Court ruling a win for safe communities over sanctuary chaos


May 14, 2020

By Tom Homan

As our nation continues to regain stability during the global pandemic, there was a news item recently that should encourage those seeking a return to law and order, process, and safe communities.

District Judge Michael E. Hegarty of the U.S. District Court of Colorado ruled on April 20 that the city of Denver will have to turn over personal and work addresses, emergency contact information, information about current criminal charges and address details from bond records of three illegal aliens who went through the city’s jail system.

Denver authorities had refused to comply with Immigration and Customs Enforcement (ICE) detainers, and ICE took the unprecedented steps of issuing administrative subpoenas to demand vital information on the three criminal illegal aliens. Those individuals had all been arrested on serious criminal charges and ICE was seeking to detain them for possible deportation, but Denver refused to cooperate.

This District Court decision is the first great win for ICE’s new tactic of issuing administrative subpoenas to other law enforcement agencies because of non-cooperation.

In recent weeks, ICE has issued immigration subpoenas to authorities in New York City, Denver, San Diego, Connecticut and Oregon just to name a few — in an effort to force these sanctuary jurisdictions to provide critical information required to enforce immigration law. The subpoena authority they are using is a long-standing legal authority enacted by Congress as part of the Immigration and Nationality Act (INA) § 235(d)(4)(B), 8 C.F.R. § 287.4(d)

Now ICE has to use that authority on local law enforcement entities who refuse to provide information about illegal aliens in their custody. Should law enforcement agencies neglect or refuse to respond to the subpoena, an immigration officer may contact the local U.S. Attorney’s Office for the district in which the subpoena was issued to seek an order from the U.S. District Court, requiring production pursuant to the INA.

As I said, this authority has been available for decades, and I used it myself when I was a Special Agent to subpoena information from private companies, utility companies and other businesses to get vital information needed to conduct an investigation into violations of the INA.

What is unfortunate is that ICE has been forced, for the first time, to actually subpoena law enforcement agencies. In the past, these law enforcement agencies always provided that information because they knew it was in furtherance of the laws of this country that were made to protect our nation and communities.  

ICE is using every tool available to obtain information regarding the whereabouts and other relevant information regarding removable aliens from jurisdictions that refuse to — or are unable to — cooperate with ICE. It is unfortunate that it has become a fight with some sanctuary-minded law enforcement agencies, but ICE is doing everything legally possible to complete its mission of protecting this nation and our communities from preventable, serious crimes committed by persons in this country illegally. That is its mission, and this nation should be thankful for the dangerous work its officers do every day.

As someone who has spent my entire life enforcing this country’s immigration laws, I have had no bigger fight than the fight against sanctuary policies that have spread across the country. As the Acting ICE Director for 18 months, I spent a majority of my time pushing back on the false narrative advanced by the left that sanctuary polices are needed.

They claim sanctuary policies protect the immigrant community and build trust between law enforcement and those communities. Without such a policy, they claim, immigrants will be afraid to report crimes to local police who want to protect victims and witnesses from deportation. To be clear, ICE simply wants access to the jails and information from the jails on illegal aliens who ICE has already established probable cause to believe are in the country in violation of federal law. ICE officers simply want access so they can enforce the laws enacted by Congress — the same access that they have had for decades.

First, sanctuary policies do not protect the immigrant community, they actually put them at greater risk. When criminal aliens are released back into the public, there is a strong possibility that these criminals will reoffend in the very community in which they live, the immigrant community. As far as examples, you only have to look at the murders committed by MS-13. This violent gang almost exclusively victimizes the immigrant community. Another clear example is Montgomery County, Md., this past year. That sanctuary county had numerous rapes committed by illegal aliens — and the vast majority of those victims were from the immigrant community.

Sanctuary policies also put the immigrant community at greater risk of ICE arrests. If ICE cannot arrest the criminal illegal alien in the jail, its officers will be forced to go into the community to locate and arrest that criminal. When ICE does that, its officers often find other illegal aliens that are not the priority target, which are called collateral arrests.

Lastly, sanctuary policies do not protect victims or witnesses. ICE simply wants access to the jails and to the criminal that local law enforcement has already decided to arrest and incarcerate. So — unless local law enforcement is arresting the victim and witness — ICE would never encounter them. I also submit that the victim or witness of a crime is at greater danger if the criminal is released back into the community to take revenge. 

However, because people on the left ignore the facts and continue to push their false narrative, ICE has stepped up its efforts to enforce immigration law and protect our communities. The recent decision in Colorado is a step in the right direction, and hopefully serves as a precedent in the other jurisdictions across the country. 

Tom Homan is the former Acting Director of Immigration and Customs Enforcement and a senior fellow at the Immigration Reform Law Institute.

Also published at: Tom Homan, Court ruling a win for safe communities over sanctuary chaos, The Hill, May 14, 2020.

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