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Sanctuary cities
In response to the extraordinary events that have taken place since President Trump took office, counties, cities, and villages across the country are evaluating whether to take official action to designate themselves as a Sanctuary City (also known as a “Welcoming County/City/Village”),1 and wondering if they do whether they’ll lose federal funding. This is a complicated and volatile subject, but here are the questions this article will attempt to explore:
I. What does federal law currently require from local government entities with respect to information and assistance relative to immigration matters?
II. What are some common provisions of Illinois Sanctuary City Ordinances?
III. Will Sanctuary Cities risk losing federal funds in light of Executive Order 13768?
IV. Are Sanctuary City ordinances necessary or effective?
V. Will there be a state-wide legislative fix?
VI. Alternatives to Sanctuary City Ordinances.
The following definitions will be helpful to have in mind as you read this:
“Administrative Warrant” – Chicago and Evanston define Administrative Warrant as any document issued by ICE that can form the basis for an individual’s arrest or detention for a civil immigration enforcement purpose. This definition does not include criminal warrants issued upon a judicial determination of probable cause.
The first part of Oak Park’s definition is more specific: “An immigration warrant of arrest, order to detain or release aliens, notice of custody determination, notice to appear, removal order, warrant of removal or any other documents issued by ICE that can form the basis for an individual’s arrest or detention for a civil immigration enforcement purpose.”
“ICE” - the United States Immigration and Customs Enforcement Agency.
“Immigration Detainer” - Chicago and Evanston define Immigration Detainer as a request by ICE to a federal, state or local law enforcement agency to provide notice of release or maintain custody of an individual based on an alleged violation of a civil immigration law. Oak Park’s definition goes on to reference specific U.S. Code provisions and forms.
A detainer is not a court order but a request to detain directed to a jurisdiction holding an individual.2
I. What does federal law currently require from local government entities with respect to information and assistance relative to immigration matters?
A. 8 U.S.C. Section 1373 of the United States Code, “Communication between government agencies and the Immigration and Naturalization Service” has been in place since 1996. Section 1373 (a) and (b) provide that:
(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity. [Emphasis added.]
8 U.S.C. Section 1373 is fairly limited in its focus. It applies only to the adoption of policies regarding maintaining and communicating information about the citizenship or immigration status of any individual. It does not require compliance with administrative arrest warrants or immigration detainers; nor does it require notification regarding custody status or release dates of individuals in custody. It does not require public bodies to acquire information regarding citizenship or immigration status.
A highly instructive Memorandum that clarifies how the U.S. Department of Justice interprets 8 U.S.C. Section 1373 is posted on the DOJ website. It is dated May 31, 2016, and provides an extensive response to a claim that 140 states and local jurisdictions who were federal grant recipients were in violation of 8 U.S.C. Section 1373.3 In the Memorandum, the DOJ cites the legislative history of Section 1373 as being “…designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS.” [Emphasis added.] Further, under the section of the Memorandum titled “State and Local Cooperation with ICE,” the DOJ acknowledges that Section 1373 does not specifically address restrictions by state or local entities regarding cooperation with ICE detainers, and goes on to state: “A legal determination has been made by the Department of Homeland Security (DHS) that civil immigration detainers are voluntary requests.”
B. Executive Order 13768 “Enhancing Public Safety in the Interior of the United States” was issued by President Trump on 1/25/17 and targets sanctuary jurisdictions.
The following is an excerpt from Section 1 (“Purpose”) of the Executive Order:
“Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”
Section 9 of the Executive Order is titled “Sanctuary Jurisdictions” and states that: “It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” Then follows a list of provisions intended to obtain local compliance with federal immigration enforcement actions through a combination of grant loss, enforcement actions, and publication of crimes caused by “aliens” occurring in sanctuary jurisdictions - summarized as follows:
• The Director of the Office of Management and Budget is to obtain and provide information regarding Federal grant money that is currently received by sanctuary jurisdictions.
• Jurisdictions which willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants except as deemed necessary for law enforcement purposes by the Attorney General or Secretary of Homeland Security (“Secretary”).
• The Secretary has the authority to designate which jurisdictions are sanctuary jurisdictions (in his discretion and to the extent consistent with law.)
• The Attorney General shall take appropriate enforcement action against an entity violating 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
• The Secretary is to create a weekly list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens to better inform the public regarding safety threats associated with sanctuary jurisdictions.
It is interesting to note that Executive Order 13768 states that its purpose is to ensure compliance with 8 U.S.C. 1373 since Section 1373 is, as noted above, limited in its focus. If the Secretary of Homeland Security does designate which jurisdictions are sanctuary jurisdictions in a manner that is consistent with law, and if sanctuary jurisdictions are careful in how they draft their policies and laws, there should be little for the Secretary to enforce. Unless policies or laws limit communication with federal agencies regarding individuals’ citizenship or immigration status, or prohibit maintaining that information if it has been acquired, it would appear that they should not be found to be violative of 8 U.S.C. Section 1373. That said, some of the language in Section 9 of the Executive Order goes further than the language of 8 U.S.C. Section 1373, so it is possible that a broader enforcement approach could follow.
II. What are some common provisions of Illinois Sanctuary City Ordinances?
There is no one definition of a “Sanctuary City” (also sometimes called a “Welcoming City”).4 This section discusses ordinances passed in Chicago, Evanston, Oak Park, and Skokie that contain sanctuary provisions.
Chicago has a history with sanctuary city ordinances that dates back to the mid-1980s. An updated version was approved in 2012 and the ordinance was amended again on 10/5/16. Evanston passed its Welcoming City Ordinance on 11/28/16 (specifically noting that its ordinance is modeled after Chicago’s), Oak Park passed its Welcoming Village Ordinance on 2/6/17, and Skokie passed an ordinance amending the Human Relations Chapter of its Village Code on 3/6/17.
The following is a paraphrased summary of some of the more critical “Welcoming City” provisions in ordinances adopted by Chicago, Evanston, Oak Park, and Skokie. Other municipalities, such as Urbana, have also passed resolutions that address some of these same issues.5
1. Requesting Information Prohibited.
The Chicago, Evanston, Oak Park, and Skokie ordinances provide that no agent or agency6 of the city/village shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless required by a court decision or unless relevant to potential or actual legal actions of the public entity itself. Chicago, Evanston, and Skokie also make exceptions if such information is required by Illinois state statute or federal regulation.
2. Disclosing Information Prohibited (unless required or authorized).
This is the section that needs to be considered most carefully when drafting a Sanctuary City ordinance in light of the provisions of 8 U.S.C. Section 1373 and Executive Order 13768 discussed above. Chicago, Evanston, Skokie, and Oak Park all use language in this section of their ordinances to make it clear that they will comply with federal law.
The Chicago and Evanston ordinances provide that unless required by federal law or legal process, or authorized in writing by the individual, or a guardian if the individual is a minor or not legally competent, no agent or agency shall disclose information regarding the citizenship or immigration status of any person.
Skokie and Oak Parks’ ordinances prohibit providing information to support or assist with immigration enforcement operations; however both ordinances acknowledge that federal law forbids any prohibition against providing information regarding an individual’s citizenship or immigration status. For instance, Skokie’s ordinance provides that: “Nothing in this Article prohibits the Village sending to, or receiving from, any local, state or federal agency, a statement of an individual’s country of citizenship or a statement of an individual’s immigration status. Village staff shall be instructed that federal law does not allow such prohibition.” *NOTE: This statement, or something similar, should go a long way toward precluding a determination of violation of 8 U.S.C. Section 1373, particularly in light of the DOJ’s Memorandum referenced in I.A above.
3. Threats Based on Citizenship or Immigration Status Prohibited.
The Chicago, Evanston, Oak Park, and Skokie ordinances provide that no agent or agency of the public entity shall coerce or threaten deportation or engage in verbal abuse of any person based on that person’s (or that person’s family members’) actual or perceived citizenship or immigration status. A thorough definition of “family member” is included in the Chicago, Evanston and Oak Park ordinances.
4. Conditioning Benefits, Services, and Opportunities on Immigration Status Prohibited.
The Chicago, Evanston, Oak Park, and Skokie ordinances provide that benefits, opportunities, and services which they provide may not be conditioned on matters related to citizenship or immigration status unless required by statute, federal regulation or court decision.
Chicago, Evanston, and Oak Parks’ ordinances also provide that a photo ID issued by a person’s nation of origin (such as a driver’s license, passport or consulate-issued document), shall not subject that person to a higher level of scrutiny or different treatment than if they had an Illinois driver’s license or identification card. (This section does not apply to federal I-9 Forms which are required to be filled out for all citizens and noncitizens to verify an individual’s identity and legal authorization to accept employment in the United States.)
5. Elimination of citizenship/immigration status questions from city applications and forms.7
The Chicago, Evanston, Oak Park, and Skokie ordinances provide that applications, questionnaires, and interview forms used in relation to city benefits, opportunities, or services, shall be promptly reviewed and any questions regarding citizenship or immigration status are to be deleted (other than those required by statute, ordinance, federal regulation or court decision).
6. Detentions based on citizenship/immigration status. Interactions with ICE.8
This is the most complicated section of the Chicago, Evanston, and Oak Park ordinances. There are some variations between the three ordinances not specified here, but in summary this section of the three ordinances provides that:
a. Arrest & Detention. Municipal agencies and agents shall not arrest, detain, or continue to detain a person solely:
1. On the belief that the person is not present legally in the U.S. or that the person has committed a civil immigration violation;
2. On an administrative warrant in the FBI’s National Crime Information Center database when the administrative warrant is based solely on a violation of civil immigration law; or
3. On an immigration detainer when the detainer is based solely on a civil immigration law.9
b. Access to Detainees/Use of Municipal Facilities/Use of Municipal Time. Absent a criminal warrant, municipal agencies and agents shall not: (i) give ICE agents access to a person being detained by or in the custody of the agency or agent; (ii) allow ICE agents use of municipal facilities for investigative interviews or other investigative purposes; or (iii) spend time while on duty responding to ICE inquiries or communicating with ICE. However, a municipal agency or agent may communicate with ICE in order to determine whether a matter involves enforcement based solely on a violation of a civil immigration law.10
Oak Park’s ordinance also prohibits transferring any person into ICE custody unless a valid criminal warrant has been issued and prohibits any agency or agent from supporting or assisting ICE or other agencies with immigration enforcement operations. It also prohibits any agency or agent from entering into any agreement under Section 1357(g) of Title 8 of the United States Code11 or any other federal law that permits state or local governmental entities to enforce federal immigration laws.
c. Exceptions. The Chicago and Evanston ordinances provide that the provisions summarized in 6(a) and (b) above are not applicable when a municipal agent or agency conducts an investigation that indicates that the subject of the investigation:
1. Has an outstanding criminal warrant.
2. Has been convicted of a felony or is a defendant in a pending felony criminal case.
3. Has been identified as a known gang member in a law enforcement agency’s database or by his or her own admission.
Skokie’s ordinance contains provisions that no Village staff, elected or appointed officials, or any person acting on behalf of the Village shall accept requests by any agency to support or assist with immigration enforcement operations. Nor shall the Village detain any individual based on their citizenship or immigration status unless pursuant to an outstanding criminal warrant.
7. No private cause of action.
Chicago, Evanston and Oak Park provide varying provisions in their Welcoming City ordinances that state that such ordinances do not create a basis for liability against them or their agents or employees. The exclusive remedy for violation of the Welcoming City provisions is disciplinary action against employees of the city or village.
III. Will Sanctuary Cities risk losing federal funds in light of Executive Order 13768?
Given the broad discretion given to the Secretary of Homeland Security in designating which jurisdictions he believes to be sanctuary jurisdictions, and the possible necessity of litigating a determination by the Secretary that a sanctuary jurisdiction is violating federal law, it is possible that federal funds could be jeopardized if only until litigation is concluded. Public bodies can protect themselves to some degree by drafting their ordinances carefully so as not to violate 8 U.S.C. 1373. And of course it would be helpful if no horrific crimes committed by “aliens” show up on the weekly list required by Executive Order 13768 to be generated by Secretary of Homeland Security (see Section I.B above), which could cause public pressure on public bodies to take some action in response.
Nothing in federal law requires local jurisdictions to enforce the Immigration and Nationality Act and regulations. Article I, Section 8 of the U.S. Constitution specifies the powers of Congress; all other lawmaking powers are left to the states. The Tenth Amendment to the U.S. Constitution12 precludes the federal government from coercing state or local governments to use their resources to enforce federal regulatory programs such as immigration. See Printz v. United States, 521 U.S. 898, 926 (1997), federal government may not compel states to implement, by legislation or executive action, federal regulatory programs. Nor it is it a violation of federal law to refuse to comply with ICE detainers (see the discussion of Moreno v. Napolitano decision noted in footnote 2 of Section I above). In fact, public bodies now more than ever need to be careful about potential liability if they hold, or continue to hold, an individual solely on the basis of a civil immigration detainer. See Miranda-Olivares v. Clackamas County, 2014 WL 1414305 (United States District Court D. Oregon, 2014).
On Monday, 3/27/17, United States Attorney General Jeff Sessions made a statement regarding sanctuary jurisdictions which threatened termination and “claw back” of grant funding to jurisdictions that willfully violate 8 U.S.C. Section 1373. Nothing particularly new was said. Moreover, his statement that the Department of Justice will require jurisdictions seeking or applying for federal grants to certify compliance with Section 1373 as a condition for receiving grant awards reflects a lack of understanding of the current DOJ process which already requires such certification.
IV. Are Sanctuary City ordinances necessary or effective?
Because cities and villages generally hold individuals in custody for very short periods of time (until they can get them to a county jail facility), it is probable that Sanctuary City provisions that pertain to detention and information about detainees about to be released from detention are far more likely to be relevant in a county setting.13 The balance of the Sanctuary City provisions found in the ordinances discussed in Section II above (e.g. threats prohibited, conditioning services or benefits prohibited, etc.) can be useful in almost any unit of local government. However, an argument can be made that it’s not worthwhile for municipalities to draw the potential ire of the Secretary of Homeland Security in order to adopt policies that could be implemented on an administrative basis without unnecessary hoopla.
The argument against the administrative “quiet” approach to adopting sanctuary policies (rather than formally codifying Sanctuary City law), is that while a municipality may want to avoid putting the Secretary of Homeland Security on notice of certain protections being afforded, the public may not be aware of them either. One of the main reasons many municipalities feel the need to enact Sanctuary City ordinances is to reach out to their communities to make sure the public knows where the city stands on immigration issues and to assure them that the city will do what it can to protect them. A quiet approach, while effective to some degree, will not attain the important goal of extending some degree of comfort to people who are frightened to even let a public body know that they exist.
Law enforcement officers know the drawbacks of people who are unwilling to file criminal complaints or to serve as witnesses in criminal cases. Here’s an all-too-common example: an attorney I know served jury duty last month in an aggravated battery case in a municipality outside of Cook County. The defendant took a pair of heavy pliers and struck the victim in the head with them a couple of times. In an effort to claim self-defense, the defendant called the police to tell them about the incident and to proclaim that it was self-defense. The defendant was convicted. The irony was that the victim never did call the police and the entire incident would have gone unnoticed by the police absent the defendant making the call himself. The reason? Obvious, of course. The victim was worried about someone discovering his immigration status.
V. Will there be a state-wide legislative fix?
The short answer is that it appears not, or at least not yet. While there are three pieces of pending legislation pertaining to sanctuary-type protections, each of them has a different focus, and a focus that addresses issues that are different than those addressed in the ordinances discussed in Section II above. Enactment of one or all of the legislative bills summarized below will not resolve any of the issues covered by the Sanctuary City ordinances.
1. Immigration Safe Zones Act. HB 426 introduced 1/12/17 by Representative Chris Welch
• Prohibits State-funded schools (including licensed day care centers, pre-schools, elementary and secondary schools and institutions of higher education), and State-funded medical treatment and health care facilities, from granting access to ICE or to State and local law enforcement agencies acting pursuant to an agreement with ICE unless there is a court-issued warrant and “appropriate personnel have reviewed that warrant.”
• Prohibits employees of elementary schools, secondary schools, and institutions of higher education from asking about a student’s immigration status or that of the student’s family (except in cases of in-State or in-district tuition verification, scholarships, grants or services that are contingent upon that information).
• Provides for training of teachers, administrators, medical facility staff and other staff in dealing with immigration issues pursuant to a plan to be developed within 90 days of the effective date of the legislation.
• Any immigration or citizenship questions contained in applications or forms used by a State agency are to be removed within 60 days of the effective date of the Act.
2. Safeguarding Sanctuary Cities Act. HB 3739 introduced 2/10/17 by Representative Jaime M Andrade, Jr.
Provides that notwithstanding any other provision of law, if a unit of local government has a policy in place that limits or restricts compliance with or otherwise does not comply with a detainer issued by the Secretary of Homeland Security, any grant of State funds that the unit of local government would otherwise receive may not be reduced or not made available by reason of such noncompliance. The legislation defines “detainer” as any order or request by the Secretary of Homeland Security to a unit of local government official to: (1) temporarily hold a person in the custody of that State or unit of local government until such person may be taken into federal custody; (2) transport such a person for transfer to federal custody; or (3) notify the Secretary of Homeland Security prior to the release of such a person.
3. Sanctuary State Act. HB 3698 introduced 2/10/17 by Representative Robyn Gabel
Provides that a law enforcement agency of the State or its political subdivisions shall not use State funds, equipment, personnel, or resources, nor accept or utilize federal funds, equipment, personnel or resources for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship who have entered or are residing in the United States in violation of federal immigration laws in Title 8 of the United States Code, unless legally required to do so.
VI. Alternatives to Sanctuary City Ordinances
What can be done short of a full-blown Sanctuary City ordinance along the lines discussed in Section II above?
1. Implement administrative policies that contain similar types of provisions as those contained in the Welcoming City Ordinances discussed in Section II above. This is the “quiet” approach briefly discussed in Section IV above.
2. Pass a resolution which articulates the city’s policies with respect to fair, equal, and respectful treatment of all people irrespective of race, color, religion, sexual orientation…and immigration or citizenship status.
3. Be willing to join forces with other units of local government to defend against any of them from being stripped of funding because they have adopted policies that protect all individuals irrespective of their immigration status.
CONCLUSION
If a decision is made to proceed with a Sanctuary City ordinance, and care is taken with how it is written and implemented, it seems unlikely that federal funding will be jeopardized. On the other hand, some municipalities may conclude that their current policies and practices already address the issues that would be addressed by legislative action. Others may simply want the people who live in and visit their community to know that they welcome diversity and will treat everyone equally and fairly regardless of differences in background, religion, and culture. Each city (and each village and county) needs to find its own way on the issue of whether or not a Sanctuary City ordinance, or some other approach, or maybe no approach at all, best serves their community.
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