SANCTUARY” POLICIES: WHAT ARE the DECISIONS FACING STATE and LOCAL GOVERNMENTS? by Ava Ayers*

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SANCTUARY” POLICIES: WHAT ARE the DECISIONS FACING STATE and LOCAL GOVERNMENTS? by Ava Ayers* Updated March 19, 2019 EXPLAINER “SANCTUARY” POLICIES: WHAT ARE THE DECISIONS FACING STATE AND LOCAL GOVERNMENTS? by Ava Ayers* It is tempting to think of a “sanctuary” as a The word “sanctuary” has no legal jurisdiction that answers “no” to these definition; it can refer to a diverse array of questions. But real answers are rarely that state and local policies on immigration simple. Every jurisdiction, for example, enforcement. shares information with federal authorities, This explainer gives an overview of the kinds regardless of whether it calls itself a of state and local policies that are called “sanctuary.” Thus, the final choice each “sanctuary.” Policies in this area fall jurisdiction makes—whether to publicly somewhere on a spectrum from full support refer to itself as a “sanctuary”—can be for immigration enforcement to active confusing, or even misleading. resistance. Many jurisdictions are No jurisdiction is purely a sanctuary, and no somewhere in the middle—neither jurisdiction supports federal immigration supporting nor resisting federal immigration enforcement to the fullest possible extent. enforcement, but staying neutral. So, to understand the policies behind the State and local governments make four word “sanctuary,” we need to understand kinds of choices about immigration the range of choices governments make in enforcement: each category. • Should they use their resources I. Whether to Use Investigative (personnel, time, and so on) to Resources to Support Immigration participate in federal enforcement Enforcement activities? • Should they share information about State and local power to participate in noncitizens with federal authorities? immigration enforcement is limited. The • Should they detain noncitizens at the federal government has exclusive power request of the federal government? over the regulation of immigration, so states • Should they grant federal immigration and localities can’t make their own agents access to physical sites controlled immigration-enforcement laws.1 But state by the state or locality? law-enforcement officials can participate in 1 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL WWW.ALBANYLAW.EDU/GLC/IMMIGRATION “SANCTUARY” POLICIES: AN EXPLAINER immigration enforcement if they choose; for Although localities operating under 287(g) example, it’s generally permissible for state perform federal immigration-enforcement law-enforcement officers to ask questions tasks, the agreements do not provide about immigration status.2 funding to reimburse the costs of those activities, only the cost of training. Thus, states and localities must make choices about whether to participate directly Contributing resources without becoming in federal immigration enforcement by deputies. 287(g) agreements are only one contributing state and local resources like way in which localities can participate in personnel, time, use of equipment, and the immigration enforcement. Jurisdictions that money it takes to provide those resources. want to support immigration enforcement can do so informally, without a 287(g) The federal government cannot compel local agreement, by riding along with ICE officers, law-enforcement personnel to participate in conducting joint investigations, or by investigations.3 So local authorities must sharing investigative information with ICE. make choices about the extent to which they Many jurisdictions do so. For example, will participate in immigration court officers might help ICE make arrests in investigations. States and localities have state courthouses (advocates have reported several options. this happening in New York State Becoming ICE deputies: 287(g) courthouses7). agreements. The most aggressive way for Staying neutral. Most United States localities to participate in immigration jurisdictions have chosen not to enter into enforcement is to partner with the federal 287(g) agreements. Many have adopted agency that enforces immigration law, U.S. policies under which they do not participate Immigration and Customs Enforcement in immigration investigations or share (ICE), in what are known as “287(g)” information with ICE. But these policies agreements.4 Under the 287(g) program, the almost always have exceptions. For example, federal government deputizes local law- if local authorities are investigating a drug- enforcement agents as agents of ICE. trafficking network, and ICE is investigating The 287(g) program is voluntary; no some of the same people, most local policies jurisdiction can be required to participate in allow the exchange of information. It is it.5 287(g) agreements are made between difficult to define “neutrality” or “sanctuary” ICE and local law-enforcement officials, in such situations. which means that in New York State, it is Efforts to undermine federal enforcement. independently elected sheriffs who make While most “sanctuary” policies aim for a decisions at the county level. For cities or kind of neutrality—that is, nonparticipation towns, it is law-enforcement officials who in immigration enforcement—there are enter the agreement, but those officials are cases where localities have more directly typically subject to oversight from other attempted to undermine federal elected officials. In New York State, enforcement efforts. Rensselaer County is currently the only 287(g) jurisdiction.6 For example, the mayor of Oakland in February 2018 made a public announcement 2 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL WWW.ALBANYLAW.EDU/GLC/IMMIGRATION “SANCTUARY” POLICIES: AN EXPLAINER warning noncitizens of a planned ICE cause to believe that the noncitizen is sweep.8 It’s unclear what impact this had; “removable” (i.e., deportable). Attorney General Sessions accused the Detainer requests that the state or locality mayor of being responsible for “800 wanted “maintain custody of the alien for a period criminals that are now at large in that not to exceed 48 hours beyond the time community,” prompting ICE’s local when he/she would otherwise have been spokesperson to resign, accusing Sessions released from [state or local] custody to and agency officials of lying about the allow DHS to assume custody.”11 (The impact of the mayor’s statement.9 In any detainer form also requests that the locality event, this sort of resistance by local officials give DHS notice before releasing the is very unusual. detainee; see the discussion of information- sharing, below.) Detainers are not a II. Whether to Detain Noncitizens at guarantee of deportation; in Texas, for Federal Authorities’ Request example, only 15% of detainers end up leading to deportation.12 Another choice states and localities must make is whether to detain or hold Detainers are requests, not commands, so noncitizens in custody at the request of there is nothing unlawful about declining to federal authorities. comply with them. Most “sanctuary” policies include a provision stating that the In some cases, a noncitizen in local custody jurisdiction will not honor detainers. Some is the subject of a criminal warrant—i.e., other jurisdictions decline to honor detainers one issued by a judge upon a showing of simply because it may be unlawful to honor probable cause to believe that the noncitizen them. in question has engaged in criminal conduct. Every jurisdiction of which we are aware Is it lawful to comply with detainers? honors criminal warrants. There is a significant legal question about whether it is lawful for a state or locality to But being present in the United States hold a noncitizen in custody beyond the without authorization is not, by itself, a time when there is an independent reason to crime. Therefore, most of the allegedly detain them. It is generally a violation of the unauthorized immigrants whom ICE might Fourth Amendment to hold someone in seek to detain are not subject to criminal custody without probable cause to believe warrants. Instead, ICE asks localities to they have committed a crime, and detain them by issuing a document called a immigration detainers offer reason to “detainer.”10 believe only that the person has engaged in Detainers. When a state or locality has a civil offense. Thus, multiple courts have incarcerated a noncitizen for non- found it unlawful to comply with detainers, immigration-related reasons, and ICE including an appellate court in New York becomes aware that the noncitizen is in State.13 The Third Circuit has allowed a custody, ICE may issue a detainer. The person mistakenly held pursuant to an ICE detainer indicates that there is probable detainer to sue the county for money damages.14 Because of these precedents, the 3 GOVERNMENT LAW CENTER AT ALBANY LAW SCHOOL WWW.ALBANYLAW.EDU/GLC/IMMIGRATION “SANCTUARY” POLICIES: AN EXPLAINER New York State Sheriffs’ Association advised noncitizens being removable or sheriffs in 2014 not to comply with inadmissible.17 detainer.15 I Indeed, the risk of deportation resulting It is important not to overgeneralize about from criminal conviction is so significant jurisdictions’ polices on detainers. Many that the Supreme Court has found criminal jurisdictions that generally decline to comply defense attorneys obligated to know, and with detainers will comply with them for advise their clients of, the potential certain kinds of criminal convictions. For immigration consequences of a guilty plea.18 example, New York City (a prominent Thus, prosecutors’ decisions about what “sanctuary”) has a policy of complying with charges to file can result in noncitizens detainers for noncitizens convicted of “one being deported—even
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