Nearly seven months ago, the U.S. Department of Justice implemented a small procedural shift in the way it releases federal inmates who are tagged for deportation. Now, when those inmates have warrants out in any state or locality, federal immigration authorities have the first right to detain them and immediately begin deportation proceedings, even before the state or local matter is adjudicated.
It’s a very specific, very technical shift, but it does result in some material changes to the relationship between federal authorities and local ones. Previously, state and local authorities were always first in line—any warrant they issued trumped any immigration detainer, and they could always claim custody of an inmate being released from federal prison to adjudicate their local case. Then, at the end of that adjudication, local authorities could decide whether or not to detain that person for U.S. Immigration and Customs Enforcement.
Cities that have policies limiting cooperation or communication with ICE—often called sanctuary cities—may choose never to detain an inmate for deportation, potentially resulting in that inmate’s release. But now, because of the procedure change, the Federal Bureau of Prisons will directly transfer these inmates to ICE unless the city in question promises to hand them over later.
The change, which was implemented in July 2015, flew largely under the radar until late last week, when Attorney General Loretta Lynch testified about the policy before a House Appropriations subcommittee. It was immediately hailed as a victory by congressional Republicans, particularly Subcommittee Chairman John Culberson of Texas, who thanked her for her cooperation profusely throughout the meeting, and later claimed that he forced DOJ to “take action on sanctuary cities.”
It’s true that this policy change will make it easier for ICE to deport some people who fit within the narrow category it covers: undocumented immigrants being released from federal prison, who also have an active deportation order against them, who also have a warrant against them in a local jurisdiction, where that local jurisdiction is also a sanctuary city. But the new rule mostly just underlines the solid legal standing of sanctuary city policies. And the official reaction really just shows how sensationalized the issue has become by lawmakers who insist that local police have a direct role to play in federal immigration enforcement.
A Political Chess Game
It’s important to understand the political context that gave rise to this policy change. It was implemented in July 2015, the same month that Juan Francisco Lopez-Sanchez, an undocumented person who had recently served federal time for unauthorized reentry into the country, was accused of killing Kathryn Steinle, a U.S. citizen. Lopez-Sanchez had been released from federal custody to law enforcement in San Francisco, where he was facing a decades-old drug charge. When the city declined to prosecute, it released Lopez-Sanchez from custody and did not honor the detainer (or request for holding) that ICE had placed on him.
The event unleashed a firestorm of criticism against San Francisco and so-called sanctuary cities like it around the country, which (to varying degrees) choose not to cooperate with federal immigration authorities. There were congressional threats to stop funding localities that employed these policies. And numerous politicians decried them as dangerous and irresponsible—including Hillary Clinton, who has since backed off the issue, and California Senator Dianne Feinstein.
Though the bill to block federal funding from sanctuary cities died in the Senate, several lawmakers have clung to the issue, including Culberson. In a letter to Lynch on February 1, he urged her to withhold DOJ grants from sanctuary cities, and strongly implied that her budget requests were contingent on her willingness to do so. Lynch did mention the DOJ policy shift during her testimony last week before Culberson’s subcommittee, but its actual implementation occurred seven months ago, in response to the Steinle case.
In other words, DOJ might have spotlighted the policy tweak to appease a committee chairman holding the department’s budget hostage, but the change itself had already been in place. That doesn’t make this policy shift meaningless: it will be easier for ICE to deport some people who might otherwise have been protected by sanctuary cities. But despite Culberson’s grand declarations of victory, and despite headlines promising a crackdown on sanctuary cities, the core principle of these protective policies remains as intact as ever.
A Legal Case for Sanctuary Cities
During the House Appropriations hearing, and in his February 1 letter to Lynch, Culberson made a bold claim: that it’s against federal law for sanctuary cities to withhold information about inmates from the federal government, and that any city breaking this law should be cut off from DOJ grant funds. Lynch, in response, said the DOJ grant review process already checks to make sure the municipality is not breaking any “applicable federal laws,” which Culberson took as another big win.
There is a serious disconnect here. Culberson is invoking Title 8, Section 1373 of the U.S. code, which states that it is unlawful for any government agency to withhold or restrict “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Here is what that law means: local and state governments are compelled to share information with the federal government about any person’s immigration status, if it asks. Here is what that law does not mean: state and local governments are compelled to detain inmates without a warrant for ICE, and state and local governments are required to inform the federal government of prisoner release dates to facilitate a pickup or transfer of custody by immigration agents.
“I don’t think 1373 applies to the overwhelming majority of [sanctuary cities],”says Omar Jadwat, the supervising attorney on the ACLU Immigrants’ Rights Project. “Informing another governmental entity about somebody’s release date is not information about the immigration status, lawful or unlawful, of any individual.”
And that’s pretty much what all sanctuary city policies today protect against—sharing information about prisoner release dates. City sanctuary policies respond to requests by the federal government that they be involved in carrying out immigration enforcement. When the federal government rolled out its Secure Communities program in 2008, cities like San Francisco and Los Angeles refused to comply with detainers that asked them to hold inmates (without a warrant) for up to 48 hours after they should have been released. When the government nixed Secure Communities in 2015 in favor of the Priority Enforcement Program, which issues fewer detainers and more requests for “voluntary notification of release” of inmates, cities refused to notify ICE about inmate release dates.
These rules work slightly differently in various cities. San Francisco, for example, provides for exceptions to the communication barrier if the inmate in question is a violent offender. But the great majority of policies were written with Section 1373 in mind, and do not prohibit information-sharing about immigration status, Jadwat says. In fact, for ICE to issue detainers or requests for notification of release, the agency must have the inmate’s fingerprints and be able to identify the person as an undocumented immigrant—information that’s provided by local police.
Moreover, there is rock-solid constitutional protection of sanctuary city policies that precludes any further encroachment upon them by federal lawmakers, according to Jadwat. The anti-commandeering principle that’s been interpreted in the 10th Amendment prevents the federal government from compelling localities to participate in the enforcement of federal programs. The Supreme Court case that best explains this principle is Printz v. United States, which determined that it was unconstitutional to require local sheriffs to participate in a federal gun-control program.
That case almost directly mirrors the situation of sanctuary cities, which are refusing to participate in the direct enforcement of a federal immigration program. Despite Culbertson’s grandstanding and despite the political firestorm that follows these policies around, the fact remains: they are legally sound, and they’re not going anywhere.