How U.S. sanctuary policies could get you stuck in a foreign jail


August 5, 2018

By John Rooney

Following the passage of California’s sanctuary law, which specifically prohibits law enforcement officers from inquiring about an individual’s immigration status, other jurisdictions have begun passing similar resolutions that provide sanctuary for illegal aliens. In effect, they stop police from asking fundamental questions of individuals with whom they have contact about their immigration status and contacting Immigration and Customs Enforcement (ICE). While the list of citizens victimized by sanctuary policies in America grows longer, the policies could also pose a threat to Americans traveling overseas.

Sanctuary policies and their toxic results are spreading throughout the country. During a community meeting this past March, Derrick Jackson, the director of community engagement for Michigan’s Washtenaw County Sheriff’s Office, said, “The agency won’t ask about immigration [status] when you are arrested or suspected of a crime.” The Washington, D.C., Police Department has prohibited its officers since 2011 from questioning persons about residency or immigration status unless members are investigating crimes involving the smuggling and harboring of immigrants or other crimes in which immigration status is an element. If your community has not yet declared itself a sanctuary for illegal aliens, there is likely an effort underway to make it happen.

Preventing the police from asking questions relative to an arrested individual’s place of birth, citizenship or immigration status has real-world consequences, intended or unintended, particularly those suspected of serious offenses. These policies allow criminal aliens back onto the streets pending trial whereby they could commit additional crimes or flee the United States to escape prosecution.

Law enforcement leaders are bringing attention to this dangerous situation. Former Acting ICE Director Thomas Homan said, “Politicians supporting so-called sanctuary city policies should be held accountable. These sanctuary cities that knowingly shield and harbor an illegal immigrant in their jail and don’t allow us access … that is, in my opinion, a violation of 8 U.S.C. 1324, that’s an alien smuggling statute. I’ve asked the Department of Justice to look at this.”

Attorney General Jeff Sessions said, “So-called sanctuary policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.”

Largely ignored in today’s immigration debate is the fact that sanctuary policies conflict with the United Nations’ Vienna Convention on Consular Relations (VCCR) of 1963, as well as other relevant bilateral treaties. The VCCR provides that when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have his/her embassy’s consulate notified and to have regular consultation with consular officials during detention and any trial.

The Department of State Consular Notification and Access Manual states, “It is the arresting officer’s responsibility to inquire about a person’s nationality if there is any reason to believe that he or she is not a U.S. citizen. In all cases where an arrestee claims to be a non-U.S. citizen, arresting officers should follow the appropriate consular notification procedures, even if the arrestee’s claim cannot be verified by documentation.”

The enactment of sanctuary status policies for illegals in various U.S. jurisdictions has caused rifts with other countries. For instance, the Mexican government has complained to the United States for years over its persistent failure to remedy the denials of prompt consular notification and access to arrested Mexican nationals under the VCCR. In a letter sent by then-Mexican Ambassador Eduardo Medina Mora to House Judiciary Committee Chairman Bob Goodlatte in 2014, Medina Mora said, “I respectfully submit that the United States would not countenance the same treatment of U.S. citizens by another signatory to the VCCR.”

What does this mean to American citizens? If local law enforcement continues to embrace sanctuary policies that violate the VCCR, it could cause a game of brinksmanship with other nations who would also refuse to honor the treaty as retaliation. The result would be that a U.S. citizen arrested in another country would have no way to contact the local American embassy for assistance and could instead languish in a foreign jail for an extended period.

Federal, state, and local law enforcement agencies are required by their agencies to comply with the VCCR, and with some countries, notification to the foreign consular officers of the arrest or detention of their citizens is mandatory. However, to comply with this requirement, law enforcement officers must first be able to make inquiries as to an arrestee or detainee’s country of citizenship or immigration status. This is essential because compliance with the VCCR demonstrates that the United States honors and respects these treaties, ensuring other countries will reciprocate and extend the same rights to United States’ diplomats and citizens who are arrested abroad.

The misguided policies of sanctuary cities and states compromise the safety and interests of all Americans at home and abroad. As unintended, disastrous consequences of these policies continue to be revealed, the majority of U.S. citizens outraged by these nonsensical policies need to have their voices heard.

John Rooney is director of investigations at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: John Rooney, How U.S. sanctuary policies could get you stuck in a foreign jail, Daily Caller, August 5, 2018.

Get Connected

Sign up for our email newsletter to stay up to date with immigration reform in the United States.

Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.

If you are interested in joining the network, visit the AUSA website.