On Jan. 2 acting Immigration and Customs Enforcement (ICE) Director Thomas Homan said that the Department of Justice needs "to file charges against the sanctuary cities" and that politicians supporting sanctuary city policies need to be held "personally accountable… [that] we gotta start charging some of these politicians with crimes."
Homan believes local government agencies and officials are ‘‘harboring’’ undocumented immigrants when they decide not to ask immigration status and/or choose not to detain immigrants.
Enforcing our immigration laws is the federal government’s responsibility. Local government has no legal obligation to assist and, for various reasons, many local governments have decided that acting as immigration agents will not increase public safety in their communities.
Whether one agrees or disagrees, deciding the best way to protect public safety is a decision that local communities are free to make. This is an authority that has been delegated to them under our federalist system.
On Feb. 23, 2017 the 5th Circuit Court of Appeals addressed the question of what constitutes harboring when it dismissed the case of two landlords and RAICES, a Texas nonprofit where I previously worked and that, until spring of 2017, ran a shelter for refugees.
These landlords were afraid that they might be convicted under Texas law HB11, a state law which says that a person commits a felony if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”
The Court of Appeals ruled that there was no “reasonable interpretation” that renting a house or providing immigrant shelter services equals “harboring” and dismissed the case, allowing HB11 to stay on the books.
The Court of Appeals found that for harboring to exist, a person or agency must do something to prevent immigration from making an arrest, such as denying ICE agents entry into a building. There was no affirmative duty for the landlords to notify ICE about immigrants or otherwise actively assist them in making an arrest. Likewise, local jurisdictions are not required to actively assist ICE in making arrests.
Homan rests his arguments on the incorrect belief that sanctuary policies prevent ICE from coming to the police station or local jails to pick up undocumented immigrants. Homan, and many others on both sides of the debate, does not understand that sanctuary cities not only do not prevent ICE from making arrests but assist ICE in important ways. The term ‘‘sanctuary’’ is therefore an unfortunate misnomer, creating unnecessary confusion, as sanctuary jurisdictions still cooperate with ICE.
What sanctuary legislation does varies by community but often involves not asking immigration status or detaining people solely due to immigration status, which several courts have ruled to be illegal. These policies do not protect criminals, who are still charged, detained, convicted, and sentenced as appropriate.
For example, the California Values Act, or SB 54, mentioned by Homen and effective starting Jan. 1, prohibits local officials from asking immigration status and holding immigrants on ICE detainers, as well as limits immigration enforcement at schools, hospitals, and courthouse. It still allows federal immigration agents to interview those being held in local custody and allows reporting to ICE of any immigrant with a previous conviction from a list of about 800 crimes
Homan’s proposal to sue local government agencies and officials comes from a laudable concern for our communities’ safety. However, he fails to acknowledge that increasing the immigrant communities fear of local law enforcement only scares victims and witnesses away from reporting and cooperating with law enforcement, making all of us less safe.
Homan claims street cops are against sanctuary policies. However, this runs contrary to what we have seen around the country, with cities and counties pulling out of 287(g) programs, which deputize local law enforcement officers to act as immigration agents.
The police chiefs of six major cities in Texas — San Antonio, Austin, Arlington, Dallas, Fort Worth and Houston — wrote jointly in opposition to SB 4, a Texas law that prevents law enforcement from enacting sanctuary city policies that stop officers from asking about, arresting, and detaining people based on immigration status. As the police chief’s wrote in their letter:
We officers work extremely hard to build and maintain trust, communication, and stronger relationships with minority communities through community based policing and outreach programs. Broad rules, such as those imposed by SB 4, that push local law enforcement to take a more active role in immigration enforcement will further strain the relationship between local law enforcement and these diverse communities.
Sanctuary policies do not prevent the federal government from doing its job enforcing our immigration laws. They simply represent a decision to limit participation in ICE’s work. Homan stated, as if in retaliation for the California Values Act, ‘‘I’m going to significantly increase [ICE’s] presence in California.’’
If ICE wants to make more arrests this is exactly what it should do. It is not local law enforcement’s responsibility. Local authorities, who know their communities best and are accountable to those communities, should be the ones to make the decision on how to ensure their public safety.
Sara Ramey is an immigration attorney at the San Antonio based NGO RAICES, where she represents asylum seekers before the Immigration Court, the Board of Immigration Appeals, and the Court of Appeals for the Fifth Circuit.