Sanctuary Cities Come Under Scrutiny, As Does Federal-Local Immigration Relationship

The recent fatal shooting of a woman in San Francisco by an unauthorized immigrant dramatically revived the dormant debate on so-called sanctuary cities. The death of Kathryn Steinle sparked members of Congress, lately quiet on the immigration front, to spring into action and introduce multiple bills to sanction cities that decline to cooperate fully with federal immigration enforcement authorities. Separately, the controversy over San Francisco’s release of the unauthorized immigrant charged in the killing after he had been on track for deportation gave a rocky start to the Obama administration’s rollout of the successor to the controversial Secure Communities program, until recently the primary vehicle for federal-local relations on immigration enforcement.

The aftermath of the shooting, which propelled illegal immigration to the forefront of the 2016 presidential campaign, has also served as a reminder of the fragility of the politics of immigration—that one single event can galvanize a national public response and shift the direction and momentum of the immigration debate. In many ways, the Steinle tragedy is similar to last summer’s short-term surge of Central American unaccompanied children and families arriving at the border, which triggered a renewed debate over border security and hardened public opinion on immigration.

The Fallout

On July 1, 32-year-old Kathryn Steinle was killed as she walked on a San Francisco pier by alleged gunman Juan Francisco Lopez-Sanchez, an unauthorized immigrant from Mexico. Lopez-Sanchez had previously been deported five times, served more than 15 years in federal prison on unlawful re-entry charges, and been convicted of four drug-related charges.

Congress wasted no time in responding to the killing. Republican lawmakers quickly introduced a flurry of bills targeting “sanctuary cities”—at least five in the Senate and eight in the House—and Ms. Steinle’s father testified before House and Senate committees. On July 23, the House passed the Enforce the Law for Sanctuary Cities Act, which would prevent cities that limit their cooperation with U.S. Immigration and Customs Enforcement (ICE) from receiving certain federal law enforcement grants. In the Senate, Sen. Charles Grassley (R-IA) introduced Kate’s Law, a bill that would fence off additional federal grants from cities that resist cooperation with ICE and establish a mandatory minimum sentence for illegally re-entering the United States after being deported. Other GOP measures in play range from making sanctuary policies illegal, to granting state and local police more authority to enforce immigration law. California’s senators, Democrats Dianne Feinstein and Barbara Boxer, have also announced their intention to craft legislation requiring local law enforcement officials to notify ICE when an unauthorized immigrant with a felony conviction is released, if ICE requests such notification. With Congress on summer recess, these measures could become fodder for fall appropriations fights and pave the way for an immigration standoff if lawmakers attempt to link them to must-pass spending bills. The White House has already indicated it would veto such measures.

In addition to drawing strong congressional reaction, the Steinle killing has complicated the implementation of a new Obama administration initiative, the Priority Enforcement Program (PEP). Coincidentally also launched on July 1, PEP represents an approach to federal-local cooperation on immigration enforcement more tailored to the demands of individual jurisdictions. PEP aims to limit ICE requests for local law enforcement collaboration on high-interest immigrants who have been convicted of serious crimes or are seen as a national-security threat. In light of the San Francisco shooting, PEP has attracted more controversy than anticipated, both among proponents and opponents of local engagement in immigration enforcement. On one side, the death has redoubled demands to keep strict immigration enforcement in place. On the other, it has energized opponents to Secure Communities and PEP, who maintain these programs erode trust between immigrant communities and police and lead to large-scale removals of unauthorized immigrants with deep roots in the country.

And for localities inclined to either embrace or reject PEP, the shooting and surrounding political activism have potentially forced them to reconsider.

The San Francisco Killing

In the days immediately after the shooting, a chorus of voices demanded to know how and why the gunman, with a long criminal and immigration history, had re-entered the country and was released from custody.

After serving approximately four years in federal prison for his latest illegal re-entry conviction, and on track for removal by ICE, Lopez-Sanchez was instead turned over to the San Francisco Sheriff’s Office on March 26. That agency had requested custody for possible prosecution on a 20-year-old marijuana violation. But after the transfer from ICE, the charge was dismissed and Lopez-Sanchez was released three weeks later, even though ICE had issued a standard detainer seeking that the sheriff’s office hold him until ICE could gain custody. Based on city policy, the sheriff’s office declined to comply with the detainer and did not notify ICE of his release. A detainer or “immigration hold” is an ICE-issued request that a law enforcement agency detain an individual up to 48 hours beyond his or her scheduled release for transfer to ICE custody for potential removal.

Though San Francisco’s action immediately drew intense fire, its decision was based on a city ordinance adopted in 2013. The Due Process for All ordinance bars local law enforcement from complying with detainers if a subject is eligible for release (unless he or she has been convicted of a violent felony within the last seven years, is currently charged with a violent felony, or may pose a public-safety risk). In follow-on 2014 policy guidance, the sheriff’s office announced it would no longer honor immigration detainers “unless they are supported by judicial determinations of probable cause or with a warrant of arrest.” Lopez-Sanchez’s case did not trigger the ordinance’s exceptions, nor did ICE produce a court order or warrant.

San Francisco’s policy dates to 1989, when the city passed the City and County of Refuge ordinance (sometimes referred to as the Sanctuary Ordinance) prohibiting city employees from assisting immigration officials with investigations or arrests unless required by law or judicial warrant.

“Sanctuary Cities”—A Catch-All Phrase

Measures and policies that limit the role of local law enforcement in the enforcement of immigration laws, now adopted by three states (California, Connecticut, and Rhode Island), the District of Columbia, and more than 350 local jurisdictions across the United States, vary enormously. Many restrict compliance with detainers, others prohibit local law enforcement from inquiring about subjects’ immigration status, and some restrict the use of local funding for immigration enforcement. These measures can be adopted at the state, county, or city level, or even by individual jails—through legislation, executive decree, or law enforcement agency policy. Important nuances among these measures have been lost, however, as they have come to be lumped under the catch-all phrase “sanctuary cities.”

These measures derive their name from the sanctuary movement of the 1980s, a grassroots effort by many U.S. communities and churches to protect Central American refugees fleeing civil war from apprehension and deportation. Early municipal laws, which tended to bar local police and other municipal employees from inquiring about individuals’ immigration status, were few. The federal government’s dramatic increase of mechanisms for state-local-federal cooperation in immigration enforcement post-9/11 prompted a rebirth of noncompliance with immigration enforcement. The policies—mostly in the form of noncooperation with immigration detainers—gained a new dimension in response to Secure Communities, an immigration enforcement tool introduced by the Bush administration in 2008. Secure Communities automatically checked the immigration status of all those arrested and fingerprinted in state and local jurisdictions, allowing ICE to place detainers on anyone suspected of being unauthorized. By 2013, Secure Communities was operational across the United States.

The Secure Communities program was controversial from inception. Its supporters lauded ICE’s ability to more easily detect and remove unauthorized immigrants in contact with the criminal justice system, which they believe improves public safety. Critics argued the program was responsible for unprecedented levels of removals from inside the country, including many without serious criminal records. In fiscal year (FY) 2014, for example, nearly three-quarters of all interior removals originated with Secure Communities. They also argue the program resulted in the separation of families, led to racial and ethnic profiling and abuses, damaged public safety by eroding the relationship between law enforcement and the communities they police, and wrongfully ensnared some U.S. citizens.

Amid concerns about Secure Communities, noncompliance laws and policies gained momentum and acceptance. A set of important federal court decisions in 2014—by the 3^rd U.S. Circuit Court of Appeals and a U.S. district court in Oregon—lent them credence. The rulings held that immigration detainers are not binding on local jurisdictions, and that holding an inmate solely by virtue of an ICE detainer could lead to a violation of Fourth Amendment rights for which arresting agencies could be liable for damages. In addition to the legal setbacks, the Obama administration became more responsive to criticism of the program’s impact and stopped defending it. Thus, the number of jurisdictions opting not to honor detainers rose fast and faced little opposition.

Federal-Local Cooperation: Priority Enforcement Program

In order to address constituents’ concerns and re-establish good relations with local authorities, the Obama administration in November 2014 announced it would replace Secure Communities with PEP. The change was first announced as part of the president’s executive actions on immigration, and PEP launched on July 1. Under PEP, as with Secure Communities, fingerprints of individuals arrested and booked in state and local jails will be checked against federal immigration databases. However, PEP includes several changes to the detainer system. First, ICE may initially only request notification that a certain individual in state or local custody will be released, and only if the individual has been convicted of certain serious crimes or a gang-related offense, or is a national-security threat. Second, a detainer can only be issued when one of these requirements has been met and ICE finds probable cause that the individual is unauthorized.

While PEP implementation has occurred smoothly and without fanfare in most jurisdictions, the Department of Homeland Security (DHS) has encountered resistance from some stakeholders. According to Homeland Security Secretary Jeh Johnson, of the 49 major law enforcement agencies that had adopted noncompliance policies under Secure Communities, 33 have agreed to participate in PEP, 11 are undecided, and five have said they will not take part. Immigrant advocates, however, are questioning whether PEP is truly any different from Secure Communities and urging local leaders and elected officials not to cooperate until more is known about its implementation. DHS has launched an extensive outreach campaign to engage more state and local governments, and has offered to accommodate some of their legal, public safety, or local political concerns. For example, cities can negotiate to allow notifications or detainers for a narrower subset of arrested individuals than DHS initially outlined. The approach has already resulted in a patchwork of participation. The city of Los Angeles will not take part; Los Angeles County, on the other hand, has agreed to join the program. Baltimore’s state-run jail and several Maryland counties have agreed to comply with notification requests under PEP, but will not honor detainers.

The 2016 Campaign and the Immigration Debate

Kathryn Steinle’s killing has also thrust the “sanctuary cities” controversy into the 2016 presidential election and turned the issue of illegal immigration into a highly charged campaign topic. The Republican candidates have nearly unanimously agreed that sanctuary policies should be quelled, and candidates were specifically questioned about their support for Kate’s Law during the first Republican debate. Two GOP frontrunners, Donald Trump and Jeb Bush, have included proposals to combat sanctuary cities in their immigration platforms.

The Democratic candidates have been slower to respond, with only Hillary Clinton commenting directly about the shooting. After initially stating that the gunman “shouldn’t have been on the streets,” her campaign affirmed her support for sanctuary cities, saying they further public safety. The other three candidates previously have indicated their support for such policies.

Tough Decisions Ahead

The aftermath of the San Francisco shooting has complicated the decision by localities and states to participate in PEP. On the one hand, it has increased political pressure to cooperate with ICE for public-safety reasons. On the other hand, immigrant activists and many law enforcement agencies continue to advocate for policies of noncooperation. Whether jurisdictions and advocates continue to resist may ultimately depend on how PEP is implemented in localities that have already decided to participate. And while it is likely the momentum for noncooperation laws has subsided in the wake of Ms. Steinle’s death, it remains to be seen whether the tragedy will propel some jurisdictions to restore their cooperation with federal authorities.

• San Francisco’s Due Process for All ordinance
• Washington Post article on resistance to PEP
• New York Times article on the shooting of Kathryn Steinle and sanctuary cities
• DHS memo discontinuing the Secure Communities program

National Policy Beat in Brief

Family Detention Suffers Legal Blow. On July 24, a federal district court judge in California ruled the Obama administration policy of detaining mothers apprehended at the border with their children violates the Flores Agreement, a long-standing court settlement governing detention standards for children in U.S. immigration custody. U.S. District Judge Dolly Gee ruled that Flores, which dealt with children apprehended alone, also applies to children accompanied by a guardian. The court also found that the Department of Homeland Security’s (DHS) family detention and apprehension practices violate licensing rules for detention facilities and standards for detention conditions and treatment—all set by the Flores settlement. The judge gave the government 90 days to answer why the mothers and children should not be ordered released from custody. In response, on August 7, the administration requested that Judge Gee reconsider her ruling, arguing that family detention is a necessary deterrence tool and that implementing the ruling would logistically prevent the federal government from placing families in removal proceedings. Following the court’s decisions, some immigration judges have been ordering detained women and children released without bond, according to media reports. DHS increased its family detention capacity after more than 68,000 families, overwhelmingly from Central America, arrived at the U.S.-Mexico border in 2014. As of July 31, 2015, 29,407 family units had been apprehended at the Southwest border this fiscal year.

• Politico article on the Obama administration’s response to the ruling on family detention
• Ruling in Jenny L. Flores, et al v. Jeh Johnson et al.
• Associated Press article on faster release from detention centers of immigrant families
• U.S. Customs and Border Protection Southwest Border, Unaccompanied Alien Children Statistics

DHS Revokes 2,700 Three-Year DACA Work Permits. Following a federal court order, U.S. Citizenship and Immigration Services (USCIS) has retrieved approximately 2,700 work permits wrongly issued to beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program. The permits, valid for three years, were issued starting in November 2014 after President Obama expanded DACA eligibility and extended DACA grants from two to three years. In February 2015, U.S. District Judge Andrew Hanen enjoined the expansions; however, USCIS continued to erroneously issue three-year DACA grants. Upon discovering this, Judge Hanen threatened five top DHS officials with contempt of court if the agency could not demonstrate satisfactory actions to cancel the three-year permits. By August 2, the administration filed court documents indicating the employment authorizations were revoked through a campaign of letters, emails, phone calls, text messages, and home visits, and replaced with two-year permits. On August 11, DHS officials were spared from appearing in court and on August 13, the DHS Office of the Inspector General found that USCIS had not deliberately violated Judge Hanen’s injunction. First announced in 2012, DACA offers two-year protection from deportation, in the form of deferred action, and work authorization to young unauthorized immigrants who meet certain educational requirements.

• Associated Press article on action taken to fix mistakenly awarded permits
• Politico article on the DACA court case and permit issues

Proposed Rule Issued for I-601 Provisional Unlawful Presence Waiver Expansion. On July 14, USCIS proposed a rule to expand eligibility for the provisional unlawful presence waiver. Currently, only immediate relatives (spouses, children, and parents) of U.S. citizens may apply. The change would open eligibility to immediate relatives of Lawful Permanent Residents (LPRs), who are also statutorily eligible for unlawful presence waivers but not the provisional waiver. Created in 2013, the provisional waiver allows certain unauthorized immigrants who qualify for immigrant visas to apply for an unlawful presence waiver from within the United States. Under present law, many unauthorized immigrants who qualify for immigrant visas can only receive them at a U.S. consular post abroad. However, departing the United States triggers a three- or ten-year bar on re-entry. The bar can be waived, but waivers are not guaranteed or may take a long time to process. The provisional waiver thus allows eligible individuals to receive their immigrant visas without prolonged separation from their families while waiting for approval abroad. The change would establish more certainty for an estimated 1.5 million eligible unauthorized immigrants to receive green cards based on family sponsorship. The comment period for the proposed rule ends on September 21, 2015.

• USCIS proposed rule, Expansion of Provision of Unlawful Presence Waivers of Inadmissibility

Nepal Designated for TPS, Registration Extended for Liberia, Guinea, and Sierra Leone. On June 24, DHS designated nationals of Nepal for Temporary Protected Status (TPS) until December 24, 2016. Eligible Nepalese nationals must apply during an initial 180-day registration period ending December 21, 2015. Nepal’s designation comes in the aftermath of a devastating earthquake in April 2015 that killed more than 5,200 people, injured more than 12,500, and displaced approximately 2.8 million. On June 25, DHS also extended the TPS registration period for Liberia, Guinea, and Sierra Leone through August 18, 2015. The three countries were designated in November 2014 following the outbreak of Ebola in West Africa. Authorized by the 1990 Immigration Act, TPS grants protection from deportation and work authorization to certain nationals of designated countries that are deemed unsafe for repatriation due to ongoing armed conflict or the effects of a natural disaster. Currently, 12 countries are designated for TPS status—El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, and Syria.

• USCIS information on Temporary Protected Status

$20 Million Settlement Reached in H-2B Case. A $20 million settlement agreement was reached on July 16 in one of the largest labor trafficking cases involving immigrants in United States history. The settlement, if approved by the court, will apply to 11 distinct lawsuits brought by the Southern Poverty Law Center on behalf of more than 200 workers against Signal International, a maritime construction agency based in Alabama. In a separate lawsuit, a federal jury in February awarded $14 million in damages to five Indian nationals employed by Signal. In the aftermath of Hurricane Katrina, Signal brought nearly 500 workers through the H-2B visa program to work as welders, pipefitters, and in other construction positions, and was later charged with or sued for engaging in labor trafficking, fraud, racketeering, and discrimination. According to one of the lawsuits, workers were promised good jobs and green cards for themselves and their families, but were instead sponsored for temporary H-2B visas, and upon arrival, forced to pay for on-site room and board in cramped and unsanitary conditions, in addition to paying $11,000 to $25,000 in initial recruiting fees.

• LexisNexis article on settlement reached in H-2B abuse case

Local Policy Beat in Brief

New York Enacts New Worker Protection Measures. On July 16, New York Gov. Andrew Cuomo signed legislation targeting unsafe working conditions and unfair labor practices in the nail salon industry, where many workers are unauthorized immigrants. The new measure gives state officials authority to close salons found to be unlicensed, uninsured, or in violation of labor laws. It also allows nail salon workers to register with the state as trainees in order to earn a living while working toward becoming licensed. The governor also announced the creation of a new statewide worker exploitation task force to combat labor violations in 14 different industries. The industries, including agriculture, home health care, laundries, restaurants, and car washes, were selected based on high rates of employer noncompliance with labor laws, low numbers of complaints, prevalence of off-the-books employment, and percentage of the workforce composed of immigrants.

• CBS New York story on legislation for nail salon worker protections
• New York Governor’s Office release on statewide task force to combat worker exploitation and abuse