Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
A federal court rules that one type of collaboration between immigration authorities and local law enforcement is unlawful.
There’s no city in the U.S. that can prevent Immigration and Customs Enforcement from deporting an undocumented immigrant. They can, however, keep local policing and federal immigration enforcement separate by asking local police to decline “detainers”—non-binding requests from ICE asking for extended detention of inmates they suspect are deportable. That’s what the so-called sanctuary cities do. Around 39 U.S. cities—including Chicago, New York, Baltimore, and San Francisco—have such rules on the books.
But isn’t it perfectly reasonable to hold criminals until ICE agents can come by, arrest them, and deport them? Turns out it’s not.
Despite reforms in 2014, at least half of the ICE detainers issued in the first two months of 2016 named individuals with no criminal convictions. Of the detainer subjects who were convicted, a majority had committed non-serious crimes like traffic violations. And many were actually U.S. citizens and permanent residents. In a class-action lawsuit on behalf of some of the wrongfully targeted by this policy, a federal court recently ruled that detainers are indeed unlawful, providing new validation for sanctuary city policies in cities and counties across the country.
In the case of Jimenez Moreno et al v. Napolitano, the federal district court of the Northern District of Illinois concluded:
The bottom line is that, because immigration officers make no determination whatsoever that the subject of a detainer is likely to escape upon release before a warrant can be obtained, ICE’s issuance of detainers that seek to detain individuals without a warrant goes beyond its statutory authority to make warrantless arrests.
If the government doesn’t appeal the court’s decision by the end of the day today, October 7, detainers issued by the ICE field office in Chicago, which covers Illinois, Indiana, Wisconsin, Missouri, Kentucky, and Kansas, will become invalid.
That doesn’t mean that ICE can’t still take whomever they want into custody in these places. They just have to get a warrant, like any other law enforcement agency. (Given that the government spent 25 percent more on immigration enforcement than on the FBI, DEA, Secret Service, and other federal law enforcement agencies combined in 2012, and that their budget has been increasing since, that can’t be too difficult.)
But the significance of this ruling really applies to every city and county in the U.S. It essentially “means that for almost every detainer that ICE has issued in the last decade—so at this point, millions of detainers—they were asking local law enforcement to make an illegal arrests,” Mark Fleming of the National Immigrant Justice Center, who is co-counsel for plaintiffs in the case, tells CityLab. Complying with these request would be unwise, he adds, because the ruling has left the door to lawsuits wide open. “This is a first step towards bringing the actions and enforcement of ICE into the rule of law—something they have not done since their founding.” (Gail Montenegro, the public affairs officer for ICE’s Chicago office, told CityLab that the agency was “reviewing the court ruling to determine its course of action.")
But will limiting cooperation with ICE make so-called sanctuary cities more dangerous places? That’s the common argument heard from the opponents of these policies. And it’s bogus. As stated before, ICE is still free to carry out enforcement actions on its own. And when researchers compared crime rates in cities before and after laws limiting police-ICE collaboration were passed, they found no statistically significant difference. In fact, there’s evidence that harsh policing on immigrants has negative economic and social effects on the whole community. All of this suggests that sanctuary city policies may actually be a better path towards trusting, safe—and lawsuit-free—communities.