would face significant challenges under current interpretations of the Tenth Amendment of the U.S. Constitution.