The Hill
By Rafael Bernal and Mike Lillis
March 22, 2017
The Trump administration’s fight with sanctuary cities that refuse to cooperate with federal immigration authorities is heating up.
Big city mayors and immigration activists are pushing back at the administration’s attempts to expose and sanction sanctuary cities, while the president is threatening to withhold federal funds to cities that refuse to cooperate.
On Monday, the Department of Homeland Security (DHS) released its first report listing jurisdictions that refuse cooperation with federal immigration authorities — a step designed to put public pressure on sanctuary cities.
The report lists cities and counties that received and refused requests from Immigrations and Customs Enforcement (ICE) to hold individuals in detainment after they would have normally been scheduled for release.
The U.S. Conference of Mayors (USCM) on Tuesday questioned the constitutionality of ICE detainers and the truthfulness of the DHS report.
“It lists jurisdictions as non-compliant that are currently complying with federal law, the City of New Orleans among them,” the group said in a statement.
Proponents of sanctuary cities argue that separating regular law enforcement duties from immigration is necessary to ensure immigrants living in their communities feel safe reporting crimes and acting as witnesses.
They also argue that holding immigrants beyond the period mandated by criminal law would take up resources needed for local law enforcement to prioritize public safety.
“Our job is to protect people’s rights and keep them safe. We work very hard to build up trust between the Police Department and the community,” said Tom Tait, the Republican mayor of Anaheim, Calif.
“To ask local law enforcement to enforce [immigration] laws erodes that trust in a very big way,” added Tait, the co-chair of the USCM’s Immigration Reform Task Force.
But the administration challenged that view, saying the lack of compliance with detainers puts citizens at risk.
“When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission,” said acting ICE Director Thomas Homan in a statement.
Detainers are issued for immigrants who fall under the spectrum of criminal aliens, a definition that was greatly expanded under executive orders issued by the president.
To comply with detainers, local law enforcement must often retain prisoners after the constitutional period of pre-trial detention has ended, or, in the case of convicts, after they have served their sentences.
Los Angeles Mayor Eric Garcetti, the chair of the USCM Latino Alliance, believes those measures are unconstitutional and can be challenged in the courts.
“Contrary to popular belief, we do it here and coordinate and collaborate with our federal law enforcement all the time, we just require it be done in a constitutional manner with due process, and with a court issued warrant,” said Garcetti.
Garcetti said the abuse of detainers is a problem that precedes the Trump administration. In past administrations, he said, detainers were supposed to be used only for serious criminals.
“When we looked at the detainer requests, they were not often focused on any serious crimes,” he said.
Gresham, Ore. Mayor Shane Bemis said his administration is “pretty proactive” in prosecuting criminals “regardless of their immigration status,” but that local and federal agencies should each stick to their core competencies.
“You can’t expect local law enforcement to be an arm of the federal government in this process, just like you can’t expect them to audit taxes,” said Bemis.
Bemis added that local law enforcement needed to stay separate from immigration issues in order to effectively do their job.
“We cannot be effective if any resident hesitates in an emergency situation because they are fearful of the results of the interaction with our police officers,” said Bemis.
Rep. Linda Sánchez (Calif.), the vice chairman of the House Democratic Caucus and a sharp critic of Trump’s enforcement strategy, went further, saying the administration’s effort to punish sanctuary cities is “despicable” — and likely unconstitutional.
“I believe that, constitutionally, local governments cannot be forced to comply, to help ICE,” Sánchez said Tuesday. “I mean, ICE has a job to conduct — they certainly can’t impede that — but they don’t have to volunteer information.”
Members of the USCM said their goal is to collaborate with federal law enforcement, but only if they can ensure the independence of their law enforcement agencies, protect their residents and allow immigrants to contribute to their local economies.
Sánchez, the former head of the Congressional Hispanic Caucus, said she fears that Republicans on Capitol Hill will join the administration’s battle against sanctuary cities, likely through the appropriations process.
“There’s a danger that both may react,” she said. “And the risk that localities have is, if they choose … not to proactively aid interior enforcement, then they risk potentially losing federal dollars, because that’s the ultimate power that the Republican majority has is the power of the purse strings.”
Sánchez predicted the fate of sanctuary cities will ultimately be decided by the courts.
“That seems to be the one check on the presidency that we do have is still the independent judiciary,” she said.
And Garcetti said he’s confident a tit-for-tat fiscal approach will ultimately be stopped by the courts. He cited a decision by Chief Justice John Roberts on Medicaid expansion under the Affordable Care Act as precedent that the 10th Amendment could protect local governments from federal withholdings based on policy differences.
“You can’t put a fiscal gun to the head of cities in order to push another policy,” he said.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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