Commentary: The Sanctuary wars, peeling away the rhetoric

Editor’s note: The opinions here are the author’s and do not necessarily reflect those of this publication.

By Barbara Franz

In the Oct. 10, 2017, New Jersey gubernatorial debate, undocumented immigrants and sanctuary spaces were one of the hot-button issues.

The Republican Lt. Gov. Kim Guadagno argued that she certainly would follow the law when dealing with the fallout of President Trump’s dismantling of DACA—the Deferred Action for Childhood Arrivals program.

This would affect more than 20,000 “Dreamers” residing in New Jersey who would become unprotected and deportable. Guadagno called upon the U.S. Congress to fix the immigration issue.

The front-runner, Democratic candidate Phil Murphy, spelled out how New Jersey might respond a bit more radically.

He suggested New Jersey become a “sanctuary state” that would shield migrants from being deported. Murphy said: “We will stand up to this president!” He continued that “if need be, we will be a sanctuary, not just city, but state.”

He concluded with an empathetic call that “This is America. The America I know is the poem at the base of the Statue of Liberty!”

A sanctuary state—what does this mean and how could this protect young Dreamers and other people without residence permits living in New Jersey?

California, Oregon, Colorado, and Rhode Island have passed sanctuary state legislation. The bills limit local law enforcement cooperation with federal immigration authorities, with the objective of protecting undocumented immigrants residing in the states.

While a sanctuary state is a relatively unascertained idea, the phrase “sanctuary cities” is widely known and has been co-opted and weaponized.

Donald Trump, his Attorney General Jeff Sessions, and other members of the administration, have vilified sanctuary cities, pledging to end them. Sanctuary cities became the embodiment of injustices that had fallen upon Americans as the result of a perceived laissez-faire approach to immigration enforcement.

While grossly misleading, this is a view that has resonated with many American voters. For Republicans, “sanctuary” means protecting criminals who sneaked into the country illegally and now threaten our communities.

For Democrats, it means walling off sanctuary areas—cities, counties, and states— against the administration’s aggressive attempts to deport hardworking and law-abiding immigrants who are here without documentation.

Currently there are about 364 counties, 39 cities, and hundreds of campuses that refuse to cooperate with federal immigration authorities.

There are convincing moral, ethical, and even economic arguments not to deport migrants without resident permits who are contributing to society through labor and taxes. Murphy claims the state will lose $1.6 billion in gross domestic product each year if the Dreamers and their parents who currently reside in New Jersey are deported.

In the past, in order to improve public safety, local law enforcement authorities frequently have found it useful to refuse to cooperate with Immigration and Customs Enforcement (ICE).

This was seldom understood as offering immigrants “sanctuary.” Instead, police chiefs and sheriffs learned that they could not effectively do their jobs if immigrant communities refused, out of fear, to talk to them.

Immigration advocates agree that such a zero-compliance policy is crucial in building community trust between law enforcement and immigrant communities.

Thus far, the courts have protected sanctuary cities that refuse to cooperate with ICE. But the Trump administration has vowed to crack down on jurisdictions that do not cooperate with federal immigration agents.

Sessions has instituted a scheme that involves updating federal rules to withhold grant money from cities and counties that refuse to give federal immigration authorities total access to their police stations, or fail to keep those who may be in violation of immigration laws incarcerated until ICE arrives.

Last week, Sessions vowed to withhold millions of dollars in crime-fighting aid from Chicago, New Orleans, New York and Philadelphia. The administration’s justification is that these cities are sanctuary cities.

For the administration, these cities have “laws, policies or practices” that violate federal statutes that require jurisdictions to comply with federal immigration officials and help to deport suspected undocumented immigrants held in local jails.

It can be expected that in cities and municipalities where ICE access to law enforcement data is denied, federal immigration authorities will carry out more “at-large” arrests, in light of local authorities’ refusal to hold unauthorized immigrants who have been deemed deportable by ICE beyond their release dates.

Such raids occurred recently in Massachusetts and California. To be sure, sanctuary policies make it more difficult and expensive because ICE must use more resources to research and arrest immigrants. Without the cooperation of local authorities, ICE must deploy more agents.

Philadelphia enacted one of the most far-reaching, pro-sanctuary laws in the country in 2014, prohibiting the city’s police department from coordinating with ICE under any circumstance unless a federal warrant was served.

Most sanctuary cities, counties and states, however, include certain exceptions in their sanctuary policies. So-called carve-outs might apply, for example, to a person charged with a first or second-degree crime, or listed in a database of gang members.

Of course, documentation in many such circumstances is crucial but often unreliable. For example, Chicago’s gang database is notoriously error-ridden. A person might be added to the database without ever having been convicted of a crime and without any notice, let alone a chance to fight this label.

And because black, Latino and other people of color are more likely to be harassed and picked up by the police, immigrants of color are also more likely to be funneled into the deportation system via these carve-outs. Realistically one cannot be an effective sanctuary location while these carve-outs exist.

Sanctuary policies are currently fashionable, but there may be other ways to achieve the desired results.

Local authorities can protect the weakest members of the community by acting in a principled and ethical manner, complying with the U.S. Constitution.

According to the Southern Poverty Law Center, cities, counties, and states that want to promote communication between their residents and law enforcement have a number of options, in addition to the sanctuary policy route. Local authorities can:

• refuse to comply with ICS’ detainer requests unless they come with a judicial warrant;
• decline to collect immigration-related information in the provision of city services unless otherwise required by state or federal law;
• prevent local funds, personnel, or facilities from being used for immigration enforcement;
• declare schools and courthouses to be safe places where people can go without fearing immigration enforcement activities or raids;
• prevent ICE or other Department of Homeland Security (DHS) agents from entering local jails and demanding ICE and DHS first notify an inmate’s attorney;
• insist ICE and DHS officers identify themselves and wear duty jackets if allowed into any local facilities.

Moreover, local authorities ought not to discriminate on the basis of immigration status in the provision of city services unless otherwise required by state or federal law. They should provide funding for legal representation for local residents in immigration proceedings.

Calling oneself a “sanctuary city” is not, in itself enough. Calling oneself a “sanctuary city” but funneling information about undocumented individuals to the state and federal authorities, who share it with the DHS, is counterproductive if the objective is to protect these immigrants.

So, we see there are alternatives and trade-offs to calling one’s city or state a sanctuary. On the one hand, it makes an important, powerful and public statement; on the other hand, it may have undesired effects in drawing federal agents to the sanctuary when there may be other ways to achieve the desired protections.

Barbara Franz is a political science professor at Rider University, and a Morristown resident.