Sanctuary Cities of Defiance

W. James Antle III, The American Conservative, July 14, 2017

Sanctuary City Austin

May 29, 2017 – Nearly one thousand protestors from different areas of the United States rally at Texas’ Capitol in Austin, United States, 29 May 2017, to reject the SB4 Law that bans sanctuary cities and includes an amendment which allows authorities to question the migratory status of any arrested person. (Credit Image: © Alex Segura/EFE via ZUMA Press)

For a few weeks this winter, the biggest immigration news came not from Washington, D.C., but one of its affluent suburbs—Rockville, Maryland. Two Hispanic teenagers, one 18 and the other 17, were accused of raping a 14-year-old girl in a high school bathroom. The “Rockville rape case” became a staple of cable news and talk radio.

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The older of the two alleged assailants was Henry E. Sanchez-Milian, a Guatemalan who U.S. Immigration and Customs Enforcement said was caught illegally crossing the border from Mexico just a few months earlier. He had been issued a notice to appear before an immigration judge for a deportation hearing, according to the agency.

Then in May the rape charges against the two were dropped. Montgomery County State’s Attorney John McCarthy announced that after a “painstaking investigation” it was concluded that “the original charges cannot be sustained” and prosecution is “untenable” due to lack of corroboration and “substantial inconsistencies” in the girl’s story.

Supporters of lenient immigration enforcement hailed the dropped charges as vindication and decried the controversy as an example of the kind of anti-immigration hysteria fostered by President Trump, along with his deputies and voters.

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Not surprisingly, immigration control advocates found the morality tale more complicated. Yes, the rape charges were dropped. Such allegations are hard to prove. But you have one already potentially deportable illegal immigrant who is being charged with possession of child pornography, and the two clearly were engaged in behavior that was inappropriate if not verifiably criminal. Two men in their late teens were enrolled in the ninth grade at the school.

Beyond the emotions generated by the case and the intractable nature of the underlying issue, the episode reflects the legal and political complexities unleashed by the emergence of so-called sanctuary cities. This is a designation given to local governments that refuse to cooperate with federal immigration enforcement, largely by declining to identify illegal immigrants with whom they come into contact. Rockville considers itself to be such a sanctuary jurisdiction, and officials there were deliberating about whether to formalize this policy when the case involving the teens became national news.

Trump set himself foursquare against such policies throughout his campaign. “We will end the sanctuary cities that have resulted in so many needless deaths,” Trump vowed at one point. “Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we will work with Congress to pass legislation to protect those jurisdictions that do assist federal authorities.”

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As many as 300 municipalities are considered sanctuary cities, though they vary in the degree to which they embrace the label. Contrary to the phrase’s implications, they cannot stop the federal authorities from enforcing the law. But they can make it more difficult and thus effectively thwart deportations. The most commonly accepted definition of a sanctuary city is the refusal of local jurisdictions to enforce detainer orders issued by federal immigration authorities. These are requests for local governments to hold suspected illegals so federal officials can arrest and ultimately remove them.

Over the 19-month period from January 1, 2014, to September 30, 2015, reports an immigration-restriction think tank called the Center for Immigration Studies, more than 17,000 detainers were rejected by these jurisdictions. “Of these,” says the organization, “about 11,800 detainers, or 68 percent, were issued for individuals with a prior criminal history.” That’s because the subjects of these detainers are frequently criminal aliens in local custody for non-immigration-related offenses. Cooperation between federal and local law enforcement greatly expedites the removal of illegal immigrants, and people in city and county jails constitute the subset of the undocumented population that draws the least political sympathy. Politicians of both parties often say they favor their deportation.

Sanctuary cities have emerged as a major political flashpoint in the incendiary immigration issue. The Trump administration wants to attack them in its fight to step up immigration enforcement and sharply curtail the number of unauthorized immigrants living in the United States. Liberal jurisdictions, meanwhile, celebrate their status as sanctuary cities in order to align themselves with the anti-Trump “resistance.”

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But the proliferation of sanctuary cities has more than just political consequences. The Pew Research Center found that 61 percent of the estimated 11 million illegal immigrants in the United States live in 20 major metropolitan areas. Seventeen of them are considered sanctuary cities.

The Trump administration has plenty of room to increase deportations even with all the sanctuaries. It has expanded the category of criminal aliens who get enforcement priority. Its rhetoric and reputation alone have decreased border crossings and encouraged some illegal immigrants to “self-deport.”

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After Trump’s election he sought to make good on his immigration-related campaign promises. His administration rescinded the Obama-era enforcement directives and replaced them with much stricter standards. The new president awarded the Justice Department to Jeff Sessions, a Republican senator from Alabama who was the leading immigration restrictionist on Capitol Hill and a major influence on Trump’s own position on the issue.

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“[T]he Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor Immigration and Customs Enforcement detainer requests with respect to individuals charged or convicted of a serious crime,” Sessions said in a speech earlier this year. “The charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child, and even murder.”

In continuing to prioritize criminal aliens for removal, Trump has expanded the number of people who would be so considered. Illegal immigrants convicted of any criminal offense, charged with a criminal offense, guilty of defrauding any public benefits program or government agency, or who pose a national-security threat, can all be removed. And, unlike the Obama policy, there is no hierarchy of priorities; all are in theory equally deportable.

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“This is the Trump era,” Sessions said in a statement focused on sanctuary cities. “Progress is being made daily, and it will continue. This will be the Administration that fully enforces our nation’s immigration laws.” The administration had issued an executive order stripping some federal funding from designated sanctuary jurisdictions.

But getting rid of sanctuary cities won’t be easy. The liberal and pro-immigration sentiments driving the move toward sanctuary policies are very powerful throughout much of the country.

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And some jurisdictions become sanctuary jurisdictions not by choice but by threat of lawsuit. Some officials in these localities believe that they are on legally shaky ground if they hold suspected illegal immigrants at federal authorities’ request without a valid court order. In 2014, a federal judge ruled that a local jail in Oregon violated a woman’s civil rights by complying with a detainer request without court approval.

A Stateline report late last year highlighted rural Sioux County, Iowa, where 82 percent of the vote went to Trump, who also won statewide. The sheriff publicly states that he does not wish to make his jurisdiction a sanctuary county. But judicial rulings like the one in Oregon keep him, as a matter of policy, from detaining suspected illegals without a court order.

The Trump administration also has limited options when it comes to forcing cities and counties to comply with its immigration measures. Technically, while sanctuary cities may be violating the spirit of the law, the local cops aren’t immigration agents. Most federal legislation aimed at stopping these practices would employ the tactic of denying federal funding to local authorities who refuse to cooperate with immigration enforcement. But the withholding of federal funds must be tied to the activity involved, and the monetary leverage here is less potent than in other areas. If a state adopts a drinking age below 21, for example, Washington can deny federal highway funds, a powerful incentive.

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The Trump administration in May appeared to concede that its options were limited when the Justice Department under Sessions adopted a narrow definition of sanctuary cities for the purpose of withholding federal funding. Only cities, counties, and towns that violate a federal law requiring sharing information on immigrants’ legal status would be in jeopardy of losing funding, the Justice memo said.

That means the Trump executive order would not apply to communities that refuse to comply with detainers, so most places considered sanctuary cities would still be eligible for the Justice Department grants.

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Also, Trump isn’t alone in moving against sanctuary cities. He has allies on Capitol Hill. Sens. Luther Strange, R-Ala., and David Perdue, R-Ga., have brought forth legislation that would cut federal transportation and infrastructure spending for local areas whose governments refuse to cooperate on immigration enforcement. That gets closer to the state drinking age example. Strange succeeded Sessions in the Senate, while Perdue and Sen. Tom Cotton, R-Ark., seem to be in competition to become Sessions’s main replacement as Congress’s foremost immigration restrictionist. They would withhold from sanctuary cities money from one transportation program that has given out $5 billion since it was started in 2009 and a second one expected to dole out $4.5 billion over the next three years.

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While much of the onus for action against sanctuary cities remains on the Trump administration, which is embattled on multiple fronts, immigration restrictionists expect the executive branch to rise to the occasion.

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It likely wasn’t the last move for the rest of the administration either. When the president’s first federal budget proposal was unveiled, burrowed deep within the dense document were proposals to expand the definition of sanctuary cities from the narrow one recognized by the Justice Department and expose more jurisdictions to the risk of losing funds. The budget calls for defunding local entities that don’t comply with detainers. The Justice Department has already threatened nine jurisdictions with cuts. Under these rules, the numbers would likely exceed 100.

The budget also would make it easier to withhold the money in other ways. “The Secretary of Homeland Security or the Attorney General may condition a grant or cooperative agreement awarded by the Department of Homeland Security or the Department of Justice to a State or political subdivision of a state, for a purpose related to immigration, national security, law enforcement, or preventing, preparing for, protecting against or responding to acts of terrorism,” the document reads.

Though presidential budget proposals don’t necessarily become law, this Trump language reflects the president’s determination to bring states and localities to heel on the issue of sanctuary policies designed to thwart the federal enforcement of immigration laws. His determination is matched, however, by the strong pro-immigration sentiments that generated these sanctuary policies in the first place.

Trump’s election is both a symptom and cause of great national polarization. Thus it shouldn’t be any surprise that his election has exposed yet another division: between, on the one hand, states and localities that want to cooperate with his proposed immigration crackdown and, on the other, growing numbers of liberal enclaves that will use whatever powers they have at hand to defy it.

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