Undocumented immigrants in the U.S. have always had an insecure existence, subject to raids, tips to Immigration and Customs Enforcement (ICE), or ripoffs by employers who call ICE just before paychecks are due. Under the Trump Administration, ICE has expressly done away with enforcement policies that prioritized removal of convicted criminals or other people who presented a danger. As near as the legal community can tell, ICE policy is now to treat every undocumented person as a criminal. This understandably leads undocumented persons to ask, “Where am I safe?”
The word “sanctuary” conjures images of a zone where no one can enter or make arrests of undocumented ("illegal") immigrants. The truth of what a sanctuary city offers, however, is more limited and more complex.
Broadly speaking, a “sanctuary city” provides a safe haven for immigrants by restricting state and local law enforcement’s cooperation with federal immigration authorities. Examples of sanctuary cities include San Francisco, Los Angeles, Houston, Washington D.C., Miami, Denver and New York City.
What exactly this means, however, varies by city and state. Most often, it has to do with how police and other law enforcement authorities coordinate with ICE when dealing with suspects, criminals, or others with whom they come into contact. It's important to understand that immigration violations are based on federal law, and local police have no direct power to arrest a person simply for being undocumented. So the central question becomes, how far should local law enforcement go in assisting ICE—or not?
Being stopped by police for something like a driving violation, or questioned by police for any reason at all, usually involves the police asking for identification, such as a driver’s license. Without proper documentation, an undocumented person in a non-sanctuary city risks being held in custody, even without having committed a crime.
After someone is arrested and detained, his or her fingerprints are typically run through a national database, which identifies whether that person is an illegal or undocumented immigrant.
If a match comes up against this federal database, ICE can request that local law enforcement hold the detained non-citizen on what's called an immigration detainer. That's a request by ICE to be notified when a detainee is being released from state or local law enforcement. ICE then takes custody of the person in order to pursue potential deportation.
Assuming the agency complies with the detainer, the noncitizen is held for up to 48 hours. State and local enforcement are required to release the detainee if ICE takes no further action beyond the initial 48 hours. However, it is important to note that it is a voluntary act for agencies to comply with the initial immigration detainer. Thus, there is also no requirement to hold the person beyond the 48 hours either.
Undocumented immigrants in a sanctuary city are in most cases shielded from any detention that's primarily based on immigration status. They need not fear that calling the police, or being stopped for something minor like a traffic violation, will trigger cooperation with ICE officials.
Typically, in sanctuary cities, law enforcement do not inquire about a person’s immigration status after stopping or detaining the person. Such sanctuary cities also do not cooperate with ICE in conducting interviews with detainees. Access is limited to detainees, often requiring ICE to provide a judicial warrant before conducting an interview.
A recent survey by the Department of Justice indicated that many sanctuary-city jurisdictions had policies in place to limit cooperation with ICE immigration detainer requests.
State and local law enforcement believe this policy promotes safer local communities. Crimes are reported by victims or witnesses rather than silencing them for fear of arrest, detention, or deportation.
However, this policy often comes under criticism whenever an undocumented immigrant offender in a sanctuary city commits a crime or poses a threat to public safety. By limiting the extent to which state and local law enforcement assist ICE officials, sanctuary cities may shield some undocumented immigrants from immigration enforcement. This is, however, a limited form of protection.
It is important to realize that living in a sanctuary city provides no guarantee that you are safe from ICE detention and, ultimately, deportation. ICE is not barred from conducting operations in sanctuary cities. It often monitors the activities of suspected undocumented immigrants. Sweeps and arrests typically begin early in the morning, before people head to work or begin their day. Even though Houston, Austin, and Dallas are considered sanctuary cities, for example, it is not unusual to find ICE posted at bus stations coming from Mexico, or at grocery stores and constructions sites or other establishments that typically cater to or employ Hispanics.
Also, someone who commits a serious crime and is imprisoned is likely to come to the attention of ICE eventually, no matter where they live.
Whether sanctuary cities are violating federal law by not providing information and/or access to immigration enforcement is currently being debated and litigated. A federal judge’s ruling in April 2017 about federal funding for sanctuary cities led the White House to state that, “according to Congress, a city that prohibits its officials from providing information to federal immigration authorities—a sanctuary city—is violating the law. Sanctuary cities like San Francisco, block their jails from turning over criminal aliens to federal authorities for deportation.”
The White House statement’s use of the term “criminal aliens” is confusing. It is important to remember that being in the U.S. without documentation is not a criminal violation but actually a civil violation.
Those who differ with the Trump Administration’s broad view argue that cities that don't cooperate with immigration detainers are not violating federal law. Opponents further argue that immigration enforcement is a federal, not local or state, responsibility. It should be left to local and state law enforcement officials to decide how much they want to cooperate with the federal government on immigration enforcement.
Sanctuary cities are indeed safer for undocumented immigrants trying to go about their daily activities, but they provide no guarantee that an undocumented person is safe from the reach of federal immigration authorities.