On April 21, Alan R. Hanson, the acting assistant attorney general, U.S. Department of Justice (USDOJ), sent letters to eight “sanctuary cities,” including Sacramento, Chicago, New Orleans, Philadelphia, Las Vegas, Miami, Milwaukee and New York City, warning local governments of these cities that they were required to cooperate with federal immigration authorities seeking “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”1 The letter advised these cities that failure to comply and provide this information could result in the withholding, suspension or termination of federal funds these cities receive.
The April 21 letters issued by the USDOJ follow executive orders issued by President Trump, who has vowed to overhaul the U.S. immigration system and deport those individuals who are in the United States without authorization and have committed serious crimes. In order to carry out his promise, President Trump and Attorney General Jeff Sessions have demanded that our local law-enforcement officers assist federal immigration officials in identifying and detaining foreign nationals who are in the U.S. without documentation so that these individuals can be placed in removal proceedings. While President Trump has stated that his administration would focus only on deporting undocumented foreign nationals who commit serious crimes, there have been several cases of undocumented, non-criminal foreign nationals being deported. This has resulted in significant hardship to many U.S. citizen spouses and children whose family members were removed from the country, and has caused a state of fear and confusion throughout immigrant communities.
We agree that the U.S. immigration system is in dire need of reform. However, there are significant conflicting interests that also need to be addressed. While some believe that the president’s executive orders and efforts to reform the U.S. immigration system may be well intended, the administration’s actions are also leading to a deterioration of community morale and are, overall, having a chilling effect on the nation’s justice system.
Under the U.S. Constitution and established case law, the federal government enjoys wide authority and discretion in creating laws that regulate which foreign nationals may enter the United States and which may be deported, while local governments enjoy discretion in determining what role, if any, their police forces play in enforcement of these federal laws.2 Even though the federal government enjoys this wide discretion and authority, it cannot “commandeer” local governments to serve federal immigration authorities.3 A report written by Michael John Garcia and Kate M. Manuel for the Congressional Research Office states that “Congress may also permissibly condition the receipt of federal funds on state compliance with federal policy preferences. Conditioning the receipt of federal funding is generally permissible so long as the conditions ‘bear some relationship to the purpose of the federal spending’ and the conditioned funds are not so substantial that the inducement to comply with federal preferences is ‘so coercive as to pass the point at which ‘pressure turns into compulsion’.”4
The Department of Justice has threatened to revoke billions of dollars in federal grants that are used by these sanctuary cities’ local governments to pay for police training, police protective gear and body cameras, forensics lab testing, programs for crime victims, drug and alcohol treatment programs, and programs for missing and exploited children, to name a few.5 According to a CNN Report, New York City could lose up to $53 million in grants that the city uses to pay for crime lab equipment, violent crime task forces, police protective gear, crime prevention programs and domestic violence programs.6 These monies are used for essential and critical needs—namely to protect local law enforcement officers, to prevent crime where possible and to provide crime victims with the assistance they need to survive. The threat to remove this substantial funding from local governments clearly moves beyond the realm of pressure into compulsion for sanctuary cities to comply with federal immigration law mandates.
Commandeering local law enforcement into enforcing federal immigration laws thus has a chilling effect on the criminal justice system. Foreign nationals who are in the country without documentation fear communicating with police if they believe that disclosure of their immigration status will result in their arrest and removal from the United States. Local police rely on all community members, be they citizens or non-citizens, lawfully or unlawfully admitted, for cooperation on criminal investigations, reporting of crimes and assisting in locating witnesses and offenders. Without this mutually beneficial relationship built on trust, crime prevention, investigation and criminal prosecution efforts would clearly suffer.
Moreover, federal immigration enforcement at the local level in “sensitive areas” have also caused a deterioration in the justice system itself. There have been reports of U.S Immigration & Customs (ICE) officers arresting witnesses and victims of violent crimes who appear for court hearings. This has resulted in courts writing to the U.S. Department of Homeland Security, which oversees immigration enforcement, to appeal for assistance. On April 19, 2017, Stuart Rabner, the chief justice of the Supreme Court of the State of New Jersey, wrote a letter to Secretary of Homeland Security John F. Kelly, which stated, “In recent weeks, agents from the Immigration and Customs Enforcement Agency arrested two individuals who showed up for court appearances in state court…I write to urge that arrests of this type not take place in courthouses… A true system of justice must have the public’s confidence. When individuals fear that they will be arrested for a civil immigration violence…serious consequences are likely to follow. Witnesses to violent crimes may decide to stay away from court and remain silent. Victims of domestic violence and other offenses may choose not to testify against their attackers. Children and families in need of court assistance may likewise avoid the courthouse. And defendants in state criminal matters may simply not appear.”7
As a law firm dedicated to practicing U.S. immigration law for more than a half century, we understand the dire need to reform our nation’s immigration system. However, these efforts need to balance our national enforcement interests with our local interests and take into account that immigrants are woven into every fabric of American society, and the regulation of immigrants in one area can have enormous impacts on life in other areas of our cities.
1 https://www.documentcloud.org/documents/3675286-DOJ-Sanctuary-City-Letters.html
2 See “State and Local ‘Sanctuary’ Policies Limiting Participation in Immigration Enforcement” written by Michael John Garcia and Kate M. Manuel for the Congressional Research Service for an excellent summary of the constitutional principles and case law governing immigration enforcement in the United States. (https://fas.org/sgp/crs/homesec/R43457.pdf)
3 Id.
4 Id. citing New York vs. United States, 505 US 144 (1992) at 167 and National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2604 (2012).
5 http://www.cnn.com/2017/04/21/politics/sanctuary-cities-federal-funding/
6 Id.
By Michael J. Wildes
Michael J. Wildes, is the managing partner of Wildes & Weinberg, P.C. Mr. Wildes is a former federal prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Mr. Wildes has testified on Capitol Hill in connection with anti-terrorism legislation. He is an adjunct professor at the Benjamin N. Cardozo School of Law in New York and teaches business immigration law. From 2004 through 2010 Mr. Wildes was also the mayor of Englewood, New Jersey—where he resides. Wildes & Weinberg, P.C., has offices in New York, New Jersey and Florida and Los Angeles by appointment only. If you would like to contact Michael Wildes, please email him at [email protected] and visit the firm’s website at www.wildeslaw.com.
