A top priority of the Trump administration’s immigration strategy has been to enlist state and local jurisdictions to be an arm of the federal government’s enforcement efforts. But many cities, especially larger metropolitan areas or those with significant immigrant populations, have refused to take part in the federal government’s deportation-focused efforts and instead have adopted or recommitted to policies that are both welcoming to immigrants and consistent with constitutional guarantees.
The Trump administration frequently labels these cities, counties, and states as “sanctuary jurisdictions” and has threatened to withhold grants or make them ineligible to receive federal resources. But, currently, there is no specific definition of what constitutes a “sanctuary jurisdiction” in statute or regulation—the phrase is a term of art. What’s more, the administration has opted for an extremely narrow interpretation of what defines a sanctuary jurisdiction. This may mean that few, if any, of the places that are popularly considered to be sanctuary jurisdictions will be affected by the administration’s actions.
Definition of a sanctuary jurisdiction
One of the new president’s first acts was to issue an executive order that, among other points, seems to have defined a “sanctuary jurisdiction” as one that “willfully refuse[s] to comply with 8 U.S.C. [§]1373.” Section 1373, however, is very narrow in scope. As indicated by the statute’s title, “Communication between government agencies and the Immigration and Naturalization Service,” Section 1373 focuses on the exchange of information between government agencies. Under the statute, a federal, state, or local agency cannot prohibit or restrict another government entity or official from maintaining information about a person’s citizenship or immigration status or communicating that information to another government entity, including what is now U.S. Immigration and Customs Enforcement.
Importantly, the statute does not in any way require state and local jurisdictions to proactively engage in any specific action, such as detain someone on behalf of federal immigration officials or even collect information regarding citizenship or immigration status. The only affirmative obligation in Section 1373 is the requirement for Immigration and Customs Enforcement—not state or local government agencies—to respond to inquiries about a person’s immigration status. The use of the word “willfully” in the executive order further narrows the definition of a sanctuary jurisdiction. In federal law, this generally means that the action was done “voluntarily and purposely, with the intent to do something the law forbids.” If a jurisdiction took an action that it believed to be consistent with or, in the case of detainer policies, required by current law, that action could not be said to have been done “willfully.” Given the limited scope of the text in Section 1373 and the narrowing effect of the word “willfully” in the executive order, it is unclear if even a single jurisdiction could be deemed a sanctuary jurisdiction.
Examples of policies that do not violate Section 1373
As the debate over so-called sanctuary jurisdictions continues, here are four sanctuary policies that are generally considered to be among the most prevalent. None, in fact, violate Section 1373:
- Limits on detaining people pursuant to detainer requests. Across the country, jurisdictions have chosen to limit when they will hold people in their custody pursuant to voluntary requests from the federal government that another law enforcement agency hold a person beyond when they otherwise would release them to allow Immigration and Customs Enforcement to pick the person up. These voluntary requests are known as detainers. Many jurisdictions have adopted restrictions on detainers because they recognize that, as local police become entangled in immigration enforcement, immigrants are less likely to come forward and report either crimes they were a victim of or crimes that they witnessed, which ultimately hampers community safety. Other jurisdictions have limited acceptance of detainers in the face of court rulings that have found them liable for violating the Fourth Amendment prohibition against unreasonable search and seizure or other provisions of constitutional or statutory law. Section 1373 says nothing about detainer requests and, indeed, even Attorney General Jeff Sessions recently told officials from Austin, Texas, that compliance with detainer requests is voluntary and not required by Section 1373. That being said, Gov. Greg Abbott (R) of Texas recently signed S.B. 4 into law, a comprehensive anti-immigrant “show me your papers” law that will force state and local police to accept any and all detainers or face stiff monetary penalties, jail time, or loss of public office. Given previous court rulings, the bill will leave Texas law enforcement personnel open to serious legal challenges.
- Limits on providing release information in response to notification requests. Similar to limitations on detainers, some jurisdictions have chosen to limit the circumstances in which they will respond to voluntary requests by the federal government to notify Immigration and Customs Enforcement, when they will be releasing an individual from custody. Here too, Section 1373 does not apply—the statute only focuses on sharing information about citizenship or immigration status, not about release dates; jurisdictions are under no obligation to share this information.
- Prohibitions on asking about immigration status in routine police encounters. Local police have enough on their plates as it is in keeping communities safe to also check the immigration status of everyone they come across. Studies have shown that immigrants—and Latinos in general—are less likely to assist law enforcement if they believe that police officials will ask them about their immigration status. While Section 1373 prohibits states and localities from limiting communication with the federal government about citizenship or immigration status, nothing in the statute requires law enforcement to specifically ask someone about their status or prohibits jurisdictions from limiting the circumstances in which such information may be affirmatively collected.
- Limits on entering into 287(g) agreements to perform the functions of federal immigration officers. Section 287(g) of the Immigration and Nationality Act permits the secretary of homeland security to enter into agreements with state or local entities for the purpose of delegating federal immigration enforcement capabilities. California is currently considering a proposal that passed the state Senate—S.B. 54, or the California VALUES Act—that would, among other things, prohibit state and local law enforcement agencies from entering into these agreements or otherwise acting as federal immigration enforcement personnel. Such a limitation is important, as Senate President Pro Tempore Kevin de León has argued, because “[o]ur precious local law enforcement resources will be squandered if police are pulled from their duties to arrest otherwise law-abiding maids, busboys, [laborers], mothers and fathers.” When it comes to compliance with Section 1373, S.B. 54 makes it clear that nothing in the bill restricts “any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status … of an individual.” The state of Vermont earlier this year enacted a measure, S. 79, that similarly prevents local law enforcement agencies from entering into 287(g) agreements by declaring that only the governor, in consultation with the state attorney general, may enter into a 287(g) agreement in the state.
Conclusion
Ultimately, as demonstrated, it is unlikely that current sanctuary policies actually violate Section 1373. Based on the Trump administration’s standard of a willful violation of Section 1373, the more than 600 cities and counties—as well as a handful of states—across the country that have taken steps to limit cooperation with federal immigration enforcement do not actually qualify as sanctuary jurisdictions. It’s one of the reasons that Ali Noorani, executive director of the National Immigration Forum, points out that, in reality, “There’s no such thing as a sanctuary city.”
So while the administration may continue to threaten to revoke federal funds to jurisdictions with sanctuary policies—putting aside the fact that such threats would likely run up against serious constitutional challenges—their attacks look more like paper tigers than anything with real teeth.
Ed Chung is Vice President for Criminal Justice Reform at the Center for American Progress. Philip E. Wolgin is Managing Director for Immigration Policy at the Center. The authors thank Tom Jawetz for his help.