Sanctuary Cities 101

by Olivia M. Scofield

While immigration enforcement in the US has often been the subject of heated debate, the question of how immigration law should be enforced and by whom has reached a fever pitch in the year since President Trump took office. Cities such as New York, Los Angeles, and Chicago, among others, have been labeled “sanctuary cities” based on their political and policy responses to immigration enforcement efforts by the current and past presidential administrations. In the past year, the tension between the Trump administration and these (and other) local governments has led to a struggle that is currently playing out in police stations, legislatures, and courts throughout the United States. The topic is a complicated one, and the laws around these cities are currently in flux, but we’ve put together a brief primer on so-called “sanctuary cities.”

What is a “sanctuary city”?

“Sanctuary city” is not a specific, legal term. Instead, it is broadly applied to jurisdictions that have established policies that primarily serve to limit the cooperation between local law enforcement and federal immigration enforcement agencies and activities. It can also refer to cities and jurisdictions that otherwise protect or support immigrants. Examples of sanctuary city policies include refusing to honor requests from Immigration and Customs Enforcement (ICE) to detain individuals or refusing to help investigate an individual’s citizenship status. Other policies include not allowing local police to stop people solely to establish their immigration status, investing in an immigrant legal services fund, and allowing undocumented immigrants to obtain driver’s licenses.

These policies do not mean that ICE is unable to conduct raids or arrest and detain immigrants in these cities, but they do affect the level of involvement that the local government has in ICE’s activities. It’s difficult to say how many sanctuary cities are in the United States. One list of sanctuary cities frequently linked to in articles on the subject is from the “Center for Immigration Studies,” which, it should be noted, the Southern Poverty Law Center listed as an anti-immigrant hate group in 2016. The Immigrant Legal Resource Center, a non-profit immigrant legal support network, has created a map that shows the degree to which local law enforcement offers assistance to federal immigration officials and the degree to which the local laws or policies have been enacted to limit cooperation and involvement. Depending on one’s perspective, a jurisdiction’s inclusion on a list of sanctuary cities can be considered a point of pride, or a black mark.

Must a “sanctuary city” be a city?

Not necessarily. Any local jurisdiction, be it a county, city, or even a state, may adopt sanctuary policies.

Why have sanctuary policies?

Many local governments who support sanctuary policies do so because they believe these policies are necessary for the effective policing of communities. Without these policies, it is argued, the community will not trust the police, will not report crimes to the police, and will not come forward to assist in local law enforcement efforts for fear that doing so might make them vulnerable to consequences related to immigration status.

Another argument in support of sanctuary city policies rests on the separation of federal and local law enforcement. Immigration enforcement is conducted by the Department of Homeland Security (DHS), a federal agency, and by ICE, in particular, when talking about sanctuary cities. Those in favor of sanctuary policies argue that local law enforcement should not be involved with or burdened by the costs of assisting in activities that fall under the federal agency’s jurisdiction.

Why is there opposition to these policies?

One reason for opposition to sanctuary policies is the idea that by refusing to assist in immigration enforcement through the arrest and detention of immigrants, these governments are obstructing ICE’s ability to carry out immigration law enforcement. In particular, opponents argue, these policies protect dangerous undocumented criminals from being detained and removed, making others in the United States vulnerable to their criminality and bad behavior. (To that end, it should be noted that research has consistently shown that immigrants are less likely than the US-born to commit crimes, according to a report by the American Immigration Council that found that 1.6 percent of foreign-born males were in jail in 2010, compared to 3.3% of native-born men.)

How are sanctuary jurisdictions being challenged and how are they fighting back?

Both federal and local governments have attempted to challenge or limit sanctuary policies in jurisdictions throughout the US. One of President Trump’s earliest actions in office was the issuance of an executive order that sought to deny federal funding to cities that refused to cooperate with federal immigration enforcement activities. In November 2017, a federal judge issued an injunction to permanently block the enforcement of the executive order nationwide.

In January 2018, the Justice Department threatened to issue subpoenas to cities with sanctuary policies—including New York, Chicago, and Los Angeles—if they failed to provide documents showing whether local law enforcement is cooperating with federal immigration authorities. These jurisdictions complied, and after reviewing the provided information, the Justice Department sued the state of California because of their state laws that limit cooperation with federal immigration agents, alleging that these laws obstruct federal law enforcement.

In Texas, the state passed legislation that requires police chiefs and sheriffs to cooperate with immigration enforcement authorities and allows local police to question the immigration status of anyone who has been arrested. Those law enforcement personnel or public officials who do not cooperate may be subject to fines, jail time, and removal from their position. In March 2018, the Fifth Circuit allowed most of the law to go into effect. Opponents of the law are asking the Fifth Circuit to re-hear the case, and they may ultimately ask the US Supreme Court to consider Texas’ so-called ban on sanctuary cities.

On April 19, 2018, the Seventh Circuit upheld a nationwide injunction that barred restrictions placed by Attorney General Jeff Sessions on public safety grants to sanctuary cities who refused to cooperate with immigration enforcement efforts. In that case, Chicago, a self-proclaimed sanctuary city, filed suit after Attorney General Sessions announced he would cut off grants to cities unless they allowed immigration enforcement authorities unlimited access to local jails and provided forty eight hours’ notice before releasing those wanted for immigration violations. The Seventh Circuit upheld a lower court’s ruling that the attorney general had exceeded his authority to use federal funding as a “sword” to “conscript state and local authorities to aid in federal civil immigration enforcement.”

How does the future look for sanctuary policies?

Following the Seventh Circuit decision, the Justice Department has publicly vowed to “continue to fight to carry out the Department’s commitment to the rule of law, protecting public safety, and keeping criminal aliens off the street to further perpetrate crimes.” And it’s possible that  other sanctuary jurisdictions, like California, who provided information to the Justice Department on the state of cooperation between their local law enforcement and federal immigration authorities, will also be subject to legal challenges by the Justice Department.

Proponents of sanctuary policies have experienced both wins (Chicago) and losses (Texas), but the long-term future of these policies remain to be seen. In today’s political climate, long legal battles may be ahead for California, Texas, and other jurisdictions, both in the fights for and against sanctuary policies.