Why Sanctuary Policies Must Stay: The Legal and Factual Reasons for Limiting ICE Detainers

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By: Emily Stein

Katie Steinle’s death is a tragedy.   Steinle is the 32-year-old woman allegedly killed by a gunshot wound inflicted by Jose Inez Garcia-Zarate—often referenced under the alias Juan Francisco Lopez-Sanchez (“Sanchez”)[1]—at Pier 14 in San Francisco on July 1st.[2] While Steinle’s friends and family grieve their private loss, an outcry has erupted in the public arena, blaming San Francisco and the local Sheriff’s Office for the fact that Sanchez was not apprehended by immigration officials prior to Steinle’s killing.  But is this reaction a productive one?  Will the blaming and shaming of so-called “sanctuary cities”  best honor the life lost or make life safer in San Francisco and the 300[3] other jurisdictions that have similarly set limits on their cooperation with immigration officials? 

Anti-immigration activists repeatedly rely upon misleading statistics to perpetuate the stereotype of the ‘criminal immigrant' by including data from instances where individuals were prosecuted for entering the country alone, without further delinquent behavior.[4]  As the immigrant population has increased, including the undocumented immigrant population, violent and property crime rates have actually decreased.[5] Undocumented status is not indicative of potential for violence or criminality any more than one’s citizenship indicates the same.[6] Historically, most immigration violations were treated only as civil violations.  It is only in more recent years that immigration and criminal law enforcement have grown more similar (and more cooperative).[7]

The What, Why and How of “Sanctuary” Policies:

Secure Communities is the federal program, which initially required the sharing of biometric data (fingerprints) between local law enforcement and federal immigration officials.  This sharing of information occurred whenever law enforcement arrested and “booked” a person for suspected criminal activity.  If the Immigration and Customs Enforcement’s (ICE) database identified and determined an arrestee to be a deportable immigrant, they could choose to issue an “ICE detainer.” ICE detainers are requests made by ICE to local or county law enforcement to detain arrestees for up to an additional 48-hours than would otherwise be permitted by law.[8]  The purpose of the detainers was to provide added time for immigration officers to arrive and gain custody of the allegedly undocumented or otherwise deportable person. In some instances cooperation between local law enforcement went well beyond the intended scope of the program, beginning before a conviction or even an arrest.[9]

In November 2014, Secure Communities was replaced by the Priority Enforcement Program (PEP).  PEP functions similarly to Secure Communities; however, ICE’s ability to issue detainers under PEP is more limited.  ICE detainers are now only issuable in situations when the arrestee is considered a “priority,” which is mostly based on his or her conviction for certain violent crimes.[10] The new program is expressly voluntary for local and county law enforcement, as it  “contemplates a cooperative approach toward public safety, not mandatory federal requirements.”[11]

The terms “sanctuary policy” or “sanctuary city” are, themselves, misleading.  These refer to city, county, or statewide policies (or the cities that passed them), which prohibit law enforcement from prolonging detention of an arrestee despite receipt of an ICE detainer request.  The policies do not prevent ICE from identifying or taking an immigrant into custody once they have been arrested; they merely decline to enforce prolonged detention of that individual (sometimes depending upon the crime committed) unless a court order or warrant is provided. Initially sanctuary policies helped avoid the all-too-common scenario where a person was transferred into ICE’s custody and deported as a result of committing a very low-level criminal offense or for actions that became criminal solely because of the person’s undocumented status (i.e. driving without a license in a state where undocumented individuals are not eligible to receive a driver's license). 

Sanctuary policies were established over concerns of heightened racial profiling, diversion of services away from local law enforcement, and the potential safety risk of discouraging immigrants from reporting crimes out of fear of exposing themselves to immigration officials.[12] Furthermore, some jurisdictions established sanctuary policies (the county and local provisions) or TRUST Acts (similar statewide measures) out of fiscal necessity, as local law enforcement does not receive federal reimbursement for the expenses associated with prolonged detentions requested by ICE.  The policies themselves are based on sound legal reasoning.  A federal circuit court held that mandatory enforcement of ICE detainers is unconstitutional under the tenth amendment’s anti-commandeering principle.[13] Under this principle, the federal government is prohibited from demanding that state or local law enforcement detain a person on its behalf.[14]  Other courts and lawmakers reasoned that prolonged detentions might run afoul of the constitution’s fourth amendment (limiting searches & seizures), as well.[15]

Misappropriation of a Tragedy:

Sadly, in the wake of Katie Steinle's death, political backlash has condemned sanctuary policies (county and local provisions) and TRUST Acts (statewide versions of the policies) that serve to limit compliance with ICE detainers. Despite previous widespread support for these policies, both Democrat and Republican political leaders, have responded to Katie Steinle’s killing by calling for improved cooperation between ICE and local law enforcement nationwide.[16] For example, Democratic presidential hopeful, Hillary Rodham Clinton, announced that San Francisco had “made a mistake” and that she would not support a city “that ignores strong evidence that should be acted on [to support ICE in a deportation procedure].”[17] 

To what strong evidence does Hillary Clinton refer?  Sanchez’s widely reported criminal history consists entirely of low-level drug offenses and immigration violations, such as “illegal entry.”[18]  While law in other contexts readily acknowledges the unpredictability of human behavior, here the common rhetoric suggests that the city should have been able to predict Sanchez’s violent act and, therefore, complied with a prior ICE detainer issued for Sanchez.[19] The only rational explanation for this interpretation is that the predictability of criminality flows not from his prior drug possession or any single act of evasive or unlawful entry, but instead is directly related to Sanchez’s fixed and principal characteristic of being undocumented.  His very existence is deemed illegal, immoral—“other.”  Under this distorted reasoning, immigrant behavior is predictable—predictably dangerous, and most certainly criminal. 

Marginalized communities are frequently subjected to both hyper-visibility and hyper-invisibility.  The individual delinquent acts of the marginalized man become a rally cry for the further marginalization of an entire class of people.  Similarly, yet oppositely, the hardworking, law-abiding undocumented worker goes unseen and unheard (to the extent that he too is not criminalized merely by his existence). TRUST Acts and local sanctuary policies are reasonable responses to the culture of “crimmigation” and overreaching by federal immigration authorities.[20]  Local and state governments should not and cannot be commandeered by ICE to perform work on behalf of the federal government, especially in the absence of a court order or warrant. 

It is possible that the focus on blaming immigrant-friendly cities for this tragedy is a distraction from other relevant issues.  Discussed only briefly, are the many other concerns raised by this incident: unsuccessful gun control, drug use and addiction, expensive and illusory paths to citizenship, the existence of and jurisdictional confusion over multi-time deportees. Steinle, by every account, was a young woman, struck down by a random, intolerable act of violence.  Steinle’s killer has been apprehended and our legal process will deliver justice.   To coopt Steinle’s death to further a preexisting anti-immigrant political agenda is at once offensive to her legacy and to the public. The false accusations suggesting that San Francisco’s sanctuary policy is a violation of federal law ignore the sound legal and factual reasoning behind its enactment and these accusations will be destructive to all immigrants, without regard to their individual conduct or character. 

The ideas expressed on the Haas Institute blog are not necessarily those of UC Berkeley or the Division of Equity & Inclusion, where the Haas Institute website is hosted. They are not official and not of one mind. Thoughts here are those of individual authors. We are committed to academic freedom, free speech and civil liberties.

[4] Id.

[5] Id.

[6] In fact, foreign-born individuals may be less likely to commit crime, as they are five times less likely to be incarcerated.  http://www.immigrationpolicy.org/just-facts/anecdotes-evidence-setting-record-straight-immigrants-and-crime-0.

[7] Juliet P. Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power. 56 Am. U. L. Rev. 367, 383-84 (2006).

[14] Id.

[17] Id.; see also http://www.cnn.com/2015/07/03/politics/trump-san-francisco-killing/ (racist, anti-immigration commentary by Donald Trump); see also http://www.huffingtonpost.com/2015/07/08/jeb-bush-sanctuary-cities_n_7756598.html?ncid=tweetlnkushpmg00000067 (encouraging subversive tactics to force state and local compliance with ICE, as suggested by Jeb Bush). 

[19] Tarasoff v. Regents of Univ. of California, 551 P.2d 334, 360 (1976) (contemplating whether psychotherapists have a legal “duty to warn” where there is a possible, but uncertain belief that a patient wishes to harm a third party: “Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty.”).

[20] Juliet P. Stumpf, supra note 7 at 383-84.