Sanctuary Policies: A Template for Tribulation and Tragedy

Views From The Bench

July 28, 2015

Sanctuary communities have been a flashpoint for legislation on the state and national level. The recent death of Kathryn Steinle at the hands of a multiple convicted illegal criminal alien who had been deported on five previous occasions and released by San Francisco law enforcement authorities despite an immigration detainer has sent shockwaves across the country. As our nation mourns her tragic death, concerned citizens express their outrage, demand accountability, challenge current immigration enforcement policies, and seek an end to the lawlessness of local communities who shield criminal aliens from enforcement of our immigration laws.

The term “sanctuary city” is not defined under federal law. Rather, it is a phrase used to refer to those localities which, for ideological or political reasons, act to shelter illegal aliens from the enforcement of civil and criminal immigration laws. The concept of political sanctuary is completely misplaced when used in the context of protecting illegal aliens from authorities and the jurisdiction of our federal government and its law enforcement departments.

In the Steinle murder case, San Francisco authorities released Juan Francisco Lopez-Sanchez to the streets after dropping pending drug charges even though federal officials had asked the city to advise them in advance of the release. The result: the tragic death of this innocent young woman for no apparent reason by an illegal alien with seven prior felony convictions who had previously been deported five times and repeatedly illegally reentered the United States. This illegal alien’s criminal and immigration history not only exemplifies the porosity of our borders, but also the lack of adequate sanctions to effectively deter repeated and continuing violations of our criminal and immigration laws.

The public is now demanding accountability for the resulting tragedies of our lax immigration enforcement policies and there is plenty of finger pointing and blame to go around. We maintain that the criminal aliens themselves, the local sanctuary communities and their law enforcement agencies, and the Department of Homeland Security (DHS) and this administration’s immigration enforcement policies all share culpability for Ms. Steinle’s death and the suffering of thousands of other victims of criminal alien crimes. These crimes would never have happened if these criminal aliens who have no legal basis for being here were removed as required by law.

Criminal aliens themselves bear primary responsibility for the crimes they commit. Illegal aliens have no vested rights to enter and remain here illegally. They do not earn the right to remain here by their mere illegal presence. They are well aware of their illegal status and they are also aware of the reluctance of our nation to remove them. The political discourse promoting amnesty, paths to citizenship, and governmental efforts to subsidize their illegal presence only adds to their incentives to enter illegally, remain illegally, and even return illegally if removed. The murderer of Ms. Steinle candidly admitted that he was in San Francisco because it was a sanctuary city and he knew he would be protected from removal if he resided there. What further evidence is needed to convince the leaders and law enforcement officers of the 276 sanctuary cities and counties in forty three states and the District of Columbia that sanctuary policies serve as a magnet that draws criminal aliens and criminal activity to their communities?

There is little justification, legal or moral, for a local community to take it upon itself to violate federal law by refusing to honor and comply with an immigration detainer issued by DHS. A detainer is the primary tool used by DHS to take custody of criminal aliens for placement in removal proceedings. It notifies a law enforcement agency or detention facility that DHS intends to assume custody of an alien based upon information that the alien is removable from the United States. DHS officers are authorized by law to arrest and detain illegal aliens and there is no requirement that an arrest warrant be obtained prior to taking that action. The local law enforcement agency is required to notify DHS when an illegal alien is about to be released and allow 48 hours for DHS to take custody of the alien.

A recent statistical analysis by the Center for Immigration Studies states that from January 1, 2014 to August 31, 2014, local law enforcement agencies refused to comply with 8, 811 detainers and, as of June, 2015, the number of detainers rejected by local sanctuary jurisdictions had grown to over 17,000. These criminal aliens had felony and serious misdemeanor convictions and many went on to commit additional crimes after they had been released.

The city of San Francisco as well as all of the other sanctuary jurisdictions bear their share of the responsibility for the tremendous costs and consequences of their policies. Although many of the proponents of sanctuary policies are well intentioned, they fail to consider the heavy toll imposed on the victims of criminal aliens in terms of human suffering. Sanctuary jurisdiction policies violate federal law and compliance with federal law is mandatory.

Local and state officials in sanctuary communities can take no comfort that their sanctuary policies have been enacted by their governments as federal laws and regulations take precedence over state and local laws and regulations. The Supremacy Clause of the Constitution and its Preemption Doctrine forbid state encroachment in areas of federal exclusivity. The federal government is given inherent sovereign powers in matters of immigration. State and local communities have no jurisdiction over immigration enforcement and have no basis for asserting such jurisdiction or obstructing the federal government in enforcement of its laws.

Leaders in sanctuary cities make feeble attempts to justify their sanctuary policies by asserting that such policies are essential for maintaining community relationships with local law enforcement officials. They argue that there must be a balancing of public safety with a respect for civil rights to maintain trust between law enforcement organizations and immigrant communities to continue to fight crime. They allege that members of the immigrant communities will not report crimes to police if that action may result in removal of members of their community by immigration officials. This argument is so specious it barely deserves comment. There is no “civil right” for an illegal alien to be shielded from immigration enforcement. The apparent reasoning of sanctuary proponents is that immigrant immunity from removal is demanded in return for community cooperation in reporting criminal activity. It follows that local law enforcement officers obstruct federal immigration enforcement and assist in harboring illegal aliens so that they can remain in those communities with impunity to continue in their criminal endeavors. Wouldn’t it be more prudent to eliminate criminal elements from these communities through immigration removal proceedings? Community relations are important, but they do not take precedence over crime prevention and public safety.

Lax immigration enforcement policies at both the federal and local levels contributed to the death of Kathryn Stienle, as well as, the suffering of thousands of other victims of illegal alien crime. Statistics relating to the crimes of illegal aliens are significant. At a hearing before the House Judiciary Committee on July 14, 2015, Chairman Bob Goodlatte stated that the illegal alien who shot Ms. Steinle was only one of tens of thousands of criminal aliens released from custody and put back on the streets. He asserted that there are almost 180,000 convicted criminal aliens on the streets awaiting removal proceedings and that there are another almost 170,000 who have already been ordered removed currently living freely in American communities. DHS released 30,000 criminal aliens last year alone and sanctuary communities released an additional 8,000 criminal aliens.

Tens of thousands of Americans have been killed by illegal aliens according to The Remembrance Project, a non-profit organization founded in 2009 to honor and remember Americans who have been killed by illegal aliens. Although Ms. Steinle’s tragic murder has focused media attention on the issue, there are thousands of families who have suffered the same grief and loss. Ms. Steinle’s death is the most recent tragedy that serves to educate the public and raise awareness of the tragedies resulting from sanctuary policies and the failure to enforce our immigration laws.

San Francisco has experienced horrific crimes resulting from implementation of its sanctuary polices, yet they have persisted in maintaining them. Edwin Ramos, an illegal alien from El Salvador and a member of the Mara Salvatrucha (MS-13) gang was convicted in 2012 of the June 22, 2008 murder of Anthony Bologna and his two sons. It was alleged that Edwin Ramos mistook one of Mr. Bologna’s sons as a rival gang member. The victims’ family blamed San Francisco sanctuary policies for the crime as those policies “barred city officials from cooperating with federal crackdowns on illegal immigrants” and the city had not been allowed to refer juvenile immigrant felons to federal authorities for deportation.

No discussion of sanctuary polices would be complete without examining the role played by DHS and current administration immigration enforcement policies. DHS has abdicated its statutory immigration enforcement responsibilities under the subterfuges of “prosecutorial discretion” and “prioritization.” Criminal alien felons fall within DHS’s top removal priorities, yet still appear to receive removal protection under local sanctuary policies. DHS has failed to act to sanction sanctuary jurisdictions for noncompliance with detainer requests or enforce other federal laws which prohibit the very policies that obstruct DHS enforcement activities. At the House Judiciary hearing on July 14, 2015, Representative Trey Gowdy asked DHS Secretary Jeh Johnson to reconcile how the administration can “empower a city like San Francisco to ignore federal law” but “won’t empower state and local law enforcement to actually enforce immigration laws.” DHS has truly abdicated its statutory enforcement responsibilities and exhibited a concerted and collusive effort with sanctuary communities and immigrant advocacy groups to shield illegal aliens from removal proceedings and removal. DHS must also bear its share of responsibility for the tragic consequences of allowing sanctuary policies to proliferate. Through Presidential Executive Orders and DHS policy memoranda, front line immigration enforcement personnel have had their enforcement authority undermined and their efforts to remove criminal aliens thwarted.

The public is demanding to know why DHS detainers have been ignored with impunity. There is a solid legal basis for DHS detainer authority. The primary federal restrictions on state and local sanctuary policies are Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, P.L. 104-1938) and Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1196 (IIRIRA, P.L. 104-208). PRWORA Section 434 proscribes any prohibition or restriction placed on state or local governments to send or receive information regarding immigration status of an individual to or from federal immigration authorities. IIRIRA Section 642 is broader in scope. It bars any prohibition on a federal, state, or local governmental entity or official’s ability to send or receive information regarding immigration or citizenship status to or from federal immigration authorities. The statute also provides that no person or agency may prohibit a federal, state, or local government entity from (1) sending information regarding immigration status to, or requesting information from, federal immigration authorities; (2) maintaining information regarding immigration status; or (3) exchanging such information with any other federal, state, or local governmental entity.

Certain DHS spokespersons have characterized detainers as voluntary. Detainers have been issued by other federal agencies such as the Marshal’s Service. There have been no compliance problems with these types of detainers, nor any claims that compliance is voluntary. At the July 14, 2015 House Judiciary Committee hearing, DHS Secretary Jeh Johnson evaded the question when asked if sanctuary cities are violating federal law. He answered that he does not have a legal judgment on that question. There is something terribly amiss when the Secretary of Homeland Security, charged with the jurisdiction to implement and administer the detainer program, is confused as to the scope of his enforcement authority.

A comprehensive commentary by the Center for Immigration Studies entitled “Disabling Detainers” states that between the years 2011 through 2014, the issuance of detainers decreased by fifty percent, from 316,170 detainers issued to 157,447 detainers issued. This resulted in part from prior DHS policies which strictly limited the circumstances under which detainers would be issued by DHS.

The culmination of efforts by DHS to undercut the effective use of its detainer program through self-imposed limitations came on November 2014 with the issuance of a DHS Policy Memorandum entitled “Secure Communities.” This memorandum should more appropriately be called “Insecure Communities” as it clearly disregards the requirements of the Immigration and Naturalization Act. This memorandum strictly limits enforcement objectives and eliminates the benefits of programs that enhance cooperation between DHS and local and state law enforcement agencies in immigration enforcement. This memorandum eliminated the Secure Communities Program. The Secure Communities Program facilitated the sharing of fingerprints of locally arrested persons with DHS. This program relied on a partnership among federal, state and local law enforcement agencies to identify serious criminal illegal aliens and expedite their removal. The Secure Communities Program was replaced by the President’s Priority Enforcement Program (PEP) which dictates that, unless an alien poses a demonstrable threat to national security, enforcement actions through the new program will only be taken against aliens who have been convicted of specifically enumerated crimes.

Important for the sanctuary discussion is that the Priority Enforcement Program replaces requests for detention (detainers) with voluntary requests for notification that an alien is pending release from the local facility. DHS intends to issue detainers only under special unspecified circumstances and only after specifically designating that the illegal alien is the subject of a removal order or that there is other sufficient probable cause to find that the alien is removable. The implementation of this program is a basic capitulation to the demands of sanctuary proponents and immigrant advocate groups to protect criminal illegal aliens from removal proceedings and removal. Since all aspects of the program are perceived by DHS to be voluntary, the program eliminates any potential sanctions that could otherwise be imposed against sanctuary communities.

DHS cannot escape responsibility for the case law holding that its detainers are “voluntary” and can be ignored. Policy memorandum issued by DHS’s own executives stating that detainers are voluntary, coupled with the failure to defend local law enforcement’s compliance with DHS detainers have made the situation significantly worse. Circuit Courts of Appeal are including this policy memorandum in their analysis of why local law enforcement is culpable in detaining individuals.

Congress has quickly responded with public hearings to the outcry following Kathryn Steinle’s death and ameliorative legislation is expected soon. Proposals include the imposition of mandatory minimum prison sentences for previously deported illegal aliens who return to our country, significant alterations to the current “catch and release” policies, and denial of federal funds to sanctuary communities that refuse to comply with our federal immigration laws. There are also many excellent proposed amendments in the Davis-Oliver Act introduced by Representative Trey Gowdy and Senator Jeff Sessions which would address sanctuary concerns and strengthen immigration enforcement. A recent Rasmussen Reports Poll of likely voters found that 58% believe that the federal government should cut funds to sanctuary cities and 62% believe the Justice Department should take legal action against sanctuary cities. Congress must act to eliminate sanctuary jurisdictions, secure our borders and reinvigorate interior enforcement efforts. We must enact the type of legislation that enhances our enforcement efforts, including the detention of illegal aliens by state and local law enforcement authorities at the request of DHS.

Our immigration enforcement system is not merely broken, it is near collapse. This nation and its leaders must demonstrate the political will to enforce our immigration laws as written. The time is now to insure that legislation enacted by Congress for the protection of all of our citizens and residents is recognized and that state and local officials comply with those requirements. Our safety and ability to pursue our rights, guaranteed by the Constitution are dependent upon public officials acting under the “rule of law,” and not reacting to political ideology or expediency.

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