Jacob Tingen: Hello, Nation of Immigrants. It is another Friday here at Tingen & Williams. Today, we’re going to be talking about what it means to be a sanctuary city. A lot of times, we’ll hear different words that, without agreed-up definitions, people use them for their political aspirations or political arguments, but when it comes to the law, coming to an agreed-upon definition for certain terms is very important, so today, we’re going to take a very close look at one of my favorite topics, sanctuary cities. So, let’s kick this off.
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Announcer: A podcast about US immigration law, with your host, Jacob Tingen.
Jacob Tingen: Sanctuary cities. That’s the term we’re looking at today. As we’ve talked about different things, we’ve looked at different definitions and different terms. We’ve looked at public charge, for example. We’ve looked at inadmissibility. So, I guess the Sesame Street version of this, right? We’re defining different terms, sanctuary cities, right? S is for sanctuary city.
Jacob Tingen: What is a sanctuary city? I occasionally give presentations to classes or lawyers, and I’ll start off with this question. What is a sanctuary city? What does it even mean? The definitions that I get in response to that question vary widely. Some people will say, “Oh, that’s a city that’s giving federal health insurance benefits to unlawful immigrants.” Some people will say, “Oh, that’s people who don’t prosecute illegal immigrants in any way in their communities,” to, “It’s people who won’t cooperate with federal law enforcement,” or, “People with laws on the books that they won’t cooperate,” and those kinds of things.
Jacob Tingen: But, I’m going to say that those definitions, some of them get close. Some of them are completely wrong, but a sanctuary city actually has a very narrow definition, at least the way that the Trump administration has used it, and frankly, in my version of what is a sanctuary city or what people use to call a sanctuary city isn’t really sanctuary. It’s just constitutional, so we should really call these places constitutional cities, but that’s… We’ll get there, and I’ll explain why that is.
Jacob Tingen: What makes a city a sanctuary city? Let’s back up a bit, because I want to talk about… Really, the topic today is ICE detainers and this Secure Communities program. There’s this program. I think it was instated under the Obama administration. It was given a name of Secure Communities, and the idea was that if an immigrant gets arrested for a crime, they would communicate that arrest to immigration and customs enforcement, the idea being that that will allow them to then take custody of the immigrant and begin removal proceedings, because again, the Obama administration focused a great deal on deporting immigrants with criminal histories, because I guess the idea, the public policy there was, you know, we don’t have resources to deport everyone, so we’re going to focus on those with criminal histories, which makes a kind of sense.
Jacob Tingen: Now, written into the law is this provision that allows ICE to request a local law enforcement official, and I want to be very clear, it is a request. The regulations in the statute say that it’s a request. It’s a request. So, they request that a local law enforcement agency hold onto an immigrant an additional 48 hours beyond when they would normally be released, to allow time for ICE to come by the jail and pick up that immigrant, and then begin removal proceedings.
Jacob Tingen: This was, again, part of the Secure Communities initiative. It was under President Obama, and even then, it was kind of coming under fire, because people said, “Hold on. Local jails are holding onto people 48 hours, an additional two days, beyond when they would normally be released, solely for the convenience of ICE?” So, you got to understand, you end up with immigrants who, for example, in a state like Virginia where if they don’t have legal status, they can’t get a driver’s license, people who have been convicted of the crime of driving without a license, who end up in jail. Then, after they’ve done their time, they’ve been in jail the number of days that they were sentenced to, then we just keep holding onto them.
Jacob Tingen: So a lot of people said, “Well, that’s not constitutional. Where’s the probable cause, or where’s the crime? I mean, they’ve already done their time. They don’t need to continue to stay in jail. If ICE wants them, they can find them somewhere else, or if ICE wants them, they can come pick them up before their time expires.” So, the process, or the paperwork, by which ICE requests that a local jurisdiction hold onto an immigrant is called an ICE detainer. It’s a sheet of paper that literally just says, “Hi. We believe that the person in your custody is an immigrant in the United States without documentation. We’d like you to hold onto them for an additional 48 hours, please,” the idea being that ICE will come and get them, but again, it’s this whole issue where let’s say I make bond, right? I have a bond, and I pay that, I should be released.
Jacob Tingen: So, sometimes jailers would tell people, like let’s say they’re waiting on a criminal proceeding, and they want to pay their bond and get out, and be with their families while they wait for the criminal proceeding or the trial, which is very common, so people would come and pay the bond, or come to pay the bond, and jailers, frequently, local jailers would say, “Even if you pay this, they’re not getting out. We’re just going to notify ICE, and then they’ll come by and pick them up,” and whether those people were well-meaning or not, what happened is that people would not pay bond. They would say, “Okay, well I’m not going to waste my money.”
Jacob Tingen: So, even if your trial was 30 days away, or 40 days away, or even in some cases two or three months away, as things sometimes happen with court delays, those people would stay in jail, over things that non-immigrants, people who are already here, and are citizens, and stuff, would ordinarily be released with bond, and no problem at all, and they come back in 30 days, and they have their hearing, and they have a trial, and you know, it’s pretty standard.
Jacob Tingen: So those kinds of things were happening, and people started to file lawsuits. Then additionally, what also happened is that people who appeared as if they might be immigrants, even though they were lawful permanent residents or citizens, were being held on ICE detainers. Those people were also being arrested and detained, and then some of them were being arrested and detained beyond the 48 hours. Those kinds of things just would happen, because let’s say I notify ICE, and then I say, “Okay, immigrant. I’m going to keep you in the jail for 48 hours,” and then let’s say ICE doesn’t come for that person, or they forget, or they lose their paperwork, so they can’t officially take custody of them after 48 hours. Well, law enforcement agencies tend to like working together, so sometimes people would end up in jail for longer than 48 hours, which causes some problems.
Jacob Tingen: That’s kind of what the result of ICE detainers ended up being, so there were a number of lawsuits, lawsuits over people who were being held beyond the 48 hours, lawsuits over people who weren’t actually immigrants, but who were being held on an ICE detainer, and then lawsuits just for the 48 hours, because, “Hey look, if I’ve already done my time, you’re literally holding me in a jail for the convenience of another agency who couldn’t bother to pick me up beforehand.” That seems like a bit much.
Jacob Tingen: As these lawsuits started to come through, a lot of different judges and a lot of different jurisdictions started to rule and say, “Yeah, this is unconstitutional. What basis do you have to hold this person for the extra time?” And the answer is none. Now, some judges have started to come down on the other side of this, or even if they don’t come down on the other side of this, they’ll determine that the local jurisdiction perhaps could be immune, so jails have been emboldened, and continue to do this in some jurisdictions, and other jurisdictions, they’re afraid to enforce an ICE detainer, because they’re saying, “Hey, this opens me up to liability.”
Jacob Tingen: Then other people are a little more sophisticated, and they’re like, “Well, we’ve never been held liable, but we look at this constitutional issue, and we believe that it violates the constitution. Our local legal counsel has said let’s not do this.” In Virginia, for example, the Virginia attorney general has stated that they’re unconstitutional, so many sheriffs in Virginia, though not all, refuse to honor ICE detainers.
Jacob Tingen: What’s interesting is that when Trump became president, one of the first things that he did was list a name-and-shame report, and all the name-and-shame report did was list jurisdictions in the US, of people that would not cooperate with ICE, in the sense that they would not honor ICE detainers. If you’re a local jurisdiction, or you’re a sheriff, and you’re saying, “Well, I’m not going to honor an ICE detainer because frankly, you can do nothing to me except for publish a name-and-shame report, but if I do honor an ICE detainer, I become liable for monetary damages for violating the constitutional rights of others. Well, I’m just not going to do that.” And that’s frankly a reasonable conclusion.
Jacob Tingen: Then, some in the political sphere began to say, “Well, you’re a sanctuary city. Why are you doing this? It’s so dangerous and illegal.” That kind of gets me to my point, where we get some headlines that look like this, “Sanctuary City Jails Defy ICE Detainers,” or, “ICE and Sheriff Say That Immigration Detainers Release Dangerous Immigrant Criminals Into Our Community.” And while I’ll admit, yes, sometimes people do commit crimes, and sometimes those people are immigrants, but having a policy to preserve everyone’s constitutional rights does not make our communities more dangerous. It makes them more lawful and more constitutional, and if you’ve listened to this podcast, and you’ve listened to how cooperating with police, how immigrants commit crimes at a lower rate than other people, how policies related to things like U visas, and how if we encourage immigrant involvement and cooperating with police actually leads to safer communities, it kind of stretches reality to say that, “Oh, well if we have a friendly immigrant policy, that that’s going to make our communities more dangerous.”
Jacob Tingen: I don’t think that that’s true. I think that it’s rhetoric. The term sanctuary city itself is rhetoric, so that’s just one of the things that needs to be discussed, that needs to be brought up, because sanctuary city, in the way that it’s being used, is kind of like this accusatory term, but frankly, jurisdictions who look at this intelligently and say, “Well, hey, I don’t want to be held liable because of something ICE wants me to do.” That’s a smart call. That’s a smart play, so those jurisdictions should be frankly proud of their status as sanctuary cities, because it frankly has nothing to do with your position on law enforcement, or immigrant rights, or anything. It literally has to do with just pure constitutional rights, and avoiding liability. It opens you up, and your taxpayers up, to being sued, so being a sanctuary city, right? And that’s in quotation marks. Being a sanctuary city is actually a good way to protect yourself from legal liability. And that’s really all it comes down to.
Jacob Tingen: So, again, let’s go back and define the term sanctuary city. A sanctuary city is a city that refuses to honor ICE detainer requests, because to do so would violate the constitutional rights of those you hold. Then additionally, there have been a host of problems, administrative problems holding people beyond 48 hours, and holding, ultimately, lawful permanent residents and citizens on the belief that they might be immigrants, because of inaccurate and incomplete databases, as we’ve already seen in other litigation that we mentioned previously.
Jacob Tingen: So, given ICE’s imperfect databases, given the imperfect nature of our criminal justice system, it seems like a bad idea to hold immigrants… Well, hold people because they might be immigrants, and because… just on the basis of ICE detainers. So, good for you, sanctuary cities, and of course, sanctuary cities might be cities or jurisdictions that refuse to honor ICE detainers for good legal reasons, but also who perhaps refuse to cooperate with ICE on a broader scale. And frankly, that’s up to the discretion of the local jurisdiction. If you want to call those sanctuary cities, I guess that’s fine. I mean, everybody has free speech, right? But let’s be accurate and understand what we’re talking about, and that a sanctuary city is a city who refuses to honor ICE detainers, even if their only reason in doing that, even though they might be the most cooperative local law enforcement with ICE ever, they just don’t want to become legally liable, they might be considered a sanctuary city.
Jacob Tingen: So, let’s just understand what these terms mean, and then some jurisdictions go even further. I have been reading about jurisdictions in California who have a policy of not cooperating with ICE at all. You know, whether you advocate and support that approach is fine, and if you don’t, that’s fine. But when it comes to limiting your legal liability, it seems like being a sanctuary city is a good idea.
Jacob Tingen: All right, well so that’s it for sanctuary cities. Maybe we’ll tackle some other tricky, kind of nuanced terms in the future. Again, feel free to support the podcast. Follow us here on YouTube, Facebook, iTunes, Twitter, and you can donate and support the podcast at jacobtingen.com. Yeah. Have a happy Friday.
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