Attorney General Jeff Sessions reinforced President Trump’s call for an end to so-called “sanctuary” policies Monday, urging state and local law enforcement agencies to comply with federal immigration laws or risk losing Justice Department grants.
“[I] strongly urge our nation’s cities, states and counties to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws, and to rethink such policies,” Sessions told reporters during a surprise appearance at the daily White House press briefing.
Following last week’s release of the first installment of U.S. Immigration and Customs Enforcement’s controversial new “Declined Detainer Outcome Report,” Sessions’ statement seems likely to further elevate tensions between the federal government and local law enforcement agencies over immigration enforcement.
Although different jurisdictions interpret their sanctuary policies differently, what they mostly have in common — and the flashpoint with the administration — is declining to honor “detainer requests” from ICE to hold arrestees for up to 48 hours after they would otherwise be released.
“In a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged with or convicted of a serious crime,” Sessions said, referring to the recent report, which identified specific jurisdictions that declined 206 of the 3,083 detainer requests ICE issued during the week of Jan. 28, 2017, to Feb. 3, 2017, (PDF).
Several sheriffs and other county officials have criticized the report as inaccurate and misleading. Reportedly, ICE itself has even acknowledged that at least two jurisdictions, Pennsylvania’s Franklin County and Nassau County in New York, were wrongly included in its list of top 10 non-cooperative jurisdictions. That error could have inflated the number of detainers that were declined by as many as 43 of the reported total of 206.
Created in accordance with Trump’s executive order on border security and immigration enforcement, the weekly reports appear to be designed to embarrass local law enforcement agencies that refuse to keep people in jail on ICE’s request.
What both Sessions and the report itself do not mention is that a majority of the jurisdictions listed as “noncooperative” have policies based on rulings by federal court judges that ICE detainers are not only optional but illegal and unconstitutional.
Although the report was wrong in accusing Franklin County of releasing five individuals of interest to ICE, it correctly noted that the county’s policy is to treat ICE detainers as nonmandatory requests, unless there is a court order.
The policy was implemented in 2015, following a federal court ruling the year before in the case of a U.S. citizen mistakenly held beyond the time of his release on an ICE detainer in Lehigh County, Pa. The Third Circuit Court of Appeals ruled that Lehigh County was not required to enforce the detainer and therefore could be liable for illegally holding the man on ICE’s behalf.
Oregon’s Washington County was also listed among the ICE report’s top 10 noncooperative jurisdictions.
But Washington County Sheriff Pat Garrett insisted to the Portland Tribune last week that “the report does not accurately describe the difficulties or potential legal ramifications associated with honoring ICE detainer requests.”
Garrett pointed to the 2014 decision by a U.S. District Court judge in Portland that led Washington County and pretty much every other county in Oregon — and several in Washington state — to stop complying with ICE detainers. In that case, the judge ruled that the Clackamas County Sheriff’s office had violated a woman’s Fourth Amendment rights by holding her on ICE’s request after she was eligible for release on bail. An ICE detainer, the federal judge declared, did not provide sufficient probable cause to warrant additional detention for the woman after bail had been granted.
“We are doing nothing different than the other law enforcement agencies that are set forth in place by the courts, and they have all found that holding someone after they’ve satisfied the court is illegal,” a spokesperson for Florida’s Alachua County Sheriff’s Office said in response to the ICE report last week. “It’s illegal search and seizure.”
Alachua County, which was also cited in the report, has a policy that allows the jail to notify immigration officials of all new arrests, but since September 2015 has declined to keep people in custody on ICE’s behalf.
In fact, over the past few years, hundreds of counties and cities around the country have developed policies against ICE detainers in response to federal court rulings.
“Despite the Trump administration’s bluster and threats, the federal government cannot coerce local police into becoming deportation agents, and should not try to scare local authorities into taking illegal actions that undermine public safety and subject them to liability,” Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, said in response to Sessions’ announcement Monday. “Police and municipal officials have been sticking by their decisions to do what’s best for the safety of their communities, and we will continue to stand with them in court to defend those lawful choices.”
Although Sessions, citing several high-profile crimes by immigrants who were eligible for deportation, argued that sanctuary policies undermine public safety, several studies have found the exact opposite. According to the Transactional Records Access Clearing House, or TRAC, Immigration Project at Syracuse University, cooperation by state and local law enforcement has proven ineffective as a means of improving ICE’s ability to apprehend immigrants it seeks to deport. A recent analysis of ICE data and crime statistics by the Center for American Progress, a liberal think tank, found that an average of 35.5 fewer crimes per 10,000 people are committed in “sanctuary counties,” defined as those that do not comply with ICE detainers, compared with nonsanctuary counties.
“Altogether, the data suggest that when local law enforcement focuses on keeping communities safe, rather than becoming entangled in federal immigration enforcement efforts, communities are safer, and community members stay more engaged in the local economy,” the researchers concluded.
Arizona’s Maricopa County illustrates this point. Hundreds of sex crimes were not investigated at the height of former Sheriff Joe Arpaio’s campaign to strictly enforce immigration laws. Other jurisdictions, for example New York City and Washington state, have pointed to the lack of trust between law enforcement and immigrant communities as among the reasons for cutting their ties with ICE.
In response to Sessions’ ultimatum Monday, San Francisco Mayor Ed Lee tweeted his commitment to the city’s sanctuary policies, while New York City Mayor Bill de Blasio reportedly vowed to challenge the Justice Department in court if it acts to deprive the city of federal funds.
— Mayor Ed Lee (@mayoredlee) March 27, 2017
"If they actually act to take away our money, we'll see them in court." –@BilldeBlasio
— Erin Durkin (@erinmdurkin) March 27, 2017
It’s not entirely clear which jurisdictions are at risk of losing federal funding. At Monday’s press briefing, Sessions referred specifically to 8 U.S. Code § 1373, which prohibits federal, state and local government entities from withholding information about a person’s citizenship or immigration status from federal immigration officials.
Any jurisdiction seeking Justice Department grants for things like local law enforcement and public safety must now comply with 1373, Sessions announced, adding that the DOJ “will take all lawful steps to claw back all funds awarded to any state that willfully violates 1373.”
But 1373 only appears to refer to the sharing of information, and makes no mention of ICE holds or detainer requests. Despite Sessions’ threats, a closer look at the jurisdictions listed in the first “declined detainer” report reveals that cities and states have implemented a variety of policies, many of which include some sort of communication with ICE officials.
“The vast majority of sheriffs … want to cooperate with ICE, want to cooperate with DHS,” said Jonathan Thompson, CEO of the National Sheriffs’ Association. “But they want to do so in a way that is constitutional and protects the rights of everyone involved, including victims. Especially victims.”
Last week, ICE unveiled a new detainer request form that provides for the inclusion of either a “warrant for arrest of alien” or a “warrant for removal” signed by an authorized immigration official — but not a judge.
“While DHS has not retreated from its position that detainers serve as a legally authorized request upon which a law enforcement agency may rely,” ICE Spokesperson Yasmeen Pitts O’Keefe told Yahoo News Monday, the addition of such warrants, “as a matter of policy, will help mitigate future litigation risk and will further our efforts to ensure that our law enforcement partners will honor our detainers.”
But Thompson argues that it’s not so easy.
Echoing the concerns of local law enforcement agencies around the country, he issued a statement Friday afternoon declaring that “the Sheriffs of America cannot continue to support the current detainer process, including its revised form” and calling for the Department of Justice to issue “legal guidance confirming the constitutionality of current detainers.”
“When we met with the President last month, we pledged our support to secure the borders and protect all of our communities under the law, but also asked for this legal clarification, and he agreed,” Thompson’s statement read. “Without this, Sheriffs remain vulnerable legally when detainees are subject to release on state and local charges.”
Following Sessions’ statements at the White House on Monday, Thompson told Yahoo News that he stands by his statement Friday.
“We feel very strongly that sheriffs have got to have a fairly high degree of certainty that they’re not going to be sued in federal court for honoring” an ICE detainer, he said.
Thompson said that the National Sheriffs’ Association is working with ICE and the Justice Department to “overcome the objections by some in the judiciary” to detainers, and that “we think there is some way to work through this.”
Ultimately, however, “only the DOJ is going to be able to answer that legal question, that constitutional question.” Until then, he said, “we are in a legal limbo.”
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