By Josh Gerstein
February 24, 2016
The Obama administration is winning praise from conservative Republicans for initiating a change in federal policy that could encourage so-called sanctuary cities to abandon their stance against cooperating with deportation requests.
The move could be politically awkward for Democratic presidential candidates Hillary Clinton and Bernie Sanders, both of whom are aggressively courting immigrant communities while also expressing solidarity with President Barack Obama.
Under the new policy, the federal Bureau of Prisons will put prisoners finishing their sentences into immigration custody by default when immigration authorities seek deportation, even if local or state officials want the immigrant for prosecution or to finish a state or local sentence. Immigration officials may sometimes defer to state or local authorities, but will take into account a locality's cooperation with federal deportation requests in deciding whether to hand over a prisoner.
The new policy places the extra restraints on any city, county or state that chooses to adopt a so-called "sanctuary" policy, particularly a categorical one that bars all cooperation with immigration authorities.
"It certainly reads as though it's a pushback," said Doris Meissner, commissioner of the Immigration and Naturalization Service under President Bill Clinton. "This is using the federal system as leverage."
Republicans were jubilant about the decision, heaping praise on Attorney General Loretta Lynch for standing up to immigrant rights advocates who've encouraged localities to ignore federal authorities' requests to detain individuals for immigration proceedings.
"We thank you for the change in the policy . . . I genuinely appreciate it. I think it's an example of the cooperative relationship that this committee has had with the Department of Justice and with you as the new attorney general," Rep. John Culberson of Texas told Lynch at a meeting of the House Appropriations subcommittee he chairs. "It's very important ... It is a very significant change and we're deeply grateful to you."
House Appropriations Committee Chairman Hal Rogers (R-Ky.) also welcomed the change, but seemed skeptical the administration would follow through on it.
"This is encouraging to hear this but I believe that old saying of trusting and verifying," Rogers said, asking for a quarterly report on how many cases were affected by the new policy. "This is a significant, very important matter for a lot of us and I'd like to know that it's working."
During her testimony before the Appropriations panel, Lynch did not frame the new policy as an effort to punish so-called sanctuary cities but to make sure federal authorities who turn over an immigrant to local authorities are notified when those proceedings are complete, so a deportation could be arranged.
"Particularly where we're dealing with a jurisdiction that is not prone to honoring [Immigration & Customs Enforcement] detainers ... our policy is going to be that ICE will instead have the first detainer and that individual will go into ICE custody and deportation," the attorney general said. "This may have the effect that there may be local cases that may not be able to be prosecuted because, again, the person will be taken into ICE custody and then deported."
Lynch said the Justice Department wouldn't rule out turning over a deportable prisoner to local authorities for prosecution, but "would have to have assurances that ICE would also then be able to get the individual back at the end of an adjudication so that the deportation process could go underway."
Criticism of sanctuary policies has intensified in recent months, especially following the shooting death in San Francisco last July of Kathryn Steinle, 32. Several Republican presidential candidates have seized on the case.
The Mexican national accused of shooting Steinle, Francisco Sanchez, was released from the sheriff's custody in San Francisco 10 weeks before the shooting because of the city's policy against enforcing immigration-related detention requests.
Steinle "was shot and murdered by a seven-time convicted felon and five-time deportee who was released onto the streets of San Francisco due to their utterly unacceptable and illegal sanctuary policy," Culberson said Wednesday.
Opponents of the sanctuary movement hailed the Obama Administration's move.
"I think it's very significant," said Kansas Secretary of State Kris Kobach, who has been at the forefront of efforts for stricter enforcement of immigration laws. "Jurisdictions all over the country, in many states, may be losing their opportunity to bring state prosecutions if those counties are not cooperating with the federal government."
Asked if he was surprised by the Obama Administration's action, Kobach said: "It's refreshing....This is a rational response to what is happening with sanctuary counties."
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Spokespeople for the Clinton and Sanders campaigns did not immediately respond to requests for comment Wednesday afternoon. However, both their campaigns have tried to be friendlier to immigrants, including those who entered the U.S. illegally, than Obama has. The two Democratic candidates criticized a recent Obama Administration drive to deport Central American immigrant families who crossed into the U.S. illegally in the past year or so.
Prior to the Nevada caucuses, Clinton also aired an emotional ad in which she embraces a ten-year-old girl who says she fears her parents would be deported. “You don’t have to worry … I’ll do everything I can to help,” Clinton says in the ad.
The Bureau of Prisons policy change involving sanctuary cities had not been widely publicized before Wednesday's hearing and was apparently first disclosed in a letter the Justice Department sent to Culberson Tuesday.
A Justice Department spokeswoman had no immediate response to questions about how the new policy was developed and when it took effect. The policy does not appear to extend beyond the Bureau of Prisons, so it would not apply to prisoners in pretrial federal custody who are acquitted, have federal charges dismissed or are released on bail.
While some chalked up the change as a victory for those favoring a tougher stance against illegal immigration, several experts said the impact could be largely symbolic.
Meissner noted that the vast majority of prisoners are in state or local custody, not federal custody. In addition, many federal prisoners serve long terms, with the average around six years, so state and local cases would be somewhat stale by the time an inmate emerges from the federal system. So state or local requests for federal prisoners being discharged would be unusual, she said.
"As a practical matter and in practice, I'm not sure it has a lot of effect, but it does at the federal level create a better chance that the feds don't drop the ball or federal officials don't get charged with dropping the ball," Meissner said, calling the new policy "quite ingenious."
Some immigrant rights advocates said sanctuary city critics were exaggerating the import of the new policy.
"The idea that somehow this leads to punishment of sanctuary cities seems to me to be reading into the letter what's not on the page," said Chris Newman of the National Day Laborer Organizing Network. But he added, "The Obama Administration has been opposed to sanctuary cities from the beginning."
Newman said the Justice Department's new stance seems aimed simply at averting a repeat of the Steinle tragedy. "This prevents what happened in that case," he said. "In a rational political environment, the Bureau of Prisons would be as much to blame for what happened in San Francisco as the ostensible sanctuary city policy there."
Former Maryland Attorney General Doug Gansler said the new federal policy sounds sensible, as long as it is not enforced so strictly that it would prevent states from prosecuting heinous offenses.
"Particularly given the climate . . . it's an understandable policy shift, but it has to be viewed within the spectrum of crimes," he said. "It's hard to imagine a federal agency not giving someone wanted for a triple murder refusing to give the person back to the state. On the other hand, if it's something about a three-year-old bar fight you may want to deport them instead."
There was no immediate outcry from immigrants rights groups Wednesday, perhaps because the mechanism the administration is using to resist the sanctuary city movement is one that involves largely unsympathetic people—immigrants who have done federal prison time.
"It's awfully hard to argue against this," Meissner said. "It's pretty hard to argue against this kind of a measure...directed at criminals who have finished serving their sentences."
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