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Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy

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Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy Assembled_V2I1_v5 (Do Not Delete) 4/17/2012 1:22 PM Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy By Bill Ong Hing* I. Introduction ................................................................................................................. 247 II. Background ................................................................................................................. 252 III. Constitutionality ....................................................................................................... 260 A. City of New York v. United States ................................................................... 263 B. Sturgeon v. Bratton ............................................................................................ 267 C. The Tenth Amendment and Preemption ................................................. 272 1. Tenth Amendment ............................................................................... 272 2. Preemption of State and Local Laws ................................................. 280 a. Field Preemption ............................................................................ 282 b. Conflict Preemption ...................................................................... 286 c. Impeding Federal Objective ......................................................... 288 3. Martinez v. Regents of University of California—An Analogous Example ............................................................................................... 291 IV. Good Policing ........................................................................................................... 297 V. Good Public Policy .................................................................................................... 303 VI. Closing ........................................................................................................................ 308 I. INTRODUCTION In late February 2009, Rita Cote, a mother of four, called police in [the] Central Florida town [of Tavares] because her sister was allegedly attacked by her boyfriend. But when police showed up, rather than focus on the actual crime, they turned on Cote, who doesn’t speak English. Tavares is located in Lake County. And the Lake County sheriff . * Professor of Law, University of San Francisco. Many thanks to Maya Manian, Kate Desormeau, and Kristen Holmquist for their suggestions on an early draft of this article. Danielle Johnston, Laurie Furstenfeld, and Emily Gibbs provided excellent research assistance. Special thanks to Amy Wright, the online research services librarian at the University of San Francisco School of Law. 247 Assembled_V2I1_v5 (Do Not Delete) 4/17/2012 1:22 PM 248 UC IRVINE LAW REVIEW [Vol. 2:247 had campaigned on the promise that he would deport illegal immigrants. The police demanded to see Cote’s papers, and when she only offered a bank identification card, they arrested her. The man who had allegedly left marks and bruises on her sister was never even picked up. As bad as that might be, it gets worse. She was held for eight days without being able to contact family. She was transferred to immigration authorities in Broward County, in South Florida, hours away from her family, before finally being released. By the way, her children and husband are all American citizens. In fact, her husband is an Iraq War veteran.1 Cote was fortunate to be released from immigration custody. Danny Sigui was not so lucky: In Providence, Rhode Island, Guatemalan immigrant Danny Sigui helped convict a murderer by providing critical testimony against the accused. During preparation of the case, the state attorney general’s office learned that Sigui was an undocumented immigrant, and reported him to the U.S. Department of Homeland Security (DHS). When asked whether he would have come forward again, knowing that doing so would lead to his deportation, Sigui replied: “If I had known they would take my liberty, that they would take my children away from me, that they would put me [in immigration detention], I would not do this.” 2 Sigui was deported following the trial,3 in spite of an appeal from friends and the state attorney general office to allow him to stay.4 As private persons attempting to assist local law enforcement officials apprehend criminals, Cote and Sigui could have been spared the immigration enforcement nightmare had there been sanctuary policies in their communities.5 Policies that instruct officers to refrain from asking crime victims or witnesses 1. Ralph De La Cruz, ‘The Police Took Mommy’: How Reporting a Crime Nearly Resulted in Deportation for Florida Woman, FLA. CTR. FOR INVESTIGATIVE REPORTING (Jan. 31, 2011), http://fcir.org/2011/01/31/the-police-took-mommy-how-reporting-a-crime-nearly-resulted-in- deportation-for-florida-woman. 2. LYNN TRAMONTE, IMMIGR. POLICY CTR., DEBUNKING THE MYTH OF “SANCTUARY CITIES” 3 (2009), available at http://www.immigrationpolicy.org/sites/default/files/docs/Community PolicingPaper3-09.pdf. 3.Id. 4. Tatiana Pina, Guatemalan Immigrant to Be Deported, PROVIDENCE J., Aug. 6, 2003, at A1. 5. Admittedly, even in San Francisco, California, where there is a sanctuary policy, its application has not always been consistent. In one high profile incident that occurred in 2004, a stabbing victim reached out to San Francisco police officers for help. Philip Hwang, Call the Cops, Get Deported, S.F. BAY GUARDIAN, Feb. 8–14, 2006, at 7. She was shocked when police turned her over to Immigration and Customs Enforcement (ICE) agents, while her assailant went unpunished. Id. The Office of Citizen Complaints launched an investigation, concluded that the police had violated the Sanctuary Ordinance, and forwarded the case to the Police Department for discipline. Id. The primary officer simply was given retraining. Id.; see also infra note 328. Assembled_V2I1_v5 (Do Not Delete) 4/17/2012 1:22 PM 2012] IMMIGRATION SANCTUARY POLICIES 249 about their immigration status are in place in more than seventy cities and states,6 such as San Francisco and New York, and are also followed by many law enforcement agencies, such as the New Haven and Los Angeles police departments.7 Thousands of other police agencies are reluctant to be viewed as partners in federal immigration enforcement.8 The motivation behind these laws and policies is simple: to encourage the entire community—including immigrant members—to trust and cooperate with the police to promote public safety for everyone.9 If this message is delivered successfully, I also believe that its tone is an important, positive step in encouraging the civic integration of immigrant communities that stands in sharp contrast to the xenophobic undercurrent of measures such as Arizona’s S.B. 107010 and the billions of dollars spent annually in border and interior enforcement of federal immigration laws.11 Sanctuary ordinances or policies that constrain local authorities from assisting in federal immigration enforcement do not receive the same political and media attention as anti-immigrant laws enacted by states and local governments. In the political struggle over the rights of undocumented immigrants in the United States, the greater media and political focus on anti-immigrant measures, such as Arizona’s S.B. 1070 and similar policies in cities like Hazleton, Pennsylvania, and Farmers Branch, Texas, is understandable.12 The widely publicized proposal and 6. TRAMONTE, supra note 2, at 4; Benjamin Wachs, Sanctuary City: Now Endorsed by 17,945 Law Enforcement Agencies Nationwide, S.F. WEEKLY, Aug. 26, 2008, http://blogs.sfweekly.com/thesnitch /2008/08/sanctuary_city_now_endorsed_by.php. An anti-immigrant organization, Ohio Jobs and Justice PAC, maintains a constantly updated website that lists dozens of cities and localities that it considers sanctuary cities. Steve Salvi, The Original List of Sanctuary Cities, USA, http://ojjpac.org/ sanctuary.asp (last visited Nov. 3, 2011). 7. See infra notes 36–43, 80–82 and accompanying text. 8. Pamela Constable, Many Officials Reluctant to Help Arrest Immigrants, WASH. POST, Aug. 23, 2008, at B1. 9. In the words of Police Chief Charlie Dean of Prince William County, Virginia, “I have a responsibility to provide service to the entire community—no matter how they got here. It is in the best interest of our community to trust the police.” DEBRA A. HOFFMASTER ET AL., POLICE EXEC. RESEARCH FORUM, POLICE AND IMMIGRATION: HOW CHIEFS ARE LEADING THEIR COMMUNITIES THROUGH THE CHALLENGES 15–16 (2010), available at http://policeforum.org/ library/immigration/PERFImmigrationReportMarch2011.pdf. 10. Support Our Law Enforcement and Safe Neighborhoods Act, ARIZ. REV. STAT. ANN. § 11-1051 (2010) (commonly known as S.B. 1070). 11. BILL ONG HING, DEPORTING OUR SOULS 178–82 (2006); BILL ONG HING, ETHICAL BORDERS 29–63 (2010). 12. Arizona’s S.B. 1070 included provisions that required police officers to check the immigration status of everyone arrested in the state, made it a state crime to not have lawful status or to work in the state without authorization, and authorized state officers to enforce the civil provisions of the federal Immigration and Nationality Act. See generally United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). In 2006, the northeastern Pennsylvania city of Hazleton passed an ordinance that sought to deny business permits to companies that employ undocumented immigrants, fine landlords who rent to them, and require legal tenants to register and pay for a rental permit. Lozano v. City of
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