Cities and immigration advocates are trying to figure out how to offer meaningful protection to undocumented immigrants.
In the Trump era, a conversation is growing about what sanctuary cities are, what they are not, and also what they should become. If a city wants to offer meaningful protection to immigrants and non-citizens at risk of being deported, it may need to go further than what it takes to be called a sanctuary city.
It’s an ambiguous term, but one with real consequences. In January, President Donald Trump signed an executive order seeking to punish jurisdictions identified by this label by withholding federal funds. San Francisco sued. And this week, nearly 300 legal experts sent a letter calling the order unconstitutional. As part of their argument, they take issue with the meaning of the phrase itself. “There is no single definition of what it means to be a sanctuary city,” Annie Lai, assistant clinical professor of law at the University of California, Irvine and one of the authors of the letter, said in a press release. “The term is often used to tarnish or celebrate—depending on the speaker—that cities, counties, and states have advanced policies to separate and distinguish themselves from federal immigration authorities.”
The term’s ambiguity doesn’t matter much for the legal case against the order; it just makes it difficult to suss out which of the 300-plus so-called sanctuary jurisdictions are at risk of losing funds. But the divisive reactions to the term signal how fraught it has become. For opponents of immigration, sanctuary jurisdictions “obstruct immigration enforcement and shield criminals from ICE.” Whereas immigrant advocates describe them as places that choose to “disentangle the local justice system from immigration enforcement”—a definition similar to that provided in the letter.
Needless to say, the term has bred confusion. After the election, pro-Trump Bedford County, Pennsylvania, was surprised to learn it was a sanctuary. “That would not be popular with locals,” county district attorney Bill Higgins told The Washington Post. “That would be a quick way to get voted out of office, like signing your political death warrant.”
On the opposite side of the country, L.A., Mayor Eric Garcetti also has reservations about the label. He’s distanced himself from it, despite promoting many policies that invite that characterization. “We've never declared ourself a sanctuary city; I'm still not sure what one is,” he told NPR in January.
The term that evokes such visceral reactions comes from a Reagan-era movement, in which American congregations provided refuge to Central Americans who were denied asylum. (This “sanctuary movement” is resurfacing today.) But that etymology suggests that cities in this category are literally sanctuaries.
They are not. The U.S. spends more money on immigration enforcement than on all other federal criminal law enforcement agencies combined, according to a 2013 report by the Migration Policy Institute, an independent, non-partisan D.C.-based think tank. The budget for Immigration and Customs Enforcement (ICE) ballooned during the Obama administration. So ICE agents have more resources than ever before to round up folks they have rightly or wrongly deemed deportable, no matter what city they’re in. And that’s what they’ve been doing under the previous and current administrations. Now, Trump plans to triple the number of ICE officers, and add 5,000 more border patrol personnel. (To accomplish this, the government is planning to loosen hiring standards, according to an internal memo obtained by Foreign Policy.)
The main argument that sanctuary cities make is that they want to prioritize by opting out of programs that require their police to actively help ICE or do its job. So, they decline to sign contracts with ICE to use local jails for immigrant detention, opt out of the 287(g) program, which deputizes local police and detention officers with immigration enforcement, and refuse ICE’s requests to hold people they think are deportable for extra periods of time in jail. These programs have been criticized for fueling racial profiling and abuses of immigrant populations, and have encountered legal challenges. During the Obama administration, which readily promoted the idea that it prioritized serious criminals for deportation, ICE largely targeted individuals who were convicted for minor crimes or no crimes at all through some of these programs. Sometimes, they requested the detention of American citizens and permanent residents. Many of these jurisdictions also avoid these programs for liability reasons.
The anti-sanctuary city camp has lamented that not participating helps “put hardened criminals back on the street,” and have used tragic, high profile criminal cases involving undocumented immigrants to make their case. (Available research shows that, at the very least, cities with these policies do not see a statistically significant increase in crime.) But the thing is: these cities actually “routinely cooperate” with ICE to deport actual criminals, just in a way that doesn’t break down trust in immigrant communities. Many also circumvent their own non-involvement rules. A recent BuzzFeed investigation found that L.A.’s police department conducted joint operations with ICE, in which undocumented immigrants without criminal records were swept up.
In the Trump era, everyone without papers is fair game and even non-citizens with papers are easier to deport. Sanctuary cities have been hailed as the first front of resistance. But some immigrant advocates are questioning whether the term “sanctuary city” has enough teeth. The problem, they say, is that the mechanisms by which immigrants are siphoned into the deportation pipeline are still largely intact, even in welcoming cities. Laws passed over the last few decades under Republican and Democratic administrations have expanded categories of crimes that make an immigrant deportable—carrying small amounts of marijuana or an anti-anxiety pill without a prescription or jumping a turnstile can be enough reason. And certain types of policing systems make that dragnet even wider. Shakeer Rahman and Robin Steinberg, of Bronx Defenders, a nonprofit legal services organization, write in the New York Times:
If cities really want to protect immigrants, they must also end the quota-driven style of policing that makes immigrants the victims of unnecessary arrests and disproportionate punishment.
Many of these unnecessary arrests stem from the discredited idea that a draconian crackdown on the most minor offenses — littering, selling loose cigarettes, biking on the sidewalk — will prevent more serious crimes. This model of policing, known as broken windows or zero tolerance, helped to drive mass incarceration. Its next cost could be mass deportation.
An immigrants’ rights organizations, Mijente, has now called on sympathetic mayors to “expand sanctuary.” They recommend reducing criminal penalties for minor crimes, dismantling gang databases (criticized as inaccurate and racially biased), and providing access to legal counsel to all immigrants at risk of being deported.
In L.A., the mayor’s office has not yet clarified whether folks with felony records would be allowed to access counsel using a recently announced legal fund, The Intercept’s Leighton Akio Woodhouse reports. Meanwhile, Garcetti’s reticence to use the term, while understandable, has advocates frustrated.
“I would hope that for a city as terrified as it is now, that he would just say it’s a sanctuary city,” Hector Villagra, the executive director of the ACLU of Southern California, told Woodhouse. “That’s the language people understand; that’s what would give comfort at this moment.” Absent a meaningful practical application of the term “sanctuary city,” this refusal to embrace its strong symbolism seems doubly cruel.