RUTHFULLY YOURS

Last week’s shooting death on San Francisco’s Pier 14 should finally oblige officials from so-called sanctuary cities to seriously reflect on their reckless and irresponsible alien-harboring policies. It’s hoped they now appreciate that, yes, providing “sanctuary” from federal immigration enforcement can have negative consequences. With major media now finally reporting on killings committed by illegal aliens, the pressure may be mounting on enablers like San Francisco mayor Edwin Lee to put an end to the immigration anarchy in their cities.

The term “sanctuary cities” generally refers to places that, through an act, ordinance, or policy, limit their police forces in assisting federal immigration authorities seeking to apprehend and remove illegal aliens. Even though these policies are illegal under federal law, hundreds of municipalities have adopted such measures.

Sanctuary policies thwart two important immigration programs: Secure Communities and so-called 287(g) agreements. Secure Communities became widely adopted in 2004 after the 9/11 Commission recommended the program as a way to facilitate greater cooperation between DHS, the FBI, and local police in the area of illegal immigration — almost half of the 19 hijackers were, of course, illegal aliens. The program provides that whenever police charge and fingerprint a suspect, those prints are sent to the FBI, which forwards them to DHS. If DHS finds the suspect to be an illegal alien, they send police a “detainer” form requiring them to hold the person until DHS can take him into custody. State and local authorities cannot opt out of this program.

The 287(g) program, on the other hand, authorizes state and local police to be certified and assist federal immigration agents in identifying illegal aliens.

“Sanctuary cities” like San Francisco obstruct both programs by refusing to turn illegal aliens over to DHS pursuant to a detainer request and by not allowing their officers to get involved in the 287(g) program.

These cities are likely in violation of federal law. Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act as well as section 434 of the Welfare Reform Act of 1996 prohibit state and local governments from impeding the federal government’s request for information about a person’s immigration status, and local officials may not be barred from maintaining such information.

A large portion of deportations come from detainers and a key regulation which DHS has relied on to ensure state and local governments honor and comply with them is 8 C.F.R. s 287.7(d). It states that “upon a determination by the Department to issue a detainer for an alien not otherwise detained by [local police], such agency shall maintain custody of the alien for a period [generally] not to exceed 48 hours . . . in order to permit assumption of custody by the Department.”

Open-borders legal advocates have long argued that the “shall” in this regulation actually means “may.” In Moreno v. Napolitano (2013), DHS also started to take up this interpretation. And in his memo blitz last November, President Obama purported to make this view official by severely restricting detainers under his new unilateral Priorities Enforcement Program.

Open-borders pushers in the sanctuary movement have tried to delegitimize both programs. With 287(g) agreements, they routinely employ what’s become a magic phrase under the Obama administration: “limited resources” — i.e., state and local authorities lack the resources to train their police to carry out federal immigration duties. As with DAPA, the argument is baseless. As a federal program, 287(g) depends on federal appropriations. During the Bush administration, the federal government was actively appropriating monies for training and detainers. And as enforcement advocates argue, considering the billions of dollars that cities and states spend just on education for illegal alien children alone (Arizona spends $1.5 billion per year), they can’t afford not to cooperate with the federal government.

Open-border advocates also say that such policies keep illegal aliens from dealing with police, but whenever this argument is made, empirical evidence is never forthcoming. Of course, we wouldn’t be fretting over the non-cooperation of illegal aliens if deterrence policies like Secure Communities or E-Verify were rigorously enforced in the first place.

Although liberals have never been supporters of states’ rights, they argue with a straight face that the federal government should not and cannot compel state governments to enforce federal immigration law.

Finally, open-borders advocates argue that the programs infringe on states’ Tenth Amendment rights. Although liberals have never been supporters of states’ rights, they argue with a straight face that the federal government should not and cannot compel state governments to enforce federal immigration law. But elsewhere they argue that the federal government can prohibit state governments from enforcing immigration law. The number of open-borders groups who filed Supreme Court briefs against Arizona’s SB1070 law (which the  Immigration Reform Law Institute advised on) shows how they truly feel about states’ rights.

Left-wing criticism of Secure Communities is of course just a rhetorical setting, and one can go back to the sanctuary movement of the 1980s to uncover the true, political motivation of such initiatives. The original movement was devoted to smuggling in illegal aliens from war-torn Central America after President Reagan’s Immigration and Naturalization Service sought to tighten asylum applications from the region for fear of letting in subversives. It’s been estimated that Castro’s mass emigration initiative under the Mariel boatlift placed thousands of Cuban spies and criminals onto our shores. Central players in this effort were the Catholic Church as well as the Mexican American Legal Defense and Educational Fund and the National Lawyers Guild, among others.

Bringing in “refugees” from these areas was both political and serious. Tomas Borge, founder of the Sandinistas in Nicaragua, stated at the time that, after taking Mexico, “we’re going to take 5 to 10 million Mexicans and they’re going to have one thing on their mind — cross the border, go into Dallas, go into Houston, go into New Mexico, go into San Diego, and each one has imbedded in his mind the idea of killing 10 Americans.”

With the collapse in cooperation among certain city officials, concerned state governments still have options. As Kansas secretary of state Kris Kobach advises, states can pass their own ordinances and embed in statutory law their state troopers’ inherent authority to arrest, temporarily detain, and transfer removable aliens into the custody of the U.S. Immigration and Customs Enforcement (ICE). Such statutes were written into law in Missouri, first in 2007 by executive order, then in 2008 by the state legislature. Also in 2008, Utah enacted a law requiring police to determine the immigration status of any alien arrested for a felony or a DUI. Both states direct law enforcement to rely on immigration-status verifications provided by the law-enforcement support center operated by ICE.

States can also enact statutes that “mirror” federal immigration law as well as provide disincentives, such as withholding of state funds, to cities that try to create such conditions. Missouri also did this in 2008.

As enforcement advocates know too well, it takes a particularly egregious tragedy, such as a young person’s murder, to get the mainstream media talking about the negative consequences of illegal immigration. IRLI’s partner, The Remembrance Project, documents the thousands of killings that have been committed by illegal aliens in “sanctuary cities” and elsewhere, but reportage is almost always local. It’s especially upsetting that protecting against further tragedies is so easy: simply stop obstructing our immigration laws. Until that happens, a place like San Francisco will continue to be a “safe haven city.”

— Ian Smith is an attorney in Washington, D.C. He is on the staff of the Immigration Reform Law Institute.